United States Court of Appeals

For the Eighth Circuit

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No. 14-3077

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Stacy Cox

lllllllllllllllllllll Plaintiff - Appellant

v.

First National Bank, doing business as First National Bank of Omaha

lllllllllllllllllllll Defendant - Appellee

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Appeal from United States District Court 

for the District of Nebraska - Omaha

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 Submitted: May 14, 2015

 Filed: July 6, 2015

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Before WOLLMAN, SMITH, and BENTON, Circuit Judges.

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BENTON, Circuit Judge.

Stacy A. Cox sued First National Bank of Omaha for gender discrimination

under Title VII of the Civil Rights Act of 1964, after the Bank promoted a male

employee over Cox to Senior Vice President of Operations. The district court

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The Honorable Laurie Smith Camp, Chief Judge, United States District Court

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for the District of Nebraska.
granted summary judgment to First National. Cox appeals. Having jurisdiction under

28 U.S.C. § 1291, this court affirms.

I.

In spring 2011, First National sought a successor for David S. Downing, the

retiring Senior Vice President of Operations. The position had no written job

description, but Operations includes at least four areas: loans, liabilities, payments,

and risk. First National did not have a formal promotions policy. 

First National primarily considered two candidates: Cox and Jon P. Doyle, a

male. Cox began at First National in 2008 as Vice President of Loan Operations,

reporting directly to Downing. With her previous experience at another bank, she had

21 years of loans experience. She also had experience in liabilities, payments, and

risk. In 2010, she led the Operations team planning for a series of bank mergers

(completed after she left First National). Cox, an M.B.A., had a graduate degree in

banking. Her 2011 performance appraisal rated her “Meets Expectations,” noting her

strong working relationships with business partners. She also received “Meets

Expectations” in 2009. 

Doyle began at First National in 2000, originally in the wealth management

group. In 2006, he became Vice President of Payment Operations, reporting directly

to Downing. Doyle worked in banking for over ten years before joining First

National, including participating in trust mergers. He had experience in payments,

liabilities, and risk, but not loans. He received “Meets Expectations” in 2011 and

“Exceeds Expectations” in 2009. 

After deciding to retire, Downing, on his own initiative, created a matrix rating

potential candidates on the qualities he determined a senior leader should have. Cox

and Doyle were among the highest-rated candidates on the matrix. (The best-rated

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candidate, a female, opted out of consideration.) Cox and Doyle rated equally in

categories “Domain Knowledge,” “Maturity,” and “Risk.” Cox rated higher in one

category: “People Management Skills.” Doyle rated higher in three categories:

“Leadership,” “Peer Respect,” and “Managerial Acceptance.” 

First National President Daniel K. O’Neill made the promotion decision. 

O’Neill did not interview Cox or Doyle, but had one discussion with each before

Downing announced retirement. O’Neill did not reviewtheir resumes or performance

appraisals. He did study Downing’s matrix. At the time, only one of 15 executive

officers at First National was female, as was one member of the 12-member Board of

Directors and one of 18 employees reporting directly to O’Neill. Relying on the

matrix and tenure, O’Neill promoted Doyle. Although Cox remained in the same

position, O’Neill gave her a raise and increased responsibility. 

After resigning in fall 2011, Cox sued First Nationalfor gender discrimination. 

The district court granted summary judgment to First National.

II.

This court reviews de novo a grant of summary judgment. Torgerson v. City

of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). Summary judgment is

proper when “there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A court “must view

the evidence in the light most favorable to the opposing party” and draw all

reasonable inferences in favor of that party. Tolan v. Cotton, 134 S. Ct. 1861, 1866,

1868 (2014) (per curiam) (internal quotation marks omitted).

Title VII makes it unlawful for an employer “to discriminate against any

individual with respect to [her] compensation, terms, conditions, or privileges of

employment, because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1).

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Discrimination occurs when sex “was a motivating factor for any employment

practice, even though other factors also motivated the practice.” Id. § 2000e-2(m). 

