The 1993 UFCW Local 88 collective bargaining agreement with 1

Shop 'n Save now calls the meat wrapper position "meat clerk," and

has broadened the job description to include all duties previously

assigned the "meat cutter" position, except operating a band saw.

___________

Nos. 95-3430/3744

___________

Kimberly Brandt, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri.

Shop 'n Save Warehouse Foods, *

Inc., *

*

Appellant. *

___________

 Submitted: May 16, 1996

 Filed: March 17,1997

___________

Before BOWMAN, HEANEY, and WOLLMAN, Circuit Judges.

___________

BOWMAN, Circuit Judge.

Shop 'n Save Warehouse Foods, Inc., a grocery chain operating stores

in the St. Louis metropolitan area, appeals from the judgment of the

District Court in favor of Kimberly Brandt on her claims of sex

discrimination. We reverse.

Brandt, a member of the United Food and Commercial Workers (UFCW)

Local 88 labor union, worked as a "casual" meat wrapper out of the union

hall from 1987 to July 1991. That is, she worked for Shop 'n Save and

1

other grocery stores on an "as needed," temporary 
 In July 1991, Brandt was hired by Shop 'n Save as a permanent 2

employee, working as a meat wrapper (now meat clerk).

-2-

basis. The Shop 'n Save employees who knew Brandt and worked with her,

2

without exception, praised her work. In August 1990, Brandt sent a letter

to Richard Marty, then acting senior vice president of human resources for

Shop 'n Save, and a similar letter to Harold "Butch" Covili, Shop 'n Save's

senior vice president of operations, expressing interest in joining Shop

'n Save as a permanent employee, in a position as, in her words, a "female

apprentice meat cutter," or in front-end management or co-management. As

a courtesy, Marty interviewed Brandt on September 7, 1990, and told her

then and in a follow-up letter dated ten days later that Shop 'n Save did

not have a position to offer her. Marty's letter said Brandt's resume

would be retained in Shop 'n Save's "active files" for one year. Brandt

testified that, in the same time frame, she also told Danny Howard, who was

one of three "meat specialists" each assigned to supervise meat operations

at approximately one-third of Shop n' Save's twenty-eight stores, of her

interest in an apprentice meat cutter position with Shop 'n Save. As of

trial, Shop 'n Save had only one female meat cutter, who had been hired by

the company when it acquired a Kroger store where she was employed. The

evidence also shows that, of the 600-650 meat cutters on Local 88's

membership roster at that time, only three or four were female.

In May 1991, Marty hired John Dougherty to fill the position of

senior vice president of human resources, the position Marty himself had

been holding temporarily, and Marty returned to his position with Shop 'n

Save's parent corporation. At this time, Covili also was no longer working

in Shop 'n Save's St. Louis office. So Marty and Covili were out of the

picture as far as the day-to-day operations of Shop 'n Save's St. Louis

area stores were concerned, but Howard, who also knew of Brandt's

ambitions, was still working for the company as a meat specialist. During

the
-3-

month of May, after Dougherty was hired, the events leading up to Brandt's

lawsuit transpired, although the record does not establish a precise

sequence.

Sometime during the month, after Dougherty assumed his duties, he

received a call from Bob Frentzel, an old friend he had known since 1966.

Frentzel had experienced some employment setbacks since 1988, and in fact

had been unemployed for five months before he called Dougherty. He sought

whatever employment assistance Dougherty could offer. Also in May,

Dougherty, together with Bill Fant, Shop 'n Save's meat manager, who had

overall responsibility for the meat departments in all area stores, decided

to hire an apprentice meat cutter, someone with management experience and

"some college," but not necessarily any meat experience. The apprentice

meat cutter job description in the UFCW Local 88 contract with Shop 'n Save

in effect at that time did not say that the apprentice position was a

management position, nor did the job description give any indication that

any college education would be preferred, much less required, of the

successful meat cutter apprentice. Dougherty and Fant's ostensible goal,

however, was to move the person who was hired for the job into management

after the two-year meat cutter apprenticeship was completed. This was the

first time (and the last, as it turns out) that Shop 'n Save created an

apprentice meat cutter position, although the union contract allowed one

such position in each store if Local 88 gave its permission, as it did in

this case.

