## The H onorable Stephen N. Limbaugh, United States District Judge for th e 1 

## Eastern District of Missouri. United States Court of Appeals 

### FOR THE EIGHTH CIRCUIT

___________ No. 97-2088

___________ Phyllis Rose-Maston, *
* Appellant, *
* Appeal from the United States v. * District Court for the
* Eastern District of Missouri. NME Hospitals, Inc., doing business * as Lutheran Medical Center, *
* Appellee. *

___________ Submitted: December 12, 1997 Filed: January 15, 1998

___________ Before BOWMAN, WOLLMAN, and LOKEN, Circuit Judges.

___________ WOLLMAN, Circuit Judge. Phyllis Rose-Maston (Rose -Maston) appeals from the district court’s 1 entr y of summary judgment in favor of her former employer, Luthera n Medica l Center (LMC), in her Title VII employment discrimination suit

. Bec ause Rose-Maston failed to present evidence showing that LMC’ s legitimate, nondiscriminatory reasons for her termination were a pretext for unlawful discrimination, we affirm.

## In addition to Rose-Maston, tw o of the other six managers under Kraft’s direct 2 

## supervision were African-American fe males. Neither of these individuals experienced any negative employment actions.
-2- I.

Ros e-Maston, an African-American female, began working for LMC i n October of 1984 as Utilization Review Coordinator. She was promoted in 1991 to the position of Utilization Review Manager. In March of 1992, Glen n Kraft (K raft), a white male, was hired as LMC’s Chief Financial Office r (CFO). As CFO, Kraft directly supervised the performance of seve n departmental managers, including Rose-Maston. 2

Shortl y after Kraft was hired, he and Rose-Maston began experiencing difficu lties in their working relationship. Rose-Maston was apparentl y displeased with Kraft’s approach, which called for managers under hi s control to function with minimal guidance and supervision. She felt that th is “hands off” approach failed to adequately apprise her of what wa s expected of her. Kraft, on the other hand, expressed concern about Ros e Maston’s job performance, believing that she was unable to functio n competently without constant feedback and supervision. In addition, h e believed that she lacked an understanding of the purposes and functions of utilization review, and he found her reports to be inadequate an d confusing. Kraft was also concerned about Rose-Maston’s somewhat errati c attendance.
In November of 1992, LMC decided to combine its Utilization Review and Social Services departments into a single department. LMC anticipate d creating a new Case Management Director (CMD) position to head up the newly created department. Kraft interviewed Rose-Maston and two other individ uals for the CMD positi on. Because LMC’s plans to merge the Utilization Review and Social Services departments were not entirely formulated, and becaus e the CMD position was still largely

## -3-

unde fined, LMC decided not to hire anyone immediately and tabled th e proposed position indefinitely.

Follow ing Rose-Maston’s interview for the CMD position, he r prof essional relationship with Kraft continued to deteriorate. Althoug h Rose-Maston’s previous supervisors had generally given her satisfactor y per formance evaluations, Kraft’s 1992 evaluation of her performanc e indicated that Kraft was extremely dissatisfied with her sporadic attend ance and professional c ompetence. Rose-Maston was absent from work on numerous
occa sions and was often inexplicably unavailable during ordinary workin g hours. Kraft’s concern about these repeated occurrences led him to begin carefull y monitoring her absences. Between August of 1992 and April o f 1993, Rose-Maston was absent from work for all or part of the day o n seventeen separate occasions.

In Janua ry of 1993, Kraft provided Rose-Maston with an action pla n outlining specific tasks for her to complete and setting deadlines for the comp letion of each task. This action plan proved to be largel y uns uccessful. Rose-Maston felt that the plan failed to provide her wit h reasonable guidanc e, and consequently she failed to complete certain tasks in a time ly manner. In April, Kraft informed Rose-Maston that he wa s unsatisfied with her performance of the tasks identified in the action p lan. Kraft and LMC Human Resources Director Jan Kosmal met with Rose-Maston at this time to express their concerns and to inform her that they woul d
car efully monitor her work during the following thirty days and that he r employment status would be reevaluated at the end of that time.

