                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                ___________

                               No. 96-3343
                                ___________
Cynthia McCullough,                   *
                                      *
           Plaintiff - Appellant,     *   Appeal from the United States
                                      *   District Court for the
     v.                               *   District of Nebraska.
                                      *
Real Foods, Inc., doing business      *
as Chubb’s Finer Foods,               *
                                      *
           Defendant - Appellee.      *

                                ___________

                         Submitted: March 10, 1997
                          Filed:     April 3, 1998
                                 ___________

Before McMILLIAN, FLOYD R. GIBSON, and HANSEN, Circuit Judges.
                               ___________

HANSEN, Circuit Judge.

      In this Title VII case, Cynthia McCullough alleges that her employer,
Real Foods, Inc., discriminated against her based on her race. McCullough
appeals from the district court’s grant of summary judgment in favor of her
employer. We reverse and remand for trial.
                                     I.

      Viewed in the light most favorable to McCullough, the record reveals
the following facts. Cynthia McCullough is a black woman with a college
degree in urban affairs. In May 1992, McCullough began working at Chef Roy’s
Deli, which was at that time owned by her brother, Edsel Cook, and her uncle,
Jesse Sawyer. Chef Roy’s Deli leased space within Chubb’s Finer Foods, a
grocery store in Omaha, Nebraska.

      Edsel Cook left the deli in early 1993, and on April 14, 1993, the
assets of Chef Roy's Deli were sold to Chef Roy's, Inc., a newly formed
corporation owned by Jesse Sawyer and Ron Meredith. Meredith also owned Real
Foods, Inc., d/b/a Chubb’s Finer Foods (Real Foods). In the summer of 1993,
Meredith terminated his relationship with Sawyer. Real Foods immediately
bought the assets of Chef Roy’s Inc., d/b/a Chef Roy's Deli, and the deli
became part of the grocery store, as it had been prior to 1992. After the
sale, McCullough continued working at the deli, where she was supervised by
the store's owner, Ron Meredith. She received an hourly rate of six dollars.
Her hours varied greatly, ranging from part- to full-time.

      In June 1993, Kathy Craven, a white woman, was hired to work part-time
in the deli at Real Foods. She had prior experience as a checker at Real
Foods and as a baker at Petit’s Pastry in Omaha. However, she had no prior
experience as a deli worker, and she had only a sixth-grade education. Her
reading, writing, and mathematical skills were poor, and she required the
assistance of McCullough in performing several deli functions. She could
not, for example, calculate prices by herself, and she had difficulty reading
recipes, according to McCullough.

      In September 1993, approximately three months after Craven’s arrival,
Ron Meredith decided to appoint one of his deli employees “deli manager.”
At this time, McCullough and Craven were the only two deli employees.
Meredith did not set up formal criteria for this employment decision, but
rather relied on subjective criteria such




                                    -2-
as his perception of each of the two employees’ abilities, work ethic, and
dedication to the job.

      Meredith selected Craven for the job. Meredith cited several bases for
his decision, including Craven's experience as a baker and as a checker, her
strong work ethic, and her interest in full-time, long-term employment. He
stated that McCullough was passed over because he understood that she would
not work past 3:00 p.m., that she made frequent requests for time off, and
that she felt she was overeducated for the position and planned to leave as
soon as she found a better job. Additionally, he claimed that he had heard
her speak of quitting, and that she had told him that she would not accept
a managerial job for less than nine dollars per hour. McCullough denies all
of these claims. She denies that she ever made such statements, asserts that
she told Meredith she would be happy to work from nine to five, and states
that Meredith’s “understanding” of her opinions and intentions was either
fabricated or based on false rumors.

      As manager, Craven was paid six dollars per hour.     Her hours were
increased to full-time, and she was given the authority to make certain
decisions with regard to the preparation and presentation of food in the
deli. When she was paged, she was referred to as the deli manager. Persons
requesting “the deli manager” were directed to her.

      McCullough was paid the same hourly rate (six dollars) as Craven. When
she complained of having been passed over, Meredith offered to give her a
full-time position as well. Nonetheless, McCullough felt that she was hurt
in intangible ways by the decision to name Craven deli manager. McCullough,
who had worked at the deli much longer than Craven and who felt she was much
more qualified than Craven for the job as manager, felt humiliated by
Craven’s appointment. On one occasion, a woman asked for the manager, and
McCullough felt humiliated when the woman was directed to Craven. McCullough
refused Meredith’s offer of a full-time position and terminated her
employment in September 1993.




