                       United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 00-1089
                                    ___________

Gail L. Cronquist,                       *
                                         *
             Appellant,                  *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Minnesota.
City of Minneapolis,                     *
                                         *
             Appellee.                   *
                                    ___________

                              Submitted: October 16, 2000
                                 Filed: February 6, 2001
                                  ___________

Before McMILLIAN, HEANEY, and BOWMAN, Circuit Judges.
                           ___________

BOWMAN, Circuit Judge.

        Gail Cronquist, a former officer with the Minneapolis Police Department (MPD),
sued the City of Minneapolis under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e-2, 2000e-3 (1994), the Minnesota Human Rights Act (MHRA), Minn. Stat.
Ann. § 363.03 (West 1991), and the First and Fourteenth Amendments after the City
disciplined her and eventually terminated her employment following several instances
of harassment of her subordinates. Cronquist alleged that the City's disciplinary
justification was pretext and that her employment was terminated because of sex
discrimination and retaliation for an earlier lawsuit she brought against the City. The
District Court1 granted summary judgment to the City on all claims and Cronquist
appeals. We affirm.

                                           I.

       Cronquist first joined the MPD in 1983, and was promoted to Sergeant in 1991.
In 1991, Cronquist sued the City in Minnesota state court alleging that she had been
sexually harrassed by her supervisor, Lieutenant Richard Storck. The matter settled
out-of-court in 1994, and under the terms of the settlement Cronquist received
$200,000 and other relief, which included the right to laterally transfer twice within
four years of the settlement agreement.

       Later in 1994, Cronquist exercised her right to transfer and moved from the Child
Abuse Unit to the Backgrounds Unit. Cronquist's original supervisor in the
Backgrounds Unit was Lieutenant David Martens, but in January 1995, Captain
William Berg became her supervisor. During Cronquist's tenure in the Backgrounds
Unit, she was the subject of a harassment complaint by one of her subordinates, officer
Roger Brotkowski, who alleged that Cronquist had harassed him on the basis of his
obesity. At the same time, Cronquist complained that Captain Berg had harassed her.
The City investigated each complaint.

      During the investigation of Cronquist's complaint against Captain Berg, she
temporarily moved to an assignment as a shift supervisor in the Second Precinct. After
Cronquist moved, a second officer in the Backgrounds Unit, officer Larry Swanson,
came forward with a sexual harassment complaint against Cronquist.




      1
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
                                          -2-
       At the conclusion of the City's investigation, Cronquist's complaint against
Captain Berg was not sustained. Officers Brotkowski and Swanson's complaints
against Cronquist were sustained. In determining an appropriate punishment for the
sustained findings against Cronquist, the City deemed the "second" finding not grounds
for termination under the City's harassment policy, as Cronquist had not been afforded
an opportunity to correct her behavior. The City reprimanded Cronquist for her
violations and referred her for supervisory training.

       In December 1997, Cronquist sued the City, alleging that her punishment for the
Brotkowski and Swanson complaints was motivated by gender and in retaliation for her
successful 1991 sexual harassment suit. Specifically, the complaint alleged that three
adverse actions against Cronquist provided evidence of discrimination: (1) the
sustaining of officer Brotkowski's harassment complaint against Cronquist and the
resulting discipline; (2) the dismissal of Cronquist's sex discrimination and sex
harassment complaint against Captain Berg;2 and (3) the sustaining of officer Swanson's
sexual harassment complaint against Cronquist and the resulting discipline.

