### The 1993 UFCW Local 88 collective bargaining agreement with 1 

### Shop 'n Save now calls the mea t wrapper position "meat clerk," and has broadened the job descript ion 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 t he St. Louis metropolitan area, appeals from the judgment of th e Distric t Court in favor of Kimberly Brandt on her claims of se x discrimination. We reverse.

Brand t, 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 an d 1 other grocery stores on an "as needed," temporary

### In July 1991, Brandt was hired by Shop 'nSave as a permanent 2 

### employee, working as a meat wrapper (now meat clerk).
-2- basi s. 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 presid ent 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 a s, in her words, a "female apprentice meat cutte r," or in front-end management or co-management. As
a courtesy, Marty interviewed Brandt on September 7, 1990, and told he r 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 resum e 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 wa s 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 cut ter, 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 o f senior vice president of human resources, the position Marty himself had been holding temporar ily, and Marty returned to his position with Shop 'n Save's parent corporation. At this time, Covili also was no longer workin g in Shop 'n Save's St. Louis office. So Marty and Covili were out of the picture a s far as the day-to-day operations of Shop 'n Save's St. Loui s
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 eve nts leading up to Brandt's lawsui t transpired, although the record does not establish a precis e sequence.

Sometime during the month, after Dougherty assumed his duties, h e received a call from Bob Frentzel, an old friend he had known since 1966. Frentzel had experien ced some employment setbacks since 1988, and in fact had been unemployed for five months before he ca lled Dougherty. He sought whatev er 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, decide d 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 Sav e 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 th e successful meat cutte r 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 wa s completed. This was the first time (and the last, as it turns out) that Shop 'n Save created a n 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 neve r searched the "active files" for potential candidates who might have applie d for employment with Shop 'n Save before the apprentice position wa s 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 Fan t) 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 th e 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 "som e college," but she did have extensive meat experience. By June 3, 1991, Bo b Frentze l was on the job in the apprentice position, at the Shop 'n Sav e store wh ere Brandt happened to be working as a meat wrapper out of th e union hall. As of the date of trial on Brandt's claims, three and one-hal f years after he was hired and one and one-half ye ars after he completed the appren tice program, Frentzel had not been promoted to a managemen t 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, Brand t confronted Dougherty and told him she had previously submitted a resume an d had expressed an interest in a position as an ap prentice meat cutter. She told Dougherty she believed his failure to consi der her for the apprentice job was sex discrimination. Two weeks later, Brandt filed a charge o f employment discrimination against Shop 'n Save with the Equal Employment Opportunity Commission and the Missouri Commission on Human Rights. Brand t 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 Mi ssouri employment discrimination law, Mo. Rev. Stat. §§ 213.01 0-.126. Trial was held before a jury and, by consent of th e parties and pursuant to 28 U.S.C. § 636(c), before a magistrate judge. Th e jur yfound for Shop 'n Save on Brandt's claim of retaliation, but fo r Brandt on her claim of sex discrimination. The jury further determine d that Shop 'n Save's c onduct 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 wa s 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 o f allege d discrimination is circumstantial. Brandt makes no clai m tha t there is direct evidence Shop 'n Save discriminated agains t her, so the McDonnell Douglas framework is appropriate here.
-5- should pay Brandt's attorney fees. After dispos ing of post-trial motions, the Ma gistrate Judge entered judgment on the jury's verdict, awardin g Bra ndt equitable relief and $22,500 in compensatory damages. The cour t also awarded Brandt $35,000 in punitive damages and $39,852.25 in attorney fees and costs. Judgment was entered in favor o f Shop 'n Save on Brandt's claim of retaliation. Shop 'n Save appeals.