                                   -3-
      McCullough believes that the decision to promote Craven over McCullough
was an act of intentional racial discrimination. In support, she points to
her superior education and more extensive deli experience. Additionally, she
points to an incident in which Meredith greeted a white employee while
ignoring her.

      Although none of them were employed during McCullough’s tenure, Real
Foods has employed four black managers since its inception in 1985—two prior
to her arrival and two since her departure. Three of the five (now six)
managerial positions have seen little or no turnover: Two managers have been
in place since the store’s inception in 1985, and another has been in place
since 1987.

      McCullough filed a Title VII action in district court, claiming that
Real Foods illegally discriminated against her on the basis of her race. The
district court granted Real Foods’ motion for summary judgment, and
McCullough appeals, arguing that the district court erred in finding that she
had failed to present evidence which created a genuine issue of material
fact.

                                     II.

      The sole issue on appeal is the district court’s grant of summary
judgment to Real Foods on McCullough’s Title VII claim. Title VII of the
Civil Rights Act makes it “an unlawful employment practice for an employer
to fail or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s race.”
42 U.S.C. § 2000e-2(a) (1994).

       Federal courts award summary judgment when the evidence “show[s] that
there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.”       Fed. R. Civ. P. 56(c);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In awarding summary
judgment to Real Foods, the district court held




                                    -4-
that McCullough had failed to create an issue of material fact regarding the
existence of intentional discrimination. We review de novo, construing the
record in the light most favorable to McCullough. Barge v. Anheuser-Busch,
Inc., 87 F.3d 256, 258 (8th Cir. 1996).

            A.   The McDonnell Douglas Burden-Shifting Framework

      McCullough offers no direct evidence of discriminatory intent.       We
therefore analyze the facts under the burden-shifting framework set out in
McDonnell Douglas and its progeny. See St. Mary's Honor Ctr. v. Hicks, 509
U.S. 502, 506 (1993); United States Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 714-15 (1983); Texas Dep't of Community Affairs v. Burdine, 450
U.S. 248, 252-56 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973). Under this framework, McCullough must first present evidence that
will establish a prima facie case.       In this failure to promote case,
McCullough must demonstrate the following four elements: (1) that she
belonged to a protected class, (2) that she met the minimum qualifications
and applied for the position, (3) that despite her qualifications she was
denied the position, and (4) that her employer promoted a person of similar
qualifications who was not a member of the protected group. Marzec v. Marsh,
990 F.2d 393, 395-96 (8th Cir. 1993); see also McDonnell Douglas, 411 U.S.
at 802; Burdine, 450 U.S. at 253 n.6; Hase v. Missouri Div. of Employment
Sec., 972 F.2d 893, 896 (8th Cir. 1992), cert. denied, 508 U.S. 906 (1993).
If she successfully establishes a prima facie case, a rebuttable presumption
of discrimination arises, and the burden shifts to Real Foods to rebut the
presumption by articulating a nondiscriminatory reason for its action.
McDonnell Douglas, 411 U.S. at 802.           Once Real Foods advances a
nondiscriminatory reason, McCullough must show that she has sufficient
admissible evidence from which a rational fact finder could find that Real
Foods’ proffered nondiscriminatory reasons are either untrue or were not the
real reasons for the action, and that intentional discrimination was the real
reason. Hicks, 509 U.S. at 515; Ryther v. KARE 11, 108 F.3d 832, 838 n.5
(8th Cir.) (en banc), cert. denied, 117 S. Ct. 2510 (1997); Ryther,




                                    -5-
108 F.3d at 848 n. 13 (Part I.A. of opinion of Loken, J., in which eight
active judges joined); Kneibert v. Thomson Newspapers, Michigan Inc., 129
F.3d 444, 452 (8th Cir. 1997); Rothmeier v. Investment Advisors, Inc., 85
F.3d 1328, 1336-37 (8th Cir. 1996).

                                             1. The Prima Facie Case

      As noted above, McCullough must first present evidence that will
establish a prima facie case. It is uncontroverted that she did so. She
satisfied all four elements: she is black, she was qualified for the job of
deli manager, she was not given the job, and the job was in fact given to a
minimally qualified white woman. A rebuttable presumption of discrimination
is thus established.

