Stacy Cox v. First National Bank, doing business as First National Bank of Omaha

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 14-3077
___________________________
Stacy Cox
lllllllllllllllllllll Plaintiff - Appellant
v.
First National Bank, doing business as First National Bank of Omaha
lllllllllllllllllllll Defendant - Appellee
____________
Appeal from United States District Court
for the District of Nebraska - Omaha
____________
Submitted: May 14, 2015
Filed: July 6, 2015
____________
Before WOLLMAN, SMITH, and BENTON, Circuit Judges.
____________
BENTON, Circuit Judge.
Stacy A. Cox sued First National Bank of Omaha for gender discrimination
under Title VII of the Civil Rights Act of 1964, after the Bank promoted a male
employee over Cox to Senior Vice President of Operations. The district court1
The Honorable Laurie Smith Camp, Chief Judge, United States District Court1
for the District of Nebraska.

-- 1 of 8 --

granted summary judgment to First National. Cox appeals. Having jurisdiction under
28 U.S.C. § 1291, this court affirms.
I.
In spring 2011, First National sought a successor for David S. Downing, the
retiring Senior Vice President of Operations. The position had no written job
description, but Operations includes at least four areas: loans, liabilities, payments,
and risk. First National did not have a formal promotions policy.
First National primarily considered two candidates: Cox and Jon P. Doyle, a
male. Cox began at First National in 2008 as Vice President of Loan Operations,
reporting directly to Downing. With her previous experience at another bank, she had
21 years of loans experience. She also had experience in liabilities, payments, and
risk. In 2010, she led the Operations team planning for a series of bank mergers
(completed after she left First National). Cox, an M.B.A., had a graduate degree in
banking. Her 2011 performance appraisal rated her “Meets Expectations,” noting her
strong working relationships with business partners. She also received “Meets
Expectations” in 2009.
Doyle began at First National in 2000, originally in the wealth management
group. In 2006, he became Vice President of Payment Operations, reporting directly
to Downing. Doyle worked in banking for over ten years before joining First
National, including participating in trust mergers. He had experience in payments,
liabilities, and risk, but not loans. He received “Meets Expectations” in 2011 and
“Exceeds Expectations” in 2009.
After deciding to retire, Downing, on his own initiative, created a matrix rating
potential candidates on the qualities he determined a senior leader should have. Cox
and Doyle were among the highest-rated candidates on the matrix. (The best-rated
-2-

-- 2 of 8 --

candidate, a female, opted out of consideration.) Cox and Doyle rated equally in
categories “Domain Knowledge,” “Maturity,” and “Risk.” Cox rated higher in one
category: “People Management Skills.” Doyle rated higher in three categories:
“Leadership,” “Peer Respect,” and “Managerial Acceptance.”
First National President Daniel K. O’Neill made the promotion decision.
O’Neill did not interview Cox or Doyle, but had one discussion with each before
Downing announced retirement. O’Neill did not review their resumes or performance
appraisals. He did study Downing’s matrix. At the time, only one of 15 executive
officers at First National was female, as was one member of the 12-member Board of
Directors and one of 18 employees reporting directly to O’Neill. Relying on the
matrix and tenure, O’Neill promoted Doyle. Although Cox remained in the same
position, O’Neill gave her a raise and increased responsibility.
After resigning in fall 2011, Cox sued First National for gender discrimination.
The district court granted summary judgment to First National.
II.
This court reviews de novo a grant of summary judgment. Torgerson v. City
of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). Summary judgment is
proper when “there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A court “must view
the evidence in the light most favorable to the opposing party” and draw all
reasonable inferences in favor of that party. Tolan v. Cotton, 134 S. Ct. 1861, 1866,
1868 (2014) (per curiam) (internal quotation marks omitted).
Title VII makes it unlawful for an employer “to discriminate against any
individual with respect to [her] compensation, terms, conditions, or privileges of
employment, because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1).
-3-

