                                      ___________

                                 Nos. 95-3430/3744
                                    ___________

Kimberly Brandt,                          *
                                          *
            Appellee,                     *
                                          *   Appeal from the United States
     v.                                   *   District Court for the
                                          *   Eastern District of Missouri.
Shop 'n Save Warehouse Foods,             *
Inc.,                                     *
                                          *
            Appellant.                    *


                                      ___________

                        Submitted:    May 16, 1996

                            Filed:    March 17,1997
                                      ___________

Before BOWMAN, HEANEY, and WOLLMAN, Circuit Judges.

                                      ___________

BOWMAN, Circuit Judge.


     Shop 'n Save Warehouse Foods, Inc., a grocery chain operating stores
in the St. Louis metropolitan area, appeals from the judgment of the
District   Court   in    favor   of   Kimberly   Brandt   on   her   claims   of   sex
discrimination.    We reverse.


     Brandt, a member of the United Food and Commercial Workers (UFCW)
Local 88 labor union, worked as a "casual" meat wrapper out of the union
hall from 1987 to July 1991.1         That is, she worked for Shop 'n Save and
other grocery stores on an "as needed," temporary




     1
      The 1993 UFCW Local 88 collective bargaining agreement with
Shop 'n Save now calls the meat wrapper position "meat clerk," and
has broadened the job description to include all duties previously
assigned the "meat cutter" position, except operating a band saw.
basis.2    The Shop 'n Save employees who knew Brandt and worked with her,
without exception, praised her work.       In August 1990, Brandt sent a letter
to Richard Marty, then acting senior vice president of human resources for
Shop 'n Save, and a similar letter to Harold "Butch" Covili, Shop 'n Save's
senior vice president of operations, expressing interest in joining Shop
'n Save as a permanent employee, in a position as, in her words, a "female
apprentice meat cutter," or in front-end management or co-management.               As
a courtesy, Marty interviewed Brandt on September 7, 1990, and told her
then and in a follow-up letter dated ten days later that Shop 'n Save did
not have a position to offer her.          Marty's letter said Brandt's resume
would be retained in Shop 'n Save's "active files" for one year.                Brandt
testified that, in the same time frame, she also told Danny Howard, who was
one of three "meat specialists" each assigned to supervise meat operations
at approximately one-third of Shop n' Save's twenty-eight stores, of her
interest in an apprentice meat cutter position with Shop 'n Save.                As of
trial, Shop 'n Save had only one female meat cutter, who had been hired by
the company when it acquired a Kroger store where she was employed.                The
evidence also shows that, of the 600-650 meat cutters on Local 88's
membership roster at that time, only three or four were female.


       In May 1991, Marty hired John Dougherty to fill the position of
senior vice president of human resources, the position Marty himself had
been holding temporarily, and Marty returned to his position with Shop 'n
Save's parent corporation.    At this time, Covili also was no longer working
in Shop 'n Save's St. Louis office.         So Marty and Covili were out of the
picture as far as the day-to-day operations of Shop 'n Save's St. Louis
area   stores   were   concerned,   but    Howard,   who   also   knew   of   Brandt's
ambitions, was still working for the company as a meat specialist.              During
the




       2
     In July 1991, Brandt was hired by Shop 'n Save as a permanent
employee, working as a meat wrapper (now meat clerk).

                                          -2-
month of May, after Dougherty was hired, the events leading up to Brandt's
lawsuit transpired, although the record does not establish a precise
sequence.


     Sometime during the month, after Dougherty assumed his duties, he
received a call from Bob Frentzel, an old friend he had known since 1966.
Frentzel had experienced some employment setbacks since 1988, and in fact
had been unemployed for five months before he called Dougherty.     He sought
whatever employment assistance Dougherty could offer.           Also in May,
Dougherty, together with Bill Fant, Shop 'n Save's meat manager, who had
overall responsibility for the meat departments in all area stores, decided
to hire an apprentice meat cutter, someone with management experience and
"some college," but not necessarily any meat experience.       The apprentice
meat cutter job description in the UFCW Local 88 contract with Shop 'n Save
in effect at that time did not say that the apprentice position was a
management position, nor did the job description give any indication that
any college education would be preferred, much less required, of the
successful meat cutter apprentice.   Dougherty and Fant's ostensible goal,
however, was to move the person who was hired for the job into management
after the two-year meat cutter apprenticeship was completed.     This was the
first time (and the last, as it turns out) that Shop 'n Save created an
apprentice meat cutter position, although the union contract allowed one
such position in each store if Local 88 gave its permission, as it did in
this case.


