                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 05-1184
                                    ___________

David A. Johnson, on his own behalf       *
and on behalf of all others similarly     *
situated,                                 *
                                          *
              Plaintiffs - Appellants,    *
                                          * Appeal from the United States
       v.                                 * District Court for the Southern
                                          * District of Iowa.
University of Iowa; State Board of        *
Regents; David J. Skorton, in his         *
official capacity; Douglas K. True, in *
his official capacity; Susan Buckley, in *
her official capacity,                    *
                                          *
              Defendants - Appellees.     *
                                     ___________

                           Submitted: September 13, 2005
                               Filed: December 15, 2005
                                   ___________

Before MELLOY, LAY, and BENTON, Circuit Judges.
                           ___________

MELLOY, Circuit Judge.

      David Johnson brought suit against his employer, the University of Iowa
(“University”), alleging that the University’s Parental Leave Policy violated the Equal
Protection Clause of the Fourteenth Amendment of the United States Constitution, the
Equal Protection Clause of the Iowa Constitution, Title VII of the Civil Rights Act of
1964, and the Iowa Civil Rights Act. The district court1 granted summary judgment
to the defendants on all claims. We affirm.

I. Background

       In 2002, Johnson and his wife, Jennie Embree, were expecting a baby girl. At
that time, Johnson worked full-time in the Office of the Registrar at the University,
and Embree worked part-time in the University’s College of Nursing. While attending
a class that explained the details of the University’s Parental Leave Policy, Johnson
was told that he, unlike Embree, could not use accrued sick leave to be paid for
absences after the birth of their daughter.

        The applicable portion of the Parental Leave Policy, as contained in Chapter 22
of the Operations Manual which governs the employment of Embree and Johnson,
states:
      22.8 PARENTAL LEAVE POLICY
      a. Purpose. To permit parents who have care giving responsibilities to
         have time off to spend with a child newly added to the family and, to
         the extent permitted by state law, to be paid during such leave. To
         adapt an employee's work schedule and/or duties to help reduce
         conflict with parental obligations.
      b. Entitlement to Leave.
      (1) Twelve-Month Faculty, Professional, Scientific, and Non-Organized
      Merit System Staff.
      (a)       Biological mothers are entitled to leave for any period of
                pregnancy-related temporary disability, to be charged against
                accrued sick leave. Based on current medical practice, a leave
                of six weeks or less would not require the employee to provide

      1
       The Honorable Ronald E. Longstaff, United States District Judge for the
Southern District of Iowa.

                                         -2-
                 disability documentation. If an employee's accumulated sick
                 leave is insufficient to cover the period of disability, the
                 employee will, at the employee's request, be granted a leave of
                 absence to be charged to vacation time, compensatory time, or
                 a leave of absence without pay. Any request for absence
                 beyond the period of disability is considered as a leave of
                 absence without pay or as vacation.
      (b)        A newly adoptive parent, including a domestic partner, is
                 entitled to one week (5 days) of paid adoption leave to be
                 charged against accrued sick leave. Departments are
                 encouraged to arrange for additional leave as necessary.
                 Departments should work with prospective adoptive parents
                 seeking to adopt through an adoption agency with specific
                 requirements for parental leave, to the extent the adoption
                 leave is not sufficient to undertake an adoption. Time not
                 charged to accrued sick leave may be charged to accrued
                 vacation or taken as leave without pay.


Johnson disagreed with the class instructor’s interpretation of the policy, so he sought
clarification from other representatives from the University’s human resources
department as well as the president of the University. After being consistently told
that biological fathers were not allowed to use accrued paid sick leave for absences
following the birth of a child, Johnson filed a complaint with the Iowa Civil Rights
Commission and the Equal Employment Opportunity Commission. He obtained right-
to-sue letters and initiated this case in the district court. He was subsequently certified
to represent the class of similarly-situated biological fathers employed by the
University.


       Johnson argues that the University’s Parental Leave Policy is discriminatory on
its face because it allows biological mothers and adoptive parents to use accrued sick
leave after the birth or arrival of a new child without extending a similar benefit to
biological fathers. Johnson also contends that the policy is discriminatory as applied


                                           -3-
because the University denied his request to use accrued sick leave but granted
Embree’s request for what Johnson deems “caregiving” leave.


