                      United States Court of Appeals
                               FOR THE EIGHTH CIRCUIT
                                      ___________

                                      No. 98-2479
                                      ___________

Janet R. Kerns,                       *
                                      *
            Plaintiff-Appellant,      *
                                      * Appeal from the United States
v.                                    * District Court for the
                                      * Southern District of Iowa.
Capital Graphics, Inc.,               *
doing business as Clarinda Company,   *
                                      *
            Defendant-Appellee.       *
                                 ___________

                               Submitted: April 19, 1999
                                   Filed: June 2, 1999
                                    ___________

Before MCMILLIAN, LOKEN, and MURPHY, Circuit Judges.
                           ___________

MURPHY, Circuit Judge.

       Janet R. Kerns sued her employer, Capital Graphics, Inc., for discriminating
against her on the basis of gender and retaliating against her in violation of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. and the Iowa Civil Rights Act,
Iowa Code §§ 216.1 et seq. The district court granted the defendant’s motion for
summary judgment, and Kerns appeals. She asserts that the district court erred in
granting summary judgment and the defendant’s motion to strike portions of her
affidavit and statement of facts. We affirm.
                                           I.

        At the time relevant here, Janet Kerns was a personnel administrator for Clarinda
Company, a division of Capital Graphics. She was involved in the administration of
personnel matters in Clarinda’s two Iowa facilities. In 1995 Ron Castiglioni became
Clarinda’s president. By all accounts many people found Castiglioni a difficult person
with whom to work, regardless of their gender. Both male and female employees
testified that he accused them of incompetence, undercut their authority and threatened
to fire some of them; one of these male employees testified that he ultimately quit
because of Castiglioni.

       In a January 1996 meeting with Castiglioni, Kerns told him that two female
employees had complained about his failure to post a position opening and his filling
it with a male employee. She also reported that there were rumors that the company
was creating a position for another male employee. There was no company policy
requiring the posting of openings, and Castiglioni told Kerns that the decision was his
to make and that the employee who had obtained the position would have otherwise left
the company. In this same meeting Castiglioni asked Kerns about Kevin Andersen, the
general manager of the Atlantic facility.1 He wondered whether she had seen Anderson
leave work early on Fridays. Castiglioni said he had heard that Andersen was showing
preferential treatment to a supervisor, Alicia McCollum, who was also leaving Fridays
at the same time. Castiglioni asked if there was anything “going on” between them;
Kerns answered no.

       Kerns had the impression that Castiglioni was asking her to look into the matter,
and she proceeded to question Andersen and McCollum about their time off and
reviewed their attendance records. When Andersen asked why she was asking about
his days off, she told him that Castiglioni had heard there was something going on and


      1
       At that time Kerns reported to both Andersen and the general manager of the
Clarinda facility, Frank Nowakowski.

                                           2
asked her to investigate it. Andersen was extremely angry to hear this and convened
a meeting of his staff to deny that he and McCollum were having an affair. Kerns then
sent a memo to Castiglioni, with copies to Andersen, McCollum, and Ed Welch,
Castiglioni’s predecessor as president. This memo stated that she had reviewed the
attendance records, that the “insinuations of a sexual nature” between Andersen and
McCollum were “totally and absolutely unfounded,” and that it was “very disturbing
that all someone has to do with their time is to build rumors and gossip which can cause
harm to two families.” Two other employees, Ed Wimberley and Steve Ethofer,
testified that Castiglioni had told them he had asked Kerns to look into the situation.

       After Castiglioni read Kerns’ memo, he faxed it to Doug Friedrich, president of
Capital Graphics, because he wanted to discuss a response. Castiglioni told Friedrich
that he had not ordered Kerns to conduct an investigation, but had only asked her if she
had noticed any preferential treatment. Friedrich suggested firing Kerns, but Castiglioni
said he would prefer just restricting her discretion so as to avoid such problems in the
future.

       Castiglioni chastised Kerns for her actions and accused her of incompetence and
of violating the company confidentiality policy. He sent her a memo expressing his
displeasure. The memo stated that he had not authorized her actions, that she was not
empowered to take “unilateral action,” and that she would be fired for any subsequent
exercise of poor judgment. He said that she needed his approval for any action outside
her normal day-to-day activities and that she should check with him before issuing any
memos, filing any reports, or doing anything out of the ordinary. He took steps to
increase her supervision. He had her report directly to him, instead of to Andersen and
Frank Nowakowski, had her move to a smaller office closer to his, and had her spend
more time at the Clarinda facility. After the personnel office was eventually relocated
to Clarinda where the rest of the administrative offices were, Castiglioni himself took
over certain mail delivery that Kerns had previously taken care of and for which she
had received travel reimbursement.