                               2.    Rebutting the Prima Facie Case

      The establishment of a prima facie case creates a rebuttable
presumption of discrimination. The employer may rebut this presumption by
articulating one or more nondiscriminatory reasons for the employment
decision. The standard for rebuttal of the prima facie case was explicated
by this court in Buchholz v. Rockwell Int’l Corp., 120 F.3d 146, 150 (8th Cir. 1997). There the
court wrote:

       This burden is not onerous, and the explanation need not be demonstrated by a preponderance. The
       defendant need not persuade the court that it was actually motivated by the proffered reasons.
       Rather, it is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it
       discriminated against plaintiff that would allow the trier of fact rationally to conclude that the
       employment decision had not been motivated by discriminatory animus. If the defendant offers a
       facially nondiscrim-inatory explanation, regardless of its persuasiveness, the presumption in
       plaintiff's favor evaporates and it is left for the trier of fact to determine whether the plaintiff has
       proven that the defendant's action was motivated by discrimination.




                                                       -6-
Id. at 150 (citations and internal quotations omitted).

      Real Foods has articulated several nondiscriminatory reasons for
passing over McCullough as a candidate for deli manager.            These reasons
include the following: she planned to quit soon, she refused to work past
3:00 p.m., she wanted a large amount of time off, and she refused to accept
the job for less than nine dollars an hour. We need not examine the evidentiary basis for
these articulated reasons. We need only determine whether they constitute one or more facially nondiscriminatory
reasons for the employment decision. We hold that they do.

                                  B.    The Two-Part Rothmeier Test

      When, as here, the prima facie case has been successfully rebutted, the
presumption of discrimination “drops out of the picture.” Hicks, 509 U.S.
at 510-11; Rothmeier, 85 F.3d at 1334. The burden then shifts back to the
plaintiff to present evidence sufficient to support two findings, as
explained by this court in Rothmeier, 85 F.3d at 1336-37.          First, the
plaintiff must present evidence which creates a fact issue as to whether the
employer’s proffered reasons are mere pretext. Id. at 1336. Second, she
must present evidence which creates a reasonable inference that the adverse
employment decision was an act of intentional racial discrimination. Id at
1336-37; see also Hicks, 509 U.S. at 514-15.

                                                  1.       Pretext

      We first address the question of whether McCullough met her burden of
creating an issue of fact as to whether Real Foods’ proffered
nondiscriminatory reasons are pretextual. The district court held that she
met this burden, and we agree. Real Foods’ proffered reasons centered on
statements McCullough herself allegedly made. McCullough claims that she
never made such statements, and that Real Foods' proffered reasons are
predicated on bald-faced lies. These allegations of falsity, if




                                                          -7-
proved, would certainly support an inference in a reasonable jury that the
proffered reasons were mere pretext rather than the actual impetus behind the
decision.

                                   2.    Intentional Discrimination

      We next address the question of whether McCullough has met her burden
of   creating   a   reasonable   inference   that   Real   Foods'   proffered
nondiscriminatory reasons were in reality a pretext for discrimination. Both
this court and the Supreme Court have made clear that a plaintiff in a
pretext case must establish “both that the reason was false, and that
discrimination was the real reason.” Ryther, 108 F.3d at 838 n.5 (quoting
Hicks, 509 U.S. at 515) (emphasis in original); see also Kneibert, 129 F.3d
at 453-54; Rothmeier, 85 F.3d at 1336-37. As the Supreme Court clarified in
Hicks, “nothing in law would permit us to substitute for the required finding that the employer’s action was the
product of unlawful discrimination, the much different (and much lesser) finding that the employer’s explanation of
its action [is] not believable.” 509 U.S. at 514-15.

      Neither the proof making out the prima facie case nor the evidence that
is used to establish pretext are disqualified from use in support of an
inference of intentional discrimination.      See Ryther, 108 F.3d at 836.
However, such evidence will sometimes be insufficient to support a reasonable
inference that the employment decision was based upon intentional
discrimination. As this court noted in Nelson v. Boatmen’s Bancshares, Inc.,
26 F.3d 796, 801 (8th Cir. 1994), evidence discrediting an employer’s
nondiscriminatory explanation “is sufficient in some cases but not in all
cases.”    This is because “[i]t is not enough . . . to disbelieve the
employer; the fact finder must believe the plaintiff’s explanation of
intentional discrimination.” Hicks, 509 U.S. at 519 (emphasis in original).
In Ryther, our court, sitting en banc, articulated the standard as follows:




                                                       -8-
         [U]nder this standard, while plaintiff may rely on the same evidence to prove both pretext and
         discrimination, that evidence must be sufficient to prove that the employer is guilty of intentional
         discrimination. Therefore, a trial judge may decide on a motion for summary judgment or JAML
         that the evidence is insufficient for a reasonable trier of fact to infer unlawful discrimination, even
         if plaintiff has presented some evidence of pretext.
Ryther, 108 F.3d at 848 n.13 (Part IA of opinion of Loken, J., joined by eight active judges); see also Rivers-Frison
v. Southeast Missouri Community Treatment Ctr., 133 F.3d 616, 621 (8th Cir. 1998) ("Of course, evidence that
the Center's proffered reasons for termination were pretextual will only defeat summary judgment if the evidence
could persuade a reasonable fact-finder that Rivers-Frison was discharged because of intentional race
discrimination."); Day v. Johnson, 119 F.3d 650, 654 (8th Cir. 1997) (“[E]ven when an employee presents some
circumstantial evidence of pretext, a finding of intentional discrimination is clearly erroneous if the finding lacks
plausibility when the evidence is considered as a whole.”) (citing Ryther, 108 F.3d at 848 n.13 (Part IA of opinion
of Loken, J., joined by eight active judges)), cert. denied, 118 S. Ct. 707 (1998).

         Viewing the evidence as a whole and in the light most favorable to McCullough (as we are obligated to do
in the summary judgment context of this appeal), we conclude that the evidence supporting her prima facie case and
her evidence of pretext are sufficient to permit a fact finder to reasonably infer intentional discrimination based on
race.

        Included in the whole of the evidence which supports her prima facie case is the evidence that McCullough
had 15 months more hands-on experience working in the deli than did Craven, as well as the evidence that
McCullough’s objective educational qualifications greatly exceeded those of Craven. Although we are not convinced
that a college degree is a necessary or even a nice-to-have qualification for the position of deli manager, when
McCullough's education and experience are contrasted with




                                                       -9-
Craven’s poor reading, writing, and math skills—as evidenced by her inability to read recipes or calculate prices—a
reasonable inference arises that Meredith promoted a substantially less qualified white woman over a substantially
better qualified black woman. We believe it is common business practice to pick the best qualified candidate for
promotion. When that is not done, a reasonable inference arises that the employment decision was based on
something other than the relative qualifications of the applicants.

           Critical to our analysis in this case is the extremely subjective nature of the employer's stated promotion
criteria. In the prima facie case context, we have agreed with the Tenth Circuit that “subjective criteria for
promotions <are particularly easy for an employer to invent in an effort to sabotage a plaintiff’s prima facie case and
mask discrimination.’” Lyoch v. Anheuser-Busch Cos., Nos. 97-1973/2061/2598, 1998 WL 121800, at *3 (8th Cir.
Mar. 20, 1998) (quoting Thomas v. Denny's, Inc., 111 F.3d 1506, 1510 (10th Cir.), cert. denied, 118 S. Ct. 626
(1997)).

                     [W]e know from our experience that more often than not people do not act in a totally
           arbitrary manner, without any underlying reasons, especially in a business setting. Thus, when 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 reason, based his decision on an impermissible consideration such as race.

Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978) (cited in Ryther, 108 F.3d at 836).

           At this stage of these proceedings, when the employer’s asserted nondiscriminatory reasons are essentially
checkmated by McCullough’s denials that she ever made the statements the employer advances as its
nondiscriminatory reasons, the failure to promote the objectively better qualified black woman raises a reasonable,




                                                       -10-
nonspeculative inference that the decision to promote the less qualified white woman was based on an impermissible
consideration—in this case race, a la Furnco.

         While federal courts do not “sit as super-personnel departments reviewing the wisdom or fairness of the
business judgments made by employers,” Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 781 (8th Cir. 1995),
when the whole of the evidence raises a reasonable inference that “those business judgments involve intentional
discrimination,” the law permits the person who claims to have been discriminated against to have her day in court.
Id. Such is the case here.

        In short, McCullough presented evidence sufficient to support a reasonable inference that Real Foods’ failure
to promote her to the position of deli manager was motivated by racial animus. That inference is enough to prevent
summary judgment for the employer. Whether or not the trier of fact will draw such an inference after hearing all
of the evidence offered by both sides at trial and judging the opposing witnesses’ credibility is an entirely different
question. We hold only that summary judgment was improvidently granted to the employer.

                                                         III.

        For the reasons stated, we reverse the judgment of the district court and remand the case for further
proceedings consistent with this opinion.



A true copy.

                 Attest:

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




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