II. Standard of Review


       We review the district court’s grant of summary judgment de novo. Charleston
Hous. Auth. v. United States Dept. of Agric., 419 F.3d 729, 737 (8th Cir. 2005).
Although the facts are largely undisputed in this case, the parties disagree about the
exact nature of the leave the University granted to Embree. Summary judgment is still
appropriate, however, when the disputed facts will not affect the outcome of the suit.
Dodd v. Runyon, 114 F.3d 726, 729 (8th Cir. 1997). For the reasons discussed infra,
we find that even if we take Johnson’s characterization of Embree’s leave as accurate,
his claims still fail as a matter of law.


III. Analysis


       The University’s Parental Leave Policy provides biological mothers and
adoptive parents of both genders with the ability to use accrued paid sick leave for
time away from work that is related to the addition of a child. Johnson argues that the
policy is unlawful because the University does not extend this benefit to biological
fathers. All of Johnson’s claims of discrimination rely on this premise.


      As the district court correctly noted, to determine whether biological fathers are
being unlawfully discriminated against, we must separately compare them to the two
groups allowed to use accrued paid sick leave: 1) biological mothers and 2) adoptive
parents of both genders. We decline to adopt Johnson’s repeated characterization that
the Parental Leave Policy contains a “biological father exclusion.” Rather, the policy


                                          -4-
provides two different sets of benefits to two different groups.2 The University did
not provide these benefits to Johnson because he is not a member of either group
designated to receive benefits. It did not exclude him on the basis that he is a
biological father.


      A. Biological Mothers Versus Biological Fathers


       The University provides biological mothers with the option of using up to six
weeks of accrued paid sick leave after birth. Although only women are eligible to
receive this benefit, the policy does not necessarily present “gender-plus”
discrimination. If the leave given to biological mothers is granted due to the physical
trauma they sustain giving birth, then it is conferred for a valid reason wholly separate
from gender. If the leave is instead designed to provide time to care for, and bond
with, a newborn, then there is no legitimate reason for biological fathers to be denied
the same benefit. Thus, the primary question for us to consider is whether the leave
given to biological mothers is in fact disability leave.


        Johnson relies heavily on the Parental Leave Policy’s introductory statement
which says its purpose is to “permit parents who have care giving responsibilities to
have time off to spend with a child newly added to the family . . . .” Johnson also
draws our attention to an “Informational Guide” produced by the University which
states: “leave is for the biological mother to recover from childbirth and to spend time
with the newborn child . . . .” Although these purpose statements cloud the issue, they
are not part of the operative language of the policy.3 The sentence that actually

      2
       Biological mothers are allowed to use up to six weeks of accrued sick leave
to cover an absence while adoptive parents can use only one week.
      3
        The plaintiff’s claim is expressly premised on alleged violations of Title VII
and the Equal Protection Clause of the United States Constitution; it is not based on

                                          -5-
confers the benefit at issue states: “Biological mothers are entitled to leave for any
period of pregnancy-related temporary disability, to be charged against accrued sick
leave.” This policy language does not allow mothers to use accrued sick leave after
their period of disability has ended. Thus, the period away from work constitutes
disability leave, even though mothers are likely caring for their newborns during this
period. Allowing biological mothers pregnancy-related disability leave on the same
terms as employees with other disabilities is not only permissible, but is required by
the Pregnancy Discrimination Act of 1978. Pub. L. No. 95-555, 92 Stat. 2076 (1978).


        Johnson argues that the University’s paid maternity leave cannot be interpreted
as disability leave because the University does not require proof of a disability when
the leave taken after giving birth is six weeks or less. We reject this argument because
it is not unreasonable for the University to establish a period of presumptive disability
so that it does not need to review medical records for each and every employee who
gives birth. In support of its motion for summary judgment, the University provided
testimony that a six-week period of disability after childbirth is supported by medical
evidence. Although Johnson submitted Embree’s affidavit claiming that she was fully
recovered from childbirth after four weeks, he has offered no medical evidence
indicating that the general period of recovery is less than six weeks. For all of these



breach of contract. In the briefs and at oral argument there was considerable
discussion of the prefatory language to the policy that states the University will
provide paid leave “to the extent permitted by state law.” Counsel for the University
acknowledged that the University could lawfully provide paid leave to biological
fathers. In fact, Iowa State University, another institution under the supervision of
Iowa’s Board of Regents, provides the type of paid leave the plaintiff requested in this
case.
       Like the district court, we are troubled because the operative language of the
policy seems to run counter to its prefatory language. However, like the learned
district court judge, our duty is not to pass on the “fairness” of the policy, but rather
to determine whether it is unconstitutional or in violation of any statute.

