Female Bank Executive Failed to Show Bias In Promotion Decision, Eighth Circuit Affirms

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By Lisa Nagele-Piazza

July 6 — A female bank executive in Nebraska who was passed over for a promotion and claimed the bank had a “male dominated culture” can't proceed with her Title VII of the 1964 Civil Rights Act sex discrimination claim even though a male employee was selected for the job, the U.S. Court of Appeals for the Eighth Circuit ruled July 6.

Affirming summary judgment in favor of First National Bank, the Eighth Circuit found that Stacy Cox didn't show the male employee selected for a senior vice president of operations position was less qualified. Cox had a higher level of education and more experience in one area, the court said, but the male candidate had been working for the bank longer and scored higher on a matrix created by the former senior vice president to rate candidates.

In support of her claim, Cox pointed to evidence that only one of 15 executive officers and one of 12 board members were female. But taken as a whole, the evidence doesn't raise a genuine dispute as to whether the bank's reasons for promoting the male employee were “unworthy of credence,” the court held.

Judge Duane Benton wrote the opinion, joined by Judges Lavenski R. Smith and Roger L. Wollman.

Decision Based on Matrix and Tenure

According to the court, Cox began working for the bank as vice president of loan operations in 2008, and she reported to Senior Vice President of Operations David Downing.

In 2011, Downing decided to retire and the bank sought to replace him. Downing developed a matrix to rate potential candidates on the skills he determined the role's incumbent should have. The matrix included categories such as leadership and peer respect.

Cox and another employee, Jon Doyle, were highly rated on the matrix.

At the time, Doyle was a vice president of operations and had been working for the bank for about 10 years.

Without conducting interviews, the president of the bank selected Doyle for the position. The president said he relied on the matrix and tenure to make the selection decision.

Cox claimed that First National's stated reasons for promoting Doyle were pretextual and that she actually wasn't selected because she is female.

No Evidence Sex ‘Motivating Factor.'

Discrimination is found when sex “was a motivating factor for any employment practice, even though other factors also motivated the practice,” the court said.

Cox attempted to show discriminatory motive by producing evidence of the bank's “male dominated culture.”

While she didn't say the lack of females in leadership roles alone established discriminatory intent, she argued that it was relevant in conjunction with her other evidence.

Cox pointed to evidence that she had a higher level of education and more loan experience than Doyle. 

“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,” the court said.

Cox also argued that the president improperly relied on tenure to make the decision, and she emphasized her own good working relationships and positive performance appraisals.

But Doyle received performance appraisals that were equal to or better than Cox's appraisals, the court said. “Cox’s good relationships do not trump Doyle’s, or make [the president's] reliance on tenure ‘unworthy of credence.' ”

The court also rejected Cox's argument that the subjective nature of the hiring process was evidence of pretext. “[S]ubjectivity alone does not render an employment decision infirm.”

Furthermore, the president's failure to investigate the candidates doesn't raise an inference that his decision was based on sex, the court said.

Cox argued that the president didn't take the steps a reasonable employer would take in the selection process, such as interviewing candidates and reviewing their resumes.

But the president knew Cox and Doyle were both competent vice presidents, knew their respective tenures, and relied on the matrix that was developed by the position's former incumbent, the court said.

“Only First National’s lack of female executives supports pretext; neither Cox’s qualifications nor [the president's] reliance on tenure or the matrix support a reasonable inference that the failure to promote Cox was due to sex discrimination,” the court held.

Atwood, Holsten, Brown, Deaver & Spier Law Firm represented Cox. Fraser Stryker represented First National Bank.

To contact the reporter on this story: Lisa Nagele-Piazza in Washington at lnagele@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the opinion is available at http://www.bloomberglaw.com/public/document/Stacy_Cox_Plaintiff__Appellant_v_First_National_Bank_doing_busine.

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