Bozue v. Mutual of Omaha Insurance Company
MEMORANDUM AND ORDER: Accordingly, the Court grants Defendant's 42 Motion for Summary Judgment. Signed by District Judge Stephen R. Clark on 4/28/21. (JAB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
MUTUAL OF OMAHA INSURANCE
Case No. 4:19-cv-01656-SRC
Memorandum and Order
Susan Bozue was ready for promotion to General Manager at Mutual of Omaha
Insurance Company. Confident in her success as a General Sales Manager, Bozue attended a
promising interview and delivered a successful presentation. But she soon learned that Mutual
gave the job to Elias Corpas, a man from outside the company, who she believed to be less
qualified for the job. Convinced that Mutual’s executives opposed her promotion because of her
sex, Bozue resigned. She filed suit against Mutual under Title VII of the Civil Rights Act of
1964 (Title VII), 42 U.S.C. § 2000(e) et seq., and the Missouri Human Rights Act (MHRA), Mo.
Rev. Stat. § 213.010 et seq., for sex discrimination, claiming failure-to-promote and constructive
discharge. Mutual maintains that it decided to hire Corpas due to neutral factors and that no
evidence demonstrates any discrimination due to Bozue’s sex. Mutual moves for summary
judgment, Doc. 42, which the Court grants.
Background and facts
Except as otherwise noted, the Court finds the following facts not genuinely in dispute in
Susan Bozue’s work history at Mutual
In the summer of 2013, Susan Bozue applied to be a General Sales Manager at Mutual of
Omaha’s Gateway Division in St. Louis. Bozue Dep. 29:6–11. Bozue had experience as an
insurance agent, a manager of insurance agents, and a trainer of insurance agents. Bozue Dep.
37:23–38:3. The Assistant General Manager of the Gateway Division, Shawn Powell, told her
she “was very qualified” and that “we want you to be the [General] Sales Manager, but we’d like
you to become an agent first and show us you can sell.” Id.; Bozue Dep. 37:23–38:3 and 49:6–8.
Powell told Bozue that Mutual would promote her to General Sales Manager in three to five
months. Id. Bozue asked Powell why she had to be an agent first, and he told her “I don’t know.
It doesn’t make sense. We were just told that we can’t bring you on as a manager at this time.”
Bozue Dep. 38:5–7 and 38:12–15. The General Manager, Brian Askins, told Bozue at the time
that the directive came from “upper [m]anagement.” Doc. 48-11.
Bozue began at Mutual as an insurance agent in October 2013. Doc. 48-4. Mutual’s
Regional Sales Manager, Gary Tsomous, told Bozue that Mutual required all General Sales
Managers to be agents first. Bozue Dep. 59:5–12. But Mutual did not require the same of its
male General Sales Managers. Mutual hired a man named Cody Webster as a Gateway Division
General Sales Manager the month before Bozue began working at Mutual. Bozue Dep. 76:23–
77:8 and 192:1–12; Doc. 48-16 at ¶ 19. Mutual also hired two other men, Bob Barnett in 2015
and Paul Rone in 2016, directly as Gateway Division General Sales Managers. Id. Mutual did
not first require these three men to work first as agents.
Tsomous told Bozue that in order to become a General Sales Manager she needed to
attain Bronze status as an agent by getting “30 applications in 90 days” and “bring[ing] on two
new agents.” Bozue Dep. 39:24–40:55, 6:24–57:1, 59:13–19. Bozue completed these
requirements within 60 days. Id. Over the next months, Mutual changed the requirements for
Bozue to become a General Sales Manager four more times, each time mandating that she meet
additional sales and recruiting benchmarks in order to attain promotion. Bozue Dep. 56:24–57:1,
59:13 –19, 57:9 – 12, et seq.; Doc. 48-16 at ¶ 18.
In August 2014, after Bozue spent over nine months achieving each new set of
requirements, Mutual promoted Bozue to General Sales Manager. Doc. 48-4. As a General
Sales Manager, Bozue was responsible for recruiting, training, and coaching agents to achieve
certain performance metrics, developing market strategies, and supervising the agents assigned
to her. Docs. 48-5, 48-6, 48-7, 48-8. Bozue received praise from her supervisors for her work.
Doc. 48 at ¶ 4. For example, Bozue alleges that her second level manager, Regional Sales
Director Kirt Cochran, told Bozue that she was “one of our best [General] Sales Managers” and
that she was one of his “favorites.” Bozue Dep. 208:22–209:21. Tsoumas also frequently told
Bozue that she was “one of the best hires” he had ever made. Id.
In 2014, Bozue’s supervisor, Bo Marshall, wrote in her performance review that Bozue
“maintains a great attitude” and “does a great job teaching and coaching the sale of Needs Based
products and supporting our IBFA [Insurance Based Financial Advising] culture.” Doc. 48-5. In
2015, Bozue earned the Sales Leader Roundtable award for her performance. Doc. 9; Bozue
Dep. 90:15–91:7. She again received praise from Marshall, who complimented her needs-basedselling culture and commented that “she has developed a strong IBFA culture.” Doc. 48-6.
In 2016, Bozue earned the Sales Leader Roundtable award again and exceeded her team
production goals for the second year in a row. Doc. 48-7; Bozue Dep. 91:21 – 92:4. She also
exceeded her career start date agent recruiting goal by 33%. Doc. 48-7. And in early 2017,
Bozue ranked 14 out of 100 General Sales Managers in the Net First Year Commission
Production category. Bozue Dep. 119:21–23; Cochran Dep. 145:18–146:4.
Bozue claims that despite her success as a General Sales Manager, she fought against
unequal treatment from her supervisor. Marshall frequently assigned agents with less experience
to her team, while assigning veteran agents to the five other male General Sales Managers in the
Gateway Division. Doc. 48-26; Bozue Dep. 193:23–194:11, 199:14–22, 195:7–18, 201:14–19.
Due to these staffing assignments, the male General Sales Managers had the potential to earn
better commissions from more experienced agents. Id. Although Bozue asked for agents with
more experience, Marshall repeatedly denied her requests. Bozue Dep. 197:20–198:9; 196:10–
23, 199:4–22, et seq.; Doc. 48-16 at ¶ 21.
Additionally, Bozue reports that Marshall held her to higher standards than the five male
General Sales Managers in the Division. Bozue Dep. 215:22–216:19; Doc. 48-16 at ¶ 25.
Although Bozue generally performed better than her peers, she says Marshall was critical of her
work during weekly meetings, asking harsh questions like “did you do this?” and “why haven’t
you done this?” Id. Bozue claims Marshall did not ask the same questions of the male General
Sales Managers. Id.
In May 2017, Marshall left his position as the Gateway Division General Manager.
Cochran Dep. 122:17–123:4. Bozue’s second level manager, Kirt Cochran, told Bozue to “take
over things” and “handle” the Gateway Division offices. Id. Bozue claims that she took on the
role of an interim General Manager, but Mutual asserts that Cochran did not treat her as an
interim General Manager or give her that role. Cochran Dep. 122:17 – 123:4. Bozue claims she
even earned a $7,500 bonus in August 2017 for running the Gateway Division on her own for
several months without a General Manager. Bozue Dep. 162:24–163:5; Cochran Dep. 127:21–
Bozue’s candidacy for the General Manager position
In May 2017, Bozue applied for Marshall’s former position as the Gateway Division
General Manager. Doc. 50 at ¶ 2. General Managers are responsible for overseeing the General
Sales Managers as well as developing strategies to achieve growth and profitability in their
Division. Doc. 48-1. According to Mutual, the qualifications for the General Manager position
Broad and seasoned experience in insurance industry with in-depth knowledge of
insurance industry practices and trends, current sales methodology, business and
personnel; management principles and practices, multi-line insurance
fundamentals, state and federal legislation.
Proven sales and management experience in an Agency Sales distribution.
Strong leadership, communication, judgment, and strategic planning with prudent
Ability to persuade, convince, influence and impress others to gain support and the
ability to teach or foster development in others.
Strong employee and agent recruiting, selection, training and retention skills.
Must possess Series 6 (Investment Company/Variable Contracts Limited
Representative) and Series 63 (Uniform Securities State Law Exam) registrations
within 90 days of placement in the Position.
Must possess or attain Series 26 (Investment Company/Variable Contracts Limited
Principal) within 90 days of receiving Securities License (S6 & S63).