On June 7, 1993, Kraft terminated Rose-Maston’s employment, citin g poor work performance and unacceptable attend ance. Shortly thereafter, LMC implemented its

## LMC co ntends, and Rose-Maston does not dispute, that the duties an d 3 

## responsibilities of this position had changed considerably since the time of Rose

Maston’s November interview.
-4- plan to combine th e Utilization Review and Social Services departments and hired a white male to serve as the director of the newly created Cas e Management department. 3

Fol lowing her dismissal, Rose-Maston filed this Title VII action , alleging that LMC unlawfully discriminated ag ainst her on the basis of race wh en it discharged her and when it failed to promote her to the CM D position.

II.

We review a grant of summary judgment de novo, applying the sam e standard as the district court. See Rabushka ex rel. United States v. C rane Co. , 122 F.3d 559, 562 (8th Cir. 1997). We will affirm if the evidence , viewed in the light most favorable to the nonmoving party, shows that n o genuine issue of material fact exists and tha t the moving party is entitled to judgment as a matter of law. See Herrero v. St. Louis University Hosp. , 109 F.3d 481, 483 (8th Cir. 1997); Fed.R.Civ.P. 56(c). Although a part y moving for summary judgment has the burden of demonstrating the absence of any genuine issue of material fact, a nonmoving party may not rest upon mere denials or allegations, but must instead set forth specific facts suffic ient to raise a genuine issue for trial. See Thomas v. Runyon , 108 F.3d 957, 959 (8th Cir. 1997); Ruby v. Springfield R-12 Pub lic School Dist. , 76 F.3d 909, 911 (8th Cir. 1996).

Rose-Maston’s claims of race discrimination are analyzed under th e burden-shifting framework set forth in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802-03 (1973). Under this framework, a Title VII plaintiff has the initial burden of establishing a prima facie case of rac e discrimination. See Hill v. St. Louis Univer sity , 123 F.3d 1114, 1119 (8th Cir. 1997). If she is successful in establishing a prima facie

## -5-

ca se, a rebuttable presumption of discrimination arises. See id. Th e burden then shifts to the defendant, who must articulate a legitimate , nondiscriminatory reason for the adverse employment action. See id. Once the employer articulates such a reason, the presumption of discriminatio n disappears entirel y and the plaintiff bears the burden of proving that the employer’s proffer ed reason is merely a pretext for discriminatory animus. See id. At all times, the plaintiff retains the ultimate burden of proving that she was illegally discriminated against on the basis of her race. See Ruby , 76 F.3d at 912.

III.
To present a prima facie case of discriminatory discharge, R ose Maston
was requir ed to show “that [she] was a member of a protected class, tha t [she] was qualifie d for the position, and that despite [her] qualification [she] was displaced from the position.” Ruby , 76 F.3d at 911. As LM C apparently concede s, Rose-Matson has met these requirements, thus creating
a r ebuttable presumption of discrimination. See Hill , 123 F.3d at 1119

. LM C rebutted the presumption, however, by articulating legitimate , nondiscriminatory reasons for Rose-Maston’s discharge; namely, her irreg ular attendance and her poor job performance.
Because LMC has produced non discriminatory reasons for its actions, the presumption of discrimination created b y Rose-Maston’s prima facie case disappeared. See Ryther v. KARE 11 , 108 F.3d 832, 837 (8th Cir.), cert. denied , 117 S. Ct. 2510 (1997). Noneth eless, the elements which form Rose-Maston’s prima facie case were not rend ered irrelevant by the LMC’s production of a nondiscriminatory explanation. Id. As we explained i n Ryther , [t]he elements of the prima facie case remain . . . and if they are accompanied by evidence o f pretext and disbelief of the defendant’s proffered explanation, they may permit the jury to find for the plaintiff.

## -6-

This is not to say that, for the plaintiff to succeed, simply proving pretext is necessarily enough. We emphasize that evidence of pretext will not by itself be enou gh to make a submissible case if it is, standing alone, inconsistent with a reasonable inference of age discrimination. Furthermore . . . the plaintiff must still persuade the jury, from all the facts and circumstances, that the employment decision was based upon intentional discrimination.

