Submitted: October 17, 2019
from United States District Court for the District of
SMITH, Chief Judge, GRUENDER and BENTON, Circuit Judges.
Naca, an assistant professor of poetry at Macalester College,
was diagnosed in 2011 with a long-term illness causing
chronic pain and fatigue, but not impairing her intellect.
She requested accommodations, including time off and
assistance with her work, which Macalester partly granted
after many back-and-forth communications and meetings. Naca
remained competitive for tenure until May 2015, when a former
student who had also served as her work-study assistant,
"Jane Doe," made a written complaint that Naca had
sex with her. Macalester found, as Naca acknowledged, that
while Doe was still a student-about a week and a half before
graduation-Naca had invited Doe to her home and discussed
their potential mutual sexual attraction. Naca admitted she
asked Doe, "Do you want me to make a pass at you?"
Three days after Doe graduated, she and Naca began a sexual
relationship. The provost recommended terminating Naca for
violating Macalester's policies on student-teacher
relationships. The faculty personnel committee and the
president agreed. After a formal investigation, a hearing,
and at least five layers of review, Macalester terminated
sued Macalester, alleging 35 claims. The district
court dismissed about two-thirds of them for
failure to state a claim. Of these, Naca appeals the claims
for discriminatory discharge based on disability under three
statutes-§ 504 of the Rehabilitation Act of 1973, 29
U.S.C. § 794; the Americans with Disabilities Act, 42
U.S.C. § 12101 et seq.; and the Minnesota Human Rights
Act ("MHRA"), Minn. Stat. § 363A.01 et seq.
After de novo review, this court concludes that the district
court properly dismissed these claims as lacking sufficient
facts to be plausible. See 8th Cir. R. 47B.
appeal, Naca argues that the departing provost-who handled
her disability accommodations and the initial response to
Jane Doe's allegations-used the incoming provost, faculty
personnel committee, and college president as a
"cat's paw" to terminate Naca for her
disability. See Staub v. Proctor Hosp., 562 U.S.
411, 419 (2011). Naca did not raise this theory to the
district court. This court does not consider an argument
raised for the first time on appeal unless it is purely legal
and requires no additional factual development, or if a
manifest injustice would otherwise result. Orr v.
Wal-Mart Stores, Inc., 297 F.3d 720, 725 (8th Cir.
2002). When presenting her disability discrimination claims
in the district court, Naca never alleged that the former
provost had influenced the decision-makers who fired her.
True, when opposing summary judgment on her claim for
discriminatory discharge on the basis of sex, Naca cited the
Staub case to illustrate "procedural
irregularities," including "ignoring exculpatory
evidence." But, even as to sex discrimination, Naca did
not identify facts to support a cat's paw theory. Most
importantly, Naca never made a cat's paw argument in
support of disability discrimination. This court reviews only
the specific arguments raised before the district court,
"as opposed to those arguments the district court
might have deduced from the record as a whole."
Gilbert v. Des Moines Area Cmty. Coll., 495 F.3d
906, 915 (8th Cir. 2007) (emphasis in original). See
8th Cir. R. 47B.
district court denied Naca's motion to amend her
complaint to add claims under the Family Medical Leave Act,
29 U.S.C. § 2601 et. seq. Naca v. Macalester
Coll., 2017 WL 6622505, at *1 (D. Minn. Dec. 28, 2017).
For the reasons stated by the district court, it did not
abuse its discretion in ruling that this motion was untimely
and futile. See id., at *1-2. See also 8th
Cir. R. 47B.
district court later granted summary judgment on the claims
for discriminatory discharge based on (1) sex under Title IX
of the Education Amendments of 1972, 20 U.S.C. § 1681 et
seq.; (2) race/ancestry under 42 U.S.C. § 1981; (3) sex,
race/ancestry, and religion under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq.; and (4)
sex, race/ancestry, religion, and sexual orientation under
the MHRA, Minn. Stat. § 363A.01 et seq. Naca v.
Macalester Coll., 2018 WL 4516950, at *11, 21 (D. Minn.
Sep. 20, 2018). After accurately and precisely identifying
the undisputed facts, the district court stated:
The Court does not believe that Naca has established a prima
facie case of discrimination. Nothing about the circumstances
of this case gives rise to an inference of discrimination. In
May 2015, when Doe made her complaint, Macalester was
beginning the process of approving Naca for tenure. Up to
that point, Naca's career was progressing smoothly. What
changed after May 2015 was not Doe's race/ancestry, sex,
sexual orientation, or religion; what changed is that a
former student made a formal complaint of sexual misconduct.
Id. at *11. Even assuming Naca made a prima facie
case, this court concludes, on de novo review, that
Macalester articulates a legitimate, non-discriminatory
reason for termination-her sexual relationship with Doe-that
Naca does not counter with sufficient evidence of pretext.
See id. at *12-16 (rejecting Naca's contentions
about possible comparators, procedural irregularities, and
shifting explanations); cf. Amir v. St. Louis Univ.,
184 F.3d 1017, 1026 (8th Cir. 1999) (finding a genuine issue
of material fact about pretext where the decision-maker
issued a new policy just before taking adverse action).
See also 8th Cir. R. 47B.
district court also granted summary judgment on Naca's
claim for failure to accommodate her disability under §
504 of the Rehabilitation Act. Naca, 2018 WL
4516950, at *16-19. Naca admitted that with the
accommodations provided, she was performing the essential
functions of an assistant professor, which, on de novo
review, defeats her claim as a matter of law. See
Burchett v. Target Corp., 340 F.3d 510, 518 (8th Cir.
2003) (affirming summary judgment where plaintiff did not
show inability to perform her essential job functions with
the accommodations provided). See also 8th Cir. R.
jurisdiction under 28 U.S.C. § 1291, this court affirms