Ames v. Nationwide Mut. Ins. Co.

Decision Date26 June 2014
Docket NumberNo. 12–3780.,12–3780.
Citation760 F.3d 763
PartiesAngela AMES, Plaintiff–Appellant v. NATIONWIDE MUTUAL INSURANCE COMPANY; Nationwide Advantage Mortgage Company; Karla Neel, Defendants–Appellees Equal Employment Opportunity Commission; American Civil Liberties Union Foundation; American Civil Liberties Union of Iowa, Amici on Behalf of Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

OPINION TEXT STARTS HERE

Brooke Timmer, Emily E. McCarty, argued, Urbandale, IA, for Appellant.

Kerrie Marie Murphy, Julie Tomka Bittner, West Des Moines, IA., Louis B. Butler, Milwaukee, WI., Dinita L. James, argued, Phoenix, AZ, for Appellee.

Eric A. Harrington, Washington, DC, (Galen Sherwin, Lenora Lapidus, New York, NY, Rita Bettis, and Randall Wilson, on the brief, Des Moines, IA), for Amicus.

Before WOLLMAN, COLLOTON, and GRUENDER, Circuit Judges.

ORDER

Angela Ames petitions for rehearing of this court's decision filed March 13, 2014. Represented by new counsel who appears for the first time on the petition, Ames leads with an entirely new argument. She contends the Supreme Court's decision in Pennsylvania State Police v. Suders, 542 U.S. 129, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004), supersedes circuit precedent such as West v. Marion Merrell Dow, Inc., 54 F.3d 493 (8th Cir.1995), and similar cases cited in the panel opinion. SeeSanders v. Lee Cnty. Sch. Dist. No. 1, 669 F.3d 888, 893 (8th Cir.2012); Alvarez v. Des Moines Bolt Supply, Inc., 626 F.3d 410, 418 (8th Cir.2010); Coffman v. Tracker Marine, L.P., 141 F.3d 1241, 1247–48 (8th Cir.1998). According to the petition for rehearing, Suders dictates that a plaintiff alleging constructive discharge in violation of Title VII based on an “official act” of a supervisor need not give the employer a reasonable opportunity to address and ameliorate the conditions that she claimed constituted a constructive discharge. The EEOC, as amicus curiae, presses the same argument based on Suders, also for the first time in support of the petition for rehearing.

Panel rehearing is not a vehicle for presenting new arguments, and we do not ordinarily consider arguments raised for the first time in a petition for rehearing.” Yankton Sioux Tribe v. Podhradsky, 606 F.3d 985, 993 (8th Cir.2010) (internal quotations and citations omitted). The issue of constructive discharge was briefed extensively in the district court and on appeal by the parties and the EEOC as amicus curiae. Before the rehearing stage, neither Ames nor the EEOC cited Suders for the proposition now advanced or suggested that Suders superseded prior circuit precedent. Ames cannot now invoke a new theory in support of her position. Id.; United States v. Klotz, 503 F.2d 1056, 1056 (8th Cir.1974) (per curiam). We therefore decline to consider this new argument for the first time on rehearing. If the point is timely raised in a future appeal, then the court may consider whether, and if so how, the analysis of Suders should be extended to a constructive discharge claim such as the one presented here. Cf. Stremple v. Nicholson, 289 Fed.Appx. 571, 573 (3d Cir.2008) ([I]n Suders, the Court did not set forth a rule for all constructive discharge claims, but rather dealt only with the issue of an employer's liability for constructive discharge resulting from a hostile work environmentattributable to a supervisor.”); James M. Weiss, If He Makes You Quit, We're Not Liable: How Pennsylvania State Police v. Suders Unnecessarily Complicates Title VII Lawsuits, 82 Wash. U. L. Q. 1621, 1647 (2004) (“The murkiness [after Suders] enters the picture when an employer attempts to fight the first part of [the constructive discharge] analysis by introducing evidence to show that no constructive discharge occurred, which essentially is the same evidence it would use to prove the affirmative defense.”).

Ames and her amici also raise issues concerning the decision of the Seventh Circuit in EEOC v. University of Chicago Hospitals, 276 F.3d 326, 332 (7th Cir.2002), and about certain dicta in the panel opinion. Together with this order, the panel will file an amended opinion in response to those points.

The petition for panel rehearing is granted in part as described in this order and is otherwise denied. The opinion filed on March 13, 2014, is withdrawn and an amended opinion is substituted and filed concurrently with this order. Any new petition for panel rehearing or rehearing en banc must be filed within fourteen days of this order.

WOLLMAN, Circuit Judge.

