Nelson v. USAble Mutual Insurance Co. — 918 F.3d 990 (2019) · United States Court of Appeals for the Eighth Circuit · 2019

basis: no-evidence; party: Nelson and ABCBS; theory: Qualifications show promotion pretext; subject: party=Nelson and ABCBS; theory=Qualifications show promotion pretext

Nelson, an African-American woman, began working at Arkansas Blue Cross and Blue Shield ("ABCBS") in May 2004. She started as a Customer Service Representative, became a Claims Specialist, and now works as a Market Service Representative. As a Market Service Representative, Nelson "is responsible for coordinating and conducting all enrollment activity for new group customers." While working at ABCBS, Nelson was nominated for and participated in ABCBS's Leadership Development Initiative, a program designed to help employees develop management skills. Prior to working at ABCBS, Nelson worked as a salesperson for eleven years in retail clothing stores, including T.J. Max and Nine West. Nelson has a master's degree in management.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Bryan Dorathy, ABCBS's regional executive for the Southeast region, was in charge of filling the position. Dorathy interviewed three employees for the position: Nelson, Melissa Watkins, and Jason Aud. Watkins and Aud are both Caucasian. Dorathy asked each applicant the same questions and scored their responses 1-5 in eleven separate categories. During the interviews, Dorathy told the candidates that he was looking for someone with retail experience because the new Manager of Operations would be responsible for developing a retail storefront concept at the Pine Bluff office where customers could come in, ask questions, and select insurance products. In their respective interviews, Watkins scored a 45 and Nelson scored a 42.5. They were the two highest scoring candidates.

Evidence kind: fact; polarity: cuts-against; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Finally, the burden shifts back to the plaintiff to demonstrate that the reason offered by the employer was pretext for discrimination. Id. at 1046. A plaintiff can show pretext in at least two ways: (1) "[a] plaintiff may show that the employer's explanation is 'unworthy of credence ... because it has no basis in fact' "; or (2) "a plaintiff may show ... 'that a [prohibited] reason more likely motivated the employer.' " Id. at 1047 (alteration in original) (quoting Wallace v. DTG Operations, Inc., 442 F.3d 1112, 1120 (8th Cir. 2006) ). Ultimately, the plaintiff must "show[ ] that a prohibited reason, rather than the employer's stated reason, actually motivated the employer's action." Id.

Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Here, Nelson has not met this burden. First, she argues that she was more qualified than Watkins for the position. Yet "a comparative analysis of [their] qualifications" gives us no "reason to disbelieve [ABCBS's] proffered reason for its employment decision." Wingate v. Gage Cty. Sch. Dist., No. 34, 528 F.3d 1074, 1079 (8th Cir. 2008) (quoting Chambers v. Metro. Prop. & Cas. Ins. Co., 351 F.3d 848, 857 (8th Cir. 2003) ). Both women scored well on the interview and were well acquainted with ABCBS products. In addition, while Nelson had more years of retail experience, her experience was largely transactional, whereas Watkins's experience involved providing full customer service, which was more relevant to the retail storefront development at the Pine Bluff office. Thus, the comparison "reveals that [Nelson] was only similarly qualified," and therefore, "no inference of [race] discrimination ... arise[s]." Id. at 1080.

Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

basis: no-evidence; party: Nelson and ABCBS; theory: Allegedly reduced requirements show preselection; subject: party=Nelson and ABCBS; theory=Allegedly reduced requirements show preselection

Second, Nelson argues that Dorathy had pre-selected Watkins for the Manager of Operations position and reduced the minimum job requirements to ensure that Watkins qualified. Specifically, Nelson argues that, unlike other Manager of Operations positions within ABCBS, the Manager of Operations for the Southeast region and Pine Bluff office did not require a college degree or management experience.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

However, even assuming the minimum job requirements were reduced, Nelson presents no evidence, other than her conclusory allegations, that suggests Dorathy pre-selected Watkins or had any role in the reduction.

Evidence kind: fact; polarity: cuts-against; absent flag: 1; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Ultimately, Nelson has not "produce[d] evidence sufficient to create a genuine issue of material fact regarding whether [ABCBS's] proffered nondiscriminatory justifications are mere pretext for intentional discrimination." Torgerson, 643 F.3d at 1046 (quoting Pope v. ESA Servs., Inc., 406 F.3d 1001, 1007 (8th Cir. 2005) ). Accordingly, we affirm the judgment of the district court.

Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)