United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 10-1251
___________
Henry O. Tyler, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Arkansas.
University of Arkansas Board *
of Trustees; Stephanie Gardner, Dr., *
in her official and individual *
capacities as Dean of the College of *
Pharmacy for the University of *
Arkansas for Medical Sciences, *
*
Appellees. *
___________
Submitted: September 22, 2010
Filed: January 6, 2011
___________
Before BYE, BEAM, and SMITH, Circuit Judges.
___________
BYE, Circuit Judge.
Henry Tyler, an African American assistant dean for diversity at the University
of Arkansas, is suing the University and his former supervisor, Dean of the College
of Pharmacy Dr. Stephanie Gardner, alleging the school did not hire him for the
newly-created position of Director of Recruitment for Diversity in retaliation for the
charge of race discrimination he had filed against the school back in 2004. Tyler also
alleges that the University discriminated against him on the basis of gender when it
selected a young female with purportedly inferior qualifications, Vivian Flowers, for
the coveted spot. Because Tyler’s claims are not supported by the required evidence
of impermissible motivation behind the University’s decision to hire Flowers, we
affirm the district court’s1 grant of summary judgment in favor of Tyler’s employer.
I
Tyler has been employed at the University of Arkansas for Medical Sciences
(UAMS) since 1980. For the first twenty years at the school, Tyler worked as a
minority recruitment specialist at the College of Pharmacy (COP); in 2000, he was
promoted to Assistant Dean for Diversity for the Center of Diversity Affairs within
the same college. In both positions, Tyler was responsible for recruiting minority
students to the COP. Along with the College of Medicine (COM), the COP had a
particularly dismal record of minority student enrollment and faculty representation
out of the UAMS’s six colleges.
The present litigation finds its roots in September of 2004, when Tyler sued the
University, alleging race discrimination in the University’s wage policy and retaliation
for his challenge to the policy. The parties settled the lawsuit in October of 2005. The
Settlement Agreement fixed Tyler’s job duties and elaborated on the University’s
then-nascent plan to create a campus-wide Office of Diversity, supervised by a single
Director of Diversity. One provision in the agreement clarified that the scheme would
not in any way disadvantage Tyler:
The parties understand and agree that UAMS has for some time
been exploring the creation of a campus-wide Office of Diversity, to be
supervised by a Director of Diversity. The parties further understand and
agree that if such Office of Diversity is implemented, it is possible that
1
The Honorable J. Leon Holmes, Chief Judge, United States District Court for
the Eastern District of Arkansas.
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Plaintiff and others at UAMS who currently perform minority recruiting
or diversity functions may be transferred from their current colleges or
units to the Office of Diversity, may then be directly supervised by the
Director of Diversity, and may have their current titles and/or specific
job responsibilities appropriately altered. The parties agree that in the
event Plaintiff’s job position is moved from the College of Pharmacy to
an Office of Diversity, this shall have no negative impact on his current
salary or benefits.
Appellant App’x at 449.
The plan referenced in the Settlement Agreement was a result of joint efforts
by Dean of the COP Dr. Gardner and Dean of the COM Dr. E. Albert Reece to
improve their colleges’ weak performance on the minority representation front. Both
Deans saw a unitary office of diversity comprising all six colleges as a solution to the
problem. When the COM began a nationwide search to fill the Director of
Recruitment for Diversity spot in 2005, it was looking for a candidate with a Ph.D.,
experience in recruiting minority students, and a track record of writing grant
applications. The search yielded two finalists – Dr. Landefeld and Dr. Brown – with
Dr. Landefeld being in the lead based on his strong qualifications and extensive
experience in the area. Ultimately, however, the Committee decided against hiring Dr.
Landefeld, citing his flamboyant sartorial style in explanation. At that point, the
efforts to fill the position stalled.
