                          United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 97-1673
                                     ___________

Lafayette Canada,                         *
                                          *
             Appellant,                   *
                                          * On Appeal from the United
      v.                                  * States District Court for
                                          * the Eastern District of
                                          * Missouri.
Union Electric Company,                   *
                                          *
             Appellee.                    *
                                     ___________

                              Submitted: September 12, 1997
                                  Filed: November 10, 1997
                                   ___________

Before RICHARD S. ARNOLD, Chief Judge, HEANEY and BEAM, Circuit Judges.
                            ___________

RICHARD S. ARNOLD, Chief Judge.

      Lafayette Canada, an African-American employee of Union Electric Company,
claims the company failed to promote him to the position of gardener because of his
race. He appeals the order of the District Court granting summary judgment for Union
Electric. The District Court held that there were no genuine issues of material fact with
respect to Union Electric's legitimate, nondiscriminatory reason for its failure to
promote Mr. Canada. The key issue is whether Mr. Canada passed an oral examination
necessary to secure the promotion. Union Electric's evidence is that he did not. We
hold that the plaintiff submitted sufficient evidence to the contrary to create a genuine
issue, and we therefore reverse the judgment of dismissal and remand for further
proceedings.

                                           I.

       Mr. Canada was hired by Union Electric in 1989 as a janitor. He was later
promoted to the position of porter. While working as a porter, Mr. Canada bid on open
positions as a gardener in the company’s forestry department. To become a gardener,
an applicant must have a high-school diploma or its equivalent; three years’ experience
in landscaping and planting work; a thorough knowledge of lawn care, gardening,
planting, and landscaping; and good physical strength and endurance. Once
supervisors in the forestry department have determined that a bidder is eligible, a test
is given to determine whether he or she has the requisite knowledge of lawn care,
gardening, planting, and landscaping. The test was originally written, but was later
changed to an oral examination, and was later still returned to its original, written
format. If the bidder passes the test, he or she is offered the position.

       Mr. Canada sought a gardener position in 1989, 1994, 1995, and 1996. On each
occasion, supervisors in the forestry department deemed Mr. Canada eligible to take
the test. He took oral tests in 1989 and 1994 and written tests in 1995 and 1996. He
was informed each time that he failed the examination. In 1994, Mr. Canada filed a
grievance with his local union. Later that year, he filed a complaint with the Equal
Employment Opportunity Commission (EEOC) and the City of St. Louis Civil Rights
Enforcement Agency, alleging that the examinations had been used by the company to
discriminate against him because of his race. Both agencies investigated the charge and
found no discrimination. The EEOC issued a right-to-sue letter, and Mr. Canada filed
this case in a state court in 1995. Union Electric removed the case to the District
Court. Following discovery, Union Electric filed a motion for summary judgment. The
District Court held there were no genuine issues of material fact and granted summary
judgment in Union Electric’s favor.

                                          -2-
                                           II.

       We review a grant of summary judgment de novo. Stevens v. St. Louis
University Medical Center, 97 F.3d 268, 270 (8th Cir. 1996). Summary judgment
is appropriate when the record reveals that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter of law. Roxas v.
Presentation College, 90 F.3d 310, 315 (8th Cir. 1996). In passing on a motion for
summary judgment, the court must review the facts in a light most favorable to the
party opposing the motion and give that party the benefit of any inferences that
logically can be drawn from those facts. Buller v. Buechler, 706 F.2d 844, 846 (8th
Cir. 1983). The party opposing the motion for summary judgment should then set forth
specific facts in the record sufficient to raise a genuine material issue for trial. See
Ruby v. Springfield R-2 Public School District, 76 F.3d 909, 911 (8th Cir. 1996). In
the present case, plaintiff did not file any opposition to defendant's motion for summary
judgment, but we believe, nevertheless, that the District Court was correct in not
treating this non-response as itself sufficient to dispose of the motion. When a motion
would be dispositive of the merits of the cause if granted, courts should normally not
treat a failure to respond to the motion as conclusive. They should, instead, as the
District Court did here, proceed to examine those portions of the record properly before
them and decide for themselves whether the motion is well taken. In the present case,
defendant's motion for summary judgment was accompanied by certain portions of the
record, which the District Court examined. On appeal, we limit our examination to
those same portions of the record, not taking into account other parts of the record that
plaintiff now, belatedly, calls to our attention.

