                 United States Court of Appeals
                               For the Eighth Circuit
                                  ___________

                                   No. 11-3186
                                   ___________

Gage Elon Hunter,                        *
                                         *
            Appellant,                   * Appeal from the United States
                                         * District Court for the
                                         * District of Minnesota.
      v.                                 *
                                         *
United Parcel Service, Inc.              *
                                         *
            Appellee.                    *

                                   ___________

                              Submitted: May 17, 2012
                                  Filed: September 17, 2012
                                   ___________

Before LOKEN and BEAM, Circuit Judges, and PERRY,1 District Judge.
                            ___________

PERRY, District Judge.

      Gage Hunter filed this lawsuit claiming that defendant United Parcel
Service, Inc. discriminated against him based on his gender, sexual orientation,
and disability when it failed to hire him as a part-time package handler. Hunter




      1
       The Honorable Catherine D. Perry, Chief Judge, United States District
Court for the Eastern District of Missouri, sitting by designation.
appeals the district court’s2 grant of summary judgment in favor of UPS. After
reviewing the grant of summary judgment de novo, and considering the facts in the
light most favorable to Hunter, we affirm. Yon v. Principal Life Ins. Co., 605 F.3d
505, 509-10 (8th Cir. 2010) (standard of review).

I.    BACKGROUND

       United Parcel Services, Inc., is a parcel delivery company with facilities
nation-wide and internationally. In Minneapolis, UPS receives between 200 and
300 applications monthly for the part-time package handler position, and it hires
an average of 40 of those applicants each month. The position requires employees
to load up to 1300 packages per hour and lift up to 70 pounds. Although part-
time, the position comes with medical benefits and tuition reimbursement. An
applicant is required to do two things before being granted an interview: (1)
complete the online application and (2) tour a sorting facility to observe the type
of labor the position requires.

       Interviews for the part-time package handler position last between seven
and fifteen minutes. Interviewers focus on whether the candidate is likely to stay
with the company because of the expense and frequency of turnover. Interviewers
look at the applicant’s interest in the benefits package, the applicant’s job history,
and the applicant’s interview responses. Interviewers also routinely ask applicants
why they are interested in the position and whether they are able to perform the
job functions. After the interview, the interviewer codes the application indicating
that the applicant should receive a second interview or one of several
pre-established summary conclusions, like “poor interview responses” or “poor
job history,” to indicate that the applicant should not receive a second interview.
The interviewer can only use one code, even if more than one applies.

      2
       The Honorable Ann Montgomery, United States District Judge for the
District of Minnesota.

                                        -2-
       Gage Hunter was born female, but has identified as male since he was a
child. Hunter first submitted an application for employment with UPS in 2006.
At the time of his 2006 application, Hunter was presenting himself as female and
submitted his application under his birth name, Jessica Axt. He was offered a
position, but declined it because he was interested in a position with a different
employer. This case arises out of another application Hunter submitted, in 2008,
again with the name Jessica Axt, for a part-time package handler position. At that
time, Hunter had begun presenting himself as male. Hunter had not yet had any
surgical procedures related to gender reassignment, but he had recently begun
wearing a “binder” to bind his breasts and had started taking male hormones.
Hunter was also receiving social security disability benefits based on a
psychological disorder that only allowed him to work part-time.

      In March of 2008, a UPS recruiter, David Weinstein, sent Hunter an email
about open positions. Weinstein testified that UPS routinely contacts previous
applicants to see if they are still interested in working for UPS. Hunter and
Weinstein had some conversation via email where Hunter stated that he was
having trouble with the online application. Weinstein told Hunter that he could
get help with his application when he toured the packaging facility.

      On April 2, 2008, Hunter participated in a tour of the packaging facility led
by Brad Trendle. Hunter attempted to sign up for an interview time after the tour,
but Trendle told Hunter that his name was not on the list. On April 11, 2008 and
April 16, 2008, Hunter came back to interview, but he was again told he was not
on the interview list. Hunter then explained to Trendle that he was having trouble
completing his online application and Trendle adjusted a setting that allowed
Hunter to complete the application. On April 23, 2008, the next time Hunter came
back, he was granted an interview.



                                       -3-
       Trendle interviewed Hunter for eight minutes. In addition to the binder
used to bind his breasts, Hunter wore clothing he had purchased from the men’s
department: a brown long sleeved, button down shirt, brown pants, and dress
shoes. Hunter also had a short haircut. Hunter told Trendle he was interested in
the position and would like to work for UPS. Trendle asked Hunter why he
wanted to work part-time, and Hunter said he could only work part-time because
he received social security. Trendle showed Hunter the job description and asked
Hunter whether he would be able to perform the job functions. Hunter indicated
that he could perform the job functions. Trendle also asked Hunter whether he
was interested in the benefits the job offered, i.e., medical benefits and tuition
reimbursement. Hunter indicated that he already received social security disability
benefits.