That is until 2006. At that time, a new dean was installed at one of the colleges
and the Search Committee was reassembled. The Committee consisted of the deans
of all six colleges (a body referred to as the “Council of Deans”), with Dean Gardner
acting as the Committee Chair. By sheer coincidence, around the same time Dean of
the College of Health Related Professions Dr. Ronald H. Winters attended his child’s
high school graduation, where he was impressed by a commencement address given
by one Joyce Elliott. Elliott was an African American member of the Arkansas
General Assembly and the Legislative Black Caucus, who dedicated her entire career
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to issues of diversity in education. Winters thought she would be a perfect fit for the
position and relayed his assessment to the Council. Having heard Winters’s
enthusiastic endorsement of Elliott, Vice Chancellor for Administration and
Government Affairs Tom Butler, not a member of the Search Committee, volunteered
to contact Elliott to gauge her interest in the job.
While Elliott herself was not interested, she recommended Vivian Flowers as
someone who was “eminently qualified” for the job. At the time, Flowers was
completing the master’s program at the Clinton School of Public Service; in college,
she double-majored in political science and rhetoric and writing. Flowers was also
involved in various civic organizations: she served as the Executive Director of the
Arkansas Legislative Black Caucus, a Commissioner on the Arkansas Minority Health
Commission, and a member of the Committee Staff for the Arkansas Bureau of
Legislative Research. In addition to her academic bona fides, Flowers had the benefit
of a politically-connected family. Her father, Dr. John Flowers, was a physician
serving on the UAMS’s Minority Advisory Committee, and her cousin, Stephanie
Flowers, served in the Arkansas General Assembly along with Elliott.
Following up on Elliott’s recommendation, Butler contacted Flowers. Flowers
was interested and pursued the opportunity wholeheartedly. After conversing with
several UAMS officials on the phone, she had an “informational” meeting with the
entire Search Committee on December 20, 2006, before the Committee announced the
vacancy publicly. After that meeting, Flowers met with Dr. I. Dodd Wilson, UAMS’s
Chancellor at the time, and then again with Butler, who alerted her that a formal
announcement for the position would be forthcoming. In the days prior to the formal
posting, Flowers had her recommenders submit letters on her behalf to Chancellor
Wilson, who eventually forwarded them to the Committee. No other candidate was
afforded similar privileges prior to the public announcement of the position.
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The said public announcement first appeared on the UAMS’s website on
January 25, 2007. It called for a candidate with a master’s degree and three years of
experience in public recruiting. A newly-minted graduate, Flowers could not satisfy
the latter prerequisite. When the announcement appeared in a print format, however,
three years of public recruiting experience was downgraded to a desired qualification,
and experience in writing grant applications – Flowers’s forte – was added as another
desirable skill. The Deans denied any manipulation of the position’s description to
suit Flowers’s qualifications, and a Human Resources Department employee Steven
Wood took the blame for what he characterized as the inadvertent mixup in the
descriptions.
Flowers submitted her application on the day of the online posting, and was
invited for an interview the following day. Tyler submitted his application on
February 9, 2007, upon having discovered that the position did not require a terminal
degree, as it did during the first search round in 2005. He was interviewed on
February 14, 2007, by Dr. Gardner, Executive Associate Dean for Academic Affairs
Dr. Richard Wheeler, and Dean of the Graduate School Dr. Robert McGehee.
According to the University, the interview did not go well. The Committee viewed
Tyler as apathetic and lacking in enthusiasm, and their perception was marred by
Tyler’s subpar performance as a minority recruitment specialist during his tenure at
the COP. Out of the six finalists the Committee interviewed, Tyler was ranked third
or fourth, with Flowers and another female candidate, Andi Chappelle, being the two
top choices. Although the Committee was concerned about Flowers’s lack of
recruitment experience, it ultimately selected her for the job. lowers became Tyler’s
direct supervisor when she started work in late February of 2007.
After filing a grievance with the Equal Employment Opportunity Commission
(EEOC) on the claim of retaliation only, Tyler sued the University and Dr. Gardner,
in her individual and official capacities, alleging he was not selected for the Director
of Recruitment for Diversity position as a result of gender discrimination and because
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the University retaliated against him for filing the discrimination charge in 2004. The
complaint stated causes of action under Title VII of the Civil Rights Act and 42
U.S.C. § 1983.