                                          III.




                                          -3-
      We have recently had occasion to re-state the standards for determining whether
there is sufficient evidence to create a triable issue of fact in employment-discrimination
cases. In Maschka v. Genuine Parts Co., 122 F.3d 566 (8th Cir. 1997), we said:


                     We recently considered the precise contours of this
             issue in our en banc decision, Ryther v. KARE 11, 108 F.3d
             832 (8th Cir.), cert. denied, 117 S.Ct. 2510 (1997). The
             holding of that case may be summarized as follows: if a
             prima facie case is made, and if the plaintiff offers evidence
             tending to show that the defendant’s proffered reasons for
             its decisions were not the real reason, then the jury may
             decide the case, unless the “evidence of pretext . . . is,
             standing alone, inconsistent with a reasonable inference of
             age discrimination.” Id. at 837 . . .. Once an age-
             discrimination plaintiff has done as much as [this], a jury
             may (but need not) find for him. See St. Mary’s Honor
             Center v. Hicks, 509 U.S. 502, 511 (1993). (“[R]ejection of
             the defendant’s proffered reasons will permit the trier of fact
             to infer the ultimate fact of intentional discrimination, and .
             . . ‘no additional proof of discrimination is required’”
             (footnote and citation omitted)) (emphasis added).


122 F.3d at 571. We now apply this standard to the case before us.1




      1
        As the Ryther en banc opinion explains, there is an exception to this general rule
where the evidence of pretext is itself inconsistent with a finding of intentional
discrimination, as, for example, the plaintiff’s evidence was in Barber v. American
Airlines, Inc., 791 F.2d 658 (8th Cir.), cert. denied, 479 U.S. 885 (1986). Accord,
Rothmeier v. Investment Advisors, Inc., 85 F.3d 1328, 1337-38 (8th Cir. 1996)
(plaintiff could not use evidence that he was actually fired because he threatened to
investigate securities-law violations as proof of pretext to support finding of age
discrimination); Maschka, supra, 122 F.3d at 571 n.3.

                                           -4-
                                           IV.


      We first consider whether Mr. Canada made a prima facie case. In order to
make such a case in failure-to-promote situations, a plaintiff must show that (1) he is
a member of a protected group; (2) he was qualified and applied for a promotion to an
available position; (3) he was rejected; and (4) similarly situated employees, not part
of the protected group, were promoted instead. Plaintiff has shown the first, third, and
fourth requirements from this list. Defendant disputes whether plaintiff was qualified
(not whether he applied), but the question of his qualifications is precisely the same,
in factual terms, as the issue raised by defendant’s proffered justification: that is, that
Mr. Canada did not pass the test. The case before us, therefore, comes down to this:
was there a genuine issue of material fact as to whether Mr. Canada passed the test?


      Plaintiff does not dispute the assertion that he failed the written tests given in
1995 and 1996. With respect to the 1989 oral test, the District Court held that the
plaintiff had failed to exhaust his administrative remedies, because he filed his EEOC
complaint too late. We agree with this holding. The question whether plaintiff passed
the 1994 oral test, however, remains, and we now focus on this issue.


      Two supervisors in the forestry department, Dan Albanello and Ray Wiesehan,
administered the test. The test was made up of 17 questions. To pass, Mr. Canada was
required to answer at least 12 questions correctly. While there is no physical evidence
of the content of Mr. Canada’s answers, Union Electric did produce a copy of Mr.
Wiesehan’s scoring sheet. Mr. Wiesehan marked six of Mr. Canada’s answers as
correct. Mr. Albanello used a scoring sheet too, but he did not keep it. He did,
however, testify in his deposition that he marked four of Mr. Canada’s answers as
correct.




