1

The Hon. James M. Rosenbaum, United States District Judge for

the District of Minnesota.

_____________

No. 95-1092MN

_____________

Frangena A. Shannon, *

*

Appellant, *

* On Appeal from the United

v. * States District Court

* for the District of

* Minnesota.

Ford Motor Co., a Delaware *

Corporation, ** Appellee. *

___________

 Submitted: October 20, 1995

 Filed: January 3, 1996 ___________

Before RICHARD S. ARNOLD, Chief Judge, WOLLMAN and MORRIS SHEPPARD

ARNOLD, Circuit Judges.___________

RICHARD S. ARNOLD, Chief Judge.

Fragena A. Shannon, an African-American woman, claims Ford

Motor Company failed to promote her to supervisor because of her

race and sex. She appeals the District Court's1 order granting

summary judgment for Ford. The District Court held that Ms.

Shannon had failed to establish a prima facie case of race

discrimination under 42 U.S.C. § 1981, and that she had not

exhausted her administrative remedies for her Title VII sexdiscrimination claim. We affirm. 
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I.

In early 1985, Ms. Shannon was an "assembler" at Ford's

Twin Cities plant. Assemblers are "non-skilled" workers, paid by

the hour. In March, Ms. Shannon learned that Ford was accepting

applications for salaried, supervisor positions, and she applied

for the job. Ms. Shannon successfully completed the required

skill-assessment process, which Ford calls the "Manufacturing

Supervisor Selection System" ("MSSS"), and Ford put her on the

waiting list for a supervisor position. Also in 1985, Ms. Shannon

applied for an apprenticeship in the skilled-trades program

operated jointly by Ford and her union, the United Auto, Aerospace,

and Agricultural Implement Workers of America ("UAW"). She once

again passed the required tests, and was placed on another,

entirely separate, waiting list for placement as an apprentice. 

In the Fall of 1987, after ten months' absence from work due

to a broken ankle, Ms. Shannon was offered a position as an

apprentice electrician. She was told, however, that she could not

stay on the supervisor waiting list if she accepted the

apprenticeship; she had to pick one or the other. Ms. Shannon says

she protested, asking why she had to give up her spot on the list.

Still, she decided to accept the apprenticeship because "[she]

didn't want to pass up the opportunity of going into the skilled

trades . . .." Ford then took her name off the list, and Ms.

Shannon never tried to get back in line for a supervisor position.

In August 1989, Ms. Shannon filed a complaint with the St.

Paul Department of Human Rights, alleging race and sex

discrimination. She claimed that "throughout my

apprenticeship . . . I have been subjected to harassment and
 2

It is undisputed that Ms. Shannon was, at times, poorly

treated by some of her co-workers and supervisors in the skilledtrades program. For example, one journeyman showed Ms. Shannon a

picture of a toilet and told her, "that's you down there with all

the other [. . .]." Another time, someone placed a sexually

explicit "application for a date" at Ms. Shannon's work station.

According to Ms. Shannon, when she reported the incident, her

supervisor only laughed. Several times, in fact, she complained to

her supervisors and to her union representative that she was being

harassed and demeaned, and not receiving adequate training. One of

her supervisors responded by telling her, "you are black and a

woman, so you have two strikes against you. They don't want you

[in the program] anyway." 

 3The Department found that Ms. Shannon's "credibility has some

weaknesses" and that Ford's "skepticism regarding [Ms. Shannon's]

allegations that her poor work performance was caused by co-worker

harassment and lack of training is supported by . . . [Ms.

Shannon's] excessive absenteeism . . . [her] argumentative and

emotional behavior . . . [her] difficulty accepting directions and

her attitude that her assignments were menial . . .."

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differential treatment."2 The Department, however, found "no

probable cause" for her allegations.3 Ms. Shannon lodged another

complaint, also claiming race and sex discrimination, with the

Equal Employment Opportunity Commission ("EEOC") in November, 1989.

In February 1992, the EEOC gave Ms. Shannon the right to sue. 