      In January 1998, the MPD lodged a third harassment complaint against
Cronquist, made by officer John Lenart, a subordinate whom Cronquist supervised in
the Second Precinct. Lenart's complaint alleged numerous sexually frank remarks by
Cronquist as well as inappropriate touching.3 The MPD investigated this

      2
       We agree with the District Court that the City's decision to dismiss Cronquist's
complaint against Captain Berg after a full investigation does not create a "materially
adverse employment action."
      3
        Internal Affairs concluded that Cronquist violated the City's sexual harrassment
policy when she referred to officer Lenart's testosterone level on several occasions,
called Lenart a "sex addict" and "horny," told Lenart "you can handcuff me anytime and
have your way with me . . . ," touched him inappropriately and told him she "couldn't
understand why anyone wouldn't want to fuck." Internal Affairs concluded that
Cronquist's treatment of Lenart, her subordinate, had a "negative impact on him" and
                                          -3-
complaint and found it to have merit. The MPD, considering the Lenart complaint as
well as the earlier Brotkowski and Swanson complaints, terminated Cronquist's
employment.

       Cronquist subsequently amended her lawsuit against the City to include the claim
that her discharge from the MPD was motivated by retaliation and gender
discrimination. The District Court granted summary judgment to the City, holding that
Cronquist failed to produce evidence showing that the City's non-discriminatory reason
for terminating her—multiple instances of harassment—was pretextual. The District
Court also held that Cronquist's evidence that she was treated differently than similarly-
situated male police officers was insufficient and that she failed to establish an
inference that decisionmakers in her disciplinary processes had either discriminated or
retaliated against her. Cronquist appeals, arguing that the District Court erred in failing
to apply a mixed-motive analysis to her claims, failing to link the adverse action taken
against her to the filing of her discrimination charges, and granting summary judgment
when a material issue of fact existed regarding whether the City's reason for her
termination was pretextual.

      On appeal, we review the District Court's grant of summary judgment de novo
and apply the same standards as the district court. Rothmeier v. Inv. Advisers, Inc., 85
F.3d 1328, 1331 (8th Cir. 1996). Summary judgment is proper if the evidence, viewed
in the light most favorable to the nonmoving party, demonstrates that there is no
genuine issue as to any material fact and that the nonmoving party is entitled to
judgment as a matter of law. Fisher v. Pharmacia & Upjohn, 225 F.3d 915, 919 (8th
Cir. 2000); Fed. R. Civ. P. 56(c).




that her persistent conduct "made it difficult for him to come to work."


                                            -4-
                                           II.

        Two avenues exist by which a plaintiff can attempt to prove intentional
employment discrimination. First, a plaintiff can proceed under the three-stage, burden-
shifting standard set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
See also Tex. Dep't of Com. Affairs v. Burdine,450 U.S. 248, 252-53 (1981). Under
this framework, the plaintiff bears the initial burden of establishing a prima facie case
of discrimination. Rothmeier, 85 F.3d at 1332. Once a prima facie case is established,
a rebuttable presumption shifts the burden to the employer to articulate a legitimate,
nondiscriminatory reason for discharging the employee. Id. If the employer articulates
such a reason, the presumption disappears and the plaintiff bears the burden of proving
that the employer's proffered reason is merely a pretext for discrimination. Id.

       Alternatively, the plaintiff can rely upon the standard set forth in Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989), if the plaintiff produces direct evidence
that an illegitimate criterion, such as gender, "played a motivating part in [the]
employment decision." Id. at 258. Once the plaintiff establishes such direct evidence,
the burden shifts to the employer to demonstrate by a preponderance of the evidence
that the employer would have reached the same employment decision absent any
discrimination. Id. If the employer fails to meet this standard, the employee prevails.

       Cronquist first argues that the District Court failed to recognize direct evidence
of discrimination and erred by analyzing her discrimination claims under McDonnell-
Douglas, and not the "mixed-motive" standard of Price Waterhouse. This argument,
however, is not properly before us. Cronquist never argued to the District Court that
her case was governed by the Price Waterhouse standard. Despite the City's primary
reliance on McDonnell Douglas in its memorandum supporting summary judgment,
Cronquist's memorandum opposing summary judgment failed to cite either Price
Waterhouse or McDonnell Douglas, nor did it present argument in support of any
particular legal standard by which her claims should be adjudicated. Cronquist also

