Getting to a jury in an employment discrimination case is often a three-step process. In this process, the burden of proof shifts between the plaintiff-employee and the defendant-employer. In Nelson v. USAble Mutual Insurance Co., the United States Court of Appeals for the Eighth Circuit focused primarily on the third step of the process, which requires a plaintiff to show that her employer’s actions were motivated by a discriminatory purpose.
The Facts
Corrie Nelson is an African-American woman who began working for Arkansas Blue Cross and Blue Shield (“ABCBS”) in May 2004. Nelson began her career at ABCBS as a Customer Service Representative. Through her years at ABCBS, Nelson was periodically promoted, and eventually became Market Service Representative, which required that she coordinate and conduct “all enrollment activity for new group customers.” Nelson also participated in an ABCBS program designed to help develop management skills. Before joining ABCBS, Nelson spent eleven years working in retail stores. Prior to that, Nelson earned a master’s degree in management.
In March 2014, the Customer Service Supervisor position became vacant at ABCBS. Anticipating the vacancy, ABCBS upgraded that position to “Manager of Operations for the Southeast region of Pine Bluff office.” The person hired for the position was to be “accountable for providing the overall operation of all functions in the region.” Requirements for the position included a college degree or related experience. In addition, two to four years of experience as a supervisor or manager was “desired.”
ABCBS’s regional executive for the Southeast region, Bryan Dorathy, interviewed three individuals for the position, including Nelson. The other two individuals were Caucasian. Dorathy asked the same questions in all three interviews and assigned scores based upon the interviews. Melissa Watkins scored the highest with 45. Nelson received the second-highest score with 42.5.
Watkins began working at ABCBS in March 2004, and like Nelson, began as a Customer Service Representative. After various promotions, in October 2013, Watkins became the Regional Financial Risk Manager Trainee for the Southeast region. Prior to her career at ABCBS, Watkins worked nearly three years at Alltell Communications as a Key Account Representative, which required assisting and advising customers on their wireless service. Before her employment at Alltell, Watkins earned a bachelor’s degree in business administration.
On May 27, 2014, Dorathy chose Watkins for the open position because “‘she scored the highest during the interviews’ and her ‘duties at Alltell’ were ‘extremely similar’ to what Dorathy ‘envisioned for the Pine Bluff location.’”
The Lawsuit
On April 12, 2016, Nelson sued ABCBS in federal court, alleging ABCBS committed racial discrimination by promoting Watkins over her. The federal district court eventually dismissed Nelson’s lawsuit. According to the district court, ABCBS had “articulated a legitimate, nondiscriminatory reason for selecting Watkins, and Nelson failed to demonstrate that the reason was pretext for discrimination.” Nelson then appealed to the United States Court of Appeals for the Eighth Circuit.
The Appeal
In the Eighth Circuit, a plaintiff must support a claim for race discrimination through either direct evidence of unlawful discrimination or indirect evidence that creates an inference of unlawful discrimination. If the plaintiff has only indirect evidence, she must satisfy the “McDonnel Douglas burden-shifting framework.”
Under that framework, the burden is initially placed on the plaintiff to prove: (1) she is a member of a protected class; (2) she is qualified for the position applied for; (3) she was denied the position applied for; and (4) the employer filled the position with a person not in the same protected class. The Eighth Circuit ruled that Nelson satisfied these four requirements.
Next, under McDonnel Douglas, the burden shifts to the employer to “‘articulate a legitimate, nondiscriminatory reason for not hiring’ the plaintiff.” According to the Eighth Circuit, ABCBS met its burden through the evidence that Watkins scored higher than Nelson in the interview and that Watkins’s “experience at Alltell was more directly relevant to the storefront concept that ABCBS wanted to develop at the Pine Bluff office.”
Finally, the burden returns to the plaintiff, whose burden it is to show that the reason offered by the employer was pretext for discrimination.” This may be achieved by, among other things, showing that the employer’s explanation is not worthy of credence because it is not based in fact or that an unlawful explanation more likely motivated the employer. According to the Eighth Circuit, Nelson failed to meet her burden.
First, the Eighth Circuit rejected Nelson’s argument that she was more qualified for the position than Watkins. The Eighth Circuit stated that “‘a comparative analysis of [their] qualifications’ gives us no ‘reason to disbelieve [ABCBS’s] proffered reason for its employment decision.’”
Second, the Eighth Circuit rejected Nelson’s argument that Dorathy preselected Watkins by reducing the minimum job requirements. Nelson argued that, unlike other Manager of Operations positions, the position in issue did not require a college degree or management experience. While the Eighth Circuit agreed that arbitrarily manipulating job requirements to the benefit of an applicant “‘may act to discredit the defendant’s proffered explanation[,]’” it held that Nelson presented only “conclusory allegations” that Dorathy had preselected Watkins.
Further, the Eighth Circuit held that Nelson failed to show that the reduced requirements did not accurately reflect the position’s responsibilities. The Eighth Circuit affirmed the district court’s dismissal of Nelson’s lawsuit.
The Lesson
In discrimination cases, alleging and proving the prima facie case is only the first step of reaching a jury. If the employer is able to point to a legitimate, nondiscriminatory basis for its action, the plaintiff then bears the additional burden of demonstrating that the employer is merely offering pretext meant to shroud unlawful discrimination. To do this, the plaintiff cannot simply offer unsupported arguments or allegations questioning the employer’s motives. Instead, the plaintiff must submit sufficient evidence demonstrating that the employer’s actions were driven by discriminatory animus.
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