                                           3
       Within the next several weeks, Castiglioni had occasion to chastise Kerns for
several other actions. One incident began with a memo from Kerns to Castiglioni,
Friedrich, Welch, Andersen, Nowakowski, and chief financial officer Dan Smith. In
this memo Kerns suggested a change in the company’s treatment of vacation time for
re-hires. Castiglioni wrote her back to say that her suggestion would be costly and that
each case should be handled on an individual basis, with the opportunity for the plant
manager to justify exceptions. He expressed dismay that she had sent her memo to so
many people and said that her circulation of the memo had violated his earlier order.

       Clarinda terminated sales representative Michelle Quintana at around the same
time. Castiglioni took two documents from Quintana’s personnel file to use in drafting
a severance package and then gave the file to his secretary. She forwarded the file to
Kerns and told her she could send it to Quintana. Even though Kerns noticed that the
two documents were missing, she sent the file without speaking to Castiglioni. When
Castiglioni learned of this, he sent Kerns a memo saying “it would seem that we are
continuing to have a communication problem.” Sending the incomplete file was
“another example of you taking action without authorization or review by me prior to
your taking said action.”

      The day before Castiglioni sent that memo, Kerns had sent him an unrelated
memo requesting a performance review and saying that all the exempt employees other
than the general managers had been reviewed. Castiglioni sent her memo back
annotated with his handwritten responses. He pointed out that at least 6 exempt
employees had not been reviewed and processed. He wrote, “Your statement would
seem to be incorrect. Perhaps you had better always check your records before making
inaccurate statements as above!”

       Finally, on March 27, a little over a week after these memo exchanges,
Castiglioni sent Kerns a final memo after learning that she had told an employee that
the individual plant managers were to decide how to handle vacation reinstatement. He
said that that information should not have been passed on to the employee and that she


                                           4
may have put manager Andersen “in a very compromising position.” Castiglioni also
said in his memo, “Please stop taking my responses out of context! Your actions
continue to put others in very precarious positions and this action on your part must
stop! Now! Immediately!” This memo upset Kerns. She went to Nowakowski and
quit. Her duties were then given to two other women, Carolyn Jennings and Joan
Wallace.

       Kerns filed for unemployment benefits and she filed discrimination charges with
the Iowa Civil Rights Commission (ICRC) and the Equal Employment Opportunity
Commission (EEOC). She claimed that Castiglioni had treated her differently because
she was a woman and that he had retaliated against her for investigating a potential
sexual harassment situation. Initially the company had not contested the application for
unemployment benefits, but Friedrich decided to appeal the decision a little over a
week after the company was informed of the charges. The deadline for doing so had
already passed, but he claimed that he and Castiglioni had just been told that the
decision awarding benefits indicated that Kerns had quit because of a change in her
“contract” and she had never had one. The Iowa Job Service Division determined that
it lacked jurisdiction to consider an untimely appeal, and Kerns’ benefits continued
without interruption. She filed an additional charge with the ICRC, however, alleging
that the company’s appeal was in retaliation for her civil rights complaint.

       Kerns subsequently filed this case in federal district court. She styled her
complaint as a petition. It alleged that the “[d]efendant’s different treatment and forced
termination” were discriminatory and thus violated Title VII and Iowa law, that filing
the untimely appeal was an act of retaliation in violation of Title VII and Iowa law, and
that Capital Graphics had retaliated against her for consulting an attorney about its
actions in violation of Iowa public policy.

      The district court granted summary judgment in favor of Capital Graphics on all
claims. The court indicated that even if Kerns had established a prima facie case of
gender discrimination, her claims failed because she had not presented direct evidence


                                              5
that she was discriminated against and she had not shown that the proffered reasons for
the employer’s actions were pretextual. The court also decided her retaliation claims
could not succeed because of the failure to show pretext, and it dismissed her public
policy claim as well. Kerns appeals the judgment dismissing all her claims with the
exception of the public policy claim which she has abandoned.2

                                              II.

       Summary judgment is reviewed de novo and is only proper if, viewing the
evidence in the light most favorable to the non-moving party, there are no genuine
issues of material fact and the moving party is entitled to judgment as a matter of law.
See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);
Montgomery v. John Deere & Co., 169 F.3d 556, 559 (8th Cir. 1999).

                                              A.