Ability to travel up to 50% of the work period (which may include some overnight)
and a valid driver’s license.
Doc. 43-1 at ¶ 3.
Mutual pre-screened the candidates for the General Manager position to ensure that the
candidates met certain qualifications. Doc. 50 at ¶ 4. Mutual claims that the pre-screening
determined whether the candidates had the requisite professional licenses, knowledge of
insurance industry practices and trends, knowledge of insurance products, experience in
recruiting and training sales agents, and relevant experience managing an agency sales office,
among other qualifications. Wilke Dep. 76:5-76:7, 81:5–81:15. Bozue disagrees with this
account, maintaining that Mutual’s actual pre-screening questions did not include whether
candidates had experience in recruiting and training sales agents, whether candidates could
describe that experience, or whether candidates were willing to travel up to 50% of the time.
Doc. 50 at ¶ 4; Doc. 50-2.
After prescreening and initial interviews, the final four candidates for the position were:
Susan Bozue (female), Elias Corpas (male), Samuel Dryer (male), and Donald Thomas (male).
Doc. 50 at ¶ 5. The four candidates traveled to Omaha, Nebraska for one-on-one interviews,
panel interviews, and presentations before several of Mutual’s executives. Doc. 50 at ¶ 6.
According to Mutual, the final decision rested with four individuals: 1) Kirt Cochran, male,
Regional Sales Director (the General Manager would report directly to him); 2) AJ Skar, male,
Vice President of Agency Sales and National Sales Manager (Cochran reports to him); 3) Rich
Healey, male; Senior Vice President of Agency Sales (Skar reports to him); and 4) Meghan
Wilke, female, Director of Advisor Development. Doc. 43 at ¶ 7; Def. Answer to Int. Nos. 8–9.
Bozue disputes that those four individuals had an equal role in the decision. Doc. 50 at ¶ 7.
Bozue claims that the final hiring decision truly rested with AJ Skar and Rich Healey, the
highest-level executives who were involved in the decision, as Cochran confirmed in his
deposition that “the input of AJ Skar and Rich Healey has more weight in deciding who becomes
a . . . GM versus all of the other managers who have input into the decision.” Doc. 50-3;
Cochran Dep. 57:3–6, 58:20–23, and 158:12–24.
Mutual selected an outside candidate, Elias Corpas, for the General Manager position,
and Corpas started on September 1, 2017. Doc. 50 at ¶ 8. In Cochran’s view, Bozue and Corpas
were the top two candidates for the position, but Mutual points out that Skar did not consider
Bozue to be one of the top two candidates for the job. Cochran Dep. 260:7–12; Skar Dep.
169:3–169:11. Throughout the process, however, Bozue was not aware of Cochran, Healey,
Skar, or Wilke saying anything negative about Bozue’s gender at any time. Doc. 50 at ¶16.
Bozue’s exit from Mutual
Bozue first learned that she did not get the job during a meeting with Cochran and Wilke
in August 2017. Bozue Dep. 151:15–152:23. Bozue alleges that Cochran told her that she
“scored the highest on the presentation” but that the successful candidate was someone from
outside the company with “more experience building bigger teams.” Id. Mutual denies that
Cochran told Bozue either of these things, pointing to Bozue’s statement in her deposition that
Wilke did most of the talking during the meeting. Doc. 57 at ¶ 20, 50.
Shortly after her meeting with Cochran and Wilke, Bozue spoke to Cochran about the
hiring decision. She stated her belief that Mutual was a “good old boy company,” and asked “if
any part of this had to do with me being female?” Bozue Dep. 154:19–155:15; Cochran Dep.
257:6–14. Cochran denied Bozue’s suggestion, admonishing her: “Oh, Susan, don’t say that.”
Id. Cochran later told Skar about what Bozue had said but Cochran took no further action.
Cochran Dep. 258:4–11.
Bozue claims that after Corpas started as General Manager, she continued doing the
General Manager’s duties and even trained Corpas. Bozue Dep. 222:4–19 and 223:16–24; Doc.
48-16 at ¶ 27. Bozue says that agents would come to her after requesting assistance from
Corpas, the agents complaining that meeting with Corpas was a “waste of time.” Id. Mutual,
however, disputes that agents ever went to Bozue for help. Corpas Dep. 187:14-188:16.
In the fall of 2017, Bozue lost four agents from her team because they lived in the newly
created Greater Ozark Division. Doc. 48-16 at ¶ 28. Although Bozue recruited and trained those
agents, she no longer earned commissions based on their performance. Id. To make up for the
loss of these agents, Bozue asked that Mutual assign her two agents whom she frequently
coached. Doc. 48-16 at ¶ 30. Cochran and Corpas refused her request, and Bozue claims that
she continued to assist those agents even though she would not receive compensation for their
Bozue alleges that Corpas belittled Bozue’s contributions to the division. Bozue claims
Corpas made fun of her in a meeting when Corpas said: “Well, everybody, let’s hear it for Susan
because she actually had a good idea for once.” Bozue Dep. 220:22–221:14, 221:4–22. Mutual
denies that Corpas made fun of Bozue, however, claiming that Corpas was just playing off a joke
that Bozue had made about how she sometimes had good ideas. Corpas Dep. 205:25-207:8.
Bozue also asserts that Corpas was sarcastic with her when she tried to help him better
understand Mutual’s products, policies, and software. Bozue Dep. 223:16–24.
On February 9, 2018, after working under Corpas for five months, Bozue resigned her
employment with Mutual. Doc. 50 at ¶ 15. Bozue states that she believed she would not be able
to advance within Mutual because she is a woman. Dep. 265:2 – 7. On April 27, 2018, Bozue
filed her Charge of Discrimination alleging Mutual discriminated against her because of her sex.
Doc. 50 at ¶ 18.
Bozue and Corpas’s qualifications
Bozue asserts that a significant amount of overlap exists in the job duties and skills
necessary to be a successful General Manager and General Sales Manager. Doc. 48 at ¶ 14.
Wilke confirmed that there is “a lot of overlap of the job duties and the skills that are necessary”
for the two positions. Wilke Dep. 47:18–22. Both positions require a strong “needs-based
selling” strategy; strong skills for fostering and developing agents; strong agent recruiting and
training skills; and in-depth knowledge of Mutual’s products. Wilke Dep. 45:19–46:22; Cochran
At the time of her application, Bozue had worked in human resources for over 17 years,
with a focus on recruiting and hiring personnel. Doc. 48-16 at ¶ 4. Before working at Mutual,
Bozue had recruited 12 agents. Doc. 48-16 at ¶ 5. During her three and a half years at Mutual,
Bozue recruited 39 agents and managed up to 21 agents at a time as a General Sales Manager.
Doc. 48-14; 48-16 at ¶ 5. Furthermore, Bozue’s agents did not receive a base salary; they were
commission-only. Bozue Dep. 259:25–260:2; Doc. 48-16, ¶6.
Meanwhile, Corpas only recruited 18 agents and managed about 21 agents during his
career. Corpas Dep. 46:23–47:10, 51:8–52:8. Corpas testified that he recruited and managed
agents who received a base salary plus commission rather than working for commission only.
Corpas Dep. 32: 5–8, 46:23–47:10, 51:8–52:8, 80:9–11, 81:10–18; Cochran Dep. 21:23-22:2.
Corpas also admitted that having a base salary was helpful to him when he was an agent
developing his business. Id.
Bozue had substantial knowledge about Mutual’s products and systems compared to
Corpas. Doc. 48-4; Doc. 48-16 at ¶ 9. Cochran admitted in his deposition that Bozue had a
better understanding of Mutual’s policies and more robust relationships with Mutual’s agents
compared to Corpas. Cochran Dep. 240:12–16, 240:7–11.
Bozue also presented evidence of her strong communications skills and positive
workplace outlook. Many of Bozue’s agents confirm that they relied on her to liaison with
Mutual’s corporate office and the underwriters when problems arose with their clients. Doc. 4813, Doc. 48-12, Doc. 48-5; Doc. 48-6; Doc. 48-7; Doc. 48-16 at ¶ 10. And Bozue’s performance
reviews declare that she had a “great attitude,” “great presence in the office” and maintained
“strong relationships across her team and work[ed] tirelessly to help them achieve success.”
Doc. 48-5; Doc. 48-6; Doc. 48-7.
