                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 05-3868
                                  ___________

Robert Harrison,                        *
                                        *
            Plaintiff – Appellant,      *
                                        *
      v.                                * Appeal from the United States
                                        * District Court for the
United Auto Group,                      * Eastern District of Arkansas.
Steven Landers, Sr., and                *
Dwight Everett,                         *
                                        *
            Defendants – Appellees. *
                                   ___________

                            Submitted: February 15, 2007
                               Filed: July 12, 2007
                                ___________

Before LOKEN, Chief Judge, GRUENDER, and BENTON, Circuit Judges.
                              ___________

BENTON, Circuit Judge.

      Robert E. Harrison, an African-American, sued United Auto Group, Inc.,
Steven Landers, Sr., and Dwight Everett (“United”) for race discrimination under 42
U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964. The district court1
granted United judgment as a matter of law. Harrison appeals. Having jurisdiction
under 28 U.S.C. § 1291, this court affirms.

      1
        The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas.
                                           I.

       Landers, president of United’s operations in Arkansas, called Harrison about
becoming general manager of a car dealership in Fayetteville. Harrison had worked
for Landers, but when called was sales manager at a competing dealership. Landers
said the base compensation would be $50,000 to $70,000 a year (in addition to
commissions). According to Harrison, he asked if this compensation was comparable
to what other general managers were being paid. Landers never responded. Harrison
agreed to drive to Fayetteville, look at the dealership, and contact Landers afterward.
Landers testified he thought Harrison was qualified to be general manager of a small
dealership like Fayetteville. Landers said he sought out Harrison for the Fayetteville
position because Harrison had a college degree, and the clientele at that dealership is
more knowledgeable about the product.

       After touring the dealership, Harrison contacted Landers and spoke favorably
about the position. Landers told Harrison about another general manager position
available at a United dealership in Memphis. Harrison testified that Landers asked
him to look at the store in Memphis, as it might be a better fit because more minorities
live in Memphis. The human resources director for United testified that Landers told
her that Harrison was a perfect candidate for either Fayetteville or Memphis.

      After visiting Memphis, Harrison called Landers and again asked about
compensation. Landers said that it was the same in Memphis as in Fayetteville.
Harrison also spoke with a friend who worked for United, telling him he was surprised
by the Fayetteville offer as he thought it would be more. The friend called Landers
and told him Harrison was offended by the offer. Landers testified he did not pursue
Harrison after the phone call because he was offended by Harrison’s comment and
believed Harrison had declined the offer. Landers considered the amount offered a
good base salary for a small dealership, as the current manager made $120,000 for
managing two stores. After Landers talked to Harrison’s friend, neither Landers nor

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Harrison contacted each other again. No formal offers of employment were ever made
to Harrison.

       Harrison alleges that United discriminated against him by failing to hire him as
general manager at Fayetteville and for management positions that arose later. At the
close of plaintiff’s evidence, the district court granted United judgment as a matter of
law, finding Harrison failed to meet his burden of showing discrimination. Harrison
argues the district court applied the incorrect burden of proof and erred in requiring
him to prove racial animus.

                                           II.

       This court reviews de novo a district court’s grant of judgment as a matter of
law, using the same standards as the district court. Anderson v. Indep. Sch. Dist., 357
F.3d 806, 809 (8th Cir. 2004). Judgment as a matter of law may be granted when “a
party has been fully heard on an issue and there is no legally sufficient evidentiary
basis for a reasonable jury to find for that party.” Fed. R. Civ. P. 50(a)(1). This court
views all facts in the light most favorable to Harrison and does not weigh evidence or
make credibility determinations. See Anderson, 357 F.3d at 809.

       For a prima facie case of discriminatory failure to hire, Harrison 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, United continued to seek applicants with Harrison’s qualifications. See
Caviness v. Nucor-Yamato Steel Co., 105 F.3d 1216, 1223 (8th Cir. 1997). Harrison
contends that the district court erred in not applying the principle that a plaintiff’s
burden at the prima facie stage is less onerous where the employer’s hiring criteria are
subjective. See Lyoch v. Anheuser-Busch Cos., 139 F.3d 612, 615 (8th Cir. 1998)
(a plaintiff has a lighter burden for a prima facie case of failure to promote when the
criteria are subjective). United admits that general-manager openings were not posted

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or advertised and that Landers and Everett relied on their own instincts in making
hiring decisions. The subjectivity of hiring criteria is, however, relevant only to
rejections based on requirement (2), qualification for the position. See id.; see
generally Turner v. Honeywell Fed. Manufacturing & Technologies, LLC, 336 F.3d
716, 720-21 (8th Cir. 2003); McCullough v. Real Foods, Inc., 140 F.3d 1123, 1128-
29 (8th Cir. 1998). In this case, there is no dispute that Harrison was qualified.