     In hiring a person to fill this new job, Dougherty and Fant never
searched the "active files" for potential candidates who might have applied
for employment with Shop 'n Save before the apprentice position was
created.    The job was never posted or otherwise advertised.    Frentzel was
the only person interviewed or even considered to fill the position.
Dougherty, Fant, and Howard (who reported to Fant) all participated in the
hiring of Frentzel.   Frentzel had management experience, although not for
several years;




                                     -3-
he had "some college," although serious doubt was cast upon both just how
much "some" is and the extent to which the decision-makers were genuinely
interested in that aspect of Frentzel's background; and he had virtually
no meat experience.       Brandt had neither management experience nor "some
college," but she did have extensive meat experience.             By June 3, 1991, Bob
Frentzel was on the job in the apprentice position, at the Shop 'n Save
store where Brandt happened to be working as a meat wrapper out of the
union hall.    As of the date of trial on Brandt's claims, three and one-half
years after he was hired and one and one-half years after he completed the
apprentice    program,    Frentzel    had    not   been    promoted    to   a   management
position, despite the fact that Shop 'n Save had filled several openings
for such positions with other individuals.


     The     same   day   Frentzel   went    to    work   for   Shop   'n   Save,   Brandt
confronted Dougherty and told him she had previously submitted a resume and
had expressed an interest in a position as an apprentice meat cutter.                  She
told Dougherty she believed his failure to consider her for the apprentice
job was sex discrimination.          Two weeks later, Brandt filed a charge of
employment discrimination against Shop 'n Save with the Equal Employment
Opportunity Commission and the Missouri Commission on Human Rights.                 Brandt
filed suit against Shop 'n Save in May 1992, alleging sex discrimination
and retaliation in violation of Title VII, 42 U.S.C. §§ 2000e to 2000e-17,
and the comparable Missouri employment discrimination law, Mo. Rev. Stat.
§§ 213.010-.126.      Trial was held before a jury and, by consent of the
parties and pursuant to 28 U.S.C. § 636(c), before a magistrate judge.                 The
jury found for Shop 'n Save on Brandt's claim of retaliation, but for
Brandt on her claim of sex discrimination.                The jury further determined
that Shop 'n Save's conduct in this matter was such that punitive damages
were warranted.     In addition, in derogation of the court's instructions,
the jury specified not only an amount of punitive damages (which was
supposed to be determined in a later proceeding and for which the jury had
no evidence), but also that Shop 'n Save




                                            -4-
should pay Brandt's attorney fees.   After disposing of post-trial motions,
the Magistrate Judge entered judgment on the jury's verdict, awarding
Brandt equitable relief and $22,500 in compensatory damages.     The court
also awarded Brandt $35,000 in punitive damages and $39,852.25 in attorney
fees and costs.   Judgment was entered in favor of Shop 'n Save on Brandt's
claim of retaliation.   Shop 'n Save appeals.


     For its first issue on appeal, Shop 'n Save contends that the court
erred in denying its motion for judgment as a matter of law (JAML).     We
review de novo, "applying the same standard as the district court and
overturning the verdict only if the evidence, viewed in the light most
favorable to the nonmoving party, is insufficient to support the verdict."
Karcher v. Emerson Elec. Co., 94 F.3d 502, 507 (8th Cir. 1996), petition
for cert. filed, 65 U.S.L.W. 3587 (Feb. 5, 1997) (No. 96-1304).    We have
recited the facts in this opinion mindful of that standard, but we have
omitted those facts relating to Brandt's retaliation claim, the adverse
judgment on which Brandt does not appeal.