Id. at 837-38 (emphasis in original).

Th e question, then, is whether Rose-Maston produced sufficien t evidence to support a reasonable infere nce that LMC’s proffered reason is
me rely a pretext for race discrimination. See Duffy v. Wolle , 123 F.3 d 1026, 1036 ( 8th Cir. 1997); Moschetti v. Chicago, Central & Pacific R.R. Co. , 119 F.3d 707, 710 (8th Cir. 1997). Rose-Maston may prove pretex t either directly by showing that her emp loyer was more likely motivated by
a dis criminatory reason or indirectly by showing that her employer’ s explanation is unworthy of credence. S ee Harvey v. Anheuser-Busch, Inc. , 38 F.3d 968, 971 (8th Cir. 1994). Proof that LMC’s articulated reaso n is un worthy of credence does not automatically entitle Rose-Maston t o judg ment but may support an inference of discrimination. See Rothmeie r v. Investmen t Advisers, Inc. , 85 F.3d 1328, 1334 (8th Cir. 1996). As we went on to explain in Rothmeier , [A] plaintiff c an avoid summary judgment only if the evidence co nsidered in its entirety (1) creates a fact issue as t o whe ther the employer’s proffered reasons are pretextual an d (2) creates a reasonable inference that [race] was a determinative f actor in the adverse employment decision. The se cond part of the test sometimes may be satisfied withou t additi onal evidence where the overall strength of the prim a fa cie case and the evidence of pretext “suffice[s] to sho w inten tional discrimination.” The focus, however, alway s remains on the ultimate question of law: whether the evidence is sufficient t o create a genuine issue of fact as to whether the employer intentionally discriminated a gainst the plaintiff because of the plaintiff’s [race].

## -7-

Id. at 1336-37 (citations omitted).
Rose-Maston contends that Kraft failed to adequately inform her of her job duti es and of his expectations for her. Kraft, however, made it know n to Rose-Maston that he expected managers under his supervision t o demon strate high levels of independence and initiative. Although Rose

Maston may have felt that Kraft’s approach was inappropriate and t hat more direction wo uld have been preferable, an employer’s failure to inform an
em ployee of what is expected of her is not evidence of discriminator y animus. See Hill , 123 F.3d at 1119. R ose-Maston’s claim is nothing more than an attack on the business practices of LMC and Kraft. “[T]h e employment d iscrimination laws have not vested in the federal courts the autho rity to sit as super-personnel departments reviewing the wisdom o r fairness of the business judgments made by employers, except to th e extent that th ose judgments involve intentional discrimination.” Hutson v

. McDonnell Do uglas Corp. , 63 F.3d 771, 781 (8th Cir. 1995). See also Day
v. Jo hnson , 119 F.3d 650, 657 (8th Cir. 1997) (“federal courts are no t self-ap pointed personnel managers, and they may not second-guess th e fairness or wisdom of an employer’s nondiscriminatory employmen t deci sions”). Title VII prohibits intentional discrimination based o n ce rtain, discreet classifications; it does not prohibit employmen t decis ions based on other factors, such as job performance, erroneou s evaluations, personality conflicts, or even unsound business practices

. See Hill , 123 F.3d at 1120.

Ros e-Maston also alleges that she was treated differently tha n simil arly situated white employees. Specifically, she submits that sh e was subjecte d to an evaluation process different from that used with her fellow employees and that certain white employees received promotions for which they were not qualified. These unsubstantiated and conclusor y allegati ons are insufficient to support an inference of pretext. Se e Davenport v. Riverview Gardens School Dist. , 30 F.3d 940, 945 (8th Cir.