For its f irst issue on appeal, Shop 'n Save contends that the court erred in denying its motion for judgment as a matter of law (JAML). W e review de novo , "applying the same standard as the district court an d overt urning the verdict only if the evidence, viewed in the light mos t favorable to the nonmoving party, is insufficien t 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 t he facts in this opinion mindful of that standard, but we hav e omitte d those facts relating to Brandt's retaliation claim, the advers e judgment on which Brandt does not appeal.
Shop 'n Save makes a two-part argument on its JAML issue. Firs t, the compan yclaims that Brandt failed to prove a prima facie case of se x discrimination under McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802 (1 973), and its progeny. In the event we disagree and conclude tha t 3 Brandt proved her prima facie case, Shop 'n Save alternatively argues that Brandt did not sustain her ultimate burden of pr oof under St. Mary's Honor Center v. Hicks , 509 U.S. 502, 511 (1993). That is, Shop 'n Save contends it answ ered Brandt's prima facie case with legitimate reasons for it s 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 no t consider the challenged aspects of the prima facie case. We assume fo r purpos es of this appeal that Brandt proved a prima facie case of se x discrimination by a preponderance of the evidence.

Once the employee offers sufficient evidence to establish a prim a facie case of unlawful discrimination, it become s the employer's burden to produce evidence that it had legitimate, nondisc riminatory reasons for its acti ons. Hicks , 509 U.S. at 507. If it does so, the "presumption [o f discrimination] raised by the prima facie case i s 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 tha t the employment action in question was taken at least in part because of her sex. Id. In this phas e of the case, the employee ordinarily attempts to prove that the employer's articulated reasons are pretextual, thus raising the inference that sex wa s
a m otivating factor for the adverse employment action. But it is no t enoug hthat the employee submit evidence of pretext such that the jur y disbel ieves the defendant's "legitimate" reasons. See O'Bryan v. KTI V Television , 64 F.3d 1 188, 1192 (8th Cir. 1995) ("[A] plaintiff's proof of pretext, with respect to the defendant's proffer ed reason for its actions, is relevant to, but n ot dispositive of , the ultimate issue of intentional discrimination.") (emphasis added). "That the e mployer's proffered reason is unpersuasive, or even obviously contrived, does not necessaril y establish that the plaintiff's proffered reason of [sex] is correct. That remains a question for the factfinder to answer, subject, of course, t o appe llate review--which should be conducted . . . under the ‘clearl y 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 unl awful discrimination cannot be sustained as there is insufficien t evidence to support i t, and that Shop 'n Save was entitled to judgment as a matter of law on Brandt's claims of sex discrimination.

Shop 'n S ave contends that it proffered a legitimate reason fo r hiring Frentzel instead of Brandt. According to the company, Brandt was not qualified to fill the apprentice position as it was conceived b y Dougherty and Fant, because she had neither management experience nor "som e college." We have ca refully 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 mea t cutter position and i ts qualifications with the express purpose of hiring Frentzel to fill it, that is, that Shop n' Save's proffered "legitimat e reason" w as a fabrication, a pretext for its true reasons. We are s o per suaded ourselves. But notwithstanding Shop 'n Save's arguabl e dissembling about its reasons for hiring Frentzel, we do not believe that Bra ndt has met her burden of proving that the pretext was intended t o conceal unlawful discrimination or that her gender in any way motivated th e hiring of Frentzel in stead of Brandt. The "fact sensitive" issue at this stage of the analysis is "whether the employee has provided evidence from whic ha reasonable factfinder could conclude that the employe r 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 evide nce 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 tailo r-made position for Frentzel. We do not condone the exclusion o f 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 h appens 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 se x discrimination; it is enough that it not be moti vated by the gender of the employee who is adversely affected by the decision. The proof at trial wa s that Shop 'n Save had hired no males or females to be apprentice mea t cutters before Frentzel, and has hired none since. It is apparent that th e position was created for Frentzel, with the job's "qualifications" tailore d to F rentzel's background, rather than that Frentzel coincidentally an d fo rtuitouslyhappened into a just-created position that required hi s "qu alifications." 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 an d persons of either gender who are similarly sit uated, are not a violation of state and federal laws prohib iting sex discrimination in employment. See Hutson v. McDonnel l Douglas Corp. , 63 F.3d 771, 781 (8th Cir. 1995) ("[T]he employment

