United States Court of Appeals

For the Eighth Circuit

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No. 18-1439

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Corrie Nelson

lllllllllllllllllllllPlaintiff - Appellant

v.

USAble Mutual Insurance Company, doing business as Arkansas Blue Cross and

Blue Shield

lllllllllllllllllllllDefendant - Appellee

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Appeal from United States District Court 

for the Eastern District of Arkansas - Pine Bluff

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Submitted: January 16, 2019

Filed: March 22, 2019

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Before BENTON, MELLOY, and KELLY, Circuit Judges.

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MELLOY, Circuit Judge. 
PlaintiffCorrie Nelson appeals the district court’s grant ofsummary judgment

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against her 42 U.S.C. § 1981 race-discrimination claim. Having jurisdiction under 

28 U.S.C. § 1291, we affirm.

I. Background

Nelson, an African-American woman, began working at Arkansas Blue Cross

and Blue Shield (“ABCBS”) in May 2004. She started as a Customer Service

Representative, became a Claims Specialist, and now works as a Market Service

Representative. As a Market Service Representative, Nelson “is responsible for

coordinating and conducting all enrollment activity for new group customers.” While

working at ABCBS, Nelson was nominated for and participated in ABCBS’s

Leadership Development Initiative, a program designed to help employees develop

management skills. Prior to working at ABCBS, Nelson worked as a salesperson for

eleven years in retail clothing stores, including T.J. Max and Nine West. Nelson has

a master’s degree in management. 

In March 2014, Velma Bearden, ABCBS’s Customer Service Supervisor,

announced that she was planning to retire in June 2014. In anticipation of the

vacancy, ABCBS upgraded the Customer Service Supervisor position to Manager of

Operations for the Southeast region and Pine Bluff office. The job description read: 

This position is accountable for providing the overall operation of all

functions in the region. The incumbent is responsible for providing

communication . . . between the Organization and its customers,

providers of care and group administrators as well as working with the

marketing teams to provide superior service to our existing members and

produce exceptional proposal materials for prospective members. The

incumbent is responsible for the functions related to purchasing,

The Honorable James M. Moody Jr., United States District Judge for the

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Eastern District of Arkansas. 

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building management/security, supply requisitions and personnel policy

matters.

The “job requirements” included: (1) A “[c]ollege degree or related experience”; (2)

“Two . . . to four . . . years of experience in a supervisory or managerial capacity is

desired”;(3) “Two . . . years experience inCustomer/Provider Relationsis preferred”;

(4) “Experience is desired in the personal computer environment”; and (5) “Related

experience and education may be substituted for any part of the above requirements.” 

Bryan Dorathy, ABCBS’s regional executive for the Southeast region, was in

charge of filling the position. Dorathy interviewed three employees for the position:

Nelson, Melissa Watkins, and Jason Aud. Watkins and Aud are both Caucasian. 

Dorathy asked each applicant the same questions and scored their responses 1–5 in

eleven separate categories. During the interviews, Dorathy told the candidates that

he was looking for someone with retail experience because the new Manager of

Operations would be responsible for developing a retail storefront concept at the Pine

Bluff office where customers could come in, ask questions, and select insurance

products. In their respective interviews, Watkins scored a 45 and Nelson scored a

42.5. They were the two highest scoring candidates. 

Watkins had begun working at ABCBS in March 2004 as a Customer Service

Representative. She eventually became a Product Specialist and then a Large Group

Internal Service Representative. In October 2013, Watkins assumed the position of

Regional Financial Risk Manager Trainee for the Southeast region. Prior to working

at ABCBS, Watkins had worked for almost three years at Alltell Communications,

a wireless service provider, as a Key Account Representative. Her responsibilities

in that position included “[a]ssist[ing] customers with billing inquiries, sales, rate

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changes, rate analysis, [and] equipment deliveries.” Watkins has a bachelor’s degree

in business administration.

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On May 27, 2014, Dorathy selected Watkins over Nelson to be the new

Manager of Operations for the Southeast region and Pine Bluff office. In his

affidavits, Dorathy states that he chose Watkins because “she scored the highest

during the interviews” and her “duties at Alltell” were “extremely similar” to what

Dorathy “envisioned for the Pine Bluff location.” On April 12, 2016, Nelson filed

the present suit alleging race discrimination in violation of 42 U.S.C. § 1981 based

on ABCBS’s failure to promote her over Watkins. The district court granted

summary judgment in favor of ABCBS. The court found that while Nelson had

established a prima facie case of discrimination based on ABCBS’s selection of

Watkins over Nelson, ABCBS articulated a legitimate, nondiscriminatory reason for

selecting Watkins, and Nelson failed to demonstrate that the reason was pretext for

discrimination. Nelson timely filed this appeal.

II. Standard of Review

“We review the district court’s grant of summary judgment de novo,

considering the evidence and making all reasonable inferences ‘in the light most

favorable to the nonmoving party.’” Bunch v. Univ. of Ark. Bd. of Trs., 863 F.3d

1062, 1066 (8th Cir. 2017) (citation omitted). “Summary judgment shall be granted

Nelson asserts in her opening brief that Watkins has a bachelor’s degree in 2

business administration. In her reply brief, however, Nelson argues that it is only

“assumed that Ms. Watkins possessed a bachelor’s degree” and implies that Watkins

“had not completed college.” Nelson, however, did not questionWatkins’s education

in her briefing before the district court or, as noted, in her opening brief on appeal. 