In her three-count complaint, Ms. Shannon charged Ford with

sex discrimination in violation of Title VII, race discrimination

under 42 U.S.C. § 1981, and "reprisal discrimination" under the

Minnesota Human Rights Act, Minn. Stat. § 363.01 et seq., and Title

VII. All three counts rested on the same allegations: Ms. Shannon

claimed that (1) she was subjected to a sexually hostile and

abusive environment in the skilled-trades program; (2) she was not

given adequate training in the program; (3) male apprentices

enjoyed preferential treatment in training, education, and work

assignments; and, finally, (4) she was not promoted to supervisor.

Ford moved for summary judgment. In August 1994, the District

Court granted Ford's motion on Ms. Shannon's failure-to-promote

claims, but, after reviewing the litany of alleged insulting
 4

Ms. Shannon's remaining claims were tried before a jury. In

September 1994, the jury found for Ford on all these claims.

Specifically, in special interrogatories, the jury found that (1)

Ford did not subject Ms. Shannon to unlawful sexual harassment, (2)

Ford did not discriminate against her because of her sex, (3) Ford

did not retaliate against her, and (4) Ford did not discriminate

against her because of her race. These issues are not before us on

appeal.

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incidents during her apprenticeship, the Court denied the motion in

all other respects.4 

Ms. Shannon now appeals the District Court's decision,

claiming that the Court erred by deciding that her failure-topromote claim was not "reasonably related" to the sexdiscrimination charges she filed with the EEOC, and by finding that

she did not establish a prima facie case that Ford failed to

promote her because of her race. We review the District Court's

order granting summary judgment de novo. 

II.

Using the ubiquitous three-step burden-shifting framework set

out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the

District Court held that Ms. Shannon failed to establish a prima

facie case of race discrimination. To raise a presumption of

discrimination in failure-to-promote cases, a plaintiff must show

that (1) she is a member of a protected group; (2) she was

qualified and applied for a promotion to an available position; (3)

she was rejected; and (4) similarly situated employees, not part of

the protected group, were promoted instead. Patterson v. McLean

Credit Union, 491 U.S. 164, 186-87 (1989); Marzec v. Marsh, 990

F.2d 393, 395-96 (8th Cir. 1993). If a plaintiff establishes her

prima facie case, the burden of production shifts to the employer,

who must rebut the presumption of discrimination with evidence

"that the plaintiff was rejected, or someone else was preferred,

for a legitimate, nondiscriminatory reason." Texas Department of
 5

Everyone agrees that supervisors are and may only be selected

from among those employees on the supervisor eligibility list.

Lowe v. City of Monrovia, 775 F.2d 998, 1007-10 (9th Cir. 1985),

amended, 784 F.2d 1407 (9th Cir. 1986), on which Ms. Shannon

relies, discussed a very different situation. In that case, the

plaintiff had evidence that the employer only hired from "the list"

when whites were next in line, not when blacks were at the top. 

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Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). Once the

employer meets its burden, the plaintiff may win by pointing to

evidence which, if believed, would expose the employer's reason as

a mere pretext for intentional discrimination. Krenik v. County of

Le Sueur, 47 F.3d 953, 958 (8th Cir. 1995) (citing St. Mary's Honor

Center v. Hicks, 113 S. Ct. 2742, 2747 (1993)). We agree with the

District Court that because Ms. Shannon accepted her skilled-trades

apprenticeship knowing full well that her name would come off the

supervisor waiting list, she was not "rejected" for a supervisor

position.5 

We emphasize, however, that there is nothing magical about the

McDonnell Douglas three-stage framework. The framework itself is

simply a "sensible, orderly way to evaluate the evidence in light

of common experience as it bears on the critical question of

discrimination." Patterson, 491 U.S. at 186 (quoting Furnco

Construction Corp. v. Waters, 438 U.S. 567, 577 (1978)). Put

differently, the framework is a helpful tool, but it is still just

a tool. We should not confuse the means - McDonnell Douglas's

three-step process - with the end, which is deciding whether or not

an employer illegally discriminated. See, e.g., Winbush v.

Glenwood State Hospital, 66 F.3d 1471, 1480 (8th Cir. 1995) (citing

United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S.