       At the end of the interview, another individual came in and whispered
something in Trendle’s ear, then Trendle told Hunter that UPS was not hiring.
Trendle coded Hunter’s application as “poor interview answers.” Trendle testified
that Hunter’s job history was also problematic. Hunter’s application showed he
had four jobs in less than three years. One of the positions was a job as a package
handler at Federal Express, which Hunter quit after one year to take a lesser
paying job. Trendle testified that he thought the history suggested that Hunter did
not like this kind of work. Hunter testified that he left FedEx for a better paying
job, but when that job fell through he was forced to take a lesser paying job.

       On June 26, 2008, Hunter emailed Weinstein saying he was still interested
in working for UPS, he had gone on a tour of the packaging facility, and Trendle
told him UPS was not hiring. Weinstein responded with inquiries about Hunter’s
location and hour preferences; he then set Hunter up for another tour on July 10,
2008. At the end of that tour, Hunter was told he could not sign up for another
interview because he had already interviewed.



                                       -4-
       The evidence shows that, during March, April, and May 2008, Trendle hired
several applicants with sporadic or no job history. For example, he hired a man
who had held only one job for two months before applying to UPS, a man who had
held five jobs in four years, a man who had held six jobs in less than four years, a
woman who held three jobs in a little over a year, and three men with no job
history. The three applicants with no job history were all students, but two other
students with no job history were not hired and their rejections were coded as
“poor job history.” UPS also hired an applicant who held a job as a package
handler at a competitor for just three months, but it did not hire a different
applicant who held a job as a package handler at a competitor for six months. The
applicant who was hired, though, was not interviewed by Trendle and stated on his
application that he quit the previous job because there was not enough work.

       Hunter asserts that UPS discriminated against him based on his gender,
sexual orientation, and disability, in violation of the Minnesota Human Rights Act,
Minn. Stat. § 363A.01 et. seq.; Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq.; and the Americans With Disabilities Act, 42 U.S.C. § 12101 et
seq. On July 22, 2011, the district court granted UPS’s motion for summary
judgment. Hunter then requested the district court’s permission to bring a motion
for reconsideration, and, on August 30, 2011, the court entered an Order denying
Hunter’s request.3




      3
        UPS’s argument that this appeal was not timely filed need not be addressed
in detail. See DuBose v. Kelly, 187 F.3d 999, 1002 (8th Cir. 1999) (holding that
although a motion to reconsider is not listed by name in Federal Rule of Appellate
Procedure 4(a)(4), it is the functional equivalent of a motion to alter or amend the
judgment under Federal Rule of Civil Procedure 59(e), and it tolls the time for
filing an appeal).

                                        -5-
II.   DISCUSSION

        Title VII makes it “an unlawful employment practice for an employer . . . to
fail or refuse to hire . . . or otherwise to discriminate against any individual . . .
because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). Gender
stereotyping can violate Title VII when it influences employment decisions. Price
Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989); see also Lewis v. Heartland
Inns of America, L.L.C., 591 F.3d 1033, 1038 (8th Cir. 2010). The Minnesota
Human Rights Act explicitly forbids employment discrimination based on sexual
orientation. Minn. Stat. § 363A.08, subd. 2(1), (3) (2004). Minnesota law defines
sexual orientation to include “having or being perceived as having a self-image or
identity not traditionally associated with one’s biological maleness or femaleness.”
Minn. Stat. § 363A.03, subd. 44.

      When interpreting cases under the MHRA, Minnesota courts give weight to
federal court interpretations of Title VII claims because of the substantial
similarities between the statutes. Wayne v. MasterShield, Inc., 597 N.W.2d 917,
921 (Minn. Ct. App. 1999). The Minnesota Supreme Court has adopted the
familiar test found in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to
analyze MHRA claims where, as here, the claimant relies on indirect evidence of
discrimination. Sigurdson v. Isanti Cty., 386 N.W.2d 715, 719-20 (Minn. 1986).

       The McDonnell Douglas framework has three stages. In the first stage,
Hunter must establish a prima facie case of discrimination. Fercello v. Cnty. of
Ramsey, 612 F.3d 1069, 1077-78 (8th Cir. 2010). To establish a prima facie case
of discriminatory failure to hire, Hunter must prove: (1) he is a member of a
protected class; (2) he applied and was qualified for a job for which the employer
was seeking applicants; (3) he was rejected; and, (4) after he was rejected, UPS
continued to seek applicants with Hunter’s qualifications. Harrison v. United
Auto Grp., 492 F.3d 972, 974 (8th Cir. 2007). If Hunter succeeds at the first stage,

                                        -6-
UPS then bears the burden of providing a legitimate, non-discriminatory basis for
the alleged adverse action. Fercello, 612 F.3d at 1077-78. If UPS meets its
burden, in the third stage, Hunter must show that a genuine issue of fact exists as
to whether UPS’s stated reason for the adverse action is pretextual. Id.

