                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 01-2056
                                    ___________

Nazia Habib,                             *
                                         *
      Plaintiff-Appellant,               *
                                         *    Appeal from the United States
      v.                                 *    District Court for the Eastern
                                         *    District of Missouri.
NationsBank,                             *
                                         *
      Defendant-Appellee.                *
                                         *
                                    ___________

                           Submitted: November 13, 2001
                             Filed: December 28, 2001
                                    ___________

Before WOLLMAN, Chief Judge, BOWMAN, and STAHL,1 Circuit Judges.
                             ___________

STAHL, Circuit Judge.


       Plaintiff Nazia Habib brought suit against Defendant NationsBank, claiming
that she was unlawfully terminated on the basis of her race, religion, and/or national
origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et




      1
        The Honorable Norman H. Stahl, United States Circuit Judge for the First
Circuit, sitting by designation.
seq. ("Title VII") . On March 22, 2001, the district court2 entered summary judgment
in favor of the defendant. We affirm.

       Nazia Habib, a Muslim Pakistani woman, began working as a part-time teller
with NationsBank (then known as Boatman's Bank) in June 1996 at the St. John's
Branch, switching to full-time work in October 1997. She was the only Asian person
of the Muslim faith working at the branch. When she was hired, Habib had informed
NationsBank's management that, in accordance with her religious beliefs, she needed
to pray five times a day, and that her prayers would last from five to fifteen minutes.
In response to this request, the defendant allowed Habib to schedule her breaks so as
to accommodate her prayer time. According to Habib, however, some of her fellow
employees, including her direct supervisor Sandra Tipton, were less understanding
about her cultural and religious practices, and made derogatory comments about her
dress and diet. Habib alleged that Tipton had been particularly unsupportive.
According to Plaintiff, Tipton had made public remarks that Habib's unique
scheduling arrangements were unfair to the other tellers, and on three separate
occasions specifically had prevented Habib from taking a break for prayer at the
particular time required by her religion.3 Although Habib wrote a letter in February
1998 to Herman Travis, the Branch Manager, complaining about Tipton's
insensitivity, Tipton's hostile behavior toward her allegedly continued unabated.

     In early June 1998, having received prior approval of her request for
compassionate leave, Habib took three days off from work to attend her
grandmother's funeral in California. When she was unable to return to St. Louis as


      2
         The Honorable Charles A. Shaw, United States District Judge for the Eastern
District of Missouri.
      3
         Tipton insists that her only interference with Habib's prayer times occurred
when there was a rush of customers, which prevented any of the tellers from taking
a break.

                                         -2-
scheduled, she contacted NationsBank before her next scheduled shift to advise them
of the delay and took a fourth day off as a personal day. Upon her return, Habib
received a written counseling memorandum dated June 5, 1998 for absenteeism from
Julie Childs, the Banking Center Manager of the St. John's Branch.4 The
memorandum warned that "any further occurrences of absenteeism can result in
further written notification, up to and including termination of employment."

       Less than one week after she had received the counseling memorandum, while
at work Habib began to suffer from a headache, dizziness and fatigue, and asked
Tipton if she could go home for the rest of the day. Tipton referred the matter to the
other Banking Center Manager, Karen Allen. After consulting with the Bank's human
resources representative, Allen informed Habib that she could go home if she agreed
to bring in a doctor's note the next day. Habib responded that it was unreasonable to
require her to visit a doctor that afternoon and that she had no intention of bringing
in a note from her doctor. At this point, Allen emphasized to Habib that she had only
two options: (1) finish her shift, or (2) leave work early and provide a doctor's note
the next morning. Otherwise, Allen warned, she would be fired. Habib rejected what
she characterizes as Allen's "ultimatum" and left work, steadfast in her refusal to
bring a doctor's note. True to her word, Allen fired Habib that day.5




      4
         Defendant claims that the memorandum was issued in response to a pattern
of absences by Habib on Monday, Friday or the day after a Bank Holiday. Habib
disputes the characterization of her attendance record as demonstrating a "pattern" of
absenteeism, and insists that other employees with similar or worse attendance
records had not been similarly reprimanded.
      5
        Allen maintains that her decision to fire Habib had been preauthorized by the
bank's human resources representative, who agreed that, in light of Habib's prior
counseling memorandum, termination would be an appropriate course of action if
Habib refused to bring in a doctor's note.