                                           -5-
failed to raise the mixed-motive theory in her complaint, in her statement of the case,
during oral argument on the summary judgment motion, or in any written or oral
submission to the District Court. In the face of Cronquist's complete silence on the
issue, the District Court reasonably assumed that "the parties appear to agree that [for
purposes of the summary judgment motion] the sequence and allocation of proof for
each claim should be governed by the Supreme Court decision in McDonnell Douglas
Corp. v. Green." Order at 3. We hold that by failing to raise the mixed-motive
argument in the District Court, Cronquist has waived the issue. See Singleton v.
Wulff, 428 U.S. 106, 120 (1976) ("It is the general rule, of course, that a federal
appellate court does not consider an issue not passed upon below."); Moad v. Ark.
State Police Dep't, 111 F.3d 585, 587 (8th Cir. 1997) ("We have examined the record
carefully and we find no evidence that this issue was ever raised in the district
court. . . . We therefore decline to consider the issue . . . ."); Smith v. City of Des
Moines, Iowa, 99 F.3d 1466, 1473 (8th Cir. 1996) ("We will not reverse a grant of
summary judgment on the basis of an argument not presented below."); O.R.S.
Distilling Co. v. Brown-Forman Corp., 972 F.2d 924, 926 (8th Cir. 1992) ("A party
may not assert new arguments on appeal of a motion for summary judgment.").

      In any event, even if Cronquist had raised the mixed-motive issue in the District
Court and preserved it for appeal, it has no merit inasmuch as Cronquist has not
presented any direct evidence of discrimination or retaliation. See Price Waterhouse,
490 U.S. at 277 (O'Connor, J., concurring) (defining direct evidence negatively to
exclude "stray remarks in the workplace," "statements by nondecisionmakers," and
"statements by decisionmakers unrelated to the decisional process itself."). This Circuit
has clarified the Price Waterhouse standard by holding that direct evidence is "evidence
of conduct or statements by persons involved in the decisionmaking process that may
be viewed as directly reflecting the alleged discriminatory attitude . . . sufficient to
permit the factfinder to infer that that attitude was more likely than not a motivating
factor in the employer's decision." Radabaugh v. Zip Feed Mills, Inc., 997 F.2d 444,
449 (8th Cir. 1993) (quoting Ostrowski v. Atlantic Mut. Ins. Cos., 968 F.2d 171, 182

                                           -6-
(2d Cir. 1992)); see also Thomas v. First Nat'l Bank of Wynne, 111 F.3d 64, 66 (8th
Cir. 1997); Kriss v. Sprint Communications Co., 58 F.3d 1276, 1282 (8th Cir. 1995).
"Not all comments that may reflect a discriminatory attitude are sufficiently related to
the adverse employment action in question to support such an inference." Walton v.
McDonnell Douglas Corp., 167 F.3d 423, 426 (8th Cir. 1999).

       Cronquist sets forth numerous examples of what she contends is direct evidence
of discrimination by the City sufficient to warrant analysis of her claims under the
mixed-motive framework of Price Waterhouse. Based upon our thorough review of the
caselaw and viewing the evidence in the light most favorable to Cronquist, we conclude
that none of her claims require analysis under Price Waterhouse. Cronquist's claims
of discriminatory discipline and termination depend on circumstantial evidence that
does not "'directly reflect[] the alleged discriminatory attititude,'" of the MPD
decisionmakers. Radabaugh, 997 F.2d at 449 (quoting Ostrowsky, 968 F.2d at 182).
Instead, her evidence is of the sort that would require a series of inferences to be drawn
before a discriminatory attitude could be attributed to those who made the employment
decisions she challenges. See Schleiniger v. Des Moines Water Works, 925 F.2d 1100,
1101 (8th Cir. 1991) ("Simply because a discriminatory reason might be inferred . . .
does not mean that a mixed motive case exists."). Therefore, even if Cronquist had
properly preserved this argument for appeal, the District Court properly chose to
analyze her claims under McDonnell Douglas because she failed to produce direct
evidence of discrimination.4

                                           III.

