McCullough v. Real Foods, Inc.

• Decision Date: 03 April 1998
• Docket Number: No. 96-3343.,96-3343.
• Citation: 140 F.3d 1123
• Parties: Cynthia McCULLOUGH, Plaintiff-Appellant, v. REAL FOODS, INC., doing business as Chubb's Finer Foods, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

140 F.3d 1123

Cynthia McCULLOUGH, Plaintiff-Appellant, v. REAL FOODS, INC., doing business as Chubb's Finer Foods, Defendant-Appellee.

No. 96-3343.

United States Court of Appeals, Eighth Circuit.

Submitted March 10, 1997.

Decided April 3, 1998.

Edward F. Pohren, Omaha, NE, argued (Lisa A. Sarver, Omaha, NE, on the brief), for Plaintiff-Appellant.

J. Russell Derr, Omaha, NE, argued, for Defendant-Appellee.

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 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.

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, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). In awarding summary judgment to Real Foods, the district court held 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, 113 S.Ct. 2742, 2746-47, 125 L.Ed.2d 407 (1993); United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714-15, 103 S.Ct. 1478, 1481-82, 75 L.Ed.2d 403 (1983); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-56, 101 S.Ct. 1089, 1093-95, 67 L.Ed.2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (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, 93 S.Ct. at 1824; Burdine, 450 U.S. at 253 n. 6, 101 S.Ct. at 1094 n. 6; Hase v. Missouri Div. of Employment Sec., 972 F.2d 893, 896 (8th Cir.1992), cert. denied, 508 U.S. 906, 113 S.Ct. 2332, 124 L.Ed.2d 244 (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, 93 S.Ct. at 1824. 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, 113 S.Ct. at 2751-52; Ryther v. KARE 11, 108 F.3d 832, 838 n. 5 (8th Cir.) (en banc), cert. denied, ___ U.S. ___, 117 S.Ct. 2510, 138 L.Ed.2d 1013 (1997); Ryther, 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 Advisers, 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...