On October 13, 2009, the district court granted summary judgment in favor of
both defendants. The court dismissed Tyler’s Title VII claim of gender discrimination
against the Board because it had not been administratively exhausted. The court
dismissed the retaliation claim against the Board because the temporal gap between
the alleged protected activity and the retaliatory act was too great, and Tyler had not
produced any other evidence of retaliation. Rejecting Tyler’s claims against Dr.
Gardner, the court concluded his § 1983 retaliation claim was foreclosed by Gardner’s
qualified immunity and his sex discrimination claim failed because there was never
any evidence to show that gender played any role in the Committee’s decision to hire
Flowers. The present appeal followed.
II
This court reviews the district court’s grant of summary judgment de novo,
construing all evidence in the light most favorable to the non-moving party. Graves
v. Ark. Dep’t of Fin. & Admin., 229 F.3d 721, 723 (8th Cir. 2000). Mindful of this
standard, we address Tyler’s claims of retaliation first and his gender discrimination
claims second.
A. Retaliation
In complaining of retaliation, Tyler proceeds under two theories: violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and deprivation
of “rights, privileges, or immunities secured by the Constitution and laws” under 42
U.S.C. § 1983.
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Section 704(a) of Title VII makes it unlawful for the employer to “discriminate
against any of his employees or applicants for employment . . . because he has
opposed any practice made an unlawful employment practice by [Title VII], or
because he has made a charge” of discrimination against the employer. 42 U.S.C.
§ 2000e-3(a). In a circumstantial-evidence case like this one, the McDonnell Douglas
analytical framework helps the court answer the ultimate question “whether the
employer’s adverse action against the employee was motivated by retaliatory intent.”
Wallace v. DTG Operations, Inc., 442 F.3d 1112, 1119 (8th Cir. 2006). As the first
step of the framework, the plaintiff must establish a prima facie case of retaliation by
showing that “(1) the plaintiff engaged in protected conduct, including opposition to
an action prohibited by Title VII; (2) [he] was subjected to an adverse employment
action, and (3) there is a ‘causal nexus between the protected conduct and the adverse
action.’” Lewis v. Heartland Inns of Am., LLC, 591 F.3d 1033, 1042 (8th Cir. 2010)
(quoting Wallace, 442 F.3d at 1119). In terms of the causal connection, the plaintiff
must show that the protected conduct was a “determinative – not merely motivating
– factor in the employer’s adverse employment decision.” Van Horn v. Best Buy
Stores, L.P., 526 F.3d 1144, 1148 (8th Cir. 2008) (internal quotation marks and
citation omitted). If the plaintiff succeeds, the burden shifts to the employer to
“articulate a legitimate, nondiscriminatory reason for the action.” Maxfield v. Cintas
Corp. No. 2, 427 F.3d 544, 550 (8th Cir. 2005). If the defendant does so, the plaintiff
can still prevail on a final step of the McDonnell Douglas analysis by proving, by a
preponderance of the evidence, that the reasons proffered by the employer are “merely
pretext for discrimination.” Richmond v. Bd. of Regents of Univ. of Minn., 957 F.2d
595, 598 (8th Cir. 1992).
Although section 704(a) of Title VII “may not be the basis for a retaliatory
discharge claim in a § 1983 action,” Greenwood v. Ross, 778 F.2d 448, 455 (8th Cir.
1985), § 1983 provides a vehicle for redressing claims of retaliation on the basis of
the First Amendment. Lewis v. Jacks, 486 F.3d 1025, 1028-29 (8th Cir. 2007).
“[F]iling of an EEOC charge and a civil rights lawsuit are activities protected by the
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first amendment.” Greenwood, 778 F.2d at 457. First Amendment retaliation claims
are analyzed under the same framework as claims of retaliation under Title VII.