       The district court’s main view of the case was that Harrison did not present
sufficient evidence of requirement (3), rejection. The district court stated, “I think Mr.
Harrison either – if he didn’t turn down the offer, at least he made it plain that he
would not accept an offer in the salary range that Mr. Lander’s contemplated.” It is
undisputed that communications between Harrison and United simply ended.

       Harrison asserts that the district court erred in finding that he had to show racial
animus, instead of intentional discrimination. At trial, the district court found that
Harrison had not met his burden of “showing some kind of racial animus.” Harrison
contends that a person who acts with no racial animus can still be held liable for
intentional discrimination, citing Goodman v. Lukens Steel Co., 482 U.S. 656, 669
(1987) and Ferrill v. The Parker Group, Inc., 168 F.3d 468, 473 (11th Cir. 1999).

       Harrison’s semantic attack is beside the point. The district court explained that
after consideration of the McDonnell-Douglas framework, Harrison “still has the
burden of showing that race was a motivating factor.” The district court thus follows
the cases that use the words “racial animus” to describe the evidence of discrimination
because of race. Arnold v. Nursing and Rehab. Ctr. at Good Shepherd, 471 F.3d
843, 847 (8th Cir. 2006); Williams v. Saint Luke’s-Shawnee Mission Health Sys.,
Inc., 276 F.3d 1057, 1059 (8th Cir. 2002); Bell v. Southwestern Bell Wireless, Inc.,
19 Fed. Appx. 453, 454 (8th Cir. 2001); Clearwater v. Indep. Sch. Dist. No. 166, 231
F.3d 1122, 1127 (8th Cir. 2000). In the total context of the district court’s ruling, the



                                           -4-
district judge applied the correct test: whether United refused to hire Harrison because
of his race. See 42 U.S.C. 2002e-2(a)(1).

       Judgment as a matter of law is appropriate depending on a number of factors,
including “the strength of the plaintiff’s prima facie case, the probative value of the
proof that the employer’s explanation is false, and any other evidence that supports
the employer’s case and that properly may be considered on a motion for judgment
as a matter of law.” Tatum v. City of Berkeley, 408 F.3d 543, 549 (8th Cir. 2005),
quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148-49 (2000).
“The ultimate burden of persuading the trier of fact that the defendant intentionally
discriminated against the plaintiff remains at all times with the plaintiff.” Bogren v.
Minnesota, 236 F.3d 399, 404 (8th Cir. 2000), quoting Texas Dep’t of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981).

       To show racial motivation, Harrison emphasizes Landers’s statement that
Memphis might be a better fit for him as more minorities lived there. Harrison, on
appeal, makes no complaint about a Memphis position. Harrison fails to connect
Landers’s comment about Memphis with Harrison’s rejection of the Fayetteville
position.

       Harrison also attacks the amount offered to him as a general manager’s salary.
Harrison thus attempts to base a discriminatory failure-to-hire claim on a
discriminatory salary-offer claim in order to use the salary offer as evidence of both
intentional discrimination and pretext. Harrison asserts that he refused to work for
less than other general managers. He presented evidence that a white general manager
of two stores in Fayetteville had a base salary of $120,000 – which, in fact, indicates
that the salary offer was not discriminatory. At trial, while listing total salaries –
including commissions – of other general managers, Harrison introduced no other
evidence of base salaries for comparable dealerships, and thus failed to show a
discriminatory salary offer.

                                          -5-
       As a discriminatory failure-to-hire case, Harrison’s admission that he rejected
the offer is a legitimate nondiscriminatory reason not to hire him. The district court
correctly noted that it “almost defies reason that either Mr. Everett or Mr Landers
would go out of their way to recruit [Harrison] for these positions with the idea in
mind that they were going to discriminate against him.” It is undisputed that Landers
recruited Harrison, and Harrison rejected the offer.

       In response to the motion for judgment as a matter of law, Harrison was
required to demonstrate a “legally sufficient evidentiary basis” for a reasonable jury
to find that he was subjected to intentional discrimination. Fed R. Civ. P. 50(a); see
also Reeves, 530 U.S. at 148-49. The district court correctly found that Harrison
failed to meet the burden of showing race was the reason he was not hired.

                                         III.

      The judgment of the district court is affirmed.
                     ______________________________




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