      A.     Gender Non-Conformity

       Hunter’s primary argument on appeal is that he was discriminated against
based on his non-conformity to gender stereotypes or his being perceived as
transgendered. The district court found that Hunter had failed to establish a prima
facie case of discrimination because there was no evidence that Trendle knew
Hunter was transgendered or perceived him as transgendered and discriminated
against him on that basis. We agree.

        Hunter argues that plaintiffs alleging discrimination should not be required
to prove an interviewer’s subjective awareness of a protected class. He claims,
citing Goins v. West Grp., 635 N.W.2d 717, 724 (Minn. 2001), that the Minnesota
Supreme Court has held that a plaintiff need merely allege having a nontraditional
self-image to successfully make out the first element of a prima facie case, i.e.,
that he or she was a member of a protected class. This is not a fair reading of the
case. In Goins, the employer was informed by its female employees that the
claimant, who was biologically male, had used the female restroom, so the
employer enforced a policy that all employees were required to use restrooms
according to their biological gender. Id. at 721. In that case, the employer knew
the claimant was biologically male and identified as female, if not based on the
initial complaint from its female employees, then based on a conversation directly
with the claimant. Id. As a general matter, an employee must produce some
evidence of a connection between the protected status and the adverse
employment action. For protected classes that are not readily apparent, showing
the needed connection would typically require showing that the employer was

                                        -7-
aware. For example, in a disability discrimination case, the employee must prove
that the employer knew of the employee’s disability or perceived him or her as
disabled. See Raytheon Co. v. Hernandez, 540 U.S. 44, 55 n. 7 (2003) (noting that
if an employer “were truly unaware that such a disability existed, it would be
impossible for her hiring decision to have been based, even in part, on
respondent’s disability . . .”).

        In some cases, the claimant’s protected status is obvious and it is reasonable
to assume the employer was aware of such status, for example, if a woman is nine
months pregnant with a protruding stomach she makes no attempt to conceal,
awareness can be presumed. See Geraci v. Moody-Tottrup, Int’l, Inc. 82 F.3d 578,
581-82 (3rd Cir. 1996). But here the evidence does not show that it was obvious
that Hunter was born female and attempting to deviate from his traditional gender
stereotypes. In cases of discrimination based on a protected status that is not
necessarily obvious, as is sometimes the case with religion or national origin, the
employee must show that the employer was sufficiently aware of the employee’s
status to have been capable of discriminating based on it. Reed v. Great Lakes
Cos., 330 F.3d 931, 934 (7th Cir. 2003); Lubetsky v. Applied Card Systems, Inc.,
296 F.3d 1301, 1306 (11th Cir. 2002). In Equal Emp’t. Opportunity Comm’n v.
Trans State Airlines, 462 F.3d 987, 992-93 (8th Cir. 2006), we noted that when
there is no evidence that an employer was informed of a claimant’s protected
status or commented on it and the employer testifies that the status was not
considered, an inference that the employer both assumed the status and considered
it in the employment decision is tenuous.

       At the time of the interview, Hunter had not undergone any surgical
procedures related to gender reassignment. There is no evidence that he had any
facial hair, that he told Trendle he identified as male or transgendered, or that
Trendle engaged in any dialogue or action that suggested he was aware of
Hunter’s protected status. Instead, the evidence shows that Hunter applied to UPS

                                        -8-
using the name Jessica Axt, yet came to the interview with his breasts bound, a
short haircut, and wearing clothing and shoes he purchased from the men’s
department. None of these facts, even when taken together and even when viewed
in the light most favorable to Hunter, are exclusive to transgendered or gender
non-conforming individuals. Many fashion trends have called for women to wear
short haircuts, men’s clothes, or men’s shoes. To hang a rule of law on fashions
that may change with the times would create an unworkable rule. Although there
is no particular type of evidence that is required to establish a prima facie case of
gender or sexual orientation discrimination, some evidence that Trendle was aware
of Hunter’s protected status was required. The district judge applied the correct
test: whether UPS refused to hire Hunter because of his gender or sexual
orientation. See Harrison, 492 F.3d at 975. Ultimately, Hunter failed to establish
that Trendle knew Hunter was transgendered or gender non-conforming; he
therefore cannot prove that UPS discriminated against him because of a protected
status of which it was unaware.

