United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-3343

___________ Cynthia McCullough, *

Plaintiff - Appellant, * Appeal from the United States

v. * District of Nebraska. Real Foods, Inc., doing business * as Chubb’s Finer Foods, *

Defendant - Appellee. * *

* District Court for the

*

*

___________ Submitted: March 10, 1997 Filed: April 3, 1998

___________ Before McMILLIAN, FLOYD R. GIBSON, and HANSEN, Circuit Judges.

___________ HANSEN, Circuit Judge. In this Title VII case, Cynthia McCullough alleges that her emp loyer, Real Foods, Inc., discriminated against her base d on her race. McCullough appeals from the district court’s grant of summary judgment in favor of he r employer. We reverse and remand for trial.

## -2- I.
View ed in the light most favorable to McCullough, the record reveal s the fo llowing facts. Cynthia McCullough is a black woman with a colleg e degree in urban affairs. In May 1992, McCullough began working at Ch ef Roy’s Deli, which was at that time owned by her brother, Edsel Cook, and he r uncle, Jes se Sawyer. Chef Roy’s Deli leased space within Chubb’s Finer Foods, a grocery store in Omaha, Nebraska.
Edsel Cook left the deli in early 1993, and on April 14, 1993, th e as sets of Chef Roy's Deli were sold to Chef Roy's, Inc., a newly forme d corporation owned by Jesse Sawyer and Ron Meredith. Meredith also owned Real Foods, Inc., d/b/a Chubb’s Finer Foods (Re al Foods). In the summer of 1993, Mer edithterminated his relationship with Sawyer. Real Foods immediatel y bought the assets of Chef Roy’s Inc., d/b/a Chef Roy's Deli, and the del i became part of the grocery store, as it had been prior to 1992. After the sale, McCulloug h continued working at the deli, where she was supervised by the store's owner, Ron Meredith. She received an hourly rate of six dollars. Her hours varied greatly, ranging from part- to full-time. In June 1993, Kathy Craven, a white woman, was hired to work part-time in the de li at Real Foods. She had prior experience as a checker at Rea l Foods and as a baker at Petit’s Pastry in Omaha. However, she had no prior experience as a deli worker, and she had only a sixth-grade education. Her reading, writing, and mathematical skills were poor, and she required th e assistanc e of McCullough in performing several deli functions. She coul d not, for example, calculate prices by herself, and she had difficulty reading recipes, according to McCullough.

In September 1993, approximately three months after Craven’s arrival, Ron Me redith decided to appoint one of his deli employees “deli manager. ” At t his time, McCullough and Craven were the only two deli employees

. Meredi thdid not set up formal criteria for this employment decision, bu t rather relied on subjective criteria such

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as his perception of each of the two employees’ abilities, work ethic, an d dedication to the job. Meredith selected Craven for the job. Meredith cited sev eral bases for his decision, including Craven's experienc e as a baker and as a checker, her strong work eth ic, and her interest in full-time, long-term employment. He stated that McC ullough was passed over because he understood that she would not work past 3:00 p.m., that she made frequent requests for time off, and that she felt s he was overeducated for the position and planned to leave as soon as she fou nd a better job. Additionally, he claimed that he had heard her speak of quitting, and that she had told him that she would not accept a managerial job for less than nine dollar s per hour. McCullough denies all of these claims. She denies that she ever made such statements, asse rts that she told Meredith she would be happy to work from nine to five, and states tha t Meredith’s “understanding” of her opinions and intentions was eithe r fabricated or based on false rumors.

As manage r, Craven was paid six dollars per hour. Her hours wer e incre ased to full-time, and she was given the authority to make certai n decisions with regard to the preparation and presentation of food in th e deli. When she was paged, she was referre d to as the deli manager. Persons requesting “the deli manager” were directed to her. McCullough was paid the same hourly rate (six dollars) as Craven. When she complained of having been passed over, Meredith offered to give her a full-time posit ion as well. Nonetheless, McCullough felt that she was hurt in intangible ways by the decision to name Craven deli manager. McCullough, who had worked at the deli much longer tha n Craven and who felt she was much more qualified than Craven for the job as manager, felt humiliated b y Craven’s appointment. On one occasion, a woman asked for the manager, an d McCullough felt humiliated when the woman was directed to Craven. Mc Cullough ref used Meredith’s offer of a full-time position and terminated he r employment in September 1993.