When she applied for the General Manager position, Bozue had about 17 years of
management experience. Doc. 48-16, ¶12. Bozue had managed insurance agents using the
needs-based-selling method for over five and a half years by the time of her application. Id.;
Doc. 48-4; Doc. 48-5; Doc. 48-6; Doc. 48-7.
Corpas only had 7 years of management experience total with just 4 years in the
insurance business. Doc. 48-17. Unlike Bozue, he had no experience managing supervisors.
Corpas Dep. 50:13–24, 80:2–4. Corpas only listed 4 years of management experience on his
resume because the other management experience was “so far back.” Doc. 48-17; Corpas Dep.
114:24–115:6. Healey acknowledged in his deposition that Bozue had more supervisory
experience than Corpas. Healey Dep. 155:10–12. And Cochran admitted that Bozue had more
years of management experience and experience managing commission-only agents compared to
Corpas. Cochran Dep. 232:20–233:3, 234:6–10.
Finally, Bozue had substantial training experience compared to Corpas. Doc. 48-16 at ¶
13. She had trained insurance agents on the needs-based-selling method for over five and a half
years, although Mutual claims that its needs-based method was different than the one Bozue used
before she worked at Mutual. Id.; Wilke Dep. 23:16–24:9. Bozue had approximately 21 years of
experience training employees and supervisors on company policies and systems from her tenure
in human resources. Doc. 48-16 at ¶ 13. Meanwhile, Corpas had only five and a half years of
experience training other agents over his career. Doc. 48-17.
Mutual’s reasons for its decision
Mutual states that the four decisionmakers, Cochran, Skar, Healey, and Wilke, believed
Corpas was the best candidate for the General Manager position. Doc. 43 at ¶ 9. Mutual asserts
that after the candidates met the minimum qualifications for the position and passed the prescreening, the decisionmakers based their decision on the candidates’ background, experiences,
interview answers, and presentations. Id. The four decisionmakers testified that Corpas
performed the best after giving the presentations and answering questions in the interviews, and
that they liked his experience with holistic needs-based-relationship selling, his community
involvement, his communication skills, the use of “trustworthy selling” and understanding the
specific sales methodology that Mutual of Omaha was attempting to use, his energy and positive
attitude, and his many years of experience in the industry being a trainer and agency manager.
Cochran Dep. 183:2–184:25, 187:10–189:1, 191:3–192:5, et seq.; Healey Dep. 67:17–68:25,
71:14–71:20, 100:17–101:25, et seq.; Skar Dep. 79:25–80:10, 80:21-81:15, 88:25–90:2, et seq.,
Wilke Dep. 106:6–106:11, 106:16–106:19, 108:12–109:9, et seq.; Doc. 43-1 at ¶ 2.
Bozue contests Mutual’s explanation, noting that Cochran gave her a different reason
during their meeting: Mutual chose a candidate with “more experience building bigger teams.”
Bozue Dep. 151:15–152:23. Bozue asserts that Corpas does not have “more experience building
bigger teams,” as she recruited over 50 agents over her career, compared to his 18. Doc. 48 at ¶
Bozue also points to Cochran’s account that Bozue “scored the highest on the
presentation,” to rebut Mutual’s claim that Corpas performed best in the presentations and
interviews. Bozue Dep. 151:15–152:23.
Gender makeup in the General Manager position
Bozue presents evidence that Mutual rarely selected women to work as General
Managers. At the time of Bozue’s application to the General Manager position, all of Mutual’s
approximately 30 General Managers were male. Wilke Dep. 234:24–235:6; Cochran Dep.
50:18–24. Wilke testified in her deposition that she was not aware of any female General
Managers before 2017, at least since 2009. Wilke Dep. 234:24–235:6. Skar testified that he
remembered several female General Managers from earlier in his career at Mutual, but he was
unaware of any woman holding the role from 2000-2017. Skar Dep. 75:3–19.
Additionally, Cochran acknowledged that Mutual has an overall underrepresentation of
women in the General Manager and General Sales Manager positions and that it is “an industry
dominated by men.” Cochran Dep. 252:3–25.
Other women applying to General Manager positions at Mutual
Bozue presents evidence of two other female candidates, Sheri Sisler Moore and Kristi
Acree, who applied for General Manager positions at Mutual less than seven months after
Mutual decided not to promote Bozue. Bozue claims that Mutual chose two less-qualified male
candidates from outside the company over these more-qualified female employees. Moore Dep.
7:18–8:16; Wilke Dep. 192:5–14, 212:16–19, and 216:16–25; Doc. 48-27; Doc. 48-28; Doc. 4829; Doc. 48-30. The same three Mutual executives participate in each General Manager
selection decision: Healey, Skar, and Wilke. Doc. 48-3; Cochran Dep. 57:3–6, 58:20–23, and
158:12–24. And the General Manager hiring and selection process that Mutual used for Moore
and Acree’s applications was identical to that used for Bozue. Wilke Dep. 192:5–14, 212:16–19,
Sheri Sisler Moore worked for Mutual as a General Sales Manager from 2010 to 2017.
Moore Dep. 7:18–8:16 and 12:16–20; Doc. 48-29. In October 2017, Moore applied for the
General Manager position for her division in Florida. Moore Dep. 7:18–8:16 and 12:16–20.
Moore had worked for Mutual as an interim General Manager for almost four years when she
applied, growing her team to 40 agents. Moore Dep. 37:3–10 and 41:19–22. Moore also
received numerous awards from Mutual, such as the Field Management Award for top managers
in 2010, 2011, 2012, 2015, and 2016. Doc. 48-29; Wilke Dep. 18:10–21 and 61:5–62:1.
Moore had worked in the insurance industry for thirty years, aside from a 5-year period in
the early 2000s when she worked in marketing. Moore Dep. 11:6–21 and 78:18–79:20; Doc. 4829. Moore held a management role since the early 1990s. Id. She used a needs-based-selling
method since 2003 and trained her agents to do the same. Moore Dep. 22:15–23:6. Moore Dep.
11:6–21, 78:18–79:20; Doc. 48-29.
Mutual hired Rob Liebman, a man from outside the company, instead of Moore. Wilke
Dep. 192:5–14; Doc. 48-30. During his career, the largest team Liebman built and managed
consisted of 26 agents. Id. Bozue points out that Liebman’s resume contains no mention of
needs-based selling or use of the “trustworthy selling” method. Doc. 48-30. Moore had built
bigger teams than Liebman and run more branches at a time. Id.; Moore Dep. 22:13–23:6.
Moore sat for a deposition, where she shared about her experience and the circumstances
of her application for general manager. Moore did not testify that she believed Mutual
discriminated against her because of her sex, however, nor did she file a complaint of sex
discrimination at any time. Moore Dep. 80:2–12, 23–25.
Kristi Acree worked for Mutual as an Agency Operations Manager in its Blue Bell,
Pennsylvania office. Wilke Dep. 212:7–2; 216:8–11. When Acree applied for the General
Manager position in 2018, Mutual gave the job to an outside hire, Jeremy Priar. Id.
At the time of her application, Acree assisted the current General Manager in running the
Division. Wilke Dep. 213:3 – 18; Doc. 48-7. She had worked at Mutual for 15 years and in a
management role for seven years. Id. As an Agency Operations Manager, Acree helped grow
her Division’s agents from 25 to 150, making it the number one division in the country from
Priar had significantly less relevant experience. Priar had just 5 years total experience in
the insurance industry, with two years as a business development director and three years as an
insurance agent. Skar Dep. 231:4 – 232:13; Doc. 48-28. Unlike Acree, Priar had little
management experience in the insurance industry, and no experience in agency management or
agency training. Id.
Notably, Acree did not sit for a deposition for this case, nor did she testify that she
believed Mutual discriminated against her. And soon after Mutual denied Acree the promotion
at the Blue Bell Division, Mutual actually promoted Acree to General Manager in Mutual’s
Boston office. Wilke Dep. 233:7–234:3.
Rule 56(a) of the Federal Rules of Civil Procedure provides that “[t]he court shall grant
summary judgment if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” In ruling on a motion for summary
judgment, the Court is required to view the evidence in the light most favorable to the nonmoving party and must give that party the benefit of all reasonable inferences to be drawn from
the underlying facts. AgriStor Leasing v. Farrow, 826 F.2d 732, 734 (8th Cir. 1987). The
moving party bears the initial burden of showing both the absence of a genuine issue of material
fact and entitlement to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986); Fed. R. Civ. P. 56(a).