711, 713-15 (1983)) ("central question" is not whether district

court correctly found prima facie case, but whether there was

sufficient evidence of intentional discrimination). After all, the

McDonnell Douglas framework exists to provide discrimination

plaintiffs a way to prove their case when they do not have

"explicit, inculpatory evidence of discriminatory intent." Hutson
 6

See also Chambers v. Wynne School Dist., 909 F.2d 1214, 1217

(8th Cir. 1990) (failure to apply formally will be excused if

plaintiff makes every reasonable attempt to convey interest in job

to employer); Easley v. Empire Inc., 757 F.2d 923, 930 n.7 (8th

Cir. 1985) ("Formal applications . . . will be excused when a known

discriminatory policy . . . deters potential jobseekers."); Paxton

v. Union Nat'l Bank, 688 F.2d 552, 568 (8th Cir. 1982) (because

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v. McDonnell Douglas Corp., 63 F.3d 771, 776 (8th Cir. 1995). If

a plaintiff does have such evidence, burden-shifting analysis is

unnecessary. 

The District Court stated that even if the removal of Ms.

Shannon's name from the waiting list was somehow improper or

discriminatory, the fact remains that she could not be considered

and rejected for promotion once her name was off the list, and

therefore could not establish her prima facie case. But if Ms.

Shannon had produced any evidence that the removal of her name from

the list was an act of intentional discrimination, aimed at

preventing her promotion because she is black, then her failure to

establish the usual prima facie case would not, by itself, doom her

case. It would be ironic - bizarre, in fact - if a victim of

discrimination were unable to vindicate her rights because she had

the peculiar misfortune of being discriminated against in a way

that necessarily prevented her from making her prima facie case.

See International Brotherhood of Teamsters v. United States, 431

U.S. 324, 367 (1977) (noting District Court's finding that a "per

se prohibition of relief to nonapplicants could . . . put beyond

reach of equity the most invidious effects of employment

discrimination"). For example, if black employees were told by

their employer that they should not bother applying for supervisor

positions, and so black employees never applied, they would,

strictly speaking, be unable to establish all the elements of a

prima facie case. See Winbush, 66 F.3d at 1481 (reason plaintiffs

did not apply for promotions "was either that they did not know how

or when to apply or that they were led to believe that applying

would do no good").6 But this inability would certainly not be
vacancy was not posted, failure to apply did not defeat prima facie

case), cert. denied, 460 U.S. 1083 (1983); Royal v. Missouri

Highway & Transp. Comm., 655 F.2d 159, 163 n.5 (8th Cir. 1981)

(applications generally not taken for foreman positions, so failure

to apply not fatal to case).

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fatal to their case if they had solid evidence that their

employer's discouragement was discriminatory. Proof of actual

discrimination - the real issue, after all - may excuse a

plaintiff's failure to establish a prima facie case via the usual

route. Id. at 1481 n.16 ("[D]iscriminatory practices can excuse

plaintiffs from making a typical prima facie case of employment

discrimination."). 

Winbush illustrates our point. In that case, the District

Court found overwhelming evidence that the defendants used

"discretionary promotion policies [that] discouraged promotional

opportunities for [the plaintiffs] and reflected systematic and

purposeful discriminatory treatment of them based on their race."

Id. at 1480. The court also found evidence of a "hostile racial

working environment." Ibid. Despite this evidence, the defendants

insisted that the plaintiffs had failed to prove that they applied

for vacant positions, or that they were adequately certified by the

Iowa Department of Personnel, or that they were denied a specific

promotion. Id. at 1479. But given the evidence of discrimination

and considering all the relevant facts of the particular case, we

excused the plaintiffs' failure to establish all the usual elements

of the prima facie case. Id. at 1481-82. 

Again, we agree with the District Court that Ms. Shannon did

not establish her prima facie case. She was not rejected; she was

merely taken off the list. But if Ms. Shannon could show that her

removal from the list was discrimination in the guise of a raceneutral policy, if, for example, Ford put the "either/or,"

"apprenticeship/supervisor list" choice to her, and not to
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similarly situated white employees, we would excuse her failure to

make her prima facie case. In this case, however, Ms. Shannon has

produced no evidence that Ford's reason for not promoting her is a

sham. She does argue that she did not ask or want to have her name

taken off the list. This is irrelevant. She accepted the

apprenticeship knowing her name would be taken off; it doesn't

matter that she would have preferred that it stay on. 

Ms. Shannon also suggests that Ford's discriminatory intent is

proved by the fact that there has never been a black female

supervisor at the Twin Cities plant. And she claims that Ford

promoted 27 white workers to supervisor after she became a

candidate in 1985, 15 of them after she returned to work in 1987.