In hiring a person to fill this new job, Dougherty and Fant never

searched the "active files" for potential candidates who might have applied

for employment with Shop 'n Save before the apprentice position was

created. The job was never posted or otherwise advertised. Frentzel was

the only person interviewed or even considered to fill the position.

Dougherty, Fant, and Howard (who reported to Fant) all participated in the

hiring of Frentzel. Frentzel had management experience, although not for

several years;
-4-

he had "some college," although serious doubt was cast upon both just how

much "some" is and the extent to which the decision-makers were genuinely

interested in that aspect of Frentzel's background; and he had virtually

no meat experience. Brandt had neither management experience nor "some

college," but she did have extensive meat experience. By June 3, 1991, Bob

Frentzel was on the job in the apprentice position, at the Shop 'n Save

store where Brandt happened to be working as a meat wrapper out of the

union hall. As of the date of trial on Brandt's claims, three and one-half

years after he was hired and one and one-half years after he completed the

apprentice program, Frentzel had not been promoted to a management

position, despite the fact that Shop 'n Save had filled several openings

for such positions with other individuals.

The same day Frentzel went to work for Shop 'n Save, Brandt

confronted Dougherty and told him she had previously submitted a resume and

had expressed an interest in a position as an apprentice meat cutter. She

told Dougherty she believed his failure to consider her for the apprentice

job was sex discrimination. Two weeks later, Brandt filed a charge of

employment discrimination against Shop 'n Save with the Equal Employment

Opportunity Commission and the Missouri Commission on Human Rights. Brandt

filed suit against Shop 'n Save in May 1992, alleging sex discrimination

and retaliation in violation of Title VII, 42 U.S.C. §§ 2000e to 2000e-17,

and the comparable Missouri employment discrimination law, Mo. Rev. Stat.

§§ 213.010-.126. Trial was held before a jury and, by consent of the

parties and pursuant to 28 U.S.C. § 636(c), before a magistrate judge. The

jury found for Shop 'n Save on Brandt's claim of retaliation, but for

Brandt on her claim of sex discrimination. The jury further determined

that Shop 'n Save's conduct in this matter was such that punitive damages

were warranted. In addition, in derogation of the court's instructions,

the jury specified not only an amount of punitive damages (which was

supposed to be determined in a later proceeding and for which the jury had

no evidence), but also that Shop 'n Save
 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), 3

sets out the analysis to be applied to cases where the proof of

alleged discrimination is circumstantial. Brandt makes no claim

that there is direct evidence Shop 'n Save discriminated against

her, so the McDonnell Douglas framework is appropriate here.

-5-

should pay Brandt's attorney fees. After disposing of post-trial motions,

the Magistrate Judge entered judgment on the jury's verdict, awarding

Brandt equitable relief and $22,500 in compensatory damages. The court

also awarded Brandt $35,000 in punitive damages and $39,852.25 in attorney

fees and costs. Judgment was entered in favor of Shop 'n Save on Brandt's

claim of retaliation. Shop 'n Save appeals.

For its first issue on appeal, Shop 'n Save contends that the court

erred in denying its motion for judgment as a matter of law (JAML). We

review de novo, "applying the same standard as the district court and

overturning the verdict only if the evidence, viewed in the light most

favorable to the nonmoving party, is insufficient to support the verdict."

Karcher v. Emerson Elec. Co., 94 F.3d 502, 507 (8th Cir. 1996), petition

for cert. filed, 65 U.S.L.W. 3587 (Feb. 5, 1997) (No. 96-1304). We have

recited the facts in this opinion mindful of that standard, but we have

omitted those facts relating to Brandt's retaliation claim, the adverse

judgment on which Brandt does not appeal.

