                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 14-2815
                        ___________________________

                             Delyorce Raye Rebouche

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

     Deere & Company, also known as John Deere Company; Rodger Burris,
                  Individual; Bruce Boardman, Individual

                      lllllllllllllllllllll Defendants - Appellees
                                       ____________

                     Appeal from United States District Court
                    for the Northern District of Iowa, Waterloo
                                  ____________

                             Submitted: March 24, 2015
                                Filed: May 26, 2015
                                  ____________

Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.
                              ____________

KELLY, Circuit Judge.

      Delyorce Raye Rebouche brought claims pursuant to Title VII of the Civil
Rights Act, 42 U.S.C. § 2000e-2(a), and the Iowa Civil Rights Act (ICRA), Iowa
Code § 216.6(1)(a), alleging that her employer, Deere & Company a/k/a John Deere
Company (Deere), and individuals Rodger Burris and Bruce Boardman (collectively,
Defendants) discriminated against her on the basis of sex. She also alleged that the
defendants retaliated against her for opposing an unlawful employment practice under
42 U.S.C. § 2000e-3(a) and Iowa Code § 216.11(2). The district court1 granted
summary judgment in favor of the defendants on all claims. Having jurisdiction
pursuant to 28 U.S.C. § 1291, we affirm.

                                   I. Background

       Rebouche began working for Deere on October 31, 1977, as a “technician” at
the pay level of Grade 4. Three years later she was elevated to Grade 5, still at the
level of technician. In 1981, she was promoted to “senior technician” at Grade 6. In
1988, she was elevated to Grade 7 and began working in failure analysis as a
chemical/metallurgical engineer. According to Rebouche, she was twice passed over
for the position of supervisor of the lab in which she worked, instead being asked to
train the new male lab supervisors. During periods when the lab was between
supervisors, she operated as the “unofficial supervisor of lab function” but was given
no increase in pay or grade level. She reports that when her manager, Burris, formally
put Robert Gottschalk in charge of running the lab, Gottschalk told Rebouche that he
“didn’t think it was right because [she] was most qualified for that position.”

      In 1998, Rebouche and three other women filed a complaint alleging gender
discrimination with Deere human resources. Rebouche listed a number of instances
in which Burris had treated women unfairly as compared to their male counterparts.
Deere’s human resources (HR) department investigated the complaints, and Burris
was sent to a two-week sensitivity training. Burris admits that he was aware that a
complaint was made against him regarding gender-based pay disparity but claims he
was never told who had lodged the complaint. Deere’s HR department ultimately
concluded that the claims did not warrant further action.


      1
        The Honorable Jon Stuart Scoles, Chief Magistrate Judge for the Northern
District of Iowa, presiding by consent, 28 U.S.C. § 636(c).

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       Rebouche requested to be elevated to the level of Grade 8 sometime in 1998 or
1999, but her request was denied. She was told that workers must be in a supervisory
position to receive a Grade 8 designation. She reports that a male colleague received
a Grade 8 designation despite not having any supervisees. In 2001, Rebouche’s job
in failure analysis was eliminated as a result of downsizing, and she transferred to
being a rubber specialist in the materials engineering group. Her salary, job grade,
and position title remained the same. She was expected to complete some failure
analysis duties on an overtime basis and was paid at the overtime rate for her work.

        In 2002, Deere underwent a Global Jobs Evaluation (GJE) process, conducted
by global consulting firm Hay Group. Deere hired Hay Group to implement their
widely-used method of “mapping” currently existing jobs onto a smaller number of
job titles. By the end of the GJE implementation in May 2004, 20,000 positions had
been mapped onto 2,100 job titles. About 70% of the jobs received the same grade
they had before the evaluation, 10% were in lower grades, and 20% were in higher
grades. Rebouche remained the same at Grade 7. Rebouche alleges that none of the
women in her department were given grade increases after GJE’s rollout, though
several men were elevated in pay grade. On appeal she names only Joe Wilson as an
example and argues she and Wilson had the “same responsibilities.” Pre-GJE, Joe
Wilson was a Senior Engineer at Grade 8 and through the GJE process was promoted
to Staff Engineer Product at Grade 9.

      Burris retired in 2004 and Boardman became Rebouche’s supervisor. On
October 27, 2004, Rebouche filed a complaint with the Equal Employment
Opportunity Commission (EEOC), alleging sex and age discrimination. On
November 5, 2004, the EEOC cross-filed Rebouche’s claims with the Iowa Civil
Rights Commission (ICRC).