-- 3 of 8 --

Discrimination occurs when sex “was a motivating factor for any employment
practice, even though other factors also motivated the practice.” Id. § 2000e-2(m).
Cox offers no direct evidence, so her claim is analyzed under the McDonnell
Douglas three-step framework. See Torgerson, 643 F.3d at 1044. The employee
must first establish a prima facie case of discrimination, demonstrating: “(1) she is
in a protected class; (2) she was qualified for an open position; (3) she was denied
that position; and (4) the employer filled the position with a person not in the same
protected class.” Id. at 1046 (brackets omitted). If the employee establishes a prima
facie case, the burden shifts to the employer “to articulate a legitimate,
nondiscriminatory reason” for not promoting her. Id. The employee then has the
burden “to produce evidence sufficient to create a genuine issue of material fact
regarding whether [the employer’s] proffered nondiscriminatory justifications are
mere pretext for intentional discrimination.” Id. The employee may demonstrate
pretext either by showing “that the employer’s explanation is unworthy of credence
because it has no basis in fact” or “by persuading the court that a prohibited reason
more likely motivated the employer.” Id. at 1047 (ellipsis and brackets omitted).
First National does not dispute that Cox has a prima facie case of
discrimination. Cox does not dispute that First National offers a nondiscriminatory
explanation for the promotion: Doyle had a longer tenure at First National and was
rated higher on Downing’s matrix. The issue is whether Cox offers sufficient
evidence of pretext.
According to Cox, five categories of evidence establish pretext: (1) her
qualifications compared to Doyle’s; (2) O’Neill’s improper reliance on tenure; (3) the
subjective nature of the hiring process; (4) O’Neill’s limited investigation of the
-4-

-- 4 of 8 --

candidates; and (5) First National’s male-dominated culture. The first four aim to2
show First National’s stated reasons have no basis in fact, while the last suggests a
discriminatory motive.
First, Cox asserts that her qualifications are objectively superior to Doyle’s.
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.”
McCullough v. Real Foods, Inc., 140 F.3d 1123, 1129 (8th Cir. 1998). “To support
a finding of pretext, the applicant must show that [the employer] hired a less qualified
applicant.” Torgerson, 643 F.3d at 1049 (brackets omitted). “If the comparison
reveals that the plaintiff was only similarly qualified or not as qualified as the selected
candidate, then no inference of discrimination would arise.” Id. (ellipsis omitted).
“Although an employer’s selection of a less qualified candidate can support a finding
that the employer’s nondiscriminatory reason for the hiring was pretextual, it is the
employer’s role to identify those strengths that constitute the best qualified
applicant.” Gilbert v. Des Moines Area Cmty. Coll., 495 F.3d 906, 916 (8th Cir.
2007).
Cox fails to demonstrate that Doyle is “less qualified” to be Senior Vice
President of Operations. Cox compares her multiple graduate degrees and loans
experience with Doyle’s lack of graduate degrees and inexperience with loans. But
at the time of the promotion, Doyle had been one of the vice presidents of
operations—a position with significant operations responsibility, the same level as
Cox—for longer than Cox. He had worked at First National three times longer than
Cox also alleges several comments questioning Doyle’s selection, made by2
nondecisionmakers after the promotion. In her reply brief, for the first time, she
argues these are relevant to pretext. She points to no error in the district court’s
analysis. This argument is waived. See Jenkins v. Winter, 540 F.3d 742, 751 (8th
Cir. 2008) (“Claims not raised in an opening brief are deemed waived.”).
-5-