                                          -6-
reasons, we find that the policy’s provisions distinguishing between biological
mothers and biological fathers are not facially invalid.


       Johnson also contends that even if these provisions are facially valid, they are
discriminatory as applied. He claims that Embree was given four weeks of medical
leave and then two weeks of paid “parental leave,” but that his request to take any paid
leave was denied. Embree’s affidavit asserts that she decided to take four weeks of
medical leave and then an additional two weeks of partial leave “for the exclusive
purpose of spending time with and caring for [her] newborn child.” Embree’s
affidavit also contends that she made the reasons for her requested leave known to a
supervisor.


       In considering this motion for summary judgment, we must assume that
Embree’s assertions are accurate because “we take the non-movant's evidence as true,
drawing all reasonable inferences in his or her favor.” Scusa v. Nestle U.S.A. Co.,
181 F.3d 958, 964 (8th Cir. 1999). Embree’s reasons for requesting leave are not at
issue, however. We are only concerned with the University’s motivation in granting
the leave. The University required Embree to obtain a medical release before she
voluntarily returned to work on a part-time basis four weeks after giving birth.4
Johnson contends that this release proves that the subsequent two weeks of part-time
leave granted to Embree were for “caregiving” purposes and not disability leave. This
argument fails to consider the possibility of partial disability leave. In the fifth and
sixth weeks after giving birth, Embree worked only ten hours per week. Furthermore,
she worked from home. Thus, it is not a reasonable inference to assume that Embree
demonstrated that she was medically cleared to return to work full-time without any
restrictions, but was then still allowed to continue to take paid leave.


      4
       This also bolsters the University’s argument that it operates under the
assumption that women generally need six weeks to recover from childbirth.

                                          -7-
       Even if we assume that the University did allow Embree to use accrued sick
leave solely for the purpose of caring for her newborn, Johnson cannot establish that
the policy was improperly applied to him in a discriminatory fashion. To demonstrate
that the University’s stated reasons for treating Johnson and Embree differently are
pretextual–and that Johnson’s gender was the real reason he was discriminated
against–Johnson would have to show that he was treated differently than a “similarly
situated” female employee. Rodgers v. U.S. Bank, N.A., 417 F.3d 845, 853 (8th Cir.
2005). At the pretextual stage of the analysis, “the test for determining whether
employees are similarly situated to a plaintiff is a rigorous one.” Id. In this stage, the
plaintiff must show that the employee who was treated differently was similarly
situated to him “in all relevant respects.” Id. The same requirement applies to equal
protection claims. “To establish a gender-based claim under the Equal Protection
Clause, the appellants must, as a threshold matter, demonstrate that they have been
treated differently by a state actor than others who are similarly situated simply
because appellants belong to a particular protected class.” Keevan v. Smith, 100 F.3d
644, 647-48 (8th Cir. 1996).


      Johnson and Embree are not similarly situated. They had different job
responsibilities, worked in different departments and reported to different supervisors.
Most significantly, Johnson was a full-time employee and Embree was a part-time
employee. Generally, part-time employees are not similarly situated to full-time
employees. See Lowery v. Hazelwood Sch. Dist., 244 F.3d 654, 660 (8th Cir. 2001).
Furthermore, even if Embree and Johnson were similarly situated from an
employment perspective, at the time Embree allegedly received parental leave for
caregiving purposes, she was only a month removed from childbirth. Even if Embree
was medically released to begin working from home on a part-time basis, the fact that
she had recently gone through the physical trauma of labor is a distinguishing
characteristic between her and Johnson. Accordingly, Johnson’s “as applied”
challenge to the biological mother classification fails.