Okruhlik v. Univ. of Ark., 395 F.3d 872, 878 (8th Cir. 2005).
1. Prima Facie Case
Tyler’s prima facie case fails because he cannot establish a causal nexus
between his 2004 suit and the University’s decision not to hire him as the Director of
Recruitment for Diversity in 2007. That he does not have direct evidence establishing
causation is not dispositive: such evidence is seldom available. What is problematic,
however, is that Tyler cannot put forward any indirect evidence on this point – such
as evidence establishing an inference of retaliatory animus through temporal
proximity of the two events. Buytendorp v. Extendicare Health Servs., Inc., 498 F.3d
826, 836 (8th Cir. 2007).
Generally, “more than a temporal connection is required to present a genuine
factual issue on retaliation,” Peterson v. Scott County, 406 F.3d 515, 524 (8th Cir.
2005), and only in cases where the temporary proximity is very close can the plaintiff
rest on it exclusively. Smith v. Fairview Ridges Hosp., 625 F.3d 1076, 1087-88 (8th
Cir. 2010). As more time passes between the protected conduct and the retaliatory act,
the inference of retaliation becomes weaker and requires stronger alternate evidence
of causation. Sims v. Sauer-Sundstrand Co., 130 F.3d 341, 343 (8th Cir. 1997). The
inference vanishes altogether when the time gap between the protected activity and
the adverse employment action is measured in months. See, e.g., Littleton v. Pilot
Travel Ctrs., LLC, 568 F.3d 641, 645 (8th Cir. 2009) (a temporal gap of seven months
“not sufficiently contemporaneous” to indicate a causal connection); Recio v.
Creighton Univ., 521 F.3d 934, 941 (8th Cir. 2008) (a six-month gap too long to give
rise to inference of causal connection); Lewis v. St. Cloud State Univ., 467 F.3d 1133,
1138 (8th Cir. 2006) (“We have held that an interval as brief as two months did not
show causation for purposes of establishing a retaliation claim and that a two-week
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interval was ‘sufficient, but barely so.’”) (internal citations omitted). In this case,
years, let alone months, passed between Tyler’s protected activity and the alleged
retaliatory act. To be more exact, it was 2 years and 11 months from the time Tyler
filed his EEOC complaint in March of 2004 until Flowers was hired in February of
2007. A bit shorter period of time – 15 months – has elapsed since Tyler’s case was
settled in October of 2005. Given the length of the intervening delay and the absence
of other evidence of causation, Tyler cannot rely on temporal proximity to establish
a causal nexus.
Tyler attempts to shore up the interrupted causal connection by arguing Dr.
Gardner’s retaliatory animus manifested itself again when Tyler helped Kimberlee
Eason, an African American student at the COP, file a race discrimination grievance
against the school in July of 2006. According to Tyler, his assistance to Eason
prompted Dr. Gardner to move his office into the Deans suite, allegedly a less
student-accessible location where Tyler was under closer scrutiny by Gardner. This
argument does not hold water for several reasons. For one, the transfer of Tyler’s
office into the Deans suite, where offices of all associate and assistant deans were
located, was logical given Tyler’s title as an assistant dean, and did not exhibit
disparate treatment of Tyler. Also, to the extent Tyler asserts his assistance to Eason
was a separate protected activity that caused a new instance of retaliation, the move
could not be classified as an adverse employment action. At most, it was the kind of
a “‘petty slight[] or minor annoyance[]’” that does not rise to the level of an adverse
employment action. Burkhart v. Am. Railcar Indus., Inc., 603 F.3d 472, 477 (8th Cir.
2010) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)).