Shop 'n Save makes a two-part argument on its JAML issue. First, the

company claims that Brandt failed to prove a prima facie case of sex

discrimination under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

(1973), and its progeny. In the event we disagree and conclude that

3

Brandt proved her prima facie case, Shop 'n Save alternatively argues that

Brandt did not sustain her ultimate burden of proof under St. Mary's Honor

Center v. Hicks, 509 U.S. 502, 511 (1993). That is, Shop 'n Save contends

it answered Brandt's prima facie case with legitimate reasons for its

actions, and that she was unable to show those reasons were a
-6-

pretext for intentional discrimination. Because we conclude as a matter

of law that Brandt did not prove that her gender was a motivating factor

in Shop 'n Save's decision to hire Frentzel instead of her, we do not

consider the challenged aspects of the prima facie case. We assume for

purposes of this appeal that Brandt proved a prima facie case of sex

discrimination by a preponderance of the evidence.

Once the employee offers sufficient evidence to establish a prima

facie case of unlawful discrimination, it becomes the employer's burden to

produce evidence that it had legitimate, nondiscriminatory reasons for its

actions. Hicks, 509 U.S. at 507. If it does so, the "presumption [of

discrimination] raised by the prima facie case is rebutted." Id. (quoting

Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 255 (1981))

(alteration added by this Court). The burden of persuasion--"the ultimate

burden"--then moves to the employee to prove that the employment action in

question was taken at least in part because of her sex. Id. In this phase

of the case, the employee ordinarily attempts to prove that the employer's

articulated reasons are pretextual, thus raising the inference that sex was

a motivating factor for the adverse employment action. But it is not

enough that the employee submit evidence of pretext such that the jury

disbelieves the defendant's "legitimate" reasons. See O'Bryan v. KTIV

Television, 64 F.3d 1188, 1192 (8th Cir. 1995) ("[A] plaintiff's proof of

pretext, with respect to the defendant's proffered reason for its actions,

is relevant to, but not dispositive of, the ultimate issue of intentional

discrimination.") (emphasis added). "That the employer's proffered reason

is unpersuasive, or even obviously contrived, does not necessarily

establish that the plaintiff's proffered reason of [sex] is correct. That

remains a question for the factfinder to answer, subject, of course, to

appellate review--which should be conducted . . . under the ‘clearly

erroneous’ standard . . . ." Hicks, 509 U.S. at 524. We conclude, after

de novo review and giving Brandt the benefit of all reasonable
-7-

inferences that might be drawn from the evidence, that the jury's finding

of unlawful discrimination cannot be sustained as there is insufficient

evidence to support it, and that Shop 'n Save was entitled to judgment as

a matter of law on Brandt's claims of sex discrimination.

Shop 'n Save contends that it proffered a legitimate reason for

hiring Frentzel instead of Brandt. According to the company, Brandt was

not qualified to fill the apprentice position as it was conceived by

Dougherty and Fant, because she had neither management experience nor "some

college." We have carefully reviewed the record in this case, and we are

confident that the jury easily might have found that Shop 'n Save--

Dougherty specifically, with Fant's assistance--created the apprentice meat

cutter position and its qualifications with the express purpose of hiring

Frentzel to fill it, that is, that Shop n' Save's proffered "legitimate

reason" was a fabrication, a pretext for its true reasons. We are so

persuaded ourselves. But notwithstanding Shop 'n Save's arguable

dissembling about its reasons for hiring Frentzel, we do not believe that

Brandt has met her burden of proving that the pretext was intended to

conceal unlawful discrimination or that her gender in any way motivated the

hiring of Frentzel instead of Brandt. The "fact sensitive" issue at this

stage of the analysis is "whether the employee has provided evidence from

which a reasonable factfinder could conclude that the employer

intentionally discriminated against the employee for a prohibited reason."

Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328, 1334 (8th Cir. 1996).

We hold that she has not.