                                           -8-
        Johnson urges us to find that the Equal Protection Clause of the Iowa
Constitution provides broader protection than the Equal Protection Clause of the
United States Constitution. His argument relies on Racing Ass’n of Cent. Iowa v.
Fitzgerald, 675 N.W.2d 1 (Iowa 2004), in which the Iowa Supreme Court found that
different tax rates on the slot machines of racetracks and river boats violated the Iowa
Constitution even though the United States Supreme Court had ruled that the differing
tax rates did not violate the United States Constitution. Although the Iowa Supreme
Court noted that the federal constitutionality of a law is “not binding” on whether the
law violates the Iowa Constitution, such a conclusion was deemed to be “persuasive.”
Id. at 5. For the reasons already discussed, we believe that even if the Iowa Supreme
Court conducted an independent analysis of this policy under its state constitution, it
would also uphold the policy.


      B. Biological Fathers v. Adoptive Parents


       The Parental Leave Policy’s classification allowing adoptive parents to use
accrued sick leave does not discriminate on the basis of gender. It provides exactly
the same benefits to adoptive fathers as to adoptive mothers. Nonetheless, Johnson
argues that the policy is unlawful because it extends benefits to adoptive parents but
not to biological fathers. To analyze the merits of this claim we must first determine
the requisite level of scrutiny.


       Johnson contends that the policy should be reviewed with strict scrutiny
because it interferes with his fundamental rights of child-rearing. Although the
Supreme Court has recognized a number of fundamental rights concerning parents’
ability to raise their children, Johnson offers no precedent establishing that these rights
include the ability to take time off from work to bond with a child. Furthermore,
Johnson was allowed to take unpaid leave in accordance with the Family Medical
Leave Act. He sued the University because he was unable to receive paid leave. The

                                           -9-
United States Supreme Court has defined fundamental rights as those rights that are
“deeply rooted in this Nation’s history and tradition.” Moore v. City of East
Cleveland, 431 U.S. 494, 503 (1977). The ability to get paid leave from an employer
does not fall into this category.


       Because biological fathers are not a suspect class and because the right to paid
leave is not fundamental, the appropriate standard of review is the rational basis test.
Clayton v. White Hall Sch. Dist., 875 F.2d 676, 680 (8th Cir. 1989) (upholding a
school district’s policy of allowing the children of administrative employees, but not
general employees, to open enroll into the district). A classification reviewed under
this standard will be upheld “if it has some reasonable basis.” Id. Adoptive parents
face demands on their time and finances that may be significantly greater than those
faced by biological parents. For example, the benefits of the University’s health
insurance plan offset the medical costs arising when an employee or an employee’s
spouse gives birth. Adoptive parents receive no such insurance benefit to offset the
costs of adoption. Adoptive parents may also be required to take time off from work
to deal with adoption-related administrative concerns prior to the arrival of the child.5
Johnson may be correct that the distinctions between adoptive fathers and biological
fathers are minimal. However, “[t]he process of classifying persons for benefits
inevitably requires that some persons with nearly equal claims will be placed on
different sides of the line, and whether the line might have been better drawn is a
matter for legislative, rather than judicial, consideration.” Id. at 680. Accordingly,
we find that the policy provisions granting benefits to adoptive parents, like those
provisions giving benefits to biological mothers, are not unlawful.

      5
        The parties disagree as to whether the policy allows for the use of accrued sick
leave to cover absences prior to the arrival of the adopted child, but this fact is not
material. Even if the policy does not allow prospective adoptive parents to use
accrued sick leave in this fashion, the resulting need for adoptive parents to take
unpaid time off prior to the child’s arrival provides a legitimate reason to make it
easier for them to take paid leave after the child’s arrival.

                                          -10-
IV. Conclusion


       Because we find that the leave granted to biological mothers is disability leave
and that the University did not apply the policy improperly, Johnson has not
established the requisite adverse treatment of biological fathers that would be
necessary for his Title VII claim to survive. We analyze Johnson’s Iowa Civil Rights
Act claim under the same framework as the Title VII claim, so it must also fail.
Henthorn v. Capitol Communications, Inc., 359 F.3d 1021, 1024 n.2 (8th Cir. 2004).


       We hold that there is no fundamental right to paid leave from an employer so
the policy benefits given to adoptive parents need only survive rational basis review.
As the University has articulated legitimate reasons for the classifications made in the
policy, the University is entitled to summary judgment on the claim under the federal
Equal Protection Clause. We also conclude that the policy does not violate the Equal
Protection Clause of the Iowa Constitution even though the protections provided by
that clause are arguably broader than those under its federal counterpart.


     For the foregoing reasons, we affirm the district court’s grant of summary
judgment to the defendant on all claims.
                        ______________________________




                                         -11-