     Shop 'n Save makes a two-part argument on its JAML issue.   First, the
company claims that Brandt failed to prove a prima facie case of sex
discrimination under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973), and its progeny.3     In the event we disagree and conclude that
Brandt proved her prima facie case, Shop 'n Save alternatively argues that
Brandt did not sustain her ultimate burden of proof under St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 511 (1993).   That is, Shop 'n Save contends
it answered Brandt's prima facie case with legitimate reasons for its
actions, and that she was unable to show those reasons were a




     3
      McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973),
sets out the analysis to be applied to cases where the proof of
alleged discrimination is circumstantial. Brandt makes no claim
that there is direct evidence Shop 'n Save discriminated against
her, so the McDonnell Douglas framework is appropriate here.

                                     -5-
pretext for intentional discrimination.        Because we conclude as a matter
of law that Brandt did not prove that her gender was a motivating factor
in Shop 'n Save's decision to hire Frentzel instead of her, we do not
consider the challenged aspects of the prima facie case.               We assume for
purposes of this appeal that Brandt proved a prima facie case of sex
discrimination by a preponderance of the evidence.


      Once the employee offers sufficient evidence to establish a prima
facie case of unlawful discrimination, it becomes the employer's burden to
produce evidence that it had legitimate, nondiscriminatory reasons for its
actions.   Hicks, 509 U.S. at 507.       If it does so, the "presumption [of
discrimination] raised by the prima facie case is rebutted."            Id. (quoting
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 255 (1981))
(alteration added by this Court).     The burden of persuasion--"the ultimate
burden"--then moves to the employee to prove that the employment action in
question was taken at least in part because of her sex.          Id.    In this phase
of the case, the employee ordinarily attempts to prove that the employer's
articulated reasons are pretextual, thus raising the inference that sex was
a motivating factor for the adverse employment action.                 But it is not
enough that the employee submit evidence of pretext such that the jury
disbelieves the defendant's "legitimate" reasons.           See O'Bryan v. KTIV
Television, 64 F.3d 1188, 1192 (8th Cir. 1995) ("[A] plaintiff's proof of
pretext, with respect to the defendant's proffered reason for its actions,
is relevant to, but not dispositive of, the ultimate issue of intentional
discrimination.") (emphasis added).     "That the employer's proffered reason
is   unpersuasive,   or   even   obviously   contrived,   does    not    necessarily
establish that the plaintiff's proffered reason of [sex] is correct.            That
remains a question for the factfinder to answer, subject, of course, to
appellate review--which should be conducted . . . under the ‘clearly
erroneous’ standard . . . ."      Hicks, 509 U.S. at 524.    We conclude, after
de novo review and giving Brandt the benefit of all reasonable




                                       -6-
inferences that might be drawn from the evidence, that the jury's finding
of unlawful discrimination cannot be sustained as there is insufficient
evidence to support it, and that Shop 'n Save was entitled to judgment as
a matter of law on Brandt's claims of sex discrimination.


        Shop 'n Save contends that it proffered a legitimate reason for
hiring Frentzel instead of Brandt.      According to the company, Brandt was
not qualified to fill the apprentice position as it was conceived by
Dougherty and Fant, because she had neither management experience nor "some
college."    We have carefully reviewed the record in this case, and we are
confident that the jury easily might have found that Shop 'n Save--
Dougherty specifically, with Fant's assistance--created the apprentice meat
cutter position and its qualifications with the express purpose of hiring
Frentzel to fill it, that is, that Shop n' Save's proffered "legitimate
reason" was a fabrication, a pretext for its true reasons.                We are so
persuaded    ourselves.    But   notwithstanding     Shop   'n   Save's    arguable
dissembling about its reasons for hiring Frentzel, we do not believe that
Brandt has met her burden of proving that the pretext was intended to
conceal unlawful discrimination or that her gender in any way motivated the
hiring of Frentzel instead of Brandt.        The "fact sensitive" issue at this
stage of the analysis is "whether the employee has provided evidence from
which    a   reasonable   factfinder   could     conclude   that   the     employer
intentionally discriminated against the employee for a prohibited reason."
Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328, 1334 (8th Cir. 1996).
We hold that she has not.