Finally, there is Tyler’s argument that the episode demonstrated Dr. Gardner’s
continuing hostility for Tyler’s exercise of his constitutional rights in 2004. But Tyler
does not have any evidence that Dr. Gardner orchestrated the office move and
subjected Tyler to heightened scrutiny as a result of his 2004 lawsuit. By the time his
office was moved, at least nine months had elapsed since the settlement of Tyler’s
suit; an even longer period of time passed between the office move and the
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University’s selection of Flowers in February of 2007. Under this circuit’s
jurisprudence, the Eason incident does not bridge the temporal gap between Tyler’s
2004 lawsuit and the University’s 2007 decision to hire Flowers. See Littleton, 568
F.3d at 645 (a seven-month gap not sufficiently contemporaneous to satisfy the
causation element of a prima facie case).
Nor is it a case where the employer “took escalating adverse and retaliatory
action” against the employee. Heaton v. The Weitz Co., 534 F.3d 882, 888 (8th Cir.
2008). Tyler did not present any evidence indicating the members of the Committee
were influenced by his 2004 litigation against the University, in order to bolster his
claim of causation. True, the record contains some evidence that the individual
members of the Committee were independently aware of the fact of the litigation. But
there is no evidence the incident was discussed during the Committee meetings or
otherwise tainted the Committee’s collective perception of Tyler’s candidacy so as to
support an inference of gender discrimination. See Nelson v. J.C. Penney Co., 75 F.3d
343, 345 (8th Cir. 1996) (in the absence of evidence that “others who filed age
discrimination charges were fired, that [the plaintiff’s] supervisors discussed the filing
with each other, or that either of them even commented to [the plaintiff] on that
filing,” the mere knowledge by the supervisors of the plaintiff’s charge was not
sufficient to support an inference of retaliatory discharge). Absent a more
particularized showing that the suit played a role in the Committee’s decision to hire
Flowers, Tyler’s claim of causation is without merit.
2. Pretext
Even if the Court were to assume Tyler established a causal connection between
his 2004 charge of discrimination and the University’s refusal to hire him in 2007, he
cannot demonstrate that the University’s explanation for its preference was
pretextual. The University maintains it chose to hire Flowers over Tyler for reasons
wholly unrelated to Tyler’s litigation history with the school. There are at least two
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ways in which Tyler can establish a material question of fact regarding pretext. “A
plaintiff may show pretext with evidence that the employer’s explanation is unworthy
of credence because it has no basis in fact. Alternatively, a plaintiff may show pretext
by persuading the court that a prohibited reason – more than the proffered reason –
likely motivated the employer.” Torgerson v. City of Rochester, 605 F.3d 584, 597
(8th Cir. 2010) (internal citations omitted).
Neither of these two scenarios apply in Tyler’s case. The members of the
Committee offered a solid, qualifications-driven explanation for their decision to hire
Flowers and pass on Tyler. These included Flowers’s enthusiasm for the job, the
degree of her community involvement and connections, her long-term leadership in
the groups dedicated to issues of diversity, her experience in preparing grant
applications, and her educational background. Bleak in contrast, there were Tyler’s
stagnant performance during his more than twenty years at the UAMS and lack of
innovative ideas on his part.
The Committee also compared the applicants’ performance during the
interviews, which they were entitled to do. See Pierce v. Marsh, 859 F.2d 601, 603-04
(8th Cir. 1988). According to the Committee, Flowers presented as an enthusiastic
and articulate individual with a vision toward a continuous organized system of
minority recruiting; by contrast, Tyler’s interview was “lackluster,” and he was unable
to overcome the taint of his mediocre performance as a minority recruiter within the
COP. After holding interviews with six applicants, no member of the Committee
ranked Tyler as the first or even second choice, and all but one chose Flowers as the
top candidate. In sum, even with the most generous view of Tyler’s qualifications, the
two candidates had relatively similar qualifications, which does not create a material
issue of fact as to pretext. Chock v. Northwest Airlines, Inc., 113 F.3d 861, 864 (8th
Cir. 1997).