In response to the proponent's showing, the opponent's burden is to “come forward with
‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)). A “genuine”
dispute of material fact is more than “some metaphysical doubt as to the material facts.” Id. at
586. “[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving
party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986). “If the evidence is merely colorable . . . or is not significantly probative . . .
summary judgment may be granted.” Id. at 249–50 (citations omitted). Self-serving, conclusory
statements without support are insufficient to defeat summary judgment. Armour and Co., Inc.
v. Inver Grove Heights, 2 F.3d 276, 279 (8th Cir. 1993). Rule 56(c) “mandates the entry of
summary judgment, after adequate time for discovery and upon motion, against a party who fails
to make a showing sufficient to establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986).
Mutual moves for summary judgment on Bozue’s claims, arguing first that Bozue’s
failure-to-promote claim under the MHRA is time-barred. Mutual argues second that Bozue
failed to show that its legitimate, non-discriminatory reasons for promoting Corpas were a
pretext for sex discrimination under the burden-shifting framework set forth in McDonnell
Douglas Corp v. Green, 411 U.S. 792 (1973). Finally, Mutual argues that Bozue cannot avoid
summary judgment on her constructive discharge claim, as her working conditions were not
objectively intolerable and Mutual did not intend or reasonably foresee that Bozue would have to
MHRA statute of limitations
Mutual asserts that Bozue’s failure-to-promote claim under the MHRA is time-barred
because Bozue filed her charge more than 180 days after Mutual informed her that she did not
receive the promotion. Bozue urges that her claim is still timely due to the “continuing
violation” doctrine, because Mutual’s failure to promote her was part of a pattern of
discrimination that continued until her constructive discharge only 76 days before she filed her
The Missouri Human Rights Act requires plaintiffs claiming unlawful discrimination to
exhaust their administrative remedies before coming to court. See §§ 213.075, 213.111(1). To
exhaust their administrative remedies, plaintiffs must file an MHRA charge with the Missouri
Commission on Human Rights within 180 days of the alleged unlawful employment practice and
then receive a right-to-sue letter. § 213.075. A plaintiff’s failure to file a charge within the
MHRA’s statute of limitations may result in the dismissal of their claim. § 213.075 (“The failure
to timely file a complaint with the commission may be raised as a complete defense by a
respondent or defendant . . . in subsequent litigation.”); Dorsey v. Pinnacle Automation Co., 278
F.3d 830, 835 (8th Cir. 2002) (MHRA claim properly dismissed because charge not filed within
statutory filing period).
The “continuing violation” doctrine is an equitable exception to the MHRA’s statute of
limitations, permitting plaintiffs to advance claims for discrimination that occurred prior to the
statutory period if they can show that the discrimination continued within the statutory period.
See Rowe v. Hussmann Corp., 381 F.3d 775, 782 (8th Cir. 2004) (citing Pollock v. Wetterau
Food Distrib. Grp., 11 S.W.3d 754, 763 (Mo.Ct.App.1999). But equitable doctrines like the
continuing violation “are to be applied sparingly” in determining if a charge is timely. Tisch v.
DST Sys., Inc., 368 S.W.3d 245, 252 (Mo. Ct. App. 2012) (citing Nat'l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 113 (2002).
Missouri courts apply a two-part test to determine if a plaintiff has shown a continuing
violation. Rowe, 381 F.3d at 782. The plaintiff “must first demonstrate that at least one act
occurred within the filing period and, second, must show that the harassment is a series of
interrelated events, rather than isolated or sporadic acts of discrimination.” Id. (internal citations
omitted). To be part of a continuing violation, the discriminatory acts must be “sufficiently
related to form a single practice” that continued into filing period. Id.
Federal interpretations of Title VII are applicable to the MHRA, particularly in the
context of the continuing violation doctrine. Gillespie v. Charter Commc'ns, 31 F. Supp. 3d
1030, 1033 n.4 (E.D. Mo. 2014) (“For purposes of continuing violations, interpretations of Title
VII also apply to claims under the MHRA.”) (citing Rowe, 381 F.3d at 782); see also Tisch, 368
S.W.3d at 252 (“When reviewing cases under the MHRA, we are guided by both Missouri law
and any federal employment discrimination (i.e., Title VII) case law that is consistent with
Missouri law.”). Addressing continuing violations in the context of Title VII, the Supreme Court
held that discrete actions by an employer, such as termination, failure-to-promote, denial-oftransfer, and refusal-to-hire, are “not actionable if time barred, even when they are related to acts
alleged in timely filed charges.” Morgan, 536 U.S. at 114, superseded in part on other grounds
by statute, Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111–2, 123 Stat. 5. For failure-to-
promote claims, the Supreme Court held that each discriminatory event “starts a new clock for
purposes of filing charges related to that act, and an employee must file charges within 180 days
. . . of a discrete discriminatory action.” Tademe v. Saint Cloud State Univ., 328 F.3d 982, 98788 (8th Cir. 2003) (interpreting continuing violation doctrine under Title VII) (citing Morgan,
536 U.S. at 114-15).
Here, Bozue filed her charge of discrimination on April 27, 2018. Bozue’s charge was
timely with respect to her asserted constructive discharge on February 9, 2018. But Mutual
denied Bozue’s promotion in August 2017, so her failure-to-promote claim does not fall within
the 180-day filing period. The continuing violation doctrine does not save her claim, however.
Mutual’s denying Bozue’s promotion constituted a “discrete act,” rather than part of a “series of
interrelated events,” because the promotion decision was a single decision by Mutual. See Tisch,
368 S.W.3d at 255 (holding that the continuing violation theory does not save untimely discrete
acts including failure-to-promote under the MHRA, because “[a] continuing violation is
established when the plaintiff shows a series of closely-related, similar events that occurred
within the same general time period and stemmed from the same source that continued into the
limitations period.”); Williams v. Lender Processing Servs., Inc., 2013 WL 5739059, at *1 (E.D.
Mo. 2013) (dismissing untimely claims under the MHRA for failure-to-train, failure-to-promote,
constructive demotion, and failure-to-approve a pay raise because each claim involved discrete
acts of discrimination rather than a continuing violation); Gillespie, 31 F. Supp. at 1034
(dismissing untimely claim under the MHRA for failure-to-promote because the plaintiff alleged
a series of discrete discriminatory events rather than a continuing violation).
Bozue raises Plengemeier v. Thermadyne Indus., 409 S.W.3d 395 (Mo. Ct. App. 2013),
arguing that Missouri state courts have sometimes applied the continuing violation doctrine to
failure-to-promote claims. But Plengemeier did not alter the settled principle that discrete events
cannot form the basis for a continuing violation. Id. at 401. Plengemeier confirmed that
continuing violations consist of “‘repeated conduct’ extending over a period of time.” 409
S.W.3d at 403 (quoting Tisch, 368 S.W.3d at 254).
In Plengemeier, the Missouri Court of Appeals found that the plaintiff sufficiently
alleged a series of interrelated events to survive a motion to dismiss. Id. at 403. The court relied
on the fact that plaintiff’s employer had repeatedly chosen to pay her less than a man and give
her less benefits on an annual basis. Id. at 401-2. The employer’s discriminatory pay practice
continued through the statutory filing period. Id. at 401. The court held that the plaintiff’s
petition, which included untimely allegations of not receiving promotions, survived dismissal
because the alleged pay practice “was not an isolated incident, but occurred from 2006 through
2010, and consisted of a pattern or practice in the midst of which [plaintiff] alleges [defendants]
passed her over and did not even interview or consider her for a promotion for which she was
better qualified than the ultimate [male] recipient , simply because she is female.” Id. at 403.
Bozue’s claim is unlike the plaintiff’s in Plengemeier. Bozue does not show a pattern of
“interrelated events” involving “repeated conduct” that would connect Mutual’s promotion
decision to a discriminatory act within the statutory period. See id. at 403. Bozue argues that
she suffered a series of discriminatory acts while working for Mutual, pointing to several
instances of unequal treatment that occurred before the promotion decision as well as her
constructive discharge claim afterwards. Yet these events are not “interrelated” like the pay and
promotion decisions alleged in Plengemeier, because they did not occur at the same time, nor did
they involve the same subject matter or decisionmaker. See Cooper v. KSHB-TV 41, 2018 WL
8131234, *5 (W.D. Mo. 2018) (“These promotion denials are not a continuous or otherwise
connected chain of events like the annual review of the plaintiff’s pay alleged in Plengemeier . . .