Cox offers no direct evidence, so her claim is analyzed under the McDonnell

Douglas three-step framework. See Torgerson, 643 F.3d at 1044. The employee

must first establish a prima facie case of discrimination, demonstrating: “(1) she is

in a protected class; (2) she was qualified for an open position; (3) she was denied

that position; and (4) the employer filled the position with a person not in the same

protected class.” Id. at 1046 (brackets omitted). If the employee establishes a prima

facie case, the burden shifts to the employer “to articulate a legitimate,

nondiscriminatory reason” for not promoting her. Id. The employee then has the

burden “to produce evidence sufficient to create a genuine issue of material fact

regarding whether [the employer’s] proffered nondiscriminatory justifications are

mere pretext for intentional discrimination.” Id. The employee may demonstrate

pretext either by showing “that the employer’s explanation is unworthy of credence

because it has no basis in fact” or “by persuading the court that a prohibited reason

more likely motivated the employer.” Id. at 1047 (ellipsis and brackets omitted). 

First National does not dispute that Cox has a prima facie case of

discrimination. Cox does not dispute that First National offers a nondiscriminatory

explanation for the promotion: Doyle had a longer tenure at First National and was

rated higher on Downing’s matrix. The issue is whether Cox offers sufficient

evidence of pretext. 

According to Cox, five categories of evidence establish pretext: (1) her

qualifications compared to Doyle’s; (2) O’Neill’s improper reliance on tenure;(3) the

subjective nature of the hiring process; (4) O’Neill’s limited investigation of the

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candidates; and (5) First National’s male-dominated culture. The first four aim to 2

show First National’s stated reasons have no basis in fact, while the last suggests a

discriminatory motive.

First, Cox asserts that her qualifications are objectively superior to Doyle’s. 

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.” 

McCullough v. Real Foods, Inc., 140 F.3d 1123, 1129 (8th Cir. 1998). “To support

a finding of pretext, the applicant must show that [the employer] hired a less qualified

applicant.” Torgerson, 643 F.3d at 1049 (brackets omitted). “If the comparison

reveals that the plaintiff was only similarly qualified or not as qualified asthe selected

candidate, then no inference of discrimination would arise.” Id. (ellipsis omitted). 

“Although an employer’s selection of a less qualified candidate can support a finding

that the employer’s nondiscriminatory reason for the hiring was pretextual, it is the

employer’s role to identify those strengths that constitute the best qualified

applicant.” Gilbert v. Des Moines Area Cmty. Coll., 495 F.3d 906, 916 (8th Cir.

2007). 

Cox fails to demonstrate that Doyle is “less qualified” to be Senior Vice

President of Operations. Cox compares her multiple graduate degrees and loans

experience with Doyle’s lack of graduate degrees and inexperience with loans. But

at the time of the promotion, Doyle had been one of the vice presidents of

operations—a position with significant operations responsibility, the same level as

Cox—for longer than Cox. He had worked at First National three times longer than

Cox also alleges several comments questioning Doyle’s selection, made by 2

nondecisionmakers after the promotion. In her reply brief, for the first time, she

argues these are relevant to pretext. She points to no error in the district court’s

analysis. This argument is waived. See Jenkins v. Winter, 540 F.3d 742, 751 (8th

Cir. 2008) (“Claims not raised in an opening brief are deemed waived.”). 

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Cox. While Cox received good performance appraisals and good ratings on

Downing’s matrix, Doyle had equal (or better) performance appraisals and better

ratings on the matrix. O’Neill permissibly identified tenure and matrix ratings, rather

than education and loans experience, as “strengths that constitute the best qualified

applicant.” See id. See also Torgerson, 643 F.3d at 1049 (noting “‘relatively similar

qualifications’ do not create a material issue of fact as to pretext”).