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We also reject Tyler’s assertion that a finding of Flowers’s preselection – which
the record arguably supports – rescues his claim from dismissal. While evidence of
preselection and arbitrary manipulation of job requirements to benefit the pre-selected
applicant may act to discredit the defendant’s proffered explanation, Coble v. Hot
Springs Sch. Dist. No. 6, 682 F.2d 721, 728-29 (8th Cir. 1982), revision of the job
description is not indicative of pretext where it accurately represents the
responsibilities of the job. Dixon v. Pulaski County Special Sch. Dist., 578 F.3d 862,
871 (8th Cir. 2009). It is unclear whether recruitment experience was pivotal for this
newly-created position. The Committee was open to modifying the criteria, and did
not appear to have any ironclad rules as to the ideal candidate. In fact, the Committee
initially relaxed the job description from a Ph.D.-level candidate to a candidate with
a master’s degree, which benefitted both Tyler and Flowers. Even if the court is to
credit Tyler’s theory that, to accommodate Flowers, the Committee further relaxed the
job qualifications to make the recruitment experience merely desirable, we note this
decision did not operate to disqualify Tyler.
More critically, however, even if the Committee’s proffered reasons were a
mere ruse, that ruse did not conceal retaliation. The record is devoid of any evidence
that the Committee was motivated at least in part by the desire to retaliate against
Tyler for his 2004 legal clash with the University. We have made it clear that
“evidence discrediting an employer’s nondiscriminatory explanation is not necessarily
sufficient” to resist a summary judgment in an employment discrimination case.
Rothmeier v. Inv. Advisers, Inc., 85 F.3d 1328, 1336 (8th Cir. 1996) (internal
quotation marks and citation omitted). At the end of the day, the plaintiff must still
advance some evidence indicative of the prohibited discrimination to send the case to
a jury. Id.; see also Brandt v. Shop ‘n Save Warehouse Foods, Inc., 108 F.3d 935, 938
(8th Cir. 1997) (requiring evidence of intentional discrimination where the plaintiff
was rejected in favor of the applicant who took advantage of his “network” to land the
job, even though the position was practically tailored to the successful applicant’s
qualifications). In some cases, evidence that “an employer’s proffered
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nondiscriminatory explanation is wholly without merit . . . serve[s] the additional
purpose of permitting an inference that . . . discrimination was a motivating factor”
in the adverse employment action. Rothmeier, 85 F.3d at 1336 (quoting Nelson v.
Boatmen’s Bancshares, Inc., 26 F.3d 796, 801 (8th Cir. 1994)) (internal quotation
marks omitted). But this is not such a case. The purported “real” reason for rejecting
Tyler – preselection of Flowers – is not indicative of retaliation against Tyler. And
since none of Tyler’s other evidence creates an inference of unlawful retaliation, his
retaliation-based claims must fail.
B. Gender Discrimination
Turning to the second group of claims focusing on gender discrimination, we
observe as an initial matter that Tyler failed to exhaust administrative remedies
relative to these claims. On the Charge of Discrimination filed with the EEOC, Tyler
asserted only discrimination based on retaliation, leaving the sex discrimination box
unchecked. As a Title VII plaintiff, Tyler was required to exhaust his administrative
remedies with the EEOC before bringing a formal action. Williams v. Little Rock
Mun. Water Works, 21 F.3d 218, 222 (8th Cir. 1994). Although Tyler could
theoretically clear the exhaustion hurdle by showing his gender discrimination claims
were “like or reasonably related to the substance of charges timely brought before the
EEOC,” id., he may not do so on the facts of this case. According to Tyler’s Charge
of Discrimination, he was passed over for the Director of Minority Recruitment
position and a “less qualified applicant was awarded the job” because the
administration wanted “someone fresh and new.” Appellant App’x at 311. Tyler
alleged further he was “denied promotion in retaliation for filing a charge of
discrimination with the EEOC, in violation of Title VII of the Civil Rights Act of
1964, as amended.” Id. Nowhere on the Charge does Tyler even mention the gender
of the successful applicant, let alone make other allegations indicative of gender
discrimination. On these facts – and especially where Tyler’s 2004 action dealt with
race, and not gender, discrimination – Tyler has not adequately preserved his claims
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of retaliatory discrimination. See Watson v. O’Neill, 365 F.3d 609, 614 (8th Cir.