The other actions [p]laintiff relies upon (the failure to select her as a Leadership Champion and
work assignments in the urban core) also lack a connection to any events within the relevant time
period.”). Further, Mutual’s denial of promotion to Bozue was not “repeated conduct,” as
Mutual denied her the promotion only once. Plengemeier, 409 S.W.3d at 403.
This case is not comparable to Plengemeier and does not involve a continuous violation.
The Court finds that Bozue cannot pursue her failure-to-promote claim under the MHRA.
Title VII failure-to-promote
Title VII makes it unlawful for an employer to discriminate against an employee because
of her sex in the terms and conditions of her employment, including promotions. 42 U.S.C. §
2000e-2(a)(1). Bozue can survive summary judgment on her Title VII failure-to-promote claim
in two ways. She may either “present admissible evidence directly indicating unlawful
discrimination,” or alternatively, she can create “an inference of unlawful discrimination under
the burden-shifting framework established in McDonnell Douglas Corp.” Gibson v. Am.
Greetings Corp., 670 F.3d 844, 853 (8th Cir. 2012) (quoting Humphries v. Pulaski Cnty. Special
Sch. Dist., 580 F.3d 688, 692 (8th Cir. 2009)). As Bozue presents no direct evidence of
discrimination showing “a specific link between the alleged discriminatory animus and the
challenged decision,” Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th Cir. 2004), she must
support her claims under the McDonnell Douglas proof framework. Gibson, 670 F.3d at 853.
Under the McDonnell Douglas burden-shifting framework, a plaintiff must first establish
a prima facie case of intentional discrimination. McDonnell Douglas Corp., 411 U.S. at 802.
Then, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for
its action. Id. If the defendant meets this burden, then the burden shifts back to the plaintiff to
produce sufficient admissible evidence that creates a genuine issue of material fact regarding
whether defendant's proffered nondiscriminatory justification is merely pretextual for intentional
discrimination. Torgerson v. City of Rochester, 643 F.3d 1031, 1046 (8th Cir. 2011).
Mutual met its burden of production by offering legitimate, non-discriminatory reasons
for choosing a different candidate over Bozue for promotion. Mutual states that the four
decisionmakers believed Corpas was the best candidate for the General Manager position of the
four final candidates. The decisionmakers liked Corpas’s presentation and his interview
answers, as well as his experience with holistic needs-based-relationship selling, his community
involvement, his communication skills, the use of “trustworthy selling” and understanding the
specific sales methodology that Mutual was attempting to use, his energy and positive attitude,
and his many years of experience in the industry as a trainer and agency manager.
Because Mutual offered legitimate, non-discriminatory reasons for denying her the
promotion, Bozue bears the burden “to produce sufficient admissible evidence that creates a
genuine issue of material fact regarding whether [Mutual’s] proffered nondiscriminatory
justification is merely pretextual for intentional discrimination.” Pribyl v. Cty. of Wright, 964
F.3d 793, 796 (8th Cir. 2020). At this stage, “[m]ore substantial evidence of discrimination is
required to prove pretext, because evidence of pretext is viewed in the light of [the employer’s]
legitimate, non-discriminatory explanation.” Jones v. United Parcel Serv., Inc., 461 F.3d 982,
992 (8th Cir. 2006).
Bozue claims that the evidence she presented creates a genuine issue of material fact as to
whether Mutual’s reasons for denying her the General Manager position were pretextual.
Bozue’s evidence takes several forms, which the Court will evaluate in turn.
Bozue asserts that she “was substantially better suited” to be a General Manager than
Corpas. Companies generally “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). Evidence of an applicant’s qualifications can support a finding of
pretext, but only if a plaintiff can “show that [the employer] hired a less qualified
applicant.” Torgerson, 643 F.3d at 1049.
Bozue presents evidence to show she was objectively more qualified for the position than
Corpas. First, Bozue had more years of management experience, in and out of the insurance
industry. Bozue had 17 years of management experience in total, compared to Corpas’s seven
years. In the insurance industry, Bozue had five and a half years of management, compared to
Corpas’s four years. Two of Mutual’s decisionmakers, Healey and Cochran, admitted in their
depositions that Bozue had more management experience than Corpas.
Second, Bozue had recruited and supervised more insurance agents in her career. Before
she worked at Mutual, Bozue had recruited 12 agents. And during her three and a half years
working at Mutual, Bozue recruited 39 more agents, bringing her total to 51 agents. Corpas
recruited only 18 agents over his career. Both Bozue and Corpas supervised around 21 agents at
a time over their careers, but while Bozue supervised agents who worked solely for commission,
Corpas’s agents received a base salary in addition to commission.
Third, Bozue had more training experience than Corpas. Bozue trained insurance agents
in need-based selling methods for over five and a half years and had a total of 21 years of
experience training both employees and supervisors due to her human resources background.
Corpas had only five and a half years of experience training other agents over his career.
Fourth, Bozue had a strong track record as a General Sales Manager and a deep
knowledge of Mutual’s policies and systems. Wilke confirmed that the General Sales Manager
and General Manager positions had a significant amount of overlap in job duties and skills: both
positions required a strong “needs-based selling” strategy, strong skills for fostering and
developing agents, strong agent recruiting and training skills, and in-depth knowledge of
Mutual’s products. Bozue received numerous sales management awards and positive
performance reviews as a General Sales Manager. She received praise in her performance
reviews for her work training agents in Mutual’s “needs-based selling” strategy and developing
her agents. She had a reputation for building strong relationships with her agents and for helping
them resolve issues. As the internal candidate, Bozue also had more knowledge and experience
with Mutual’s products and systems. Cochran acknowledged as much, agreeing that Bozue had
a better understanding of Mutual’s policies and systems than Corpas, as well as more robust
relationships with Mutual’s agents. Cochran even told Bozue to “take over things” and “handle”
the Gateway Division for him when the General Manager position was vacant for several months
Mutual claims it did not make the hiring decision based solely on Bozue’s objective
criteria. Rather, once the four candidates met the minimum qualifications for the position and
passed the pre-screening, the decisionmakers chose a candidate based on what “they believed
would be the best fit based on [the candidate’s] background, experiences, interview answers, and
presentations.” For example, one reason the decisionmakers gave for their decision was that
Corpas performed the best after giving the presentations and answering questions in the
Employers may use subjective factors in their hiring decisions, and the use of subjective
factors does not itself create an inference of discrimination. See, e.g., Torgerson, 643 F.3d at
1049 (“Where the employer does not rely exclusively on subjective criteria, but also on objective
criteria and education, the use of subjective considerations does not give rise to an inference of
discrimination.”); Wingate v. Gage Cty. Sch. Dist., No. 34, 528 F.3d 1074, 1080 (8th Cir. 2008)
(same); Hunter v. United Parcel Serv., Inc., 697 F.3d 697, 705 (8th Cir. 2012) (where employer
uses objective criteria such as job history as part of promotion decision, the use of subjective
considerations does not give rise to an inference of discrimination). “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).
The Eighth Circuit’s recent decision in Pribyl informs the Court here. 964 F.3d at 796–
97 (affirming summary judgment on failure-to-promote claim where employer used objective
criteria to determine if candidates met minimum job requirements and then subjectively
compared candidates’ interview performance). In Pribyl, the plaintiff attempted to establish
pretext through evidence that she was objectively more qualified than the chosen candidate. Id.
at 797. The court held that even if the plaintiff was the most objectively qualified candidate, the
employer was entitled to consider subjective factors like interview performances in its decision,
so the plaintiff’s evidence of superior objective qualifications did not establish pretext. Id.
(“Regardless of how well Pribyl perceived her own interview performance, it is the panelists’
impressions that matter.”); see also Torgerson, 643 F.3d at 1050 (“[Plaintiffs’] own opinions that
they should have received higher interview scores are simply irrelevant as it is the employer's
perception that is relevant, not the applicants’ subjective evaluation of their own relative
Just like the employer in Pribyl, Mutual used objective criteria to determine if the
candidates met the minimum qualifications for the position, and then utilized more subjective
factors to determine the best fit for the job, including Bozue’s interview performance. The
decisionmakers’ uncontroverted testimony and interview notes support the veracity of Mutual’s
proffered reasons for selecting Corpas, and Bozue points to no evidence that these subjective
factors are a cover for discrimination. Even if the Court assumed that Bozue was objectively
more qualified for the position, this Court will not second-guess Mutual’s selection process or
criteria. See Wingate, 528 F.3d at 1080; Manse v. Union Elec. Co., 961 F. Supp. 1296, 1302
(E.D. Mo. 1997) (granting summary judgment for employer where plaintiff took issue with
employer’s criteria, holding that employer’s considerations “are business judgments that are not
within the province of this Court to second-guess.”). Therefore, Bozue cannot establish pretext
based on her qualifications.