All this, Ms. Shannon argues, shows Ford's discriminatory intent in

"steering" her into the skilled-trades program. These claims are

completely unsupported. The evidence Ms. Shannon cites for her

assertion that 15 white people were promoted to supervisor since

1987 makes no reference to the race of these persons. And even if

15 white people were promoted, Ms. Shannon must show that these

people were similarly situated to her, yet treated differently, to

prove intentional discrimination. See Williams v. Ford Motor Co.,

14 F.3d 1305, 1309 (8th Cir. 1994). That is, she must show that

they, unlike her, were permitted to enter the apprentice program

while remaining on the supervisor waiting list. Ms. Shannon

asserts that "many white males participate in both programs," but

she points to no evidence. She claims that some people moved from

supervisor positions into the apprentice program, but this claim

does not help her case because these individuals are not similarly

situated. Finally, the alleged lack of black women supervisors

does not support her race-discrimination claim, given that Ms.

Shannon admits that several black men have been supervisors. 

We conclude that, unlike the plaintiffs in Winbush, Ms.

Shannon has presented no evidence of intentional discrimination

which might excuse her failure to establish the four elements of
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the Patterson prima facie case. See Chambers, 909 F.2d at 1217-18

(refusing to waive McDonnell Douglas requirement that plaintiff

"apply" because there was no evidence that employer discriminated

or that plaintiff expressed any interest in the position). She was

not rejected; rather, she voluntarily choose a different path. We

have no evidence that her choice was tainted by any discrimination

by Ford. We therefore affirm the District Court's order granting

summary judgment on Ms. Shannon's § 1981 failure-to-promote claim.

III.

The District Court held that Ms. Shannon's Title VII sexdiscrimination claim was barred because she did not exhaust her

administrative remedies. The Court found that Ms. Shannon

complained to the EEOC and the St. Paul Department of Human Rights

about harassment and differential treatment in the apprenticeship

program only, not in the promotion process. Ms. Shannon's claim

that Ford refused to promote her to supervisor because she is a

woman is not, the District Court reasoned, "reasonably related to

the substance of [Ms. Shannon's] prior administrative charges." 

Ford suggests, albeit tepidly, that Ms. Shannon waived her

right to appeal this holding because she never responded to Ford's

"failure to exhaust" argument in the District Court. Ford relies

on the uncontroversial general rule that the courts of appeals "do

not consider arguments raised for the first time on appeal." See,

e.g., Dorothy J. v. Little Rock School District, 7 F.3d 729, 734

(8th Cir. 1993). This rule promotes the efficient management and

orderly resolution of cases and reflects the respect properly due

federal district judges. On the other hand, "this is not a flat

rule but rather a matter of prudence and discretion." Struempler

v. Bowen, 822 F.2d 40, 42 (8th Cir. 1987). We have noted before

that 

"[w]hen an issue was actually decided in the
 7

Ford notes that Ms. Shannon failed to bring her Title VII

case within 90 days of the closure of the St. Paul investigation.

42 U.S.C. § 2000e-5(f)(1). Ford concludes that Ms. Shannon

therefore may not now rely on her St. Paul complaint. Given our

decision, though, it makes no difference whether she relies on the

complaint or not. The District Court decided that "neither the

EEOC charge, nor that filed with the St. Paul Department of Human

Rights, raises the issue of promotion to supervisor." Given this

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trial court, even though not expressly raised

by the parties, the rule against consideration

of the question on appeal loses a good deal of

its force. It is not unfair to a trial court

for an appellate court to decide a question

that the trial court actually reached in its

opinion . . .."

Ibid. In this case, we do not think it would show any disrespect

to the District Court, nor would it be unfair to Ford, to address

Ms. Shannon's argument on the exhaustion issue.

 

Ms. Shannon did not exhaust her Title VII failure to promote

claim. In general, "[e]xhaustion of administrative remedies is

central to Title VII's statutory scheme because it provides the

EEOC the first opportunity to investigate discriminatory practices

and enables it to perform its roles of obtaining voluntary

compliance and promoting conciliatory efforts." Williams v. Little

Rock Mun. Water Works, 21 F.3d 218, 222 (8th Cir. 1994) (citing

Patterson v. McLean Credit Union, 491 U.S. 164, 180-81 (1989)). 

