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

*

*

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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 employer,

Real Foods, Inc., discriminated against her based on her race. McCullough

appeals from the district court’s grant of summary judgment in favor of her

employer. We reverse and remand for trial.
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I.

Viewed in the light most favorable to McCullough, the record reveals

the following facts. Cynthia McCullough is a black woman with a college

degree in urban affairs. In May 1992, McCullough began working at Chef Roy’s

Deli, which was at that time owned by her brother, Edsel Cook, and her uncle,

Jesse 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, the

assets of Chef Roy's Deli were sold to Chef Roy's, Inc., a newly formed

corporation owned by Jesse Sawyer and Ron Meredith. Meredith also owned Real

Foods, Inc., d/b/a Chubb’s Finer Foods (Real Foods). In the summer of 1993,

Meredith terminated his relationship with Sawyer. Real Foods immediately

bought the assets of Chef Roy’s Inc., d/b/a Chef Roy's Deli, and the deli

became part of the grocery store, as it had been prior to 1992. After the

sale, McCullough 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 deli at Real Foods. She had prior experience as a checker at Real

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 the

assistance of McCullough in performing several deli functions. She could

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 Meredith decided to appoint one of his deli employees “deli manager.”

At this time, McCullough and Craven were the only two deli employees.

Meredith did not set up formal criteria for this employment decision, but

rather relied on subjective criteria such
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as his perception of each of the two employees’ abilities, work ethic, and

dedication to the job. 

Meredith selected Craven for the job. Meredith cited several bases for

his decision, including Craven's experience as a baker and as a checker, her

strong work ethic, and her interest in full-time, long-term employment. He

stated that McCullough 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 she was overeducated for the position and planned to leave as

soon as she found 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 dollars per hour. McCullough denies all

of these claims. She denies that she ever made such statements, asserts that

she told Meredith she would be happy to work from nine to five, and states

that Meredith’s “understanding” of her opinions and intentions was either

fabricated or based on false rumors. 

As manager, Craven was paid six dollars per hour. Her hours were

increased to full-time, and she was given the authority to make certain

decisions with regard to the preparation and presentation of food in the

deli. When she was paged, she was referred 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 position 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 than Craven and who felt she was much

more qualified than Craven for the job as manager, felt humiliated by

Craven’s appointment. On one occasion, a woman asked for the manager, and

McCullough felt humiliated when the woman was directed to Craven. McCullough

refused Meredith’s offer of a full-time position and terminated her

employment in September 1993.
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McCullough believes that the decision to promote Craven over McCullough

was an act of intentional racial discrimination. In support, she points to

her superior education and more extensive deli experience. Additionally, she

points to an incident in which Meredith greeted a white employee while

ignoring her. 

Although none of them were employed during McCullough’s tenure, Real

Foods has employed four black managers since 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 no turnover: Two managers have been

in place since the store’s inception in 1985, and another has been in place

since 1987.

McCullough filed a Title VII action in district court, claiming that

Real Foods illegally discriminated against her on the basis of her race. The

district court granted Real Foods’ motion for summary judgment, and

McCullough appeals, arguing that the district court erred in finding that she

had failed to present evidence which created a genuine issue of material

fact.

II.

The sole issue on appeal is the district court’s grant of summary

judgment to Real Foods on McCullough’s Title VII claim. Title VII of the

Civil Rights Act 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 race.”

42 U.S.C. § 2000e-2(a) (1994). 

 Federal courts award summary judgment 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, 477 U.S. 317, 322 (1986). In awarding summary

judgment to Real Foods, the district court held
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that McCullough had failed to create an issue of material fact regarding the

existence of intentional discrimination. We review de novo, construing the

record in the light most favorable to McCullough. Barge v. Anheuser-Busch,

Inc., 87 F.3d 256, 258 (8th Cir. 1996). 

A. The McDonnell Douglas Burden-Shifting Framework

McCullough offers no direct evidence of discriminatory intent. We

therefore analyze the facts under the burden-shifting framework set out in

McDonnell Douglas and its progeny. See St. 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. Burdine, 450

U.S. 248, 252-56 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

(1973). Under this framework, McCullough must first present evidence that

will establish a prima facie case. In this failure to promote case,

McCullough must demonstrate the following four elements: (1) that she

belonged to a protected class, (2) that she met the minimum qualifications

and applied for the position, (3) that despite her qualifications she was

denied the position, 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 Employment

Sec., 972 F.2d 893, 896 (8th Cir. 1992), cert. denied, 508 U.S. 906 (1993).

If she successfully establishes a prima facie case, a rebuttable presumption

of discrimination arises, and the burden shifts to Real Foods to rebut the

presumption by articulating a nondiscriminatory reason for its action.

McDonnell Douglas, 411 U.S. at 802. Once Real Foods advances a

nondiscriminatory reason, McCullough must show that she has sufficient

admissible evidence from which a rational fact finder could find that Real

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 eight

active judges joined); Kneibert v. Thomson Newspapers, Michigan Inc., 129

F.3d 444, 452 (8th Cir. 1997); Rothmeier v. Investment Advisors, Inc., 85

F.3d 1328, 1336-37 (8th Cir. 1996). 