## -4- McCullough believes that the decision to promote Craven o ver McCullough was an act of intentional racial discrimi nation. In support, she points to her superior education and more extensive deli experience. Additiona lly, she points to an incident in which Meredith greeted a white employee whil e ignoring her.
Althou ghnone of them were employed during McCullough’s tenure, Rea l Foods has employed four black managers sin ce its inception in 1985—two prior to her arrival and two since her departure. Three of the five (now six ) managerial positions have seen little or n o turnover: Two managers have been in place since the store’s inception in 1985, and another has been in place since 1987.

McCu lloughfiled a Title VII action in district court, claiming tha t Real Foods illegally discriminated against her on the basis of her ra ce. The dis trict court granted Real Foods’ motion for summary judgment, an d McCullough appeals, arguing that the district court erred in finding that she had failed to present evidence which created a genuine issue of materia l fact.

II.
The so le issue on appeal is the district court’s grant of summar y judgment to Real Foods on McCullough’s Title VII claim. Title VII of th e Civil Rights Act makes it “an unlawful employment practice for an employe r to fail or refuse to hire or to discharge any individual, or otherwise t o discriminate against any individual with r espect to his compensation, terms, conditions, or privileges of employment, b ecause of such individual’s race.” 42 U.S.C. § 2000e-2(a) (1994). Federal courts award summary judgment when the evidence “show[s] that there is no gen uine 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) ; Celote x

Corp. v. Catrett , 477 U.S. 317, 322 (1986). In awarding summar y judgment to Real Foods, the district court held

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that McCullough had failed to create an is sue of material fact regarding the existence of in tentional discrimination. We review de novo, construing the record in the l ight most favorable to McCullough. Barge v. Anheuser-Busch, Inc. , 87 F.3d 256, 258 (8th Cir. 1996).

A. The McDonnell Douglas Burden-Shifting Framework

McCull oughoffers no direct evidence of discriminatory intent. W e th erefore analyze the facts under the burden-shifting framework set out i n McDonnell Douglas and its progeny. See S t. Mary's Honor Ctr. v. Hicks , 509 U.S. 502, 506 (1993); United States Postal Serv. Bd. of Governors v. Aikens , 460 U.S. 711, 714-15 (1983); Texas Dep't of Community Affairs v. Burd ine , 450 U.S. 248, 252-56 (1981); McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802 (1 973). Under this framework, McCullough must first present evidence tha t will e stablish a prima facie case. In this failure to promote case , McC ulloughmust demonstrate the following four elements: (1) that sh e belonged to a protected class, (2) that she met the minimum qualification s and ap plied for the position, (3) that despite her qualifications she wa s denied the posi tion, and (4) that her employer promoted a person of similar qualifications who was not a member of the protected group. Marzec v . Marsh, 990 F.2d 393, 395-96 (8th Cir. 1993); see also McDonnell Douglas , 411 U.S

. at 802; Burdine , 450 U.S. at 253 n.6; Hase v. Missouri Div. of Employmen t Sec. , 972 F.2d 893, 896 (8th Cir. 1992), cert. denied , 508 U.S. 906 (1993). If she successfully establishes a prima fa cie case, a rebuttable presumption of discrimination arises, and the burden shifts to Real Foods to rebut th e presumption by articulating a nondiscriminatory reason for its action

. McDonnell Douglas , 411 U.S. at 802. Once Real Foods advances a nondiscriminatoryreason, McCullough must show that she has sufficien t admissible evidence from which a rational fact finder could find that Rea l Foods’ proffered nondiscriminatory reasons are either untrue or were not the real reasons for the action, and that intentional discrimination was the real
reason. Hicks , 509 U.S. at 515; Ryther v. KARE 11 , 108 F.3d 832, 838 n. 5 (8th Cir.) (en banc), cert. denied , 117 S. Ct. 2510 (1997); Ryther ,

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108 F. 3d at 848 n. 13 (Part I.A. of opinion of Loken, J., in which eigh t act ive judges joined); Kneibert v. Thomson Newspapers, Michigan Inc. , 12 9 F.3d 4 44, 452 (8th Cir. 1997); Rothmeier v. Investment Advisors, Inc ., 8 5 F.3d 1328, 1336-37 (8th Cir. 1996).
1. The Prima Facie Case

As not ed above, McCullough must first present evidence that wil l establish a prima facie case. It is uncontroverted that she did so. Sh e satisfied all four elements: she is black , she was qualified for the job of deli manager, s he was not given the job, and the job was in fact given to a minimally qualified white woman. A rebutt able presumption of discrimination is thus established. 2. Rebutting the Prima Facie Case
The es tablishment of a prima facie case creates a rebuttabl e pr esumption of discrimination. The employer may rebut this presumption b y art iculating one or more nondiscriminatory reasons for the employmen t decision. The standard for rebuttal of the prima facie case was explicated bythis court in Buchholz v. Rockwell Int’l Corp. , 120 F.3d 146, 150 (8th Cir. 1997)

