                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 13-1720
                         ___________________________

                   Equal Employment Opportunity Commission

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

       Audrain Health Care, Inc., doing business as Audrain Medical Center

                       lllllllllllllllllllll Defendant - Appellee
                                      ____________

                     Appeal from United States District Court
                  for the Eastern District of Missouri - Hannibal
                                  ____________

                            Submitted: January 13, 2014
                               Filed: June 30, 2014
                                 ____________

Before GRUENDER, BRIGHT, and KELLY, Circuit Judges.
                          ____________

BRIGHT, Circuit Judge.

       The Equal Employment Opportunity Commission (EEOC) brought an action
against Audrain Health Care, Inc., (Audrain) alleging that Audrain violated Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and Title I of the Civil
Rights Act of 1991, 42 U.S.C. § 1981a, by refusing to consider transferring David
Lunceford to a vacant operating room nurse position on the basis of his sex. The
district court1 denied relief in a summary judgment of dismissal. The EEOC appeals.
Having jurisdiction under 28 U.S.C. § 1291, we affirm.

I. Background

       Since 2004, Lunceford has worked as a registered nurse at Audrain, a medical
center located in the City of Mexico, Missouri. During his time at Audrain, Lunceford
had worked in several departments, including the Critical Care Unit (CCU) and the
Post Anesthesia Care Unit (PACU). The present dispute arose following Audrain’s
posting of two vacant nursing positions and Lunceford’s subsequent attempts to
transfer to such a position.

      a. Audrain’s Transfer Policy

       Audrain allows nurses to transfer between nursing units in the various
departments and posts vacancy notifications when openings arise to allow current
employees to apply for a transfer. Pursuant to Audrain’s transfer policy, an interested
employee becomes eligible to transfer only after having been in his or her current
position for a minimum of six months unless the two impacted department directors
agree to an early transfer. To apply for a transfer, interested employees are not to
contact the department where the vacancy exists but must instead complete a “Request
to Transfer” form. If an employee wants to apply for more than one open position, the
employee must fill out a separate form for each position. Once the employee
completes the form, the Human Resources Department (HR) determines the
employee’s eligibility by reviewing the employee’s personnel file for performance
issues and ensuring that the employee meets the qualification requirements for the
position.


      1
       The Honorable Nannette A. Baker, United States Magistrate Judge for the
Eastern District of Missouri.

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       If the employee passes the initial screening and obtains approval from HR, HR
then routes a personnel action form to the relevant department directors and a member
of the executive administration for approval. Upon approval, the transfer is deemed
effective, although it may take up to 30 days for the transfer to take place to allow the
department from which the employee is transferring to address any replacement needs
that the transfer may create. Once an employee obtains administrative approval of a
transfer, he or she is not eligible to transfer to another position except as provided in
the transfer policy. Since January 1, 2009, Audrain made exceptions for five
employees who did not meet the six-month requirement. None of those employees
transferred to a specialized unit without having prior experience in those units.

      b. The Vacancy

      In March 2010 while Lunceford was working part-time in PACU, Audrain
posted two job vacancies for nursing positions. On March 10, 2010, Audrain posted
a vacancy for a nursing position in the Operating Room (OR). On March 18, 2010,
Audrain posted a vacancy for a nursing position in CCU.

      On March 22, 2010, Lunceford completed a “Request for Transfer” form
requesting to transfer from PACU to CCU. That same day, HR preliminarily
approved his request. On March 26, 2010, Linda Brooks, the clinical coordinator of
PACU and the OR, approved the request. On March 30, 2010, the Audrain CEO
approved the request. Lunceford was then scheduled to start in CCU beginning April
22, 2010.