Change in proffered reasons
Bozue also claims that Mutual changed its story about why it chose Corpas for the
General Manager position. Cochran allegedly told her that the person who got the position had
more experience “building bigger teams” but that Bozue still scored the highest on her
presentation. In his deposition, Cochran denied saying these things to Bozue.
Inconsistent explanations by an employer can be evidence of pretext, but even if Cochran
told Bozue that the chosen candidate had “more experience building bigger teams,” that
statement does not, by itself, support a finding of pretext. See Rodgers v. U.S. Bank, N.A., 417
F.3d 845, 855 (8th Cir. 2005) (“While it is true that [s]ubstantial changes over time in the
employer’s proffered reason for its employment decision support a finding of pretext, this does
not mean that an employer cannot elaborate on its proffered reason.” (internal quotations
omitted)). Each of the individual decisionmakers testified to different aspects they preferred
about Corpas’s candidacy. Simply because Cochran did not tell Bozue all of the reasons why he
or the other decisionmakers favored Corpas does not establish pretext, especially when Corpas’s
prior experience in the industry as a trainer and agency manager played a role in Mutual’s
decision. See Smith v. Allen Health Systems, Inc., 302 F.3d 827, 835 (8th Cir. 2002) (holding
that the plaintiff failed to show pretext through evidence of inconsistent reasons for the decision
when the employer “did not back off from the original explanation”). Additionally, Cochran’s
consolation to Bozue that she scored the highest on the presentations is not evidence of pretext,
since Mutual does not claim that it hired Corpas because he had the highest score on the
presentations. Bozue therefore cannot use Cochran’s alleged statements to establish pretext,
because Mutual did not change its reasons for hiring Corpas.
Other female applicants for General Manager positions
Bozue purports to show that Mutual discriminated against two other women who applied
for General Manager positions, Moore and Acree. Mutual argues that this evidence is not
probative of whether its non-discriminatory reasons were pretextual. See McPheeters v. Black &
Veatch Corp., 427 F.3d 1095, 1101 (8th Cir. 2005) (affirming exclusion of evidence of other
employees’ complaints of discrimination as “overly broad” and “not specifically relevant” to
plaintiff’s claims); Kline v. City of Kansas City, Mo., 175 F.3d 660, 668 (8th Cir. 1999)
(affirming exclusion of evidence of alleged discrimination as irrelevant); Schrand v. Fed. Pacific
Elec. Co., 851 F.2d 152, 156 (6th Cir. 1988) (testimony from the plaintiff’s former co-workers
alleging discrimination against themselves should have been excluded as irrelevant or unfairly
prejudicial); Haskell v. Kaman Corp., 743 F.2d 113, 122 (2d Cir. 1984) (testimony regarding
other alleged instances of discrimination “definitely should have been excluded” at trial and
admission of such testimony constituted reversible error).
Bozue raises Dindinger v. Allsteel, Inc., 853 F.3d 414, 424-25 (8th Cir. 2017), a wage
discrimination case where the Eighth Circuit affirmed the admission of evidence at trial that
other female employees were paid less than male employees. The Dindinger court explained
that “[w]e have previously held that me-too evidence ‘should normally be freely admitted at
trial’ because ‘an employer’s past discriminatory policy and practice may well illustrate that the
employer’s asserted reasons for disparate treatment are a pretext for intentional discrimination.’”
853 F.3d at 424 (quoting Hawkins v. Hennepin Tech. Ctr., 900 F.2d 153, 155–56 (8th Cir.
Rather than applying a per se rule excluding evidence of similar discriminatory acts by
employers, courts must make a case-specific determination of relevance and prejudice under
Rules 401 and 403 of the Federal Rules of Evidence. Sprint/United Management Co. v.
Mendelsohn, 552 U.S. 379, 387–88 (2008). The admissibility of the evidence depends on “the
context of the facts and arguments in a particular case,” including “how closely related the
evidence is to the plaintiff’s circumstances and theory of the case.” Id. The Court must first
examine the context of Bozue’s evidence and how closely related her evidence is to the facts and
arguments at issue here. See Combs v. Cordish Companies, Inc., 2018 WL 1464033, at *8 (W.D.
Here, Moore’s and Acree’s applications for the General Manager positions are relevant to
Bozue’s case due to their many factual similarities. See Fed. R. Evid. 401. Moore and Acree
both applied for General Manager positions at Mutual shortly after Bozue, and the hiring process
and decisionmakers involved in the decisions were almost identical. Moore and Acree also hold
similar qualifications as Bozue, but Mutual selected male candidates from outside the company
for promotion instead. And while Bozue’s presentation of this evidence may present a risk of
prejudice or confusion of the issues under Rule 403, the Court finds that for purposes of
summary judgment, the risks do not substantially outweigh the probative value of the evidence.
Thus, the Court assumes that Bozue’s evidence would be admissible at trial.
Though evidence from Moore’s and Acree’s applications may be admissible under Rule
401 and 403, this evidence by itself does not support a reasonable inference of discrimination in
Mutual’s promotion decisions. Bozue presents no evidence that the decisionmakers made any
discriminatory comments or actions against Moore or Acree at any time before or after the
promotion decisions. Mutual provided legitimate, non-discriminatory reasons why it chose not
to promote Moore and Acree, and those reasons varied depending on the candidate and position
Mutual chose Liebman over Moore because of Liebman’s “experience level and
performance in the selection process.” Wilke Dep. 211:8–211:24. According to Wilke, Liebman
“had been with a more sophisticated group of firms and built larger practices over his career” and
gave better answers than Moore’s during their interviews. Id. Mutual chose Priar over Acree
because of his superior recruiting philosophy and because the promotion “wasn’t the best
opportunity for Kristi as a managing director” due to substantial changes in the Blue Bell
Division at the time. Wilke Dep. 225:12–225:16, 234:4–234:17. Wilke stated that there was
“disruption in that territory” due to a mass exodus of staff and that people would not receive her
well because they “associated her with the former manager” of the division, who was not wellliked and did not have a good reputation in the community. Wilke Dep. 226:3–227:5, 235:7–
235:24. And soon after Mutual denied Acree the promotion at the Blue Bell Division, Mutual
promoted Acree to General Manager in Mutual’s Boston office. Wilke Dep. 233:7–234:3.
As the Court already discussed with regard to Bozue, evidence of a candidate’s allegedly
superior objective qualifications does not create an inference of discrimination when the
employer considered alternative factors. See, e.g., Torgerson, 643 F.3d at 1049; Wingate, 528
F.3d at 1080; Hunter, 697 F.3d at 705; Pribyl, 964 F.3d at 796–97. Though Bozue emphasizes
the ways that Moore’s and Acree’s qualifications are superior than Liebman’s and Priar’s, Bozue
does not rebut any of the subjective factors, such as interview performance or personal fit with
the position in question, that Mutual considered with regard to those promotion decisions. See
Pribyl, 964 F.3d at 797 (employers are entitled to consider subjective factors such as interview
Moreover, while Bozue paints Moore and Acree as comparable examples of
discrimination, the summary judgment record shows that neither woman testified that she
believed Mutual discriminated against them because of her sex and neither woman filed a
complaint of sex discrimination against Mutual. Thus, the probative value of Moore’s and
Acree’s applications rests entirely on Bozue’s own perception that they were victims of sex
discrimination. And even though Mutual denied Acree the initial promotion, Mutual later
promoted Acree to General Manager in a different office, which further weakens Bozue’s
argument for a pattern of discrimination in this position. Bozue’s conclusion that Mutual
discriminated against Moore and Acree is not supported by the evidence in the record, including
the fact that Moore and Acree themselves did not claim that Mutual discriminated against them.
Though plaintiffs may use an employer’s past discriminatory practices as circumstantial
evidence of pretext, “[t]he evidence, however, must assist in the development of a reasonable
inference of discrimination within the context of each case’s respective facts.” Bradford v.