        The evidence shows that Frentzel took advantage of his "network" to
land the apprentice meat cutter position, and that Dougherty obliged his
friend by supporting his application for the position, if not creating a
tailor-made position for Frentzel.       We do not condone the exclusion of
Brandt as a viable candidate on this basis.       But it is not intentional sex
discrimination for




                                       -7-
Dougherty to hire an unemployed old friend who happens to be male, without
considering an applicant who is neither unemployed nor an old friend and
happens to be female.        An employer's business decision concerning hiring
need   not   be   a   good    decision   to    withstand    a     challenge   for   sex
discrimination; it is enough that it not be motivated by the gender of the
employee who is adversely affected by the decision.             The proof at trial was
that Shop 'n Save had hired no males or females to be apprentice meat
cutters before Frentzel, and has hired none since.          It is apparent that the
position was created for Frentzel, with the job's "qualifications" tailored
to Frentzel's background, rather than that Frentzel coincidentally and
fortuitously happened into a just-created position that required his
"qualifications."      The fact that Frentzel has yet to be promoted to a
management position lends credence to that inference.               But such actions,
although unfair from the standpoint of Brandt and persons of either gender
who are similarly situated, are not a violation of state and federal laws
prohibiting sex discrimination in employment.              See Hutson v. McDonnell
Douglas Corp., 63 F.3d 771, 781 (8th Cir. 1995) ("[T]he employment-
discrimination laws have not vested in the federal courts the authority to
sit as super-personnel departments reviewing the wisdom or fairness of the
business judgments made by employers, except to the extent that those
judgments involve intentional discrimination.").                The evidence suggests
that at no time during the proceedings did Shop 'n Save fully acknowledge
the reasons Frentzel was selected to fill the apprentice meat cutter
position, and the jury evidently found the company's prevarication not at
all to its liking.    Nevertheless, no reasonable jury could have found that
Frentzel was hired to the exclusion of Brandt because Brandt is female.
See Gathright v. St. Louis Teacher's Credit Union, 97 F.3d 266, 268 (8th
Cir. 1996) (stating that denial of motion for JAML should be affirmed "if
a reasonable jury could differ as to the conclusions that could be drawn").
Shop 'n Save thus is entitled to judgment as a matter of law.




                                         -8-
        Nothing in our recent en banc decision in Ryther v. KARE 11, No. 94-
3622 (8th Cir. Mar. 6, 1997), requires a contrary conclusion.                      This is a
case “where the evidence of pretext is inconsistent with an inference of
intentional discrimination.”          Id., slip op. at 7 n.2.            Of course, Brandt
was   free   to   “rely    on   the   same    evidence    to     prove   both   pretext    and
discrimination,” but that does not prevent our reversal of the denial of
Shop ‘n Save’s motion for JAML where “the evidence is insufficient for a
reasonable trier of fact to infer unlawful discrimination.”                  Id. at 35 n.13
(Loken, J., in a partial separate concurrence commanding a majority of the
Court en banc.)


        Shop 'n Save raises a number of other issues in its appeal.                    Because
of our disposition of the first issue, it is unnecessary for us to consider
those that remain.


        The judgment of the District Court is reversed and the case is
remanded with instructions for the court to enter judgment for Shop 'n
Save.


HEANEY, Circuit Judge, dissenting.


        I   respectfully     dissent.         The    majority     concedes      that   Brandt
established a prima facie case of sex discrimination and that she presented
sufficient evidence for a factfinder to conclude that the employer's
proffered reason for hiring Frentzl was a pretext for its true reason.                     Yet
the   majority    speculates     as   to     the    employer's    actual   motivation     and
concludes that Brandt's discrimination claim should not have even survived
a motion for JAML.        Our court should not engage in such conjecture, which
are essentially independent credibility determinations.                    Rather, because
Brandt presented more than adequate evidence of sex discrimination to go
to a factfinder, I would affirm the jury verdict and judgment of the
district court in favor of Brandt.




