_____________

                                  No. 96-2251
                                 _____________

Jodee Lang,                           *
                                      *
        Plaintiff - Appellant,        *    Appeal from the United States
                                      *    District Court for the
        v.                            *    District of Nebraska.
                                      *
Star Herald,                          *
                                      *
        Defendant - Appellee.         *


                                 _____________

                      Submitted:   November 12, 1996

                            Filed: March 6, 1997
                               _____________

Before FAGG, BEAM, and HANSEN, Circuit Judges.
                              _____________


HANSEN, Circuit Judge.

        Jodee Lang appeals from the district court's1 grant of summary
judgment to the Star Herald in this Title VII case, in which Lang alleges
gender discrimination on the basis of her pregnant status.      We affirm.


                                      I.


        Viewed in the light most favorable to Lang, the record reveals the
following facts.   Jodee Lang began working as a part-time employee for the
Star Herald in April of 1991 and moved to full-time status in November of
1992.    Under the Star Herald's employee benefits policy, which is outlined
in an employee handbook, Lang




     The Honorable William G. Cambridge, Chief Judge, United States
District Court for the District of Nebraska.
accumulated vacation time and sick leave based upon the number of hours she
worked.


     In early May 1993, Lang informed her supervisor, Scott Walker, that
she was pregnant.   She continued working during her pregnancy until she
took one week of vacation from June 7 through 11.      During her vacation,
Lang experienced some bleeding associated with her pregnancy and was
advised by her physician not to return to work until it stopped.


     On Monday, June 14, 1993, Lang left a message for Walker, stating
that she would not be in because she had a medical appointment.    The next
day, Lang phoned Walker and read him a note from her doctor, which
recommended rest for two weeks.   During this conversation, she asked Walker
whether the Star Herald had a short-term disability policy; he replied that
he would find out for her.     Lang was absent from work the entire week of
June 14-18 and was paid with the balance of her accrued sick leave and
vacation time.


     Walker phoned Lang on June 23 and informed her that her sick leave
had expired and she had no remaining paid vacation time.   He also reported
that the Star Herald did not have a short-term disability policy.    Walker
said he would have to let her go but agreed not to take any action until
after Friday, June 25.


     That Friday, Lang told Walker that her doctor had told her not to
resume work because she was still incurring pregnancy-related problems.
Lang said she would know after her medical appointment on Monday, June 28,
when she could return to work.      Walker promised not to take any action
until after that time.


     On June 28, Lang's doctor recommended that she take additional time
off from her job and said he could not predict when she could resume work.
When Lang informed Walker of the doctor's recommendation, Walker explained
the Star Herald's policy for




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unpaid leaves of absence.        The policy provides that an employee who has
exhausted her paid leave time can apply for an unpaid leave of absence, but
the Star Herald does not guarantee that it will hold open the employee's
position during her absence.       Walker asked Lang to apply for an indefinite
leave of absence, but Lang refused to do so because she would not be
guaranteed re-employment.       As a result of her refusal, her employment with
the Star Herald was terminated.


     Lang filed a charge of discrimination with the Equal Employment
Opportunity Commission and then timely filed this suit.              The Star Herald
filed a motion for summary judgment, which was eventually granted by the
district court.    This appeal followed.


                                          II.


     Title VII makes it "an unlawful employment practice for an employer
to fail or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation,
terms,   conditions,      or   privileges       of   employment,   because   of   such
individual's . . . sex."       42 U.S.C. § 2000e-2(a) (1994).      In 1978, Congress
enacted the Pregnancy Discrimination Act (PDA), amending the definitional
provision of Title VII to clarify that discrimination "on the basis of
pregnancy, childbirth, or related medical conditions" is sex discrimination
under Title VII.    