Norfolk S. Corp., 54 F.3d 1412, 1419 (8th Cir. 1995). The Court finds that the evidence from
Moore and Acree’s applications provides insufficient support for an inference of pretext.
Gender makeup in the General Manager position
Bozue next draws attention to Mutual’s approximately thirty General Managers, which
were all male as of 2017. But standing alone, the gender makeup of the workforce cannot
establish that Mutual’s proffered reasons for its decision are pretextual. See Cox v. First Nat.
Bank, 792 F.3d 936, 941 (8th Cir. 2015) (the fact that one out of the employer’s 15 executive
officers, and one of the 12 board members, is female was not enough to discredit the employer’s
hiring criteria, even where such criteria was subjective). Bozue presents no statistical evidence
showing how many women applied to be General Managers or how many women were qualified
for the job. Schultz v. McDonnell Douglas Corp., 105 F.3d 1258, 1259 (8th Cir. 1997)
“[S]tatistics must evaluate comparable employees to be meaningful indicators of pretext.”).
While relevant in conjunction with other evidence of pretext, Bozue’s evidence does not create
an issue of material fact as to whether Mutual’s stated reasons were pretextual. See Cox, 792
F.3d at 941.
Other evidence of discrimination
Bozue raises several other instances of unequal treatment at the hands of her supervisors,
but these events do not establish pretext, as they had nothing to do with her application to the
General Manager position. First, Bozue brings up Mutual’s changing standards when she tried to
become a General Sales Manager in 2013. Yet aside from her claim that her supervisor said the
directive came from “upper management,” Bozue has no evidence to connect this event with the
General Manager promotion decision in 2017.
Second, Bozue points to unfair staff assignments and hurtful comments from her previous
supervisor, Marshall, as well as from her new supervisor, Corpas. But neither of these managers
were involved in the hiring decision at issue here. While unequal treatment and demeaning
comments can be evidence of an employer’s discriminatory mindset, actions and statements from
a non-decisionmaker fall short of establishing pretext when they could not have influenced the
decision. Wittenburg v. Am. Exp. Fin. Advisors, Inc., 464 F.3d 831, 837 (8th Cir. 2006); see also
Girten v. McRentals, Inc., 337 F.3d 979, 983 (8th Cir. 2003).
Third, Bozue alludes to Mutual’s lack of an investigation when she asked Cochran if any
part of the hiring decision “had to do with me being female?” and stated that Mutual was a
“good old boys club.” This evidence also fails to show that Mutual’s stated reasons were
pretextual. Bozue’s comments were not made in the context of a human resources complaint.
Cochran’s failure to follow up with Bozue about her comments was not retaliatory, nor was his
inaction related in any way to Mutual’s reasons for the hiring decision.
Conclusion on Bozue’s failure-to-promote claim
The Court finds that Bozue does not raise a genuine dispute of material fact that Mutual’s
reasons for promoting Corpas are pretextual, or “unworthy of credence.” The only viable
evidence in Bozue’s favor is Mutual’s general lack of female General Managers in 2017 and
Mutual’s denial of promotion to Moore and Acree. But this evidence does not help establish
Bozue’s particular claim of discrimination and cannot create a reasonable inference that Mutual’s
reasons for not promoting Bozue were pretextual. See Jones, 461 F.3d at 992 (“[M]ore
substantial evidence of discrimination is required to prove pretext, because evidence of pretext is
viewed in the light of [the employer’s] legitimate, non-discriminatory explanation.”). Evidence
of Bozue’s qualifications, Cochran’s initial explanation for the decision, and the other evidence
from Bozue’s tenure at Mutual, even taken as a whole, does not create a genuine issue of
material fact on whether Mutual’s legitimate, non-discriminatory reasons were pretextual.
Mutual is entitled to summary judgment on Bozue’s Title VII failure-to-promote claim.
Constructive discharge under Title VII and the MHRA
Bozue claims that she suffered a constructive discharge based on the “totality of the
circumstances” of her treatment as an employee at Mutual. She felt that Mutual created
intolerable working conditions by initially preventing her from becoming a General Sales
Manager, assigning inferior staff to her once she attained the position, subjecting her to belittling
statements by her supervisors, denying her a promotion, refusing to promote other qualified
women, and ignoring her complaint of sex discrimination.
Mutual contends that Bozue did not prove facts sufficient to permit a jury to find that she
was constructively discharged, as her working conditions were not objectively intolerable and
Mutual did not intend or reasonably foresee that Bozue would resign. To establish a constructive
discharge claim under Title VII and the MHRA, Bozue must show that: (1) a reasonable person
in the employee’s situation would have found the working conditions intolerable; and (2) the
employer intended to force the employee to quit, or the employer could reasonably foresee that
its actions would cause the employee to quit. Davis. v. KARK-TV, Inc., 421 F.3d 699, 706 (8th
Cir. 2005); Gamber v. Mo. Dep’t of Health and Senior Servs., 225 S.W.3d 470, 477 (Mo. Ct.
App. 2007) (Missouri courts apply the same test for constructive discharge as the Eighth Circuit).
Bozue does not attempt to show that Mutual purposefully forced her to quit, so her
constructive discharge claim can only avoid summary judgment if there is evidence for a
reasonable jury to find: (1) a reasonable person in her situation would have found the working
conditions intolerable; and (2) Mutual could reasonably foresee that its actions would cause her
to quit. See id.
Objectively intolerable working conditions
To establish the first element of her constructive discharge claim, Bozue must present
evidence of intolerable working conditions, “judged by an objective standard, not the employee’s
subjective feelings.” Tatom v. Georgia-Pacific Corp., 228 F.3d 926, 932 (8th Cir. 2000). The
primary question is “whether working conditions were rendered so objectionable that a
reasonable person would have deemed resignation the only plausible alternative.” Tatom, 228
F.3d at 932. In Howard v. Burns Bros., Inc., 149 F.3d 835, 841-42 (8th Cir. 1998), the Eighth
Circuit discussed several cases defining the types of conditions that render a workplace
intolerable for constructive discharge claims. Howard explained that in Tidwell v. Meyer’s
Bakeries, Inc., 93 F.3d 490, 497 (8th Cir. 1996), “an employee who worked in an environment
that was ‘tinged with discriminatory acts’ was nevertheless not constructively discharged,
because the acts were not so severe that a reasonable person would have found them intolerable.”
Howard, 149 F.3d at 841–42. Similarly, evidence of a supervisor scrutinizing an employee’s
work more closely than her peers’ was also not an intolerable working condition. Id. at 842
(discussing Hanenburg v. Principal Mut. Life Ins. Co., 118 F.3d 570, 575 (8th Cir. 1997)).
Objectively intolerable conditions include circumstances where an employee’s supervisor used
racial slurs and sometimes directed them at an employee, Delph v. Dr. Pepper Bottling Co., 130
F.3d 349, 356 (8th Cir. 1997), but not “frustration and embarrassment at not being promoted,”
Tidwell, 93 F.3d at 495.
Bozue does not provide evidence of objectively intolerable working conditions. Her
evidence that her supervisors held her to different standards than her male coworkers and
assigned her inferior staff is insufficient, as even an environment “tinged with discriminatory
acts” does not create a constructive discharge. Id. at 497. Bozue submits evidence that her direct
supervisors, Marshall and Corpas, both criticized her work or belittled her achievements on
occasion, but this evidence also does not create objectively intolerable working conditions.
Breeding v. Arthur J. Gallagher and Co., 164 F.3d 1151, 1159-60 (8th Cir. 1999), abrogated in
part on other grounds by Torgerson, 643 F.3d at 1031, (employee’s feeling of being unfairly
criticized is not so intolerable to a reasonable person to support a constructive discharge claim).
Mutual’s lack of women in leadership and its denial of her promotion was also not so
objectionable that resignation was the “only plausible alternative.” Tatom, 228 F.3d at 932; see
also Tidwell, 93 F.3d at 495.
Bozue claims that the absence of “realistic prospect[s] of advancement and career growth
with her employer” can form objectively intolerable working conditions, but the cases she cites
do not adequately support her argument. To start, Bozue’s only authorities in the Eighth Circuit,
MacGregor v. Mallinckrodt, Inc., 2003 WL 23335194 (D. Minn. 2003) and Newell v. Speer,
2017 WL 4838303 (D.S.D. 2017), do not hold that a lack of career prospects in employment can
establish a constructive discharge claim.