                                           -5-
      Mr. Canada stated in his deposition that he believes he passed the test because
he knew his answers were correct and because he studied for the test. His testimony,
however, went beyond such generalities. We believe the following excerpts from Mr.
Canada's testimony are instructive. Union Electric supplied them to the Court along
with its motion for summary judgment:


                  Q: Were there any answers in the '94 interview that
            you believe you were not given credit for, that is you
            answered the question but they didn’t give you credit for
            your answer?

                   A: Yes.

                   Q: And why do you believe that?

                   A: I’m trying to remember the documents. I believe
            yes.

                   Q: Do you know how many questions that was?

                   A: No.

                   Q: Do you know what the questions related to?

                   A: No, I don’t remember.

                  Q: Why do you believe that you answered correctly
            but you weren’t given credit?

                    A: Just from remembering because I felt pretty sure
            that I had answered the questions correctly.

                   Q: How did you know that they didn’t give you credit
            for that?


                                        -6-
      A: Through the grievance procedure.

      Q: What do you mean?

      A: When we had a meeting with the company and the
union representative and myself and other witnesses, they
expounded on this.

      Q: How?

      A: At various steps that led up to this.

       Q: Okay. But how did you find out -- I mean how is
it that you found out that you weren’t given credit for
correct answers? I mean did someone tell you? Did you
look at documents?

      A: I looked at documents.

      Q: Okay. What documents were those?

      A: The test.

      Q: The test, the questions?

     A: The test questions and answers, the test that I took.
We are talking about '94, correct?

      Q: '94.

      A: Yes.

      Q: So you looked at a copy of the test questions?

      A: After taking the test, I looked at a copy of the test
questions that they were asking me in comparison to the
answers that he said that I gave.

                             -7-
         Q: What was the last part?

         A: In comparison to the answers that he said I had
given.

       Q: Let me see if I understand. Was there something
that had your answers written down on it?

         A: No, the questions that he gave and --

         Q: And the correct answers from the company?

         A: Yes.

     Q: Okay. So you saw the questions and you saw the
answers from the company, right?

     A: No, the answers that -- the notations that he had
made saying that I had not answered that question.

      Q: Okay. So you looked at a copy of the questions
and then there were some notations on there about which
ones you didn’t answer correctly; is that it?

         A: Along with the questions that he never asked me.

      Q: So there were some questions on the sheet you
saw that he never asked you?

         A: Yes.

         Q: Okay. Who gave you this copy of the questions?

     A: This was presented to the union by the company,
Union Electric.

(Canada Dep. at 170-72).

                              -8-
                          * * * *

      Q: How did you know your answers were correct?

      A: Because I prepared myself for the test.

      Q: Okay. Did you ever see any document that had
the correct answers on it and any notations about which
ones you had missed?

      A: Not until the meeting with Barb.

      Q: Okay. So what did you see at the meeting with
Barbara Sachs?

      A: I saw where they had marked the answers that I
had given incorrectly.

      Q: What did the document have on it that you saw at
the meeting with Barbara Sachs?

       A: I can’t remember the exact questions that it was
but I just remember some questions that were -- that we
questioned and there was no ruling on it and I know that that
was a correct answer and I don’t remember the question that
it was pertaining to but I remember it not having the correct
answer.

     Q: Okay. You didn’t make any written answers when
you were in this interview, right, it was all oral, right?

      A: Yes.

      Q: So if there were anything written down about your
answers, it would have been written down by the two people
who gave the interview, right?


                            -9-
      A: Yes.

     Q: So did you ever see in your meeting with Barbara
something that had notes about what your answers were?

      A: Yes.