                                             -9-
     Brandt   established   the   elements   of   a   prima   facie   case   of   sex
discrimination.   First, as a woman, Brandt is a member of a protected
class.   Second, she applied for and was qualified for the position of an
apprentice meat cutter.     In August 1990, Brandt submitted an application
to Shop 'n Save for the position and her four-year experience as a meat
clerk prepared her for nearly all of the necessary duties of a meat cutter
and certainly of an apprentice.     Third, despite Brandt's qualifications,
she was rejected in favor of a male applicant under circumstances that give
rise to an inference of unlawful discrimination.       At the time she submitted
her application, she interviewed for the position and was told that
although the company could not hire her at the time, her application would
remain in the active file for one year.       Less than a year after Brandt's
interview, Shop 'n Save hired Frentzl, who had not even filled out an
employment application and who had absolutely no meat-cutting experience.
Under the McDonnell-Douglas framework, Brandt's establishment of a prima
facie case created a legal presumption of sex discrimination that, if
unrebutted, would have entitled her to judgment as a matter of law.               St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993).


     To prevent entry of such judgment, Shop 'n Save had the burden to
articulate a legitimate, nondiscriminatory reason for its actions.                The
company stated that it hired Frentzl rather than promote Brandt because
Frentzl had management experience and some college education and because
the decisionmakers were not even aware that Brandt was an applicant for the
position when Frentzl was hired.    At this point, the legal presumption of
discrimination from Brandt's prima facie case disappeared; yet, as our
court recently clarified en banc, the elements of the prima facie case
remain as evidence from which the factfinder may infer discrimination.
Ryther v. KARE 11, No. 94-3622, slip op. at 5-6. (8th Cir. Mar. 6, 1997)
(citing Hicks, 509 U.S. at 511).     As Justice Powell has explained:




                                     -10-
     In saying that the presumption drops from the case, we do not
     imply that the trier of fact no longer may consider evidence
     previously introduced by the plaintiff to establish a prima
     facie case.     A satisfactory explanation by the defendant
     destroys the legally mandatory inference of discrimination
     arising from the plaintiff's initial evidence. Nonetheless,
     this evidence and inferences properly drawn therefrom may be
     considered by the trier of fact on the issue of whether the
     defendant's explanation is pretextual. Indeed, there may be
     some cases where the plaintiff's initial evidence, combined
     with effective cross-examination of the defendant, will suffice
     to discredit the defendant's explanation.


Texas v. Burdine, 450 U.S. 248, 255 n.10 (1991); see also Sheridan v. E.
I. DuPont de Nemours & Co., 100 F.3d 1061, 1069 (3d Cir. 1996) (en banc).


     In addition to her prima facie case, Brandt presented an arsenal of
evidence to discredit Shop 'n Save's articulated reasons for hiring
Frentzl.   She alleged that Shop 'n Save pre-selected Frentzl for the
position and tailored the job qualifications to fit him.    Frentzl was the
only person Shop 'n Save ever hired for the apprentice position with the
"special" job qualifications.   Further, it is questionable whether Frentzl
even possessed the qualifications for which he was allegedly hired or, as
the majority notes, that the decisionmakers actually had any interest in
his education or management experience.    Evidence of pre-selection and the
creation of a position tailored to Frentzl's qualifications reasonably and
effectively could have discredited Shop n' Save's explanation.    See Coble
v. Hot Springs Sch. Dist. No. 6, 682 F.2d 721, 729 (8th Cir. 1982).
Moreover, Shop 'n Save's decision cannot be defended on the basis of the
relative qualifications of the applicants if those qualifications were not
even considered.    See Easland v. Tennessee Valley Auth., 704 F.2d 613, 625
(11th Cir. 1983).    Further calling into question the veracity of Shop 'n
Save's proffered reason, three and a half years after the company hired
Frentzl it had yet to promote him to a management position.      Brandt also
introduced evidence that the majority of Shop 'n Save's




                                    -11-
meat clerks were female and, at the time of trial, Shop 'n Save had only
hired one female meat cutter.            The evidence that Shop 'n Save has
consistently maintained a workforce segregated by gender further buttressed
Brandt's discrimination claim.      See Lams v. General Waterworks Corp., 766
F.2d 386 (8th Cir. 1985).


     Brandt's strong challenges to the defendant's proffered reasons
provided additional evidence from which the factfinder could have inferred
that Shop 'n Save's decision was actually motivated by discrimination.              As
our court en banc just restated:


     "[W]hen 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 reasons, based his decision on an
     impermissible consideration such as [sex]."