                                         -3-
      Plaintiff filed this lawsuit in August 1999, alleging that NationsBank
discriminated against her on the basis of race, religion and/or national origin with
respect to the terms and conditions of her employment, up to and including her
termination. The district court dismissed her case on the defendant's motion for
summary judgment, however, after finding that her termination did not "occur[] under
circumstances which allow the Court to infer unlawful discrimination."

       We review de novo the district court's grant of summary judgment, Barrera v.
Con Agra, 244 F.3d 663, 665 (8th Cir. 2001), and may affirm its judgment on any
grounds supported by the record, Hatchell v. Philander Smith College, 251 F.3d 670,
674 (8th Cir. 2001). Summary judgment is appropriate when the evidence, viewed
in the light most favorable to the non-moving party, demonstrates that there are no
outstanding issues of material fact and the moving party is entitled to judgment as a
matter of law. Henerey v. City of St. Charles, 200 F.3d 1128, 1131 (8th Cir. 1999);
Fed. R. Civ. P. 56(c).

       In order to establish a prima facie case of discrimination based on
circumstantial, rather than direct evidence, as Habib wishes to do here, the plaintiff
must show that (1) she is a member of a protected class; (2) she was qualified for her
position and performed her duties adequately; and (3) she suffered an adverse
employment action under circumstances that would permit the court to infer that
unlawful discrimination had been at work. Whitley v. Peer Review Sys., Inc., 221
F.3d 1053, 1055 (8th Cir. 2000) (citing inter alia McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973)). Once the plaintiff has established her prima facie case,
the employer must offer legitimate reasons for the adverse action. St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 506-07 (1993). The plaintiff may still succeed,
however, if she can demonstrate that the reasons offered by her employer were mere
pretexts for discrimination. Chock v. Northwest Airlines, Inc., 113 F.3d 861, 865
(8th Cir. 1997).



                                         -4-
       We find that the district court properly determined that the plaintiff failed to
make out the third prong of her prima facie case because the circumstances
surrounding her termination demonstrate that she was fired for insubordination (i.e.,
refusing to comply with Allen's request that she bring in a doctor's note) rather than
for discriminatory reasons involving her race, religion or national origin. Although
Habib appears to have had a history of unpleasant interactions with Tipton, her direct
supervisor, she has presented no evidence to suggest that Allen, the person who
ultimately fired her, harbored any animus towards her because she was a Pakistani
Muslim woman, and has failed to come forward with any proof that "the decision
making process [was] tainted by discrimination." Excel Corp. v. Bosley, 165 F.3d
635, 639 (8th Cir. 1999). In support of her argument that impermissible
discrimination was at work, Habib has offered only speculation that Tipton somehow
encouraged Childs to issue the warning memorandum and/or influenced Allen's
decision to terminate Habib. In order to survive a motion for summary judgment,
however, the non-moving party must be able to "substantiate his allegations with
sufficient probative evidence that would permit a finding in his favor based on more
than mere speculation, conjecture, or fantasy." Wilson v. Int'l Bus. Machs. Corp., 62
F.3d 237, 241 (8th Cir. 1995). Because Habib has failed to satisfy her initial burden,
the district court properly entered summary judgment in the defendant's favor.6




      6
         Habib also raised a claim of hostile work environment in her complaint,
which was likewise rejected by the district court. With the exception of Tipton's
insensitive comments, the record offers little to support Habib's allegation and, on the
contrary, suggests that NationsBank made significant efforts to accommodate Habib's
religious and cultural needs. We need not reach the merits of any hostile work
environment claim, however, as Habib did not preserve this issue for appeal, and
focused her argument instead on her allegedly wrongful termination.

                                          -5-
      For the foregoing reasons, the decision of the district court is affirmed.


A true copy.


  ATTEST:


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




                                         -6-