To exhaust her remedies, a Title VII plaintiff must timely file her

charges with the EEOC and receive, from the EEOC, a "right to sue"

letter. 42 U.S.C. § 2000e-5(b), (c), (e). The proper exhaustion

of administrative remedies gives the plaintiff a green light to

bring her employment-discrimination claim, along with allegations

that are "like or reasonably related" to that claim, in federal

court. 

In Ms. Shannon's interview statement to the St. Paul

Department of Human Rights,7 she stated:
conclusion, with which we agree, we see no reason for refusing to

discuss the St. Paul complaint. 

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While I had my broken ankle, there were

openings in the skilled trades. I had taken

the test and passed, but they were trying to

avoid bringing me into the apprenticeship.

. . . They were hiring people from outside.

I had also done extremely well on the

management test.

Ms. Shannon contends that her passing reference to the "management

test" in effect incorporated her complaints about discrimination in

the apprenticeship program into an admittedly inchoate failure-topromote claim. We think Ms. Shannon was actually using her

performance on the management test, and Ford's hiring of "outside"

people, to support her argument that Ford was "trying to avoid

bringing [her] into the apprenticeship." Also, Ms. Shannon's EEOC

claim alleges that Ford discriminated against her "in the terms and

conditions of the apprenticeship program, harassment, training and

pay." We do not think that language, reasonably read, suggests an

implicit failure-to-promote claim.

Ms. Shannon rightly reminds us that courts should not use

Title VII's administrative procedures as a trap for unwary pro se

civil-rights plaintiffs. We agree, and therefore, when

appropriate, construe civil-rights and discrimination claims

charitably. This liberal-construction rule "stems from the rather

fundamental policy that mere vagueness in a pro se claim should not

sound the death knell for the plaintiff's discrimination

allegation." Pickney v. American Dist. Telegraph Co. of Ark., 568

F. Supp. 687, 690 (E.D. Ark. 1983). But there is a difference

between liberally reading a claim which "lacks specificity," ibid.,

and inventing, ex nihilo, a claim which simply was not made. 

This case is a lot like Williams, supra. In that case, the

EEOC sent Ms. Williams a "right to sue" letter, authorizing a race-
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discrimination suit, but she failed to sue within 90 days of

receiving the letter. Three years later, she complained to the

EEOC again. The second complaint stated "I have been denied a

promotion and a merit raise . . . because I filed a previous charge

of discrimination. I believe I am being retaliated against for

filing the charge in violation of Title VII." Williams, 21 F.3d at

222. The plaintiff then sued pro se in federal court, alleging,

inter alia, both race discrimination and retaliation. The District

Court dismissed the race-discrimination claim because Ms. Williams

had failed to exhaust her administrative remedies on that claim.

Id. at 220-21. This Court held that the District Court was right,

because the race-discrimination claim was "separate and distinct

from her claims of retaliation." Id. at 223. We noted that Ms.

Williams's EEOC complaint was not at all vague: she "specifically

and unambiguously alleged that Water Works retaliated against her

because she had filed a charge with the EEOC in January 1987."

Ibid. 

In Williams the plaintiff mentioned her unexhausted

discrimination claim in her retaliation complaint. Ms. Williams

claimed that she was retaliated against because she had complained

about racial discrimination three years before. But this reference

to her previous complaint was not enough to exhaust, for Title VII

purposes, the discrimination claim. In this case, Ms. Shannon's

complaint with the St. Paul Department of Human Rights mentioned a

"management test," but this reference is an insufficient hook for

her failure-to-promote claim. Her alleged and actual mistreatment

by her colleagues and supervisors in the apprenticeship program,

which is run jointly by Ford and the UAW, does not translate into

or even relate to Ford's alleged failure to promote her through the

MSSS. The apprenticeship and supervisor programs are completely

separate, run by different people using different standards.

Perhaps the bias which allegedly infects Ford's apprenticeship

program also infects the MSSS, but we think the "reasonably

related" standard requires more than this. We agree with the
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District Court that Ms. Shannon failed to exhaust her sexdiscrimination claim. 

IV.

For the reasons discussed above, we affirm the District

Court's order granting summary judgment for Ford.

A true copy.

Attest:

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