      Where the plaintiff fails to produce direct evidence of discrimination, the three-
stage McDonnell Douglas burden-shifting analysis applies. See Euerle-Wehle v.
United Parcel Serv., 181 F.3d 898, 900 (8th Cir. 1999). We apply the same analysis

      4
          Her evidence is discussed in Sections III and IV of the Court's opinion.
                                            -7-
in reviewing gender discrimination claims brought under Title VII and the MHRA. See
Scott v. County of Ramsey, 180 F.3d 913, 917 (8th Cir. 1999) (applying the
McDonnell Douglas standard to both Title VII and MHRA retaliation claims). Like the
District Court, we will assume that Cronquist established a prima facie case of
discrimination, and that the City offered a legitimate, nondiscriminatory reason for the
discharge. The inquiry, then, is whether Cronquist has produced sufficient evidence
to meet her burden of establishing pretext. To survive summary judgment at the third
stage of the McDonnell Douglas analysis, "the rule in [the Eighth] Circuit is that an
[employment-discrimination] plaintiff can avoid summary judgment only if the evidence
considered in its entirety (1) creates a fact issue as to whether the employer's proffered
reasons are pretextual and (2) creates a reasonable inference that [a prohibited motive]
was a determinative factor in the adverse employment decision." Rothmeier, 85 F.3d
at 1336-37. Cronquist fails to meet this burden.

       Cronquist first argues that the evidence illustrates pretext based on the decision
to discipline her and then terminate her employment. She principally focuses on Chief
Robert Olson, the final decisionmaker with respect to the termination of her
employment with the MPD. Cronquist attempts to illustrate Chief Olson's
discriminatory biases against her by alleging that he failed to act numerous times when
he was required to do so. Specifically, Cronquist charges that Chief Olson failed to
investigate the conclusion of Lieutenant David Martens that officers complained about
Cronquist moving into the Backgrounds Unit because of her lawsuit and settlement
with the City. Cronquist also contends that Chief Olson failed to follow up with
investigator Pamela French on her report that Captain Berg created a hostile
environment for women. However, Cronquist's inferential link is too attenuated;
inconclusive stray remarks from nondecisionmaking officers in the Backgrounds Unit
are not sufficient to establish a claim of discrimination. In addition, Chief Olson's
failure to act on and investigate these stray remarks also fails to support Cronquist's
claim of discrimination and retaliation.


                                           -8-
       Cronquist attempts to further impute bias to Chief Olson for failing to investigate
Chief Deputy Jones's alleged destruction of evidence as alleged in a lawsuit wholly
unrelated to Cronquist. Cronquist relies upon this previous suit to illustrate the MPD's
struggle with prior harassment issues, and to support her claim that the atmosphere of
the MPD is charged with tension against female officers. The case, however, is simply
irrelevant to Cronquist's claims of discrimination. Background facts in a separate,
unpublished opinion about matters unrelated to those here do not tend to make the
City's disciplinary justification for Cronquist more or less likely to be pretext. We find
that Cronquist's reliance on such a case is misplaced.5

       In addition to Chief Olson, Cronquist claims that other MPD officials involved
in the investigation of the harassment claims against her unlawfully considered and
injected illegitimate criteria into the decisionmaking process. However, the evidence
that Cronquist raises in this regard falls short. Nearly all of the evidence that Cronquist
relies upon is hearsay or double-hearsay opinions from nondecisionmaking officers or
officials. For example, Cronquist's evidence regarding discrimination and retaliation
as the source of officer Brotkowski's complaint is almost exclusively based upon
double hearsay within her own affidavit. The remainder of the evidence is the
deposition testimony of MPD Director of Personnel Pamela French, which simply
reports hearsay. Cronquist's reliance on affidavits based on hearsay cannot defeat a
motion for summary judgment. See Davidson & Schaaff, Inc. v. Liberty Nat'l Fire Ins.
Co., 69 F.3d 868, 871 (8th Cir. 1995); JRT, Inc. v. TCBY Sys., Inc., 52 F.3d 734, 737
(8th Cir. 1995) (requiring successful summary judgment defense to include more than
inadmissible hearsay-based affidavit); Fed. R. Civ. P. 56(e).