       To establish a prima facie case for discrimination, Kerns had to present evidence
showing that she suffered an adverse employment action and some evidence of
discriminatory motive behind that action. See Johnson v. Legal Servs. of Ark., Inc.,
813 F.2d 893, 896 (8th Cir. 1987).3 Kerns has failed to make a prima facie case


       2
         Kerns also asserts that the district court erred in striking portions of her affidavit
and statement of fact. We have examined the portions the parties say were stricken and
conclude that Capital Graphics would have been entitled to summary judgment even
if the entire affidavit and statement of fact had been admitted. Any error by the district
court was therefore harmless and thus not a basis for reversal. See United States v.
Goodson, 155 F.3d 963, 969 (8th Cir. 1998).
       3
        Iowa has adopted the federal framework for evaluating discrimination claims
under its state law, see Hulme v. Barrett, 449 N.W.2d 629, 631-33 (Iowa 1989). Iowa
courts have held that the relevant provisions in the state civil rights statutes are
patterned after Title VII and that federal case law is “instructive” in interpreting those
provisions. See Brine v. Univ. of Iowa, 90 F.3d 271, 274 (8th Cir. 1996); Smith v.
ADM Feed Corp., 456 N.W.2d 378, 382 (Iowa 1990).

                                              6
because she has not demonstrated that she suffered adverse employment action. The
adverse employment action must be one that produces a “material employment
disadvantage.” Cross v. Cleaver, 142 F.3d 1059, 1073 (8th Cir. 1998). Termination,
cuts in pay or benefits, and changes that affect an employee’s future career prospects
are significant enough to meet the standard, see id. at 1073, as would circumstances
amounting to a constructive discharge, see Parrish v. Immanuel Med. Ctr., 92 F.3d 727,
732 (8th Cir. 1996). Minor changes in duties or working conditions that cause no
materially significant disadvantage do not meet the standard of an adverse employment
action, however. See Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th
Cir. 1994).

       Kerns argues that she was constructively discharged. A plaintiff claiming
constructive discharge must show that a reasonable person would have found the
conditions of employment intolerable and that the employer either intended to force the
employee to resign or could have reasonably foreseen that the employee would do so
as a result of its actions. See Hukkanen v. Int’l Union of Operating Eng’rs, 3 F.3d 281,
284-85 (8th Cir. 1993). Although Kerns has offered evidence to show that
Castiglioni’s offensive behavior was especially bad in regard to women, she has not
shown that his actions created a hostile work environment for her or that his behavior
towards other women contributed to her decision to leave the company. Cf. Kimzey
v. Wal-Mart Stores, Inc., 107 F.3d 568, 574-75 (8th Cir. 1997). In fact, she has not
even demonstrated that she was aware of all of the incidents before she left Clarinda.
She claims that she left because the company forced her to work with a sexist
supervisor who accused her of incompetence after she did what he had asked her to do,
subjected her to close scrutiny, and took away her discretionary authority. There was
no change in her job title, benefits, or salary, however. Although she claims to have
been stripped of her discretionary authority, she has not described what authority she
formerly had or explained why it was material to her employment. She has not shown
that a reasonable person would have felt forced to leave when faced with these
conditions.

                                           7
       The evidence she presents is also inadequate to show other adverse employment
action. Castiglioni criticized her, but there is no evidence showing that this criticism
had any formal effect on her employment status. She has not alleged that the loss of
discretionary authority impeded her potential for job advancement or otherwise
materially impacted her employment. The other actions she cites also fail to qualify as
material employment disadvantage: changing the line of her reporting, increasing the
proportion of time she spent at Clarinda, and moving her office closer to Castiglioni.
Although the decision to stop reimbursing her for carrying mail between the plants had
some monetary effect, this arrangement did not appear to have been a term or condition
of her employment.

       Although her failure to establish an essential element of her prima facie case is
dispositive, we note the district court did not err in ruling that she also failed to present
either direct evidence of discriminatory intent or evidence of pretext sufficient to
overcome the justification for the actions taken against her. In a case without direct
evidence of discrimination, the McDonnell Douglas burden-shifting analysis is used.
McDonnell Douglas v. Green, 411 U.S. 792, 802-05 (1972); see also Texas Dep’t of
Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981).

       Direct evidence is evidence of conduct or statements by persons involved in the
decisionmaking process that is sufficient for a factfinder to find that a discriminatory
attitude was more likely than not a motivating factor in the employer's decision. See
Browning v. President Riverboat Casino- Missouri, Inc., 139 F.3d 631, 634 (8th Cir.
1998). Such evidence might include proof of an admission that gender was the reason
for an action, discriminatory references to the particular employee in a work context,
or stated hostility to women being in the workplace at all. Compare id. at 635; Stacks
v. Southwestern Bell, 27 F.3d 1316, 1323 (8th Cir. 1994) with Rivers-Frison v.
Southeast Mo. Community Treatment Ctr., 133 F.3d 616, 619 (8th Cir. 1998). Kerns
relies on evidence that Castiglioni made sexist and sexual comments and that the
company was aware of at least some of these. None of the statements related either to


                                             8
Kerns herself or the abilities of women employees, however.4 There is no direct
evidence that Castiglioni took disciplinary actions against Kerns because she is female,
and therefore the McDonnell Douglas analysis should be used rather than the mixed
motive test of Price Waterhouse v. Hopkins, 490 U.S. 228, 248-50 (1989).