. There the court wrote: This burden is not onerous, and the explanation need not be demonstrated by a preponderance. The defendantne ed not persuade the court that it was actually motivated by the proffered reasons

. Rather, it is sufficient if the defendant's evidence raises a genuine issue of fact as to whether i t discriminatedagainst plaintiff that would allow the trier of fact rationally to conclude that th e employment decision had not been motivated by discriminatory animus. If the defendant offers a faci allynondiscrim-inatory explanation, regardless of its persuasiveness, the presumption i n pla intiff's favor evaporates and it is left for the trier of fact to determine whether the plaintiff has proven that the defendant's action was motivated by discrimination.

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Id . at 150 (citations and internal quotations omitted).

Real F oods has articulated several nondiscriminatory reasons fo r passi ng over McCullough as a candidate for deli manager. These reason s inc lude the following: she planned to quit soon, she refused to work pas t 3:00 p.m., she wanted a large amount of time off, and she refused to accept the job for less than nin e dollars an hour. We need not examine the evidentiary basis for these articulated reasons. We need only determine whether they constitute one or more facially nondiscriminatory reasons for the employment decision. We hold that they do.

B. The Two-Part RothmeierTest When, as here, the prima facie case has been successfully rebutted, the presumption of discrimination “drops out of the picture.” Hicks , 509 U.S

. at 510-11; Rothmeier , 85 F.3d at 1334. The burden then shifts back to the pla intiff to present evidence sufficient to support two findings, a s exp lained by this court in Rothmeier , 85 F.3d at 1336-37. First, th e plaintiff must present evidence which crea tes a fact issue as to whether the emp loyer’s proffered reasons are mere pretext. Id . at 1336. Second, sh e must present ev idence which creates a reasonable inference that the adverse employment deci sion was an act of intentional racial discrimination. Id at 1336-37 ; see also Hicks , 509 U.S. at 514-15.
1. Pretext

We first address the question of whether McCullough met her burden of cre ating an issue of fact as to whether Real Foods’ proffere d nondiscriminato ry reasons are pretextual. The district court held that she met this burden, and we agree. Real Foods’ proffered reasons centered o n sta tements McCullough herself allegedly made. McCullough claims that sh e never made such statements, and that Real Foods' proffered reasons ar e predicated on bald-faced lies. These allegations of falsity, if

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proved, would certainly support an inference in a reasonable jury that th e proffered reasons were mere pretext rather than the actual impetus be hind the decision.
2. Intentional Discrimination

We next address the question of whether McCullough has met her burden of creating a reasonable inference that Real Foods' proffere d nondiscriminatory reasons were in reality a pretext for discriminatio n. Both thi s court and the Supreme Court have made clear that a plaintiff in a pret ext case must establish “ both that the reason was false, and tha t discrimination was the real reason.” Ryther , 108 F.3d at 838 n.5 (quotin g Hicks , 509 U.S. at 515) (emphasis in original); see also Kneibert , 129 F.3d at 453-54; Rothmeier , 85 F.3d at 1336-37. As the Supreme Court clarified in Hicks , “nothing in law would permit us to substitute for the required finding that the employer’s action was the product of unlawful discrimination, t he much different (and much lesser) finding that the employer’s explanation of its action [is] not believable.” 509 U.S. at 514-15. Neither the proof making out the prima facie case nor the evidence that is used t o establish pretext are disqualified from use in support of a n inference of intentional discrimination. See Ryther , 108 F.3d at 836

. However, such evidence will sometimes be insufficient to support a re asonable inferen ce that the employment decision was based upon intentiona l discrimination. As this court noted in Nelson v. Boatmen’s Bancshare s, Inc. , 26 F.3d 796, 801 (8th Cir. 1994), evidence discrediting an employer’ s nondiscri minatoryexplanation “is sufficient in some cases but not in al l
cases. ” This is because “[i]t is not enough . . . to dis believe th e emp loyer; the fact finder must believe the plaintiff’s explanation o f intentional discrimination.” Hicks , 509 U .S. at 519 (emphasis in original). In Ryther , our court, sitting en banc, articulated the standard as follows:

## -9- [U ]nder this standard, while plaintiff may rely on the same evidence to prove both pretext an d discrimin ation, that evidence must be sufficient to prove that the employer is guilty of intentional discrimination. Therefore, a trial judge may decide on a motion for summary judgment or JAML that the evidence is ins ufficient for a reasonable trier of fact to infer unlawful discrimination, even if plaintiff has presented some evidence of pretext. Ryther, 108 F.3d at 848 n.13 (Part IA of opinion of Lok en, J., joined by eight active judges); see also Rivers-Frison
v. Southeast Missouri Community Treatment Ctr. , 133 F.3d 616, 621 (8th Cir. 1998) ("Of course, evidence that theCenter's proffered reasons for termination were pretextual will only defeat summary judgment if the evidence couldpers uade a reasonable fact-finder that Rivers-Frison was discharged because of intentional rac e discrimination."); Day v. Johnson , 119 F.3d 650, 654 (8th Cir. 1997) ( “ [E]ven when an employee presents some cir cumstantialevidence of pretext, a finding of intentional discrimination is clearly erroneous if the finding lack s plausibility when the evidence is considered as a whole.”) (citing Ryther , 108 F.3d at 848 n.13 (Part IA of opinion of Loken, J., joined by eight active judges)), cert. denied, 118 S. Ct. 707 (1998). Viewing the evidence as a whole and in the light most favorable to McCullough (as we are obligated to do in the summary judgment context of this appeal), we conclude that the evidence supporting her prima facie case and her evidence of pretext are sufficient to permit a fact finder to reasonably infer intentional discrimination based on
race.
Included in the whole of the evidence which supports her prima facie case is the evidence that McCullough had 1 5 months more hands-on experience working in the deli than did Craven, as well as the evidence that McCullough’s objective educational qualifications greatly exceeded those of Craven. Although we are not convinced that a college d egree is a necessary or even a nice-to-have qualification for the position of deli manager, whe n McCullough's education and experience are contrasted with

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Craven’s poor reading, writing, and math sk ills—as evidenced by her inability to read recipes or calculate prices—a reasonable inference arises that Meredith promoted a substantially less qualified white woman over a substantially better qualified black woman. We believe it is common business practice to pick the best qualified candidate for promotion. When that is not done, a reasonable inference arises that the employment decision was based o n something other than the relative qualifications of the applicants.

Cr iticalto our analysis in this case is the extremely subjective nature of the employer's stated promotio n criteria. In the prima facie case context, we have agreed with the Tenth Circuit that “subjective criteria fo r promotions <

are particularly easy for an empl oyer to invent in an effort to sabotage a plaintiff’s prima facie case and mask discrimination.’” Lyoch v. Anheuser-Busch Cos. , Nos. 97-1973/2 061/2598, 1998 WL 121800, at *3 (8th Cir. Mar. 20, 1998) (quoting Thomas v. Denny's, Inc. , 111 F.3d 1506, 1510 (10th Cir.), cert. denied , 118 S. Ct. 626 (1997)).
[W]e kno w from our experience that more often than not people do not act in a totall y arbitrary manner, without any underlying reasons, especially in a business setting. Thus, when all legit imatereasons for rejecting an applicant have been eliminated as possible reasons for th e employer’s actions, it is more likely than not the employer, who we generally assume acts only with some reason, based his decision on an impermissible consideration such as race. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978) (cited in Ryther , 108 F.3d at 836). At this stage of these proceedings, when the employer’s asserted nondiscriminatory reasons are essentially checkmated by McCullough’s denials that she ever made the statements the employer advances as it s nondiscriminatory r

easons, the failure to promote the objectively better qualified black woman raises a reasonable,

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nonspeculative inference that the decision to promote the less qualified white woman was based on an impermissible consideration—in this case race, a la Furnco

.
Whi lefederal courts do not “sit as super-personnel departments reviewing the wisdom or fairness of th e business judgments made by employers,” Hutson v. McDonnell Douglas Corp. , 63 F.3d 771, 781 (8th Cir. 1995), whe nthe whole of the evidence raises a reasonable inference that “those business judgments involve intentional discrimination,” the law perm its the person who claims to have been discriminated against to have her day in court. Id. Such is the case here. In short, McCullough presented evidence sufficient to support a reasonable inference that Real Foods’ failure to promote her to the position of deli manager was motivated by racial animus. That inference is enough to prevent summaryjudgment for the employer. Whether or not the trier of fact will draw such an inference after hearing all of the evidence offered by both sides at trial and judging the opposing witnesses’ credibility is an entirely different question. We hold only that summary judgment was improvidently granted to the employer.

III.

Forthe reasons stated, we reverse the judgment of the district court and remand the case for furthe r proceedings consistent with this opinion.

A true copy.

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