      On April 16, 2010, Lunceford asked Brooks if she would consider him or train
him for the OR position. At the time, Lunceford did not have any experience as an
OR nurse and was not qualified for the position without further training for the unit,
which requires specialized, specific job knowledge. During the conversation, which
took place in front of at least two other people, Brooks told Lunceford that she wanted

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to fill the position with a woman in order to have the right mix of patients to staff
based on gender. According to Lunceford, Brooks replied, “I hate to discriminate
against you because you’re a man, but the doctors want more female nurses in the
OR.” Brooks disputes saying she would “hate to discriminate against you,” but admits
that she told Lunceford that she wanted to fill the position with a woman to have the
right mix of patients to staff. Audrain has both a non-discrimination policy and a
Patient’s Rights and Responsibilities Policy, which gives an Audrain patient the right
to have a health care provider of the same gender in the room during treatment.

       Lunceford reported his conversation with Brooks to Kari Wilson, Audrain’s
Vice President of Clinical Services and Chief Nursing Officer. Lunceford told Wilson
that he no longer wanted to work for Brooks and left Wilson with the impression that
he was no longer interested in the OR position. Lunceford also reported the
conversation to HR Director Christy Smiley.

       Lunceford never filled out a “Request for Transfer” form for the OR position.
In July 2010, Audrain filled the vacant OR position with the same experienced OR
nurse who had left the position, a female nurse with eleven years of OR nursing
experience. Prior to Lunceford’s conversation with Brooks, a female nurse employed
had requested a transfer to the OR position, but Audrain did not consider her because
she had no OR nursing experience. No other individuals requested to transfer to the
OR position.

      c. Procedural History

       In August 2011, the EEOC brought this action alleging that Audrain violated
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and
Title I of the Civil Rights Act of 1991, 42 U.S.C. § 1981a, by refusing to consider
Lunceford for the OR position on the basis of his sex. Audrain moved for summary
judgment, arguing that it did not discriminate against Lunceford because he did not

                                         -4-
apply for the OR position and was neither eligible nor qualified for it. The EEOC
moved for partial summary judgment as to liability. The district court granted
Audrain’s motion, denied the EEOC’s motion, and entered judgment for Audrain.
The EEOC appeals.

II. Discussion

       This court reviews a district court’s grant of summary judgment de novo “and
may affirm the district court on any basis supported by the record.” Figg v. Russell,
433 F.3d 593, 597 (8th Cir. 2006). “Summary judgment is appropriate when the
evidence viewed in the light most favorable to the nonmoving party presents no
genuine issue of material fact and the moving party is entitled to judgment as a matter
of law.” Coates v. Powell, 639 F.3d 471, 475 (8th Cir. 2011); see also Fed. R. Civ.
P. 56(a). “The nonmovant ‘must do more than simply show that there is some
metaphysical doubt as to the material facts,’ and must come forward with ‘specific
facts showing that there is a genuine issue for trial.’” Torgerson v. City of Rochester,
643 F.3d 1031, 1042 (8th Cir. 2011) (en banc) (quoting Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).

       “Title VII of the Civil Rights Act of 1964 makes it ‘an unlawful employment
practice for an employer . . . to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.’” Vance v. Ball State Univ.,
133 S. Ct. 2434, 2440 (2013) (alteration in original) (quoting 42 U.S.C. § 2000e-
2(a)(1)). In an employment discrimination action, an employee may survive an
employer’s summary judgment motion in one of two ways. McCullough v. Univ. of
Ark. for Med. Scis., 559 F.3d 855, 860 (8th Cir. 2009). First, “[t]he employee may
produce direct evidence of discrimination, which is ‘evidence showing a specific link
between the alleged discriminatory animus and the challenged decision, sufficient to
support a finding by a reasonable fact finder that an illegitimate criterion actually