discrimination laws have not vested in the feder al courts the authority to sit as super-personnel departments reviewing the wisdom or fairness of the busines s judgments made by employers, except to the extent that thos e judgm ents involve intentional discrimination."). The evidence suggest s that at no time durin g the proceedings did Shop 'n Save fully acknowledge the reasons Frentzel was selected to fill the apprentice meat cutte r position, and the jur y 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 t hat 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 decisi on 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 fr ee to “rely on the same evidence to prove both pretext an d 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.1 3 (Loken, J., in a partial separate concurrence co mmanding a majority of the Court en banc .)
Shop 'n Save raises a number of othe r issues in its appeal. Because of our disposition of the first issue, it is unnecessary for us to conside r those that remain.

The j udgment of the District Court is reversed and the case i s
reman ded with instructions for the court to enter judgment for Shop ' n Save.
HEANEY, Circuit Judge, dissenting.

I respectfully dissent. The majority concedes that Brand t established a prima facie case of sex discrimination and that she presente d suffic ient evidence for a factfinder to conclude that the employer' s proffered reason for hiring Frentzl was a pretext for its true reason. Ye t the ma jority speculates as to the employer's actual motivation an d concludes that Brandt's discrimination claim sho uld not have even survived a motion for JAML. O ur 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 f actfinder, I would affirm the jury verdict and judgment of th e district court in favor of Brandt.

### -10- Brandt established the elements of a prima facie case of se x dis crimination. First, as a woman, Brandt is a member of a protecte d 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 mea t clerk prepared her for nearly all of the necessa ry 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 giv e rise to an inference of unlawful discrimination. At the time she submitte d her application, she interviewed for the position and was told tha t although the company could not hire her at the t ime, her application would remain in the active file for one year. Less than a year after Brandt's int erview, Shop 'n Save hired Frentzl, who had not even filled out a n employment applicatio n and who had absolutely no meat-cutting experience. Under the McDonnell-Douglas framework, Brandt's establishment of a prima facie c ase created a legal presumption of sex discrimination that, i f 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 preven t entry of such judgment, Shop 'n Save had the burden t o articu late a legitimate, nondiscriminatory reason for its actions. Th e
com panystated that it hired Frentzl rather than promote Brandt becaus e Frentzl had management experience and some college education and because the decisionmakers were not even aware that Brandt was an applicant for th e position when Frentzl was hired. At this point, the legal presumption of discri mination from Brandt's prima facie case disappeared; yet, as ou r court recently clarified en banc, the elements of the prima facie cas e 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 implythat the trier of fact no longer may consider evidenc e previously introduced by the plaintiff to establish a prim a fa cie case. A satisfactory explanation by the defendan t destroys the legally mandatory inference of discriminatio n ar ising from the plaintiff's initial evidence. Nonetheless , this e vidence and inferences properly drawn therefrom may b e co nsidered by the trier of fact on the issue of whether th e defend ant's explanation is pretextual. Indeed, there may b e some cases where the plaintiff's initial evidence, combine d 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 additi on to her prima facie case, Brandt presented an arsenal of eviden ce to discredit Shop 'n Save's articulated reasons for hirin g Fren tzl. She alleged that Shop 'n Save pre-selected Frentzl for th e position and tailoredthe job qualifications to fit him. Frentzl was the onlyperson Shop 'n Save ever hired for the apprentice position with the "special" job qualifications. Further, it is qu estionable whether Frentzl even possessed the qu alifications for which he was allegedly hired or, as the majority notes, that the decisionmakers actually had any interest in his education or management experience. Evidenc e of pre-selection and the creation of a position tailored to Frentzl's qua lifications reasonably and effectively could hav e discredited Shop n' Save's explanation. See Coble

v. Hot Spri ngs 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 tho se qualifications were not even considered. See Easland v. Tennessee Valle y Auth. , 704 F.2d 613, 625 (11thCir. 1983). Further calling into question the veracity of Shop 'n Save's proffered reason, three and a half years after the company hire d 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 hir ed one female meat cutter. The evidence that Shop 'n Save ha s consistently maintained a workforce segregated by gender further buttresse d Brandt's discriminati on claim. See Lams v. General Waterworks Corp. , 766 F.2d 386 (8th Cir. 1985).