The evidence shows that Frentzel took advantage of his "network" to

land the apprentice meat cutter position, and that Dougherty obliged his

friend by supporting his application for the position, if not creating a

tailor-made position for Frentzel. We do not condone the exclusion of

Brandt as a viable candidate on this basis. But it is not intentional sex

discrimination for
-8-

Dougherty to hire an unemployed old friend who happens to be male, without

considering an applicant who is neither unemployed nor an old friend and

happens to be female. An employer's business decision concerning hiring

need not be a good decision to withstand a challenge for sex

discrimination; it is enough that it not be motivated by the gender of the

employee who is adversely affected by the decision. The proof at trial was

that Shop 'n Save had hired no males or females to be apprentice meat

cutters before Frentzel, and has hired none since. It is apparent that the

position was created for Frentzel, with the job's "qualifications" tailored

to Frentzel's background, rather than that Frentzel coincidentally and

fortuitously happened into a just-created position that required his

"qualifications." The fact that Frentzel has yet to be promoted to a

management position lends credence to that inference. But such actions,

although unfair from the standpoint of Brandt and persons of either gender

who are similarly situated, are not a violation of state and federal laws

prohibiting sex discrimination in employment. See Hutson v. McDonnell

Douglas Corp., 63 F.3d 771, 781 (8th Cir. 1995) ("[T]he employmentdiscrimination laws have not vested in the federal courts the authority to

sit as super-personnel departments reviewing the wisdom or fairness of the

business judgments made by employers, except to the extent that those

judgments involve intentional discrimination."). The evidence suggests

that at no time during the proceedings did Shop 'n Save fully acknowledge

the reasons Frentzel was selected to fill the apprentice meat cutter

position, and the jury evidently found the company's prevarication not at

all to its liking. Nevertheless, no reasonable jury could have found that

Frentzel was hired to the exclusion of Brandt because Brandt is female.

See Gathright v. St. Louis Teacher's Credit Union, 97 F.3d 266, 268 (8th

Cir. 1996) (stating that denial of motion for JAML should be affirmed "if

a reasonable jury could differ as to the conclusions that could be drawn").

Shop 'n Save thus is entitled to judgment as a matter of law.
-9-

Nothing in our recent en banc decision in Ryther v. KARE 11, No. 94-

3622 (8th Cir. Mar. 6, 1997), requires a contrary conclusion. This is a

case “where the evidence of pretext is inconsistent with an inference of

intentional discrimination.” Id., slip op. at 7 n.2. Of course, Brandt

was free to “rely on the same evidence to prove both pretext and

discrimination,” but that does not prevent our reversal of the denial of

Shop ‘n Save’s motion for JAML where “the evidence is insufficient for a

reasonable trier of fact to infer unlawful discrimination.” Id. at 35 n.13

(Loken, J., in a partial separate concurrence commanding a majority of the

Court en banc.)

Shop 'n Save raises a number of other issues in its appeal. Because

of our disposition of the first issue, it is unnecessary for us to consider

those that remain.

The judgment of the District Court is reversed and the case is

remanded with instructions for the court to enter judgment for Shop 'n

Save.

HEANEY, Circuit Judge, dissenting.

I respectfully dissent. The majority concedes that Brandt

established a prima facie case of sex discrimination and that she presented

sufficient evidence for a factfinder to conclude that the employer's

proffered reason for hiring Frentzl was a pretext for its true reason. Yet

the majority speculates as to the employer's actual motivation and

concludes that Brandt's discrimination claim should not have even survived

a motion for JAML. Our court should not engage in such conjecture, which

are essentially independent credibility determinations. Rather, because

Brandt presented more than adequate evidence of sex discrimination to go

to a factfinder, I would affirm the jury verdict and judgment of the

district court in favor of Brandt.
-10-

Brandt established the elements of a prima facie case of sex

discrimination. First, as a woman, Brandt is a member of a protected

class. Second, she applied for and was qualified for the position of an

apprentice meat cutter. In August 1990, Brandt submitted an application

to Shop 'n Save for the position and her four-year experience as a meat

clerk prepared her for nearly all of the necessary duties of a meat cutter

and certainly of an apprentice. Third, despite Brandt's qualifications,

she was rejected in favor of a male applicant under circumstances that give

rise to an inference of unlawful discrimination. At the time she submitted

her application, she interviewed for the position and was told that

although the company could not hire her at the time, her application would

remain in the active file for one year. Less than a year after Brandt's

interview, Shop 'n Save hired Frentzl, who had not even filled out an

employment application and who had absolutely no meat-cutting experience.