      5
        Additionally, we note that much of the case was overruled on appeal, see State
v. City of Minneapolis, No. C8-98-363, 1998 WL 481891 (Minn. Ct. App. Aug. 18,
1998), the case is almost surely inadmissible as evidence at trial, and is of no import
to the issues raised on appeal.
                                            -9-
       Cronquist notes that Director Lucy Gerold served on the investigation panel that
recommended her discipline and claims that Gerold "sabotaged" her by not including
in her final report Lieutenant Martens's statement of Background Unit resentment of
Cronquist. Cronquist attempts to illustrate Gerold's bias against her by inferentially
tying together Gerold's "omissions" in her report with her deposition statement that she
was "dismayed" upon overhearing Cronquist state that "if you didn't get what you want,
you should just sue." However, we find that Gerold's personal opinion on a separate
matter and her failure to include the opinion of a non-decisionmaker in her report is not
sufficient to support an inference of discrimination or retaliation. See Rothmeier, 85
F.3d at 1335 (holding that a trial judge can grant summary judgment if evidence is
insufficient for reasonable trier of fact to infer discrimination, even where factual
dispute on pretext exists).

        Cronquist also argues that once Captain Berg learned of Cronquist's harassment
complaint against him, he shared his negative opinions of Cronquist with Chief Olson,
and urged him to expedite officer Brotkowski's complaint against Cronquist by utilizing
a full-time investigator. But the evidence shows that Chief Olson recognized Captain
Berg's disapproval of Cronquist and sought to investigate Cronquist's charge against
Berg fairly and neutrally by removing it from the MPD's Internal Affairs Division.
Accordingly, Chief Olson brought in three investigators to investigate Cronquist's
charge against Captain Berg. Cronquist does not challenge Chief Olson's actions with
any evidence indicating that the investigators' unsuccessful attempt to corroborate
Cronquist's claims against Captain Berg was the result of any discrimination, retaliation
or bias. Cronquist's evidence on this issue is comprised entirely of conjecture and
surmise, and fails to support her claim.

       Cronquist also re-argues the merits of the harassment claims that the MPD had
sustained against her. Specifically, she argues that her conduct, as illustrated through
officer Lenart's complaint, was only "dark humor," and she claims that Lenart was
amenable to sexual joking and banter. Cronquist also offers an explanation as to why

                                          -10-
she physically touched Lenart and identifies the genesis of her multiple jokes about his
testosterone level. Likewise, Cronquist repeatedly mentions that officer Swanson's
harassment allegation contains a discrepancy as to whether he heard Cronquist's
offensive comment at the time it was made or at a later date. As these arguments do
not support any inference of discrimination or retaliation against Cronquist, they are
irrelevant to this appeal. In any event, Cronquist has already raised these same
explanations and defenses, which were duly considered by MPD investigators before
reaching any conclusions. As the District Court noted, "the employment-discrimination
laws have not vested in the federal courts the authority to sit as super-personnel
departments reviewing the wisdom or fairness of the business judgments made by
employers, except to the extent that those judgments involve intentional
discrimination." Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 781 (8th Cir.
1995). We agree with the District Court that Cronquist does not present any evidence
that the investigation or investigators were biased or discriminated against Cronquist.
See Euerle-Wehle, 181 F.3d at 900 (finding no material issue as to pretext where
employer makes "credibility determinations . . . reasonably and in good faith").