      B.     Pretext

        Even if a jury could find that Trendle inferred that Hunter was
transgendered or gender non-conforming at the time of the interview, UPS
provided a legitimate non-discriminatory reason for not hiring Hunter. UPS
contends both that Hunter gave poor interview responses and that he had a poor
job history. Specifically, Trendle asked Hunter whether he was interested in the
benefits the job offered, i.e., medical benefits and tuition reimbursement. Hunter
testified that he told Trendle he already received social security disability benefits.
As to job history, Hunter’s job application showed he had four jobs in less than
three years. One of the positions was a job as a package handler at FedEx, which
Hunter quit after one year and then took a lesser paying job. Hunter testified that
he left FedEx for a better paying job, which fell through, so he was forced to take
the lesser paying job, but there is no evidence that anyone at UPS was made aware

                                         -9-
of that explanation, and Trendle testified that he thought the history suggested
Hunter did not like being a package handler. UPS articulated legitimate, non-
discriminatory reasons for not hiring Hunter which would have satisfied its burden
at the second stage of the McDonald Douglas analysis on Hunter’s gender
discrimination claim, sexual orientation discrimination claim, and even the faintly
discussed disability discrimination claim. The burden then shifts to Hunter to
prove those reasons were a pretext for discrimination.

       Hunter argues that a genuine issue of fact exists as to whether UPS’s stated
reasons for the adverse action was pretextual because he was turned away twice
when he came in for interviews he had scheduled, Trendle falsely told him UPS
was not hiring, the objective criteria of job history was not the initial reason given
for not hiring him, the code Trendle used to eliminate him from consideration for
the job was a subjective criteria, and the objective criteria of job history was not
evenly applied to all applicants. We disagree.

       Hunter was turned away for the first two scheduled interviews because he
had not completed an online application, which is required before an applicant can
receive an interview for the part-time package handler position. The very next
time Hunter came to UPS after filling out his online application, he was granted an
interview. This is not evidence of discrimination.

        Trendle’s having lied to Hunter is likewise insufficient evidence to create a
genuine issue of material fact in this case. When an employer’s stated reason for
not hiring an applicant or firing an employee is false, an inference of
discrimination may potentially be created. Loeb v. Best Buy Co., Inc., 537 F.3d
867, 873 (8th Cir. 2008). Although Trendle lied to Hunter at the interview, the
false reason was not noted on any of the internal UPS documents, nor has UPS
ever argued that it rejected Hunter because it was not hiring. At all stages of this
litigation, UPS has conceded that it was hiring and has turned over comparative

                                        - 10 -
evidence showing it was hiring. Further, while an employer’s offering shifting
reasons for not hiring an individual could potentially create an inference of
discrimination, Lake v. Yellow Transp., Inc., 596 F.3d 871, 874-75 (8th Cir.
2010), such an inference is not automatic. See Bone v. G4S Youth Services, LLC,
686 F.3d 948, 957-58 (8th Cir. 2012). Poor job history was an additional reason
Trendle testified to for not hiring Hunter, not a different or shifting reason.
Although Trendle coded Hunter’s application for “poor interview responses,”
UPS’s system only allows interviewers to enter one code for rejecting an
applicant, even if more than one of its pre-established codes might apply.

       Additionally, an interviewer’s evaluation of interview responses, although
subjective, does not, in and of itself, create an inference of discrimination.
Employers are entitled to compare applicants’ performance during interviews.
Tyler v. Univ. of Ark., 628 F.3d 980, 989 (8th Cir. 2011). “Although we have
cautioned against the advancement of subjective considerations because they are
easily fabricated, we have not outright prohibited their use.” Wingate v. Gage
Cnty. Sch. Dist., 528 F.3d 1074, 1080 (8th Cir. 2008); see also Chambers v.
Metro. Prop. & Cas. Ins. Co., 351 F.3d 848, 858 (8th Cir. 2003). Instead, we have
held that where the employer does not rely exclusively on subjective criteria, but
also on objective criteria, the use of subjective considerations does not give rise to
an inference of discrimination. Wingate, 528 F.3d at 1080. Here, UPS also relied
on objective criteria such as job history and enrollment in school.

       Finally, while the uneven application of objective criteria might warrant an
inference of discrimination, Torgerson v. City. of Rochester, 643 F.3d 1031,
1049-50 (8th Cir. 2011), Hunter has failed to show that the objective criteria of job
history was unevenly applied to him. Hunter presented comparative evidence
showing that Trendle hired several applicants with no job history but did not hire
others. Hunter was not similarly situated with any candidates with no job history
because he had poor job history, in Trendle’s opinion, not no job history. Trendle

                                        - 11 -
specifically took issue with Hunter’s having quit a similar job. Hunter did present
evidence that UPS interviewed two job applicants who had quit similar jobs, and
that UPS hired one of those applicants. But that applicant was not interviewed by
Trendle and stated on his application that he quit because there was not enough
work. UPS stated legitimate non-discriminatory reasons for not hiring Hunter,
and Hunter failed to show that a genuine issue of fact exists as to whether those
reasons were pretextual. Summary judgment was appropriate.

      The judgment of the district court is affirmed.

                      ______________________________




                                       - 12 -
