Donna Morrow v. Zale Corporation, et al

Filing

PER CURIAM OPINION FILED - THE COURT: Roger L. Wollman, Morris S. Arnold and Lavenski R. Smith (PUBLISHED) [4377659] [15-2321]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-2321
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Donna Morrow
lllllllllllllllllllll Plaintiff - Appellant
v.
Zale Corporation
lllllllllllllllllllll Defendant - Appellee
Zale Store 1491; John Daugherty
lllllllllllllllllllll Defendants
Zale Delaware, Inc.
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
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Submitted: March 9, 2016
Filed: March 15, 2016
[Published]
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Before WOLLMAN, ARNOLD, and SMITH, Circuit Judges.
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Date Filed: 03/15/2016 Entry ID: 4377659

PER CURIAM.
Donna Morrow appeals the district court’s grant of summary judgment in favor
of her former employer, Zale Corporation, on her Title VII claim of gender
discrimination. We reverse the grant of summary judgment, and remand the case to
the district court for further proceedings.
We conclude that the summary judgment record presented a genuine issue of
material fact as to whether John Daugherty was sufficiently involved in the decision
to terminate Ms. Morrow to qualify as a decision maker, given that the evidence
showed that he participated in the investigation leading up to her termination, and that
he was the one who ultimately told her she was terminated. We also conclude that the
summary judgment record presented a genuine issue of material fact as to whether
Mr. Daugherty had earlier told Ms. Morrow that she should step down because she
was “a female” and “a single mom,” that it was “a man’s world,” and that she needed
to “man up.” Because we construe such comments, if made by a decision maker, as
direct evidence of a discriminatory animus, we further conclude that under a mixedmotive analysis, Ms. Morrow may be entitled to some of the remedies she sought in
her complaint, and that summary judgment was inappropriately granted. See
Simmons v. New Pub. Sch. Dist. No. Eight, 251 F.3d 1210, 1213-15 (8th Cir. 2001)
(summary judgment was inappropriate where decision maker’s statements that “a
woman can’t handle [plaintiff’s] job” and that plaintiff was “a woman in a man’s job”
provided direct evidence that gender discrimination played part in adverse decision;
because direct evidence of gender discrimination existed, case was governed by
mixed-motive analysis), abrogated on other grounds by Torgerson v. City of
Rochester, 643 F.3d 1031 (8th Cir. 2011); see also Richardson v. Sugg, 448 F.3d
1046, 1057 (8th Cir. 2006) (under mixed-motive analysis, once plaintiff demonstrates
that illegal criterion was motivating factor in employment decision, employer may
come forward with affirmative defense that it would have made same decision absent
illegal criterion; this affirmative defense does not absolve employer of liability, but
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restricts remedies available to plaintiff); Mohr v. Dustrol, Inc., 306 F.3d 636, 641 (8th
Cir. 2002) (noting that direct-evidence inquiry is not limited to those formally
entrusted with decision-making duties; if reasonable fact finder could conclude that
official was closely involved in adverse decision, then comments made by that official
are relevant to direct-evidence analysis), abrogated on other grounds by Desert Palace,
Inc v. Costa, 539 U.S. 90 (2003).
Accordingly, we reverse the grant of summary judgment as to Ms. Morrow’s
claim of gender discrimination, and we remand the case to the district court for further
proceedings consistent with this opinion.
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