MacGregor was not a constructive discharge case. MacGregor dealt with an employer’s
motion for a new trial when the trial court instructed the jury on “a smorgasboard of adverse
actions from which to find liability, including discharge; constructive discharge; cuts in pay or
benefits; changes that affect future career prospects . . . and transfer to a position affording fewer
opportunities for salary increases or advancement.” 2003 WL 23335194, at *16. The court
denied the employer’s motion, finding that because of the presence of disputed facts between the
parties, the court properly instructed the jury on both direct and constructive discharge, as well as
adverse employment actions. Id. at *16–17. But on appeal, the Eighth Circuit pointed out that
the plaintiff “presented only one claim: gender discrimination. She did not present evidence of a
constructive discharge . . . there is no confusion as to which adverse action the jury used to find
liability.” MacGregor v. Mallinckrodt, Inc., 373 F.3d 923, 928 (8th Cir. 2004).
Newell does not support Bozue’s claim either. Newell acknowledged that “a ‘change in
employment that significantly affect[s] an employee's future career prospects’ may amount to an
adverse employment action,” but that alone did not constitute a constructive discharge. 2017
WL 4838303, *12 (quoting Sallis v. Univ. of Minn., 408 F.3d 470, 476 (8th Cir. 2005)). The
plaintiff in Newell claimed that for over a decade, he suffered a racially hostile work
environment consisting of a “good old boy” environment, use of racial epithets, and supervisors
misusing their power to impact his employment. Id. at *6–8. But the court entered summary
judgment against the plaintiff on his constructive discharge claim. Id. at *12 (“His constructive
discharge claim is premised on the same allegations that are insufficient as a matter of law to
establish his hostile work environment claim.”).
Bozue’s cases from outside the Eighth Circuit fare little better. In Hopkins v. Price
Waterhouse, 825 F.2d 458, 472 (D.C. Cir. 1987), reversed on other grounds by Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989), the D.C. Circuit reasoned that “the intolerableness
of working conditions is very much a function of the reasonable expectations of the employee,
including expectations of promotion or advancement.” The court held that “the mere fact of
discrimination, without more, is insufficient to make out a claim of constructive discharge” but
also determined that “Price Waterhouse’s decision to deny Hopkins partnership status,  coupled
with the OGS’s failure to renominate her, would have been viewed by any reasonable senior
manager in her position as a career-ending action.” See id. at 473. But Bozue’s circumstances
are distinguishable, however, because they did not rise to the same level of severity as the
plaintiff’s in Hopkins. See id. The “customary and nearly unanimous practice” at Price
Waterhouse was “for senior managers who have been passed over for partnership to resign, and
one of the  partners [in her office] who strongly opposed Hopkins’ candidacy advised her to do
just that.” Id. at 472. The plaintiff in Hopkins also supported her constructive discharge claim
with strong evidence of discriminatory animus, including comments from multiple partners that
said she was “brusque, abrasive, masculine, and overly aggressive” and that she came across as
“macho” and needed to take a “course at charm school.” Id. at 463, 473. Many of these
comments arose during her candidacy for partnership. Id. at 463. Unlike the employer in
Hopkins, Mutual did not expect Bozue to resign after she did not receive the promotion, and no
one asked her to leave because of it. And Bozue did not present similar evidence of
discriminatory animus in the hiring process or hostility to her because of her sex. Even if the
Court decided to follow Hopkins, Bozue’s failure to get the General Manager position on her
first try did not create objectively intolerable working conditions.
Thomas v. Cooper Indus., Inc., 627 F. Supp. 655 (W.D.N.C. 1986), also does not support
her argument. In Thomas, the North Carolina district court found that the plaintiff’s working
conditions were intolerable based on the employer shunning and humiliating her, ordering her to
do potentially illegal things, and refusing to consider raising her pay in order to force her to
resign. Id. at 663–64. Bozue’s evidence of unequal treatment by her supervisors and Mutual’s
denial of her promotion is simply not comparable.
Arthur Young & Co. v. Sutherland, 631 A.2d 354 (D.C. 1993), dealt with constructive
discharge due to a failure-to-promote under the District of Columbia Human Rights Act, rather
than Title VII or the MHRA. But even here, the plaintiff supported her constructive discharge
claim with strong evidence of discriminatory animus, including “numerous sexist comments . . .
directed toward her and other female employees, as well as the going-away party with the cake
in the shape of a [scantily clad] woman and the derogatory comments about women which were
made at that party.” Id. at 364. Bozue does not present similar evidence to show intolerable
working conditions, as she provides relatively minor examples of discriminatory conduct.
Finally, Wallace v. City of San Diego, 479 F.3d 616 (9th Cir. 2007), is inapplicable.
Wallace is a Uniformed Services Employment and Reemployment Rights Act (USERRA) case
involving disciplinary actions allegedly based on the plaintiff’s military status, holding little
precedential value for Bozue’s claim.
Bozue next argues that she could not remain in her job because there was no reasonable
chance that Mutual would resolve the alleged sex discrimination, citing Ogden v. Wax Works,
214 F.3d 999 (8th Cir. 2000), Nelson v. Wahpeton Pub. Sch. Dist., 310 F. Supp. 2d 1051 (D.N.D.
2004), and Streitz v. Juneau, 940 S.W.2d 548, 551 (Mo. Ct. App. 1997). Streitz is inapplicable,
as it is an unemployment benefits case. Streitz, 940 S.W.2d at 551. Ogden and Nelson dealt
with sexually harassing conduct such as unwelcome physical advances, physical and verbal
threats, and touching in private bodily areas, which the employers failed to address even after the
plaintiffs complained. Ogden, 214 F.3d at 1008; Nelson, 310 F. Supp. 2d at 1058.
Bozue did not suffer the same kinds of conduct as the plaintiffs in Ogden and Nelson, nor
did she report discriminatory conduct to Mutual when she had the chance. See id. Although she
alleges that she experienced discrimination throughout her tenure at Mutual, she never
complained to Mutual of sex discrimination. When Cochran told Bozue she was not selected for
the General Manager position, Bozue commented “good ole boys club” and asked Cochran if she
did not get the position because she was a woman, which Cochran denied. After hearing
Cochran’s response, Bozue never told Cochran that she disagreed or that she believed she was
the victim of discrimination. Over her entire tenure at Mutual, Bozue never made a formal
complaint of discrimination, despite knowing how to do so because of her extensive prior
experience working in human resources.
Bozue did not attempt to resolve her claims of discrimination with Mutual, therefore she
cannot claim that her working conditions were objectively intolerable because Mutual would not
do anything about the alleged discrimination. Davis, 421 F.3d at 706 (“An employee who quits
without giving [her] employer a reasonable chance to work out a problem has not been
constructively discharged.” (quoting Tidwell, 93 F.3d at 494)); Knowles v. Citicorp Mortgage,
Inc., 142 F.3d 1082, 1086 (8th Cir. 1998) (affirming summary judgment for employer on
constructive discharge claim because employee did not pursue internal grievance procedure).
In addition to presenting evidence that her working conditions were objectively
intolerable, Bozue must also show that Mutual could have reasonably foreseen that the
intolerable working conditions would cause her to quit. See Davis, 421 F.3d at 706. Bozue does
not present any evidence that Mutual could have foreseen her resignation.
Corpas did not want her to quit, and her resignation surprised Cochran. Cochran said in
his deposition that he “did not want to lose” Bozue and that he “thought she had potential to
really develop. [Cochran] thought [Corpas and Bozue] would make a good team. They would
complement each other and they would learn from each other.” Cochran Dep. 248:21–248:22,
249:4–249:10. Mutual even gave Bozue a $7,500 bonus in 2017, which she received after the
General Manager promotion decision and just several months before her resignation. This act
shows that Mutual did not intend or reasonably foresee that she would quit due to intolerable
working conditions. Bozue may have lost out on a promotion, but she still held a management
position at Mutual, supervising numerous insurance agents.
The Court concludes that the evidence presented by Bozue is insufficient to establish a
claim of constructive discharge. Mutual did not create objectively intolerable working
conditions for Bozue, nor could it have reasonably foreseen that Bozue’s working conditions
would force her to quit. Mutual is entitled to summary judgment on Bozue’s constructive
Accordingly, the Court grants Defendant’s  Motion for Summary Judgment.
So Ordered this 28th day of April, 2021.
STEPHEN R. CLARK
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?