       In addition to a prima facie case, McDonnell Douglas requires a plaintiff to show
that an employer’s legitimate, non-discriminatory reason for its action was pretextual.
411 U.S. at 802-05. Kerns has not shown reason to doubt that Castiglioni’s
disapproval of her work performance motivated the disciplinary steps he took. She
claims he was inconsistent about whether he had asked her to investigate Anderson and
McCollum, but that does not undermine his stated unhappiness with her handling of the
situation as a whole. Cf. Young v. Warner-Jenkinson Co., Inc., 152 F.3d 1023-24 (8th
Cir. 1998) (adequate evidence of pretext where employer gave entirely different
reasons at different times). She has not disputed that she made errors at various points,
for instance in claiming that all other exempt employees had been reviewed when they
had not, or that her actions produced undesirable consequences for the company. Such
consequences included disruption caused by her investigation of Andersen and
McCollum, the need to resend Michelle Quintana’s files, and the dissemination of
sensitive information about reinstatement of vacation time. The facts that she had


      4
        Kerns offered a variety of evidence in the attempt to prove that Castiglioni was
biased against women. When he became president, he had excluded Kerns and
controller Carolyn Jennings from management meetings which then had no women.
Kerns and Paul Reed, Clarinda’s chief operating officer, had both witnessed Castiglioni
speak to Jennings in a “loud, arrogant” manner. Reed told Castiglioni’s superior,
Capital Graphics president Doug Friedrich, that he had heard Castiglioni make sexual
comments to female employees and that Castiglioni’s attitude and behavior towards
women was damaging to the company. Friedrich testified that after Kerns had left the
company, he saw a memo reporting Castiglioni’s statement, “I hate women. I was an
indentured servant to one for over 25 years, and I’m still paying for it.” At various
times, three women at Clarinda claimed to have been sexually harassed by Castiglioni,
but Kerns has not alleged she was sexually harassed by him or anyone else.

                                           9
received good performance reviews in the past and that the company’s sexual
harassment policies might have required her to take certain steps were not enough to
show that Castiglioni’s assertions that she demonstrated poor judgment in carrying out
particular tasks were pretextual. See Rose-Maston v. NME Hosps., Inc., 133 F.3d
1104, 1109 (8th Cir. 1998) (prior satisfactory evaluations fail to render more recent
negative evaluations inherently untrustworthy).

                                          B.

       Kerns has also appealed the dismissal of her retaliation claims, but these claims
fail both on procedural grounds and on their merits. The nature of Kerns’s claims has
changed over the course of the litigation. Her complaint alleged retaliation based on
the company’s untimely appeal of her unemployment benefits after learning that she
had filed with the ICRC. Without moving to amend her complaint, she later framed her
arguments around Castiglioni’s reactions to her statements about how he was handling
various open positions within the company. She has now abandoned the argument that
the company retaliated against her by filing the untimely appeal because she failed to
brief the issue on appeal, see Fed. R. App. P. 28(a)(4), and she has never properly
pleaded the claim that she was disciplined in retaliation for opposing unlawful
employment practices, see Pulla v. Amoco Oil Co., 72 F.3d 648, 658 (8th Cir. 1995).

       Both of these retaliation arguments would also fail on their merits. Kerns needed
to present evidence of adverse employment action caused by her engaging in protected
activity. See Stevens v. St. Louis Univ. Med. Ctr., 97 F.3d 268, 270 (8th Cir. 1996);
Hulme v. Barrett, 449 N.W.2d 629, 633 (Iowa 1989). Her agency filings were
protected conduct under 42 U.S.C. § 2000e-3(a) and Iowa Code 216.11(2), and there
is evidence that the company’s belated appeal could have been retaliatory because of
the suggestive timing. The agency ultimately refused to entertain the appeal, however,
and she has not shown that the company’s action otherwise inflicted any material
employment disadvantage. In regard to her subsequent theory, even if one assumes that
her relaying the concerns of other employees qualifies as protected opposition, see

                                          10
Montadon v. Farmland Indus., Inc., 116 F.3d 355, 359 (8th Cir. 1997) (requiring
opposition to practices plaintiff reasonably believed were unlawful), she failed to
present adequate evidence of adverse employment action or pretext to sustain a
retaliation claim. See id. at 359 (applying burden-shifting analysis to Title VII
retaliation claim).

                                          C.

       After carefully examining the record, we conclude the district court did not err
in granting summary judgment to Capital Graphics. The judgment is therefore affirmed.



      A true copy.



             Attest:



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




                                          11