Ryther, No. 94-3622, slip op. at 6 (quoting Furnco Const. Corp. v. Waters,
438 U.S. 567, 577 (1977)).      Or, as Judge Posner put it in his decision for
the Seventh Circuit en banc, "If the employer offers a pretext--a phony
reason--for why it fired the employee, then the trier of fact is permitted,
although not compelled, to infer that the real reason was [sex]."              Visser
v. Packer Eng'g Assoc., 924 F.2d 655 (7th Cir. 1991) (en banc).


     I recognize that evidence of pretext may not support a reasonable
inference of discrimination in some cases.         "[E]vidence of pretext will not
by itself be enough to make a submissible case if it is, standing alone,
inconsistent with a reasonable inference of age discrimination."              Ryther,
No. 94-3622, slip op. at 7.            For example, in Rothmeier v. Investment
Advisers,   Inc.,   85   F.3d   1328    (8th    Cir.   1996),   where   the   employee
discredited the employer's reason for his discharge by acknowledging that
he was fired for confronting his employer about alleged SEC violations,
clearly no inference of discrimination remained.            Id. at 1335.      But this
is




                                         -12-
not a Rothmeier-type case.   Brandt's pretext evidence does not point to a
nondiscriminatory reason for passing her over nor has she offered or
acknowledged such a justification.     Rather, Brandt vigorously maintains
that Shop 'n Save's decision was actually gender-motivated.


     Shop 'n Save has consistently argued that it hired Frentzl because
he was more qualified and because the decisionmakers did not know Brandt
was an applicant, asserting this position to the district court before,
during, and after the trial, and continuing to do so before this court.
Neither the jury, in considering the MHRA claim, nor the district court for
the Title VII claim accepted this explanation.      Nor does the majority,
explicitly finding that the defendant's articulated reasons for hiring
Frentzl were fabricated.     Yet, after discrediting Shop 'n Save's given
reason, the majority creates its own, nondiscriminatory explanation for the
defendant's employment decision.   The majority reaches out and speculates
that Frentzl was actually hired because of Dougherty's loyalty to an old
friend.    If Shop 'n Save's reason for hiring Frentzl was as the majority
determined, Shop 'n Save could have and should have advanced this reason
before the trial court, where it could have been subjected to a legitimate
inquiry.   Shop 'n Save should not benefit from failing to assert the "true"
reason for its decision to the district court.        As the Third Circuit
stated:


     We routinely expect that a party give honest testimony in a
     court of law; there is no reason to expect less of an employer
     charged with unlawful discrimination. If the employer fails to
     come forth with the true and credible explanation and instead
     keeps a hidden agenda, it does so at its own peril.      Under
     those circumstances, there is no policy to be served by
     refusing to permit the jury to infer that the real motivation
     is the one that the plaintiff has charged.


Sheridan, 100 F.3d at 1069.      There is no basis in the record for the
majority's speculation.    Even if there were, however, it would




                                    -13-
be for the factfinder--not this court--to consider in determining the
employer's motive.       We need not decide whether a nonbusiness- related
reason for rejecting a qualified woman in favor of a less- qualified,
personal friend of a supervisor may ever be the basis for a summary
judgment against such a claimant.      Suffice it to say that Shop 'n Save's
articulated reason smacked of pretext, and it was proper for the factfinder
to infer that its real motivation was as Brandt charged.


        The   properly   instructed   jury   determined   that   Shop   'n   Save
discriminated against Brandt on the basis of her sex in violation of the
MHRA.     The district court then made specific findings of fact and
independently determined that Shop 'n Save similarly violated Title VII.
We should not reverse the verdicts for insufficient evidence unless, after
viewing the evidence in the light most favorable to the verdicts, no
reasonable factfinder could have returned a verdict for the nonmoving
party.    Ryther, No. 94-3622, slip op. at 4.     The district court properly
denied Shop 'n Save's motion for JAML.        I would affirm the court in all
respects and award Brandt the damages to which she is entitled.


        A true copy.


              Attest:


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




                                      -14-