## Ro se-Maston argues that LMC failed to show that other similarly situate d 4


## e m ployees were treated in the same manner. This argument, however, misplaces the bu rden of proof. As the plaintiff, Rose-Maston bears at all times the ultimate burden of provi ng that she was illegally discriminated against. See Ruby , 76 F.3d at 912

. Thus, it was Rose-Maston’s burden to produce specific, tangible evidence showing a disparity in the treatment of similarly situated employees. See Harvey , 38 F.3d at 972; Lanear v. Safeway Grocery , 843 F.2d 298, 301 (8th Cir. 1988).
-8- 1994 ) (“While evidence supporting this claim [of disparate treatment ] would be hig hly relevant to the issue of pretext, plaintiff presented no such evidence other than his own unsubstantiated allegations”). Rose

Masto n points to no specific factual evidence supporting her claim , choosing ins tead to rely upon bald assertions of favoritism. Conclusory affidavits, standing alone, cannot create a genuine issue of mater ial fact precluding summary judgment. See Miller v. Citizens Security Grou p, Inc. , 116 F.3d 343, 346 (8th Cir. 1997); Jackson v. Anchor Packing Co. , 994 F.2d 1295, 1303-04 (8th Cir. 1993). 4
Finally, Rose-Maston asserts that her prior satisfacto ry evaluations support a n inference of pretext because they cast doubt upon LMC’ s asser tions that she was incompetent. See Hutson , 63 F.3d at 77 9 (“demonstration of competence may serve as evidence of pretext when a n employ ee is discharged for incompetence”). Rose-Maston’s prio r evalu ations, however, are not sufficient to defeat LMC’s motion fo r summa ry judgment. These evaluations may show that Rose-Maston ha d performed competently in the past, but they do not render her more recent negat ive evaluations inherently untrustworthy. Rose-Maston offers n o evidence showing that LMC’s proffered e xplanations for her termination -- poor attendance and failure to complete assigned tasks -- are pretextual. Indeed, she does not dispute that her attendance was poor or that sh e failed to complete assigned tasks.

## -9- In sum, because Rose-Maston failed to present any evidence that would support a reasonable inference of pretext, we conclude that the district court properly granted summary judgment against her on her claim o f discriminatory discharge.

IV.

We turn to Rose-Maston’s claim that LMC unlawfully failed to promote her because of her race. Once again, we apply the burden-shiftin g fra mework of McDonnell Douglas . To establish a prima facie case in a failure-to-promote ca se, a plaintiff must show: (1) that she was a member of a protected group; (2) that she was qualified and applied for a promotion to an available position; (3) that she was rejected; and (4) tha t
a similarly qualified employee, not part of a protected group, was promote d instead. See Shannon v. Ford Motor Co. , 72 F.3d 678, 682 (8th Cir. 1996); Lidge-Myrtil v. Deere & Co. , 49 F.3d 1308, 1310 (8th Cir. 1995).

We reco gnize that the threshold of proof necessary to make a prim a facie case is minimal

. See Krenik v. County of LeSueur , 47 F.3d 953, 957 (8th Cir. 1995); Joh nson v. Arkansas State Police , 10 F.3d 547, 551 (8th Cir

. 1993). Nonetheless, we agree with the district court’s conclusio n that Rose-Maston failed to establish the elements of a prima facie case. She offe rs no evidence of the qualifications necessary for the CM D position, nor does she offer any evidence regarding her own qualifications

. She instead makes conclusory assertions that she was qualified for th e position. This is insufficient to establish a prima facie case fo r discriminatory failure to promote.
Further, even assuming that Rose-Maston has established a prima facie
case on h er failure-to-promote claim, LMC has met its burden o f arti culating a legitimate, nondiscriminatory reason for its failure t o promote Rose-Maston. Specifically, LMC contends that the person ultimatel y hired to fill the CMD position was more qualifie d than Rose-Maston. RoseMaston offers no evidence that would support an inference

## -10-

that this reason is pretextual. In fact, she offers no evidence whatsoeve r regarding the qualifications of the individual w ho ultimately obtained the CMD position, and she stated in her deposition that she was entirel y unawar e of that individual’s qualifications. Thus, the district cour t properly entered summary judgment in favor of LMC on the failure-to-promot e claim.
The judgment is affirmed.

A true copy.

Attest:

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