     On November 18, 2004, Boardman gave Rebouche a performance rating of
“Exceeds Expectations.” A year later, Rebouche received a “Fully Meets

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Expectations” rating. Rebouche never approached Boardman with her concerns that
these reviews were not as high as she thought she deserved. She complains that
Boardman was “not very nice” to her during this period. In 2006, Jay Olson became
Rebouche’s supervisor. In 2007, she received a job title change and a promotion to
Grade 8. Three years later, she was promoted to a staff engineer position, assumed
team-leader responsibilities, and subsequently received pay at Grade 9.

       On August 31, 2012, Rebouche filed this lawsuit alleging sex discrimination
and retaliation under Title VII of the Civil Rights Act and the ICRA. The district
court found that (1) Rebouche’s claims of discrimination occurring prior to 2004 were
time-barred, (2) she had failed to establish she was treated differently than similarly
situated male employees during the GJE process in 2004, and (3) she had not shown
she had suffered any adverse employment action as a result of her complaint to the
EEOC. The court granted summary judgment in favor of Defendants on all claims.
Rebouche appeals, contesting each of the court’s conclusions.

                                    II. Discussion

       We review the district court’s grant of summary judgment de novo, viewing
the facts in the light most favorable to Rebouche, the non-moving party. Butler v.
Crittenden Cnty., Ark., 708 F.3d 1044, 1048 (8th Cir. 2013).

      1. Time-barred

        Title VII requires a person claiming discrimination to file a charge “within one
hundred and eighty days after the alleged unlawful employment practice occurred.”
42 U.S.C. § 2000e-5(e)(1). Iowa law contains a similar requirement that claims be
filed with the ICRC within three-hundred days. Iowa Code § 216.15(13). In her
initial brief to this court, Rebouche argued that her “claims arising before 2004 [when
she brought her complaint to the EEOC] were not barred” because they constituted a

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“continuing violation,” which tolled the applicable statutes of limitation while the
discriminatory actions continued to be performed. However, the Supreme Court
squarely rejected this “continuing violation” theory in Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 113 (2002), holding that “[e]ach discrete discriminatory act
starts a new clock for filing charges alleging that act. The charge, therefore, must be
filed within the 180—or 300—day time period after the discrete discriminatory act
occurred.” See also Richter v. Advance Auto Parts, Inc., 686 F.3d 847, 851 (8th Cir.
2012) (“[Morgan] abrogates the continuing violation doctrine as previously applied
to claims of discriminatory or retaliatory actions by employers, and replaces it with
the teaching that each discrete incident of such treatment constitutes its own ‘unlawful
employment practice’ for which administrative remedies must be exhausted.”
(quotation omitted)). The Supreme Court of Iowa has held this to be true for claims
filed under the ICRA as well. Dindinger v. Allsteel, Inc., 860 N.W.2d 557, 571–72
(Iowa 2015) (“Discrete discriminatory acts are ‘separately actionable,’ not a basis for
invoking the continuing violation theory.”).

       The Court in Morgan acknowledged an exception to its bar on the consideration
of discriminatory actions that occur outside the statutory period, but solely for hostile
work environment claims. Morgan, 536 U.S. at 117. Rebouche makes no such claim
here, and thus she can not recover for discriminatory activity that occurred before she
approached the EEOC in 2004. We therefore may not consider the alleged
discriminatory acts Rebouche encountered in 1998 and 2001, regardless of their merit,
as they occurred years before she filed a formal complaint.

      2. 2004 GJE mapping

      Rebouche’s claim of discrimination that allegedly occurred in 2004 as a result
of Deere’s company-wide GJE implementation is not time-barred because she filed
a sex discrimination claim with the EEOC in 2004. The district court, finding that
Rebouche had not provided any direct evidence of discrimination, analyzed her claim


                                          -5-
regarding the 2004 action under the “burden-shifting framework” outlined in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To establish a prima facie
case of sex discrimination, Rebouche must show that she: “(1) is a member of a
protected class; (2) was meeting her employer’s legitimate job expectations; (3)
suffered an adverse employment action; and (4) was treated differently than similarly
situated employees who were not members of her protected class.” Jackman v. Fifth
Judicial Dist. Dep’t of Corr. Servs., 728 F.3d 800, 804 (8th Cir. 2013).