Second, Cox claims O’Neill improperly used tenure as a proxy for good work

relationships. O’Neill testified he felt Doyle’s tenure at First National (about ten

years, compared to Cox’s three) meant Doyle had broader experience and more

relationships with people at the Bank, including outside of Omaha. Cox tries to

undermine O’Neill’s explanation with factual inaccuracy in his testimony: O’Neill

stated he thought Doyle’s outside-Omaha relationships would be useful for mergers

that were starting; Cox points out the mergers had been underway for a year. The

“inconsistencies [Cox] points to . . . are minor or irrelevant” and do not indicate

O’Neill’s explanation has no basis in fact. See Brooks v. Ameren UE, 345 F.3d 986,

988-89 (8th Cir. 2003). O’Neill highlighted Cox’s and Doyle’s respective tenures

and explained why he valued Doyle’s, using the merger project as one example. Cox

emphasizes her own good relationships, including the notation on her performance

appraisal and her work as a leader on the already-begun mergers. But Cox’s good

relationships do not trump Doyle’s, or make O’Neill’s reliance on tenure “unworthy

of credence.” See Torgerson, 643 F.3d at 1047, 1049 (“Although an employee does

possess the experience and some of the other qualities essential for success in the

position, this does not suffice to raise an inference that the employer’s stated rationale

for giving the position to another is pretextual.” (brackets and internal quotation

marks omitted)). 

Third, Cox stresses the subjective nature ofthe hiring process, noting Downing

created the matrix without any guidance from First National. She highlights that the

matrix categories—especially the ones where Doyle ranked higher, “Leadership,”

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“Peer Respect,” and “Managerial Acceptance”—rate subjective qualities. An

employer could invent subjective criteria for promotions in order to mask

discrimination. See McCullough, 140 F.3d at 1129. But “subjectivity alone does not

render an employment decision infirm.” Brooks, 345 F.3d at 988. Though First

National did not provide written criteria for the position, the matrix categories are not

an attempt by O’Neill to invent reasons in order to mask discrimination. Downing

created the matrix. Cox does not argue Downing was motivated by sex

discrimination. See Torgerson, 643 F.3d at 1050 (“The presence of subjectivity in

employee evaluations is itself not a grounds for challenging those evaluations as

discriminatory. . . . [The applicants] must produce sufficient evidence from which a

reasonable factfinder could infer discrimination.” (brackets omitted)). 

Fourth, Cox argues that O’Neill’s failure to investigate the candidates raises

the inference that his decision was based on sex. She contends that, unlike a

reasonable employer, he did not interview them; did not review their resumes or

performance appraisals; and did not seek input from employees familiar with their

work. However, she cites no authority that these steps are required to inform a

promotion decision. O’Neill had other knowledge of the candidates: He knew both

were competent vice presidents of operations, which he believed demonstrated

sufficient operations experience to be Senior Vice President. He relied on the matrix

created by their direct supervisor, who chose the categories based on his experience

as the position incumbent. O’Neill knew their respective tenures. He had one

discussion with each candidate. He was also able to articulate his reasoning. See id.

(noting interviewers “were able to explain, in clear and reasonably specific terms,

their reasons for scoring [the plaintiffs] lower than the [promoted] candidates”). 

Fifth, Cox draws attention to First National’s male-dominated culture. In

spring 2011, only one of 15 executive officers, and one of 12 members of the Board

of Directors, were female. Cox does not argue that this, alone, establishes

discriminatory intent. However, as she notes, “[e]ven where quantitative evidence

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does not alone demonstrate discrimination to some judicially created standard of

statistical conclusiveness, it is still relevant in conjunction with all other evidence in

determining intentional discrimination.” See MacDissi v. Valmont Indus., Inc., 856

F.2d 1054, 1058 n.3 (8th Cir. 1988). 

Taken as a whole, Cox does not raise a genuine dispute of material fact that

O’Neill’s reasons for promoting Doyle are “unworthy of credence.” Only First

National’s lack of female executives supports pretext; neither Cox’s qualifications

nor O’Neill’s reliance on tenure or the matrix support a reasonable inference that the

failure to promote Cox was due to sex discrimination. The district court did not err

in granting summary judgment to First National. 

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The judgment is affirmed.

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