2004).
The district court held as much with respect to Tyler’s gender discrimination
claim under Title VII, see Appellant App’x at 765 n.6, and we affirm its conclusion
in this regard. Nevertheless, the court did not discuss exhaustion in the context of
Tyler’s § 1983 claim, perhaps not realizing exhaustion applies equally to
discrimination claims brought under § 1983. See Foster v. Wyrick, 823 F.2d 218, 221
(8th Cir. 1987) (holding the plaintiff cannot circumvent Title VII’s exhaustion
requirement by resorting to section 1983 as the vehicle for asserting a Title VII claim).
Since exhaustion is not jurisdictional in nature, Shempert v. Harwick Chemical Corp.,
151 F.3d 793, 797-98 (8th Cir. 1998), we, too, consider the merits of Tyler’s claim.
Unfortunately for Tyler, his § 1983 gender discrimination claim fares no better
on the merits. Substantive standards for gender discrimination cases brought under
Title VII and those brought under § 1983 are the same. See Tipler v. Douglas County,
Neb., 482 F.3d 1023, 1027 (8th Cir. 2007). Title VII prohibits employers from
“refus[ing] to hire . . . any individual, or otherwise discriminat[ing] against any
individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1).
Discrimination “because of” sex occurs when sex is “a motivating factor for any
employment practice, even though other factors also motivated the practice.” 42
U.S.C. § 2000e-2(m). Under the applicable McDonnell Douglas framework, the
plaintiff must first show “‘(1) [he] was a member of the protected group; (2) [he] was
qualified to perform the job; (3) [he] suffered an adverse employment action; and (4)
circumstances permit an inference of discrimination.’” Lewis, 591 F.3d at 1038
(quoting Bearden v. Int’l Paper Co., 529 F.3d 828, 831 (8th Cir. 2008)). The requisite
showing creates a presumption of unlawful discrimination, rebuttable through the
showing of a legitimate nondiscriminatory reason for the action. Id. Then, the
plaintiff may still demonstrate the employer’s proffered reason was pretextual and
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unlawful discrimination was a motivating factor in the adverse employment decision.
McCullough v. Univ. of Ark. for Med. Scis., 559 F.3d 855, 860-61 (8th Cir. 2009).
Tyler’s gender discrimination claim suffers from the same – if not greater –
infirmities as his claim of retaliation. First, Tyler cannot establish causation between
his gender and the University’s refusal to hire. Second, he cannot get past the non-
discriminatory explanation offered by the University for its choice. And third, even
if nondiscriminatory explanation were a pretext, Tyler has not offered any evidence
to suggest the University discriminated against him on the basis of gender.
Pausing briefly on the latter issue, we concede the two top contenders for the
job happened to be female. However, because the sample consists of only six
applicants, this is not the type of statistical disparity that can support an inference of
discriminatory intent. Compare Meyer v. Missouri State Highway Comm’n, 567 F.2d
804, 810 (8th Cir. 1977) (finding intentional sex discrimination where none of the
department’s 2,000 employees were females), with Eubanks v. Pickens-Bond Constr.
Co., 635 F.2d 1341, 1350 (8th Cir. 1980) (ten finishers proved to be too small a
sample to infer intentional discrimination from the statistical disparities in promotion
of finishers); see generally Harper v. Trans World Airlines, Inc., 525 F.2d 409, 412
(8th Cir. 1975) (stating that “statistical evidence derived from an extremely small
universe . . . has little predictive value and must be disregarded”). Moreover, the
record shows that six out of the nine members on the COP’s Executive Committee
were men. Far from supplying the evidence that his gender was a “motivating” factor
in the University’s decisionmaking, Tyler does not produce a shred of evidence that
would tip the scales in favor of finding gender discrimination. Accordingly, the
district court did not err in rejecting this claim on the merits.
III
For these reasons, we affirm.
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