       In ruling on Deere’s motion for summary judgment, the district court
determined that Rebouche satisfied the first three elements of the McDonnell Douglas
test because (1) she is a woman, (2) who was meeting her employer’s expectations,
and (3) was not promoted during the 2004 GJE implementation. A failure to promote
can be an example of an “adverse employment action.” AuBuchon v. Geithner, 743
F.3d 638, 643 (8th Cir. 2014). The court went on to rule, however, that Rebouche had
failed to satisfy the fourth factor because she had not identified any male colleagues
who had been similarly situated to her and promoted in 2004.

       On appeal, the only male employee that Rebouche says was similarly situated
to her is Wilson. Before the GJE process, Wilson was a senior engineer at Grade 8
and Rebouche was a chemical/metallurgical engineer at Grade 7. After GJE, Wilson
was promoted to Staff Engineer Product at Grade 9 while Rebouche remained at
Grade 7. Rebouche claims that she and Wilson were similarly situated because they
had the “same type of responsibilities” before GJE. But Rebouche does not explain
further just what those responsibilities were or provide any evidence of the tasks they
allegedly each performed. Nor does Rebouche present any evidence regarding
Wilson’s work history, education, or other qualifications to compare to her own.
Without any additional distinguishing evidence, we are left with only their job titles
and pay grades in determining if Rebouche and Wilson were similarly situated.




                                         -6-
       While “[t]he burden of establishing a prima facie case of disparate treatment is
not onerous,” Torgerson v. City of Rochester, 643 F.3d 1031, 1047 (8th Cir. 2011) (en
banc), the plaintiff must be able to produce some evidence of similarity between her
and her comparator. Rebouche has failed to produce any such evidence and has
therefore failed to show that Wilson, who had a different job title and pay grade, was
similarly situated to her. In addition, several men who were similarly situated to
Rebouche, in that they were at Grade 7 before GJE, remained at Grade 7 after GJE
like Rebouche. We therefore agree with the district court that Rebouche has failed to
establish a prima facie case of sex discrimination. To the extent that Rebouche argues
she should have had the same job title and pay grade as Wilson pre-GJE, because she
believes they had the same responsibilities, this disparity is “an effect of a past
discriminatory act” that falls outside the limitations period. Dindinger, 860 N.W.2d
at 572.

      3. Retaliation

       Title VII makes it unlawful for an employer to discriminate against an
employee because she has “made a charge, testified, assisted, or participated . . . in an
investigation, proceeding, or hearing” under Title VII. 42 U.S.C. § 2000e-3(a). The
ICRA similarly makes retaliatory action unlawful. Iowa Code § 216.11(2).

       Rebouche asserts that Deere retaliated against her for filing the 2004 sex
discrimination claim with the EEOC by giving her poor performance reviews and
delaying her promotion to Grade 8. The district court condensed these claims into one
because a negative performance review on its own does not constitute an “adverse
employment action” as required under the statute unless the review was relied on in
making promotion decisions about the employee. Turner v. Gonzales, 421 F.3d 688,
696 (8th Cir. 2005). Thus, the only question is whether Rebouche’s promotion was
delayed in retaliation for her EEOC complaint. The “employee has the initial burden
of establishing a prima facie case of retaliation by showing that (1) [s]he engaged in

                                          -7-
protected conduct, (2) [s]he suffered a materially adverse employment action, and (3)
the adverse action was causally linked to the protected conduct.” Pye v. Nu Aire, Inc.,
641 F.3d 1011, 1021 (8th Cir. 2011). The “ultimate question” is “whether the
employer’s adverse action against the employee was motivated by retaliatory intent.”
Tyler v. Univ. of Ark. Bd. of Trustees, 628 F.3d 980, 985 (8th Cir. 2011) (quotation
omitted).

       Rebouche was promoted to Grade 8 in 2007 and three years later was promoted
again to Grade 9. While she claims these promotions were delayed by her supervisor,
Boardman, she has failed to present any evidence of a causal connection between her
alleged promotion delay and her EEOC claim. As the district court pointed out, there
is nothing in the record to indicate Boardman even knew that a complaint had been
filed. Rebouche’s performance reviews throughout this period were consistently
positive: She received an “Exceeds Expectations” rating in 2004, and in 2005 her
review said she “Fully Meets Expectations.” Without any evidence to support a
causal connection between the delay in her promotion and her prior claim of
discrimination, we agree with the district court that Rebouche has failed to establish
a prima facie case of retaliation.

                                   III. Conclusion

       We affirm the district court’s grant of summary judgment for the Defendants
on all claims.
                       ______________________________




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