Brandt's strong challenges to the defendant's proffered reason s provided additional evidence from which the fact finder could have inferred that Shop 'n Save's decision was actually motiva ted by discrimination. As our court en banc just restated:
"[W]hen all legitimate r easons for rejecting an applicant have been eliminated as possible reasons for the employe r's actions, it is more likely than not the employer, who we generall y assume acts only with some reasons, based his decision on a n impermissible consideration such as [sex]."

Ryther , No. 94-3622, slip op. at 6 (quoting Furn co 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 phon y reason--for why it fired the employee, then the trier of fact is permitted , although not compelle d, to infer that the real reason was [sex]." Visser v. Packer Eng'g Assoc. , 924 F.2d 655 (7th Cir. 1991) (en banc).

I rec ognize that evidence of pretext may not support a reasonabl e inference of discrimination in some cases. "[E]vidence of pretext will no t byitself be enough to make a submissible case if it is, standing alone, inconsistent with a r easonable inference of age discrimination." Ryther , No. 94 -3622, slip op. at 7. For example, in Rothmeier v. Investmen t Ad visers, Inc. , 85 F.3d 1328 (8th Cir. 1996), where the employe e discredited the emplo yer's reason for his discharge by acknowledging that he was fired for confronting his employer about alleged SEC violations , clearlyno 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 nond iscriminatoryreason for passing her over nor has she offered o r acknowledged such a justification. Rather, Brandt vigorously maintain s that Shop 'n Save's decision was actually gender-motivated.

Shop 'n Save has consistently argued that it hired Frentzl becaus e he was more qualified and because the decisionmakers did not know Brandt
was an applicant, asserting this position to the district court before , during, a nd after the trial, and continuing to do so before this court

. Neither the jury, in considering the MHRA claim, nor the district court fo r the T itle VII claim accepted this explanation. Nor does the majority , expl icitlyfinding that the defendant's articulated reasons for hirin g Frentzl were fabricated. Yet, after discrediting Shop 'n Save's give n reason, the majority creates its own, nondiscriminatory explanation for th e defendant's employmen t 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 beensubjected 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 Circui t stated:

We rout inely expect that a party give honest testimony in a court of law; there is n o reason to expect less of an employer charged with unlawful discrimination. If the emplo yer fails to come forth with the true and credible explanation and instead keeps a hidden agenda, it does so at its own peril. Unde r tho se circumstances, there is no policy to be served b y refusing to permit the jury to infer that the real motivation is the one that the plaintiff has charged.

Sh eridan , 100 F.3d at 1069. There is no basis in the record for th e majority's speculation. Even if there were, however, it would

### -14-

be for the factfinder--not this court--to consider in determining th e employe r's motive. We need not decide whether a nonbusiness- relate d
reason for rejecting a qualified woman in favor of a less- qualified , personal friend of a supervisor may ever be the basis for a summar y 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 factfinde r to infer that its real motivation was as Brandt charged.

The p roperly instructed jury determined that Shop 'n Sav e discriminated against Brandt on the basis of her sex in violation of the MHRA. T he district court then made specific findings of fact an d independentlydetermined that Shop 'n Save similarly violated Title VII. We should not reverse the verdicts for insuffici ent evidence unless, after view ing the evidence in the light most favorable to the verdicts, n o
reason able factfinder could have returned a verdict for the nonmovin g party. Ryther , No. 94-3622, slip op. at 4. The district court properly denie d Shop 'n Save's motion for JAML. I would affirm the court in al l respects and award Brandt the damages to which she is entitled.

A true copy.

Attest:

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