       Cronquist finally argues that a material issue of fact exists regarding whether
Gaynell Schandel, an investigator of Cronquist's claim against Berg, changed her
negative conclusions about Berg's behavior in her final report at the behest of Bradley
Johnson, the leading police department representative on the investigator team.
Cronquist relies on Johnson's report mentioning "confusing statements" that were
critical of Berg in Schandel's summary, but which Schandel and Johnson subsequently
discussed and Schandel clarified. Because we agree with the District Court that the
City's decision to dismiss Cronquist's claim against Captain Berg after a lengthy
investigation does not constitute an "adverse employment action," this argument lacks
relevance and does not support an inference of discrimination or retaliation against
Cronquist. Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir. 1997).




                                          -11-
       Cronquist's second principal argument is that summary judgment was improper
because the District Court erred in rejecting her contention that the City's
discriminatory animus may be inferred from Cronquist's harsh discipline, as opposed
to the discipline meted out to similarly-situated male police officers. To show that she
was "similarly situated," Cronquist must establish that she was treated differently from
those employees whose violations were of "comparable seriousness." Lanear v.
Safeway Grocery, 843 F.2d 298, 301 (quoting McDonnell Douglas, 411 U.S. at 804).
Cronquist has the burden of proving that she and the other disciplined male police
officers were "similarly situated in all relevant respects." Ricks v. Riverwood Int'l
Corp., 38 F.3d 1016, 1019 (8th Cir. 1994). The test for whether employees are
similarly situated to warrant a comparison to the plaintiff is "rigorous." Harvey v.
Anheuser-Busch, Inc., 38 F.3d 968, 972 (8th Cir. 1994)

       Cronquist cannot identify another MPD employee who had three harassment
charges sustained against them, much less one who had such charges sustained against
them and was not terminated. While Cronquist points to a number of male MPD
officers and their infractions, none of those officers engaged in conduct that was of
"comparable seriousness" to Cronquist's. Cronquist alone was found to have
committed three separate acts of harassment against three different officers. Indeed,
Cronquist's last and most egregious instance of harassment occurred after the MPD had
put her on notice of her conduct and after she had undergone training in response to her
two earlier instances of harassment. The City's graduated disciplinary guidelines, in
effect since 1993, provided that supervisors would be terminated upon a second offense
of sexual harassment. The guidelines clearly mandated termination of Cronquist upon
her third offense. See Harvey, 38 F.3d at 972 n.2 (explaining that the "relevant inquiry"
in an employee misconduct pretext case is whether the "employer believed [the]
employee guilty of conduct justifying discharge") (citing Elrod v. Sears, Roebuck &
Co., 939 F.2d 1466, 1470 (11th Cir. 1991)).




                                          -12-
                                          IV.

       Finally, Cronquist argues that her discipline and termination from the MPD was
the result of retaliation for her earlier sexual harassment claims against the MPD. To
establish a prima facie case of retaliation, Cronquist must show that (1) she filed a
charge of discrimination; (2) the MPD took adverse action against her; and (3) the
adverse action was linked to the filing of the discrimination charge. Evans v. T.W.
Servs. Inc. of Del., 930 F.2d 612, 614 (8th Cir. 1991) (per curiam). It is undisputed
that Cronquist filed charges of discrimination against officers of the MPD and that she
was disciplined and eventually terminated from the MPD. Cronquist's claim fails
because she does not present sufficient evidence to create a jury question as to whether
the adverse action taken against her was motivated by the filing of her 1991 lawsuit
against the City or her harassment complaint against Captain Berg.

                                          V.

       We conclude that Cronquist presented neither direct evidence of discrimination
nor sufficient circumstantial evidence for a reasonable finder of fact to infer that the
City's reasons for terminating her were pretext for intentional discrimination or
retaliation. Accordingly, summary judgment was properly granted to the City.

      The judgment of the District Court is affirmed in all respects.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                          -13-