In addition, Nelson stated in her June 14, 2017 deposition that Watkins studied

business administration at John Brown University and graduated.

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‘if the movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P.

56(a)).

III. Discussion

A plaintiff suing for race discrimination may survive a motion for summary

judgment by “present[ing] admissible evidence directly indicating unlawful

discrimination . . . or creat[ing] an inference of unlawful discrimination under the

burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973).” Macklin v. FMC Transp., Inc., 815 F.3d 425, 427 (8th Cir. 2016)

(citation and internal quotation marks omitted). Nelson presented no evidence

directly indicating unlawful discrimination so we analyze her claim under the

McDonnell Douglas burden-shifting framework. 

Under McDonnell Douglas, a plaintiff “must first establish a prima facie case

of discrimination.” Torgerson v. City of Rochester, 643 F.3d 1031, 1046 (8th Cir.

2011) (en banc). Here, Nelson has established a prima facie case because “(1) she is

in a protected class; (2) she was qualified for [the Operations Manager] position; (3)

she was denied that position; and (4) [ABCBS] filled the position with a person not

in the same protected class.” Id. (citation omitted). 

Next, the burden shifts to the employer to “articulate a legitimate,

nondiscriminatory reason for not hiring” the plaintiff. Id. (citation omitted). This

burden is “not onerous.” Id. at 1047 (citation omitted). Here, ABCBS met this

burden. ABCBS’s proffered legitimate, nondiscriminatory reasons for hiring Watkins

over Nelson were: (1) Watkins scored higher on the interview; and (2) her retail

experience at Alltell was more directly relevant to the storefront concept that ABCBS

wanted to develop at the Pine Bluff office.

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Finally, the burden shifts back to the plaintiff to demonstrate that the reason

offered by the employer was pretext for discrimination. Id. at 1046. A plaintiff can

show pretext in at least two ways: (1) “[a] plaintiff may show that the employer’s

explanation is ‘unworthy of credence . . . because it has no basis in fact’”; or (2) “a

plaintiff may show . . . ‘that a [prohibited] reason more likely motivated the

employer.’” Id. at 1047 (alteration in original) (quoting Wallace v. DTG Operations,

Inc., 442 F.3d 1112, 1120 (8th Cir. 2006)). Ultimately, the plaintiff must “show[] that

a prohibited reason, rather than the employer’s stated reason, actually motivated the

employer’s action.” Id.

Here, Nelson has not met this burden. First, she argues that she was more

qualified than Watkins for the position. Yet “a comparative analysis of [their]

qualifications” gives us no “reason to disbelieve [ABCBS’s] proffered reason for its

employment decision.” Wingate v. Gage Cty. Sch. Dist., No. 34, 528 F.3d 1074,

1079 (8th Cir. 2008) (quoting Chambers v. Metro. Prop. & Cas. Ins. Co., 351 F.3d

848, 857 (8th Cir. 2003)). Both women scored well on the interview and were well

acquainted with ABCBS products. In addition, while Nelson had more years of retail

experience, her experience was largely transactional, whereas Watkins’s experience

involved providing full customer service, which was more relevant to the retail

storefront development at the Pine Bluff office. Thus, the comparison “reveals that

[Nelson] was only similarly qualified,” and therefore, “no inference of [race]

discrimination . . . arise[s].” Id. at 1080.

Second, Nelson argues that Dorathy had pre-selected Watkinsfor the Manager

of Operations position and reduced the minimum job requirements to ensure that

Watkins qualified. Specifically, Nelson argues that, unlike other Manager of

Operations positions within ABCBS, the Manager of Operations for the Southeast

region and Pine Bluff office did not require a college degree or management

experience. It istrue that “evidence of preselection and arbitrary manipulation of job

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requirementsto benefit the pre-selected applicant may act to discredit the defendant’s

proffered explanation.” Tyler v. Univ. of Ark. Bd. of Trs., 628 F.3d 980, 988 (8th

Cir. 2011). However, even assuming the minimum job requirements were reduced,

Nelson presents no evidence, other than her conclusory allegations, that suggests

Dorathy pre-selected Watkins or had any role in the reduction. Moreover, Nelson

presents no evidence that the reduced requirements failed to “accurately represent[]

the responsibilities of the position.” Dixon v. Pulaski Cty. Special Sch. Dist., 578

F.3d 862, 871 (8th Cir. 2009) (finding that “updating a job description to reflect the

current responsibilities of the position is not itself evidence of pretext”), abrogated

on other grounds by Torgerson, 643 F.3d 1031. 

IV. Conclusion

Ultimately, Nelson has not “produce[d] evidence sufficient to create a genuine

issue of material fact regarding whether [ABCBS’s] proffered nondiscriminatory

justifications are mere pretext for intentional discrimination.” Torgerson, 643 F.3d

at 1046 (quoting Pope v. ESA Servs., Inc., 406 F.3d 1001, 1007 (8th Cir. 2005)). 

Accordingly, we affirm the judgment of the district court.

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