      Congress enacted the PDA to overturn General Elec. Co. v.
Gilbert, 

, 136-38 (1976), which had held that a
pregnancy-related exclusion in an employee disability plan did not
violate Title VII. In Gilbert, a majority of the Court relied on
equal protection analysis as set out in Geduldig v. Aiello, 

, 494-97 (1974), to conclude that discrimination on the
basis of pregnancy was not sex discrimination. By enacting the
PDA, Congress not only overturned the holding of Gilbert, but also
refuted the Court's reasoning in that case.           Newport News
Shipbuilding & Dry Dock Co. v. EEOC, 

, 678 (1983). As
a result of the PDA, the Title VII terms "because of sex" or "on
the basis of sex" include discrimination on the basis of pregnancy,
childbirth, or related medical conditions. 42 U.S.C. § 2000e(k).

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       Lang claims that the Star Herald illegally discriminated against her
on the basis of her pregnancy by denying her an indefinite leave of absence
with a guarantee that she could return to her position.                  Lang appeals the
district court's grant of the Star Herald's motion for summary judgment,
arguing that her Title VII claim should survive under the theories of
disparate treatment and disparate impact.


       "We review the district court's grant of summary judgment de novo,
applying the same standard as the district court did and examining the
record in the light most favorable to the nonmoving party."                       Barge v.
Anheuser-Busch, Inc., 

, 258 (8th Cir. 1996).                  Summary judgment
is appropriate when the evidence "show[s] that there is no genuine issue
as to any material fact and that the moving party is entitled to a judgment
as a matter of law."       Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 

, 322 (1986).


       We begin with Lang's disparate treatment claim.              She does not offer
any direct evidence of discriminatory intent to support her claim, so we
analyze the facts under the familiar burden-shifting framework set out by
the McDonnell Douglas line of cases.             See St. Mary's Honor Ctr. v. Hicks,

, 506-08 (1993); United States Postal Serv. Bd. of Governors
v. Aikens, 

, 713-15 (1983); Texas Dep't of Community Affairs
v. Burdine, 

, 252-56 (1981); McDonnell Douglas Corp. v. Green,

, 802 (1973).         Under this framework, Lang must first have
evidence that will establish a prima facie case, namely, (1) that she
belonged to a protected class, (2) that she was qualified to receive the
benefit of an indefinite unpaid leave of absence with a guarantee of
returning to her former position, (3) that she was denied the benefit, (4)
and    that   the   same    benefit   was       available   to   others    with    similar
qualifications.      See Adams v. Nolan, 

, 794 (8th Cir. 1992).
If    she   successfully    establishes     a    prima   facie   case,    the   burden   of
production shifts to the Star Herald to




                                            4
offer a nondiscriminatory reason for its action.      Stevens v. St. Louis
Univ. Medical Ctr., 

, 270-71 (8th Cir. 1996).      Once the Star
Herald advances a nondiscriminatory reason, Lang must show, in this summary
judgment proceeding, that she has sufficient admissible evidence from which
a   rational factfinder could find that the Star Herald's         proffered
nondiscriminatory reason was    either untrue or not the real reason, and
that intentional discrimination was the real reason.     

; Ryther v. KARE 11, No. 97-3622, slip op. at 8-9 n.5 (8th Cir. Mar. 6,
1997) (en banc); see also Ryther, slip op. at 35 n.13 (Part I.A. of
concurring and dissenting opinion, in which eight active judges joined).


      Lang argues, based on an instruction in the Eighth Circuit Model
Civil Jury Instructions and on St. Mary's Honor Center v. Hicks, that she
does not need to show that she was treated differently than similarly
situated employees.    She contends that she need only show that her
pregnancy-related situation was a motivating factor in her discharge.
Lang's position is premised upon a fundamental misunderstanding of the law
when a claim of sexual discrimination is addressed in the summary judgment
setting.
      Title VII requires employers to treat employees who are members of
protected classes the same as other similarly situated employees, but it
does not create substantive rights to preferential treatment.     42 U.S.C.
§ 2000e-2(j) (1994).   Thus, as the prima facie elements enumerated above
demonstrate, Lang must have evidence that she was treated differently than
similarly situated employees.   In fact, the PDA specifically states that
"women affected by pregnancy, childbirth, or related medical conditions
shall be treated the same for all employment-related purposes, including
receipt of benefits under fringe benefit programs, as other persons not so
affected but similar in their ability or inability to work."      42 U.S.C.
§ 2000e(k) (1994) (emphasis added).   See also Carney v. Martin Luther Home,
Inc., 824