      Q: Okay. And was it graded? Did it have, you know,
some kind of marking as far as a grading on it?

      A: Yes.

      Q: And there were questions on there that you thought
were graded --

      A: Incorrectly.

     Q: -- incorrectly. Okay. Do you remember how
many of those there were?

      A: No, I don’t remember the exact number.

      Q: Okay. And why did you believe that they were
graded incorrectly? Did you compare the notes about your
answer with the company’s answer?

      A: Because I knew the answer I had given at that time
and I knew the correct answer for that question that was
asked me and I knew it was correct, that I had given them
the correct answer.

      Q: Were there notations of what your answers were?

      A: No.

      Q: Okay. There was just some marking about which
questions you missed?

                           -10-
                     A: Yes.

                    Q: Okay. And you thought that you had answered
              those questions correctly?

                     A: I knew I had answered the question correctly.

              (Canada Dep. at 177-79).


       The District Court characterized this testimony as the plaintiff’s “subjective
sense that he answered questions correctly but did not receive credit for them.”
Memorandum and Order of January 31, 1997, slip op. 12. We believe that Mr.
Canada’s testimony goes beyond that. In addition to his declaration that he believed
he passed the test, he also testified about a grievance meeting attended by himself, his
union’s representative (Barbara Sachs), and representatives of the company. At the
meeting, the company presented Mr. Wiesehan’s scoring sheet, which we understand
to be notations made on a copy of the questions Mr. Canada was asked. Although the
transcript is not completely clear on this point, we think that the trier of fact could fairly
understand it to say that the company's version of the model answers were included on
the scoring sheet that Mr. Canada was shown at this meeting. Having seen the model
answers and Mr. Wiesehan's notes, Mr. Canada's testimony that questions he believed
he had correctly answered were marked as incorrect is more than a subjective sense
that he answered some questions correctly and did not receive credit for them. This
evidence is direct, personal testimony to an event that occurred in Mr. Canada’s
presence. Mr. Canada’s sworn testimony, coupled with the inconsistency between Mr.
Albanello’s testimony that Mr. Canada correctly answered four questions and Mr.
Wiesehan’s testimony that Mr. Canada correctly answered six questions, raises a
genuine issue of fact as to whether Mr. Canada passed the test.




                                            -11-
      Union Electric asserts that Mr. Canada cannot establish a prima facie case of
racial discrimination because he was not qualified for the position of gardener and
because he cannot prove that similarly situated employees were promoted instead.
Passing the test meant an applicant was qualified for the position, and whether Mr.
Canada passed the test is precisely the factual issue that, in our view, this record
presents. For this reason, we believe that summary judgment should not have been
granted.


      Accordingly, the judgment is reversed, and the cause is remanded for further
proceedings consistent with this opinion.


BEAM, Circuit Judge, dissenting.

        I respectfully dissent. The district court correctly concluded that Mr. Canada's
deposition testimony consisted of general statements that established nothing more than
plaintiff's "subjective sense that he answered questions correctly but did not receive
credit for them." Canada v. Union Elec. Co., No. 4:95CV2066, Mem. and Order at 12
(E.D. Mo. Jan. 31, 1997). This was not enough to avoid summary judgment for the
defendant. The court points to ambiguous language in Mr. Canada's deposition for the
proposition that Mr. Canada had access to the "company's version of the model
answers" allowing him to know that his answers were correct. Ante at 12. One cannot
reasonably extract such a state of affairs from the quoted litany. Indeed, when directly
asked:

      Q.     Okay. So you saw the questions and you saw the answers from the
             company, right?

      A.     No, the answers that--the notations that he had made saying that I
             had not answered that question.



                                         -12-
       Nothing else in the record indicates that he ever saw the correct answers, only
that he had studied for the test and that he, subjectively, felt that his answers were
correct.

      Accordingly, I dissent.

      A true copy.

             Attest:

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




                                        -13-