Under the McDonnell-Douglas framework, Brandt's establishment of a prima

facie case created a legal presumption of sex discrimination that, if

unrebutted, would have entitled her to judgment as a matter of law. St.

Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993).

To prevent entry of such judgment, Shop 'n Save had the burden to

articulate a legitimate, nondiscriminatory reason for its actions. The

company stated that it hired Frentzl rather than promote Brandt because

Frentzl had management experience and some college education and because

the decisionmakers were not even aware that Brandt was an applicant for the

position when Frentzl was hired. At this point, the legal presumption of

discrimination from Brandt's prima facie case disappeared; yet, as our

court recently clarified en banc, the elements of the prima facie case

remain as evidence from which the factfinder may infer discrimination.

Ryther v. KARE 11, No. 94-3622, slip op. at 5-6. (8th Cir. Mar. 6, 1997)

(citing Hicks, 509 U.S. at 511). As Justice Powell has explained:
-11-

In saying that the presumption drops from the case, we do not

imply that the trier of fact no longer may consider evidence

previously introduced by the plaintiff to establish a prima

facie case. A satisfactory explanation by the defendant

destroys the legally mandatory inference of discrimination

arising from the plaintiff's initial evidence. Nonetheless,

this evidence and inferences properly drawn therefrom may be

considered by the trier of fact on the issue of whether the

defendant's explanation is pretextual. Indeed, there may be

some cases where the plaintiff's initial evidence, combined

with effective cross-examination of the defendant, will suffice

to discredit the defendant's explanation.

Texas v. Burdine, 450 U.S. 248, 255 n.10 (1991); see also Sheridan v. E.

I. DuPont de Nemours & Co., 100 F.3d 1061, 1069 (3d Cir. 1996) (en banc).

In addition to her prima facie case, Brandt presented an arsenal of

evidence to discredit Shop 'n Save's articulated reasons for hiring

Frentzl. She alleged that Shop 'n Save pre-selected Frentzl for the

position and tailored the job qualifications to fit him. Frentzl was the

only person Shop 'n Save ever hired for the apprentice position with the

"special" job qualifications. Further, it is questionable whether Frentzl

even possessed the qualifications for which he was allegedly hired or, as

the majority notes, that the decisionmakers actually had any interest in

his education or management experience. Evidence of pre-selection and the

creation of a position tailored to Frentzl's qualifications reasonably and

effectively could have discredited Shop n' Save's explanation. See Coble

v. Hot Springs Sch. Dist. No. 6, 682 F.2d 721, 729 (8th Cir. 1982).

Moreover, Shop 'n Save's decision cannot be defended on the basis of the

relative qualifications of the applicants if those qualifications were not

even considered. See Easland v. Tennessee Valley Auth., 704 F.2d 613, 625

(11th Cir. 1983). Further calling into question the veracity of Shop 'n

Save's proffered reason, three and a half years after the company hired

Frentzl it had yet to promote him to a management position. Brandt also

introduced evidence that the majority of Shop 'n Save's
-12-

meat clerks were female and, at the time of trial, Shop 'n Save had only

hired one female meat cutter. The evidence that Shop 'n Save has

consistently maintained a workforce segregated by gender further buttressed

Brandt's discrimination claim. See Lams v. General Waterworks Corp., 766

F.2d 386 (8th Cir. 1985). 

Brandt's strong challenges to the defendant's proffered reasons

provided additional evidence from which the factfinder could have inferred

that Shop 'n Save's decision was actually motivated by discrimination. As

our court en banc just restated:

"[W]hen all legitimate reasons for rejecting an applicant have

been eliminated as possible reasons for the employer's actions,

it is more likely than not the employer, who we generally

assume acts only with some reasons, based his decision on an

impermissible consideration such as [sex]."

