Kimberly L. Connors v. Merit Energy Company, LLC

United States Court of Appeals
For the Eighth Circuit
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No. 22-2080
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Kimberly L. Connors
Plaintiff - Appellant
v.
Merit Energy Company, LLC
Defendant - Appellee
Merit Energy Associates, LP; Merit Energy Management GP, LLC; Merit Energy
Partners VIII, LP; Merit Energy Partners X, LP; Merit Arkansas of Texas, LLC,
doing business as Merit Arkansas, LLC; MMGJ Arkansas Midstream, LLC;
MMGJ Arkansas Upstream, LLC; MMGJ Arkansas, LLC; MMGJ East Texas,
LLC; Merit East Texas, LLC; Merit Management Partners GP, LLC
Defendants
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Equal Employment Opportunity Commission
Amicus on Behalf of Appellant(s)
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Appeal from United States District Court
for the Western District of Arkansas - Ft. Smith
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Submitted: December 28, 2022
Filed: January 25, 2023
[Unpublished]
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Before LOKEN, GRUENDER, and ERICKSON, Circuit Judges.
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PER CURIAM.
This action arises out of Merit Energy Company, LLC’s (“Merit”) decision
not to hire Kimberly L. Connors as a lease operator following Merit’s purchase of
part of an ongoing oil and gas operating company—XTO Energy—in the Ozark,
Arkansas, area. Prior to the acquisition, Connors had been employed as a lease
operator by XTO Energy for 17 years and had one of the longest routes. Of the 28
lease operators XTO Energy employed, Connors was the only female. When Merit
began operating in the Ozark area, it determined it would need to hire 20 of XTO’s
former lease operators. Merit did not extend an offer of employment to Connors.
Connors now appeals the adverse grant of summary judgment on her claims for age
and sex discrimination under the Age Discrimination in Employment Act
(“ADEA”), Title VII, and the Arkansas Civil Rights Act (“ACRA”).
In the failure-to-hire context, a plaintiff may establish a prima facie case of
discrimination by showing: (1) she was a member of a protected group; (2) she
applied for an available position; (3) she was qualified for the position; (4) she was
not hired; and (5) similarly situated individuals, not part of the protected group, were
hired instead. Farver v. McCarthy, 931 F.3d 808, 912 (8th Cir. 2019). To make a
prima facie case of discrimination when a reduction-in-force is involved, a plaintiff
must make an additional showing—that is, “there is some additional evidence” that
an illegal discriminatory criterion was a factor in the employer’s decision. See Ward
v. Int’l Paper Co., 509 F.3d 457, 460-61 (8th Cir. 2007). This additional evidence
can be, for example, statistical or circumstantial. Id. at 461.

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Here, the district court assumed, without deciding, that the “hiring” situation
that arose from Merit’s newly-acquired operations, which effectively decreased the
number of lease operators from 28 to 20, falls within the typical failure-to-hire
context. While we have generally stated that a reduction-in-force occurs when
“business considerations cause an employer to eliminate one or more positions
within the company,” see Haggenmiller v. ABM Parking Servs., Inc., 837 F.3d 879,
884 n.5 (8th Cir. 2019), the case underlying that statement recognized that “it is not
always a simple task to determine whether a genuine reduction-in-force has
occurred,” Dietrich v. Canadian Pacific Ltd., 536 N.W.2d 319, 324 (Minn. 1995).
Because the district court did not consider or make findings on the question of
whether a bona fide reduction-in-force occurred, and the requisite prima facie
showing differs in the two contexts, we remand for consideration of this issue. See
Schweiss v. Chrysler Motors Corp., 922 F.2d 473, 476 (8th Cir. 1990) (noting
remand is appropriate when there are factual questions to be resolved or where we
would benefit from having the district court decide the issue in the first instance).
For the foregoing reasons, we remand this case to the district court for
proceedings consistent with this opinion.
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