-- 5 of 8 --

Cox. While Cox received good performance appraisals and good ratings on
Downing’s matrix, Doyle had equal (or better) performance appraisals and better
ratings on the matrix. O’Neill permissibly identified tenure and matrix ratings, rather
than education and loans experience, as “strengths that constitute the best qualified
applicant.” See id. See also Torgerson, 643 F.3d at 1049 (noting “‘relatively similar
qualifications’ do not create a material issue of fact as to pretext”).
Second, Cox claims O’Neill improperly used tenure as a proxy for good work
relationships. O’Neill testified he felt Doyle’s tenure at First National (about ten
years, compared to Cox’s three) meant Doyle had broader experience and more
relationships with people at the Bank, including outside of Omaha. Cox tries to
undermine O’Neill’s explanation with factual inaccuracy in his testimony: O’Neill
stated he thought Doyle’s outside-Omaha relationships would be useful for mergers
that were starting; Cox points out the mergers had been underway for a year. The
“inconsistencies [Cox] points to . . . are minor or irrelevant” and do not indicate
O’Neill’s explanation has no basis in fact. See Brooks v. Ameren UE, 345 F.3d 986,
988-89 (8th Cir. 2003). O’Neill highlighted Cox’s and Doyle’s respective tenures
and explained why he valued Doyle’s, using the merger project as one example. Cox
emphasizes her own good relationships, including the notation on her performance
appraisal and her work as a leader on the already-begun mergers. But Cox’s good
relationships do not trump Doyle’s, or make O’Neill’s reliance on tenure “unworthy
of credence.” See Torgerson, 643 F.3d at 1047, 1049 (“Although an employee does
possess the experience and some of the other qualities essential for success in the
position, this does not suffice to raise an inference that the employer’s stated rationale
for giving the position to another is pretextual.” (brackets and internal quotation
marks omitted)).
Third, Cox stresses the subjective nature of the hiring process, noting Downing
created the matrix without any guidance from First National. She highlights that the
matrix categories—especially the ones where Doyle ranked higher, “Leadership,”
-6-

-- 6 of 8 --

“Peer Respect,” and “Managerial Acceptance”—rate subjective qualities. An
employer could invent subjective criteria for promotions in order to mask
discrimination. See McCullough, 140 F.3d at 1129. But “subjectivity alone does not
render an employment decision infirm.” Brooks, 345 F.3d at 988. Though First
National did not provide written criteria for the position, the matrix categories are not
an attempt by O’Neill to invent reasons in order to mask discrimination. Downing
created the matrix. Cox does not argue Downing was motivated by sex
discrimination. See Torgerson, 643 F.3d at 1050 (“The presence of subjectivity in
employee evaluations is itself not a grounds for challenging those evaluations as
discriminatory. . . . [The applicants] must produce sufficient evidence from which a
reasonable factfinder could infer discrimination.” (brackets omitted)).
Fourth, Cox argues that O’Neill’s failure to investigate the candidates raises
the inference that his decision was based on sex. She contends that, unlike a
reasonable employer, he did not interview them; did not review their resumes or
performance appraisals; and did not seek input from employees familiar with their
work. However, she cites no authority that these steps are required to inform a
promotion decision. O’Neill had other knowledge of the candidates: He knew both
were competent vice presidents of operations, which he believed demonstrated
sufficient operations experience to be Senior Vice President. He relied on the matrix
created by their direct supervisor, who chose the categories based on his experience
as the position incumbent. O’Neill knew their respective tenures. He had one
discussion with each candidate. He was also able to articulate his reasoning. See id.
(noting interviewers “were able to explain, in clear and reasonably specific terms,
their reasons for scoring [the plaintiffs] lower than the [promoted] candidates”).
Fifth, Cox draws attention to First National’s male-dominated culture. In
spring 2011, only one of 15 executive officers, and one of 12 members of the Board
of Directors, were female. Cox does not argue that this, alone, establishes
discriminatory intent. However, as she notes, “[e]ven where quantitative evidence
-7-

-- 7 of 8 --

does not alone demonstrate discrimination to some judicially created standard of
statistical conclusiveness, it is still relevant in conjunction with all other evidence in
determining intentional discrimination.” See MacDissi v. Valmont Indus., Inc., 856
F.2d 1054, 1058 n.3 (8th Cir. 1988).
Taken as a whole, Cox does not raise a genuine dispute of material fact that
O’Neill’s reasons for promoting Doyle are “unworthy of credence.” Only First
National’s lack of female executives supports pretext; neither Cox’s qualifications
nor O’Neill’s reliance on tenure or the matrix support a reasonable inference that the
failure to promote Cox was due to sex discrimination. The district court did not err
in granting summary judgment to First National.
* * * * * * *
The judgment is affirmed.
______________________________
-8-

-- 8 of 8 --