Ryther, No. 94-3622, slip op. at 6 (quoting Furnco Const. Corp. v. Waters,

438 U.S. 567, 577 (1977)). Or, as Judge Posner put it in his decision for

the Seventh Circuit en banc, "If the employer offers a pretext--a phony

reason--for why it fired the employee, then the trier of fact is permitted,

although not compelled, to infer that the real reason was [sex]." Visser

v. Packer Eng'g Assoc., 924 F.2d 655 (7th Cir. 1991) (en banc). 

I recognize that evidence of pretext may not support a reasonable

inference of discrimination in some cases. "[E]vidence of pretext will not

by itself be enough to make a submissible case if it is, standing alone,

inconsistent with a reasonable inference of age discrimination." Ryther,

No. 94-3622, slip op. at 7. For example, in Rothmeier v. Investment

Advisers, Inc., 85 F.3d 1328 (8th Cir. 1996), where the employee

discredited the employer's reason for his discharge by acknowledging that

he was fired for confronting his employer about alleged SEC violations,

clearly no inference of discrimination remained. Id. at 1335. But this

is
-13-

not a Rothmeier-type case. Brandt's pretext evidence does not point to a

nondiscriminatory reason for passing her over nor has she offered or

acknowledged such a justification. Rather, Brandt vigorously maintains

that Shop 'n Save's decision was actually gender-motivated.

Shop 'n Save has consistently argued that it hired Frentzl because

he was more qualified and because the decisionmakers did not know Brandt

was an applicant, asserting this position to the district court before,

during, and after the trial, and continuing to do so before this court.

Neither the jury, in considering the MHRA claim, nor the district court for

the Title VII claim accepted this explanation. Nor does the majority,

explicitly finding that the defendant's articulated reasons for hiring

Frentzl were fabricated. Yet, after discrediting Shop 'n Save's given

reason, the majority creates its own, nondiscriminatory explanation for the

defendant's employment decision. The majority reaches out and speculates

that Frentzl was actually hired because of Dougherty's loyalty to an old

friend. If Shop 'n Save's reason for hiring Frentzl was as the majority

determined, Shop 'n Save could have and should have advanced this reason

before the trial court, where it could have been subjected to a legitimate

inquiry. Shop 'n Save should not benefit from failing to assert the "true"

reason for its decision to the district court. As the Third Circuit

stated:

We routinely expect that a party give honest testimony in a

court of law; there is no reason to expect less of an employer

charged with unlawful discrimination. If the employer fails to

come forth with the true and credible explanation and instead

keeps a hidden agenda, it does so at its own peril. Under

those circumstances, there is no policy to be served by

refusing to permit the jury to infer that the real motivation

is the one that the plaintiff has charged.

Sheridan, 100 F.3d at 1069. There is no basis in the record for the

majority's speculation. Even if there were, however, it would
-14-

be for the factfinder--not this court--to consider in determining the

employer's motive. We need not decide whether a nonbusiness- related

reason for rejecting a qualified woman in favor of a less- qualified,

personal friend of a supervisor may ever be the basis for a summary

judgment against such a claimant. Suffice it to say that Shop 'n Save's

articulated reason smacked of pretext, and it was proper for the factfinder

to infer that its real motivation was as Brandt charged.

 

The properly instructed jury determined that Shop 'n Save

discriminated against Brandt on the basis of her sex in violation of the

MHRA. The district court then made specific findings of fact and

independently determined that Shop 'n Save similarly violated Title VII.

We should not reverse the verdicts for insufficient evidence unless, after

viewing the evidence in the light most favorable to the verdicts, no

reasonable factfinder could have returned a verdict for the nonmoving

party. Ryther, No. 94-3622, slip op. at 4. The district court properly

denied Shop 'n Save's motion for JAML. I would affirm the court in all

respects and award Brandt the damages to which she is entitled.

A true copy.

Attest:

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