Angela Ames appeals from the district court's 1 grant of summary judgment to Nationwide Mutual Insurance Company, Nationwide Advantage Mortgage Company, and Karla Neel (collectively, Nationwide) on her sex- and pregnancy-based employment discrimination claims brought under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and the Iowa Civil Rights Act (ICRA), Iowa Code § 216.6. We affirm.

I.

Ames was hired as a loss-mitigation specialist at Nationwide Mutual Insurance in October 2008. Timely completion of work is central to this position and “a high priority” for the loss-mitigation department as a whole. Brian Brinks was Ames's immediate supervisor, and Neel was the head of her department, as well as an associate vice president.

Ames gave birth to her first child on May 2, 2009, and took eight weeks of maternity leave following his birth. In October 2009, Ames discovered that she was pregnant with her second child. Ames suffered pregnancy complications, and her doctor ordered her on bed rest in April 2010.

When Ames discussed her bed rest with Neel, Neel rolled her eyes and said that she never had to go on bed rest when she was pregnant and that she never had complications with her pregnancies. Neel had previously expressed to Ames her belief that a woman should not have a baby shower while she is pregnant because the baby could die in utero. According to Ames, Brinks remarked to others in the office about Ames's maternity leave, stating, “Oh, yeah, I'm teasing her about only taking a week's worth of maternity leave. We're too busy for her to take off that much work.” Nationwide trained Angie Ebensberger, who was a temporary employee at Nationwide Mutual Insurance, to fill Ames's position during her maternity leave.

Ames gave birth to her second child prematurely on May 18, 2010. Nationwide thereafter informed Ames that her Family Medical Leave Act (FMLA) maternity leave would expire on August 2, 2010. On June 16, 2010, Neel called Ames to inform her that there had been a mistake in calculating her FMLA maternity leave and that her maternity leave would expire on July 12, 2010. Neel also told Ames that she could take additional unpaid leave until August 2010, but that doing so would “cause[ ] red flags,” that she [didn't] want there to be any problems like that,” and that she [didn't] want there to be any issues down the road.” Neel told Ames that she wanted to find a mutually agreeable date of return and offered to extend Ames's maternity leave an additional week.

Prior to returning to work, Ames asked a Nationwide disability case manager where she could express milk when she returned to work and was told that she could use a lactation room. Ames returned to work on July 19, 2010, when her son was two months old and breastfeeding every three hours. By the time Ames had arrived at work that morning, more than three hours had passed since her son had last nursed. Ames asked Neel about using a lactation room. Neel replied that it was not her responsibility to provide Ames with a lactation room. Ames then went to the security desk to inquire about the lactation rooms and was directed to see Sara Hallberg, the company nurse.

Hallberg informed Ames of Nationwide's lactation policy, which allowed employees to gain badge access to the company's lactation rooms after completing certain paperwork that required three days to be processed. The lactation policy was available to Nationwide's employees on the company's intranet, and Nationwide provided information regarding the policy at its quarterly maternity meetings. Ames's conversation with Hallberg was the first time that Ames had heard of the policy. Hallberg sent a copy of the lactation policy to Ames via email. Hallberg also requested that security “grant Angela Ames access to the lactation rooms as soon as possible.” When Ames told Hallberg that she needed to express milk immediately, Hallberg suggested that Ames use a wellness room. Because the wellness room was occupied, Hallberg told Ames to return in fifteen or twenty minutes. Hallberg warned Ames that lactating in a wellness room might expose her breast milk to germs.

While waiting for the wellness room, Ames met with Brinks to discuss the status of her work. Brinks told Ames that none of her work had been completed while she was on maternity leave, that she had two weeks to complete that work, that she would have to work overtime to accomplish this, and that if she failed to catch up, she would be disciplined. After the meeting with Brinks, Ames returned to Neel's office to see if Neel could help her find a place to lactate. Neel again told Ames that she was unable to help. Neel testified that Ames was visibly upset and in tears. Neel then handed Ames a piece of paper and a pen and told Ames, “You know, I think it's best that you go home to be with your babies.” 2 Neel dictated to Ames what to write on the piece of paper to effectuate her resignation.

Ames sued Nationwide, alleging sex and pregnancy discrimination. Her complaint asserted that the unavailability of a lactation room, “her urgent need to express milk,” and Nationwide's “unrealistic and unreasonable expectations about her work production” forced her to resign from her position. Nationwide moved for summary judgment, arguing that there was no genuinedispute of material fact that Nationwide discriminated against Ames. Specifically, Nationwide argued that Ames had not shown...

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