                                      

, 646 (8th Cir. 1987) ("Congress sought to limit the burden on
employers by making clear that the amendment was intended only to prevent
the exclusion of pregnancy coverage, not to require that employers who had
no disability or medical benefits at all provide them to pregnant women.").
As the Seventh Circuit candidly stated, "The [PDA] does not require that
employers make accommodations for their pregnant workers; `employers can
treat    pregnant women as badly as they treat similarly affected but
nonpregnant employees.'"   Geier v. Medtronic, Inc., 

, 242 (7th
Cir. 1996) (quoting Troupe v. May Dep't Stores Co., 

, 738 (7th
Cir. 1994)).    The plaintiff's burden of establishing a prima facie case
serves, in part, to assure that the plaintiff has some competent proof that
she was treated differently than similarly situated employees.


        Eighth Circuit Model Civil Jury Instruction § 5.91, on which Lang
relies, is fully consistent with the requirement that Lang initially
establish her prima facie case.   True, as Lang points out, the instruction
does not explain the McDonnell Douglas framework, including the prima facie
elements.   See Manual of the Model Civil Jury Instructions for the District
Courts of the Eighth Circuit § 5.91 (1995).      Reference to this complex
analysis is not necessary, however, or even recommended.    Grebin v. Sioux
Falls Indep. Sch. Dist. No. 49-5, 

, 20 (8th Cir. 1985); see also
Ryther, slip op. at 36 (seven active judges of the en banc court joining
Part IIA of Judge Loken's separate opinion, which said district courts are
not "constrained to instruct how discrimination can be proved" and which
rejected Kehoe v. Anheuser-Busch, Inc., 

, 1105 (8th Cir. 1996),
which had stated that "the district courts in this circuit are constrained
to instruct juries on the elements of the prima facie case.").   The burden-
shifting analysis is simply a procedural framework that progressively
focuses the inquiry on the question of whether a material issue of
discrimination in fact exists.     See 

.     Model
instruction § 5.91 properly focuses on the single ultimate factual issue
for the jury -- whether the plaintiff




                                     6
is a victim of intentional discrimination -- and does not conflict with the
requirement that Lang must initially establish a prima facie case to avoid
summary judgment or judgment as a matter of law when the case is tried.



        Lang's reliance on Hicks is likewise misplaced.            In Hicks, the
Supreme Court explained the requirement that a plaintiff must ultimately
prove that the defendant's proffered reason for its action is merely a
"pretext for discrimination."         

.      The entire
discussion in Hicks operates on the understanding that the plaintiff had
already established a prima facie case; indeed, if a plaintiff fails in
this endeavor, the plaintiff will be directed out at the close of the
plaintiff's evidence.        

.        Under
clearly settled law, Lang has the initial burden of establishing her prima
facie    case   in   order   to   raise   the   rebuttable   presumption   of   sex
discrimination.      

contends she has actually produced evidence
establishing her prima facie case.            The district court held that Lang
failed to do so, because she submitted no evidence that the Star Herald
denied her a benefit that she was qualified to receive and that other,
nonpregnant employees did receive.        We agree.   The Star Herald's employee
handbook indicates that the policy for leaves of absences was essentially
the same for pregnant and nonpregnant employees, and that no one was
qualified to receive the benefit Lang sought, viz., an indefinite unpaid
leave of absence with a guarantee of a job when the employee wanted to
return to work.