1. The Prima Facie Case

As noted above, McCullough must first present evidence that will

establish a prima facie case. It is uncontroverted that she did so. She

satisfied all four elements: she is black, she was qualified for the job of

deli manager, she was not given the job, and the job was in fact given to a

minimally qualified white woman. A rebuttable presumption of discrimination

is thus established.

2. Rebutting the Prima Facie Case

The establishment of a prima facie case creates a rebuttable

presumption of discrimination. The employer may rebut this presumption by

articulating one or more nondiscriminatory reasons for the employment

decision. The standard for rebuttal of the prima facie case was explicated

by this 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

defendant need 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 it

discriminated against plaintiff that would allow the trier of fact rationally to conclude that the

employment decision had not been motivated by discriminatory animus. If the defendant offers a

facially nondiscrim-inatory explanation, regardless of its persuasiveness, the presumption in

plaintiff'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 Foods has articulated several nondiscriminatory reasons for

passing over McCullough as a candidate for deli manager. These reasons

include the following: she planned to quit soon, she refused to work past

3:00 p.m., she wanted a large amount of time off, and she refused to accept

the job for less than nine 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 Rothmeier Test

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

plaintiff to present evidence sufficient to support two findings, as

explained by this court in Rothmeier, 85 F.3d at 1336-37. First, the

plaintiff must present evidence which creates a fact issue as to whether the

employer’s proffered reasons are mere pretext. Id. at 1336. Second, she

must present evidence which creates a reasonable inference that the adverse

employment decision 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

creating an issue of fact as to whether Real Foods’ proffered

nondiscriminatory reasons are pretextual. The district court held that she

met this burden, and we agree. Real Foods’ proffered reasons centered on

statements McCullough herself allegedly made. McCullough claims that she

never made such statements, and that Real Foods' proffered reasons are

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 the

proffered reasons were mere pretext rather than the actual impetus behind 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' proffered

nondiscriminatory reasons were in reality a pretext for discrimination. Both

this court and the Supreme Court have made clear that a plaintiff in a

pretext case must establish “both that the reason was false, and that

discrimination was the real reason.” Ryther, 108 F.3d at 838 n.5 (quoting

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, the 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 to establish pretext are disqualified from use in support of an

inference of intentional discrimination. See Ryther, 108 F.3d at 836.

However, such evidence will sometimes be insufficient to support a reasonable

inference that the employment decision was based upon intentional

discrimination. As this court noted in Nelson v. Boatmen’s Bancshares, Inc.,

26 F.3d 796, 801 (8th Cir. 1994), evidence discrediting an employer’s

nondiscriminatory explanation “is sufficient in some cases but not in all

cases.” This is because “[i]t is not enough . . . to disbelieve the

employer; the fact finder must believe the plaintiff’s explanation of

intentional discrimination.” Hicks, 509 U.S. at 519 (emphasis in original).

In Ryther, our court, sitting en banc, articulated the standard as follows:
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[U]nder this standard, while plaintiff may rely on the same evidence to prove both pretext and

discrimination, 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 insufficient 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 Loken, 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

the Center's proffered reasons for termination were pretextual will only defeat summary judgment if the evidence

could persuade a reasonable fact-finder that Rivers-Frison was discharged because of intentional race

discrimination."); Day v. Johnson, 119 F.3d 650, 654 (8th Cir. 1997) (“[E]ven when an employee presents some

circumstantial evidence of pretext, a finding of intentional discrimination is clearly erroneous if the finding lacks

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 15 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 degree is a necessary or even a nice-to-have qualification for the position of deli manager, when

McCullough's education and experience are contrasted with
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Craven’s poor reading, writing, and math skills—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 on

something other than the relative qualifications of the applicants. 

Critical to our analysis in this case is the extremely subjective nature of the employer's stated promotion

criteria. In the prima facie case context, we have agreed with the Tenth Circuit that “subjective criteria for

promotions <are particularly easy for an employer to invent in an effort to sabotage a plaintiff’s prima facie case and

mask discrimination.’” Lyoch v. Anheuser-Busch Cos., Nos. 97-1973/2061/2598, 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 know from our experience that more often than not people do not act in a totally

arbitrary manner, without any underlying reasons, especially in a business setting. Thus, when 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 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 its

nondiscriminatory reasons, 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.

While federal courts do not “sit as super-personnel departments reviewing the wisdom or fairness of the

business judgments made by employers,” Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 781 (8th Cir. 1995),

when the whole of the evidence raises a reasonable inference that “those business judgments involve intentional

discrimination,” the law permits 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

summary judgment 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.

For the reasons stated, we reverse the judgment of the district court and remand the case for further

proceedings consistent with this opinion. 

A true copy.

Attest:

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