                                          -5-
motivated the adverse employment action.’” Id. (quoting Russell v. City of Kansas
City, Mo., 414 F.3d 863, 866 (8th Cir. 2005)). In the alternative, the employee may
create an inference of discrimination through the three-stage burden-shifting
framework established in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). Ames v. Nationwide Mut. Ins. Co., 747 F.3d 509, 512 (8th Cir. 2014). To do
so, the EEOC must first establish a prima facie case of discriminatory failure to hire
by proving that: (1) Lunceford belongs to a protected class; (2) Lunceford applied and
was qualified for a job for which Audrain was seeking applicants; (3) Audrain rejected
Lunceford; and (4) after rejecting Lunceford, Audrain continued to seek applicants
with his qualifications. Hunter v. United Parcel Serv., Inc., 697 F.3d 697, 703 (8th
Cir. 2012). If the EEOC establishes a prima facie case, Audrain “then bears the
burden of providing a legitimate, non-discriminatory basis for the alleged adverse
action.” Id. “If [Audrain] meets its burden, in the third stage, [the EEOC] must show
that a genuine issue of fact exists as to whether [Audrain]’s stated reason for the
adverse action is pretextual.” Id.

       Here, the district court concluded that the EEOC failed to establish direct
evidence of discrimination and could not establish a prima facie case of discrimination
under McDonnell Douglas. The EEOC challenges both conclusions. Because in either
case the EEOC must demonstrate that Lunceford suffered an adverse employment
action, we focus our analysis on that question.

       The district court concluded that Lunceford did not suffer an adverse
employment decision because he never completed a Request for Transfer form so
Audrain never made a decision to deny him the OR nurse position. The EEOC argues
that a jury could conclude that Lunceford’s failure to apply for a transfer is excused
because Brooks’ comment made it clear that applying for the position would be futile.
In doing so, the EEOC relies on language from the Supreme Court’s decision in
International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977), in
which the Court stated that “[v]ictims of gross and pervasive discrimination” are not

                                         -6-
required to apply formally for a position if they can establish that the employer’s
discriminatory practices deterred them from applying for a job. Id. at 367-68. But
here, the EEOC has not presented evidence that Audrain fostered an atmosphere of
“gross and pervasive discrimination” similar to the underlying discrimination at issue
in Teamsters. See id. at 367-68, 328-31. Additionally, Teamsters involved a class
action and may be inapplicable to the present case because such analysis “is usually
applied in other class actions, rather than to actions brought by individual plaintiffs.”
Lockridge v. Bd. of Trs., of the Univ. of Ark., 315 F.3d 1005, 1011 (8th Cir. 2003) (en
banc); see Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 355-56 (5th Cir.
2001); Brown v. Coach Stores, Inc., 163 F.3d 706, 711 (2d Cir. 1998); Craik v.
Minnesota State Univ. Bd., 731 F.2d 465, 469-70 (8th Cir. 1984).

       In any event, this court has reiterated that “an employee who does not formally
apply must make ‘every reasonable attempt to convey his [or her] interest in the job
to the employer’ before he or she may prevail on a discrimination claim.” Lockridge,
315 F.3d at 1011 (quoting Chambers v. Wynne Sch. Dist., 909 F.2d 1214, 1217 (8th
Cir. 1990)) (alteration in original) (internal quotation marks omitted); see also Jackson
v. United Parcel Serv., Inc., 643 F.3d 1081, 1086 (8th Cir. 2011) (same). Here,
Lunceford did not make “every reasonable attempt to convey” his interest. He did not
apply for the position. Lunceford had a single conversation with Brooks about the
position and in a subsequent conversation with Brooks’ supervisor, he told the
supervisor that he no longer wanted to work for Brooks. Moreover, although the OR
vacancy was the first of the two posted vacancies, Lunceford expressed his interest in
the OR position to Brooks nearly a month after he requested—and Brooks
approved—a transfer to PACU, and just six days before he was due to start in PACU.
In light of this evidence, Lunceford did not make “every reasonable attempt to
convey” his interest in the OR position and the district court did not err in concluding
that the EEOC did not establish a claim of employment discrimination.




                                          -7-
III. Conclusion

     Accordingly, we affirm.
                    ______________________________




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