        Lang argues that the policy was in fact discriminatory.        She first
points to a nonpregnant coworker, Peggy Carbojol, who allegedly was given
indefinite time off for personal reasons.          The benefit Carbojol received
was quite different, however, from the one Lang sought.               Carbojol's
absence, which amounted to only one




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day, was covered by her accrued paid leave time.           The evidence of
Carbojol's leave does not show that Carbojol or any employee was granted
unpaid leave time with a guarantee of re-employment as Lang sought, nor
does it establish that Lang was qualified to receive that benefit.


         Lang also makes a comparison to another nonpregnant coemployee,
Teresa   Martinez, who was granted a variance from the leave policy.
According to Lang's brief (p. 10), Martinez asked for and received three
to four days off without pay at the commencement of her employment period.
The benefit Martinez received differs significantly from the one Lang
sought in that Martinez's period of unpaid leave was definite in duration
-- four days at the most.     Like the Carbojol evidence, this evidence of
Martinez's leave does not advance Lang's case.


     Because Lang has produced no evidence to show that the Star Herald's
indefinite-leave-of-absence policy was different for her than it was for
nonpregnant employees, we conclude that Lang failed to establish a prima
facie case.    Lang has not submitted evidence showing that she is qualified
to receive an unpaid indefinite leave of absence with a guarantee of
returning to her position or that the Star Herald has ever granted such a
benefit to other employees.


     Lang maintains that the fact that she asked for indefinite leave is
unimportant, because coworkers could have covered for her.     The relevant
question, however, is whether the Star Herald treated Lang differently than
nonpregnant employees on an indefinite leave of absence, not whether the
Star Herald could have made more concessions for Lang.   We emphasize again
that Title VII does not create rights to preferential treatment.   42 U.S.C.
§ 2000e-2(j) (1994).


     Finally, Lang contends that she actually had five remaining unpaid
vacation days to use at the time she was discharged.     She




                                     8
points to a policy provision in the employee handbook, which states:              "All
employees eligible for vacation who have not earned two weeks of vacation
during the year may take unpaid time off in addition to their paid vacation
time off up to a total of two weeks off during the year."             (J.A. at 72.)
Lang contends that because she had only accumulated 40 hours (5 days) of
vacation time at the time she was terminated (June), she could have taken
5 unpaid days under this provision.


        We agree with the district court that this provision applies only to
newly hired employees who have not yet worked for the Star Herald for one
year.    At the time Lang was discharged, she had worked for the Star Herald
for more than two years.        The provision is therefore inapplicable here.


        We do not address Lang's arguments that the Star Herald's proffered
reason for its employment decision was pretext for discrimination, because
her failure to establish her prima facie case means that the burden of
production of the employer's allegedly nondiscriminatory reason never
arises.


        Lang also argues her case under the theory of disparate impact.            The
district court dismissed Lang's disparate impact claim because she had not
specifically alleged in her pleadings that the Star Herald's unpaid leave
policy has a disproportionate impact on pregnant women.              Because Lang's
disparate impact claim fails as a matter of law, we decline to address the
pleading issue.    To establish a prima facie case of disparate impact, Lang
must show that the Star Herald's facially neutral policy is in fact
unjustifiably more harsh on pregnant women than on other people.                Krauel
v. Iowa Methodist Medical Ctr., 

, 681 (8th Cir. 1996).           To prove
this,    Lang   "must   offer   `statistical   evidence   of   a   kind   and   degree
sufficient to show that the practice in question has caused the exclusion'
of benefits because the beneficiaries would be women."         

v. Fort Worth Bank & Trust,




                                         9


, 994 (1988)).   Lang has provided no statistical support for
her claim, and in fact concedes in her brief that "there is no evidence of
statistical imbalance with this small [of] an employer."   (Appellant's Br.
at 26-27.)     As a result, there is no evidence in this record of a
disproportionately adverse impact on pregnant women, and we affirm the
district court's judgment because Lang cannot establish a prima facie case
of disparate impact.


                                   III.


     For the above reasons, we affirm the judgment of the district court.


     A true copy.


             Attest:


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




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