Nancy Heisler v. Nationwide Mutual Insurance Co

United States Court of Appeals
For the Eighth Circuit
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No. 18-1588
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Nancy Heisler
lllllllllllllllllllllPlaintiff - Appellant
v.
Nationwide Mutual Insurance Company
lllllllllllllllllllllDefendant - Appellee
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Appeal from United States District Court
for the Southern District of Iowa - Central Division
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Submitted: May 14, 2019
Filed: July 30, 2019
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Before BENTON, WOLLMAN, and GRASZ, Circuit Judges.
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GRASZ, Circuit Judge.
Nancy Heisler sued her employer, Nationwide Mutual Insurance Company
(“Nationwide”), alleging discrimination against her on the basis of her sex and her
age. The district court1 granted summary judgment to Nationwide, and Heisler
appeals. We affirm.
I. Background
Heisler is a Certified Public Accountant who has worked for Nationwide
through its subsidiary companies in Des Moines, Iowa, since November 1985. She
began in a subsidiary company that was then called Farmland Insurance. From 1986
until 2002, she worked on an hourly contract basis. In the late 1990s, when
Nationwide acquired Allied Insurance (“Allied”), Nationwide moved Wendell
Crosser from Allied to Farmland Insurance to become the Chief Financial Officer and
Heisler’s new boss. Eventually, Crosser moved back to a position at Allied and
recruited Heisler to join him. Heisler started working at Allied as a special projects
employee with varied hours and eventually converted to a full-time salaried position
in 2003.
After Heisler joined Crosser at Nationwide’s Allied division, she was gradually
promoted. In April 2003, she was a “Director, Management Report Analysis” with
an annual salary of $93,000. In March 2005, Nationwide promoted her to Financial
Business Director. In April 2005, Nationwide promoted her to Finance Officer. In
March 2008, Nationwide changed all Finance Officer positions, either demoting them
to “H-band” titles or promoting them to Associate Vice President (“AVP”) depending
on the position. It determined that Heisler’s position was an AVP position and
promoted her accordingly. Her job duties did not significantly change from 2005
through 2012. Her salary, at least as of 2011, was approximately $139,700.
1
The Honorable Stephanie M. Rose, United States District Judge for the
Southern District of Iowa, adopting the report and recommendation of the Honorable
Helen C. Adams, Chief Magistrate Judge, United States District Court for the
Southern District of Iowa.
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In July 2011, Heisler applied to be a vice president (“VP”) of multi channel
finance. Her interviewers included Crosser. At least two other individuals applied:
Angie Klett and Eric Ryan. Nationwide ultimately hired Klett.
In the fall of 2011, Crosser approached Heisler about a VP job that would be
open in Harleysville, Pennsylvania when Nationwide completed an acquisition there.
She told Crosser she would want a significant increase in compensation in order to
move because the cost of living in Harleysville (a suburb of Philadelphia) was 58%
higher than the cost of living in Des Moines. In particular, she indicated she wanted
an increase in her base salary from $139,700 to $220,000. Crosser discussed salary
options with human resources (“HR”), but before any concrete results came from that
discussion, the hiring manager hired another employee, Mark Beres, for the position.
Crosser then attempted to obtain an AVP position for Heisler in Harleysville.
Nationwide eventually gave her an offer for the AVP position with a base salary of
$150,879 and $15,000 in supplemental income. Heisler sent an e-mail to Crosser and
Beres indicating she was disappointed the offer was so far below her request and that
she would like at least $25,000 more in base salary or supplemental income before
she accepted the offer. Her disappointment was motivated in part by the fact her base
income in Des Moines was already set to increase to $146,688 in the near future.
Crosser was upset by her response. He went to her office to angrily tell her, “[i]f
you’re not going to take the job, don’t bother going to Harleysville,” and then
cancelled her planned trip to Harleysville with him. He also apparently told Beres not
to respond to her e-mail and that Heisler was no longer interested in the position.
Neither he nor Beres ever formally responded to her request. Crosser also
complained about Heisler’s e-mail to several people at Nationwide who were not
involved in the hiring decisions for Harleysville.
Nationwide eventually announced it hired Keith Graham, a younger male, for
the AVP position in Harleysville. Graham accepted an offer of $132,000 annual
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income with no supplemental income. Beres and Graham discussed the option of
Graham commuting from Ohio instead of moving to Pennsylvania, but Graham had
to accept the offer without any commitment from Beres on the commuting option.
After Crosser’s hostile reaction to Heisler’s compensation request, her
relationship with him declined. She approached him about future career
opportunities. He offered to pay for an executive coach to help improve her career,
but Nationwide ultimately refused to pay for Heisler’s preferred coach who was not
on Nationwide HR’s list of approved coaches. Crosser also offered the feedback that
Heisler was “too direct” and “lacked political savvy.” He recounted an example of
her asking the CFO about challenging one of the CEO’s decisions not to use
comparisons to competitors.2 Heisler believed (and argues here) that this feedback
about her communication was merely code for her being a female who declined
Crosser’s offer.
In early 2012, Heisler’s attempts to obtain new positions within the company
also failed. She applied for a VP level position and three AVP level positions,
including an AVP level position where Crosser was the hiring manager. She was
rejected from several of them and had to withdraw from the remaining ones due to an
intervening family issue.
In May 2012, the company effectively demoted Heisler. It rearranged the
reporting structure in Allied to make several of Crosser’s subordinates, including
Heisler, report to Ryan. Then, Nationwide’s HR department reassessed Heisler’s
position and reclassified her as a Senior Director, not an AVP. The new classification
had an effective date of July 1, 2013. Heisler complained to Connie McVey, an HR
2
The incident occurred in a meeting where Heisler was pitching a study
comparing Nationwide to competitors. Ryan, who was also at the meeting, agreed the
remark lacked political savvy but did not think it as bad of a moment as Crosser did.
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employee, about what Heisler believed was inaccurate information involved in the
reclassification. HR retained the classification of Heisler’s position as Senior
Director.
Over the next two years, Heisler’s attempts to transfer to another AVP role
were unsuccessful. Between June 2012 and May 2013, Heisler inquired about several
AVP roles but was discouraged from applying for various job-specific reasons. Then,
she applied to four AVP positions and expressed interest in the CFO position at
Nationwide’s Titan division between May 2013 and fall of 2014. She was rejected
from the four positions, and the Titan CFO job posting was removed shortly after she
expressed interest. Crosser was the hiring manager for the Titan CFO position.
In the fall of 2014, Nationwide reorganized its Property and Casualty Finance
Department and scheduled elimination of seven positions, including Heisler’s Senior
Director position. Nationwide encouraged displaced employees to apply for positions
created by the reorganization.
In October of 2014, Heisler applied for three open AVP positions under Klett:
AVP, Finance, Agency Field; AVP, Finance, Property Management & Accounting;
and AVP, Product. Several managers, including the relevant supervisor Klett and two
other managers who knew Heisler (Crosser and Butler) interviewed candidates for all
three positions at once. They hired Peter Rothermel for the first role, Mark Dielman
for the second role, and Renae French for the third role. The hired applicants were
two younger males and one younger female, respectively. Heisler believed Ryan was
wrongly rejected from the AVP, Finance, Agency Field role and should have been
hired for that position.3 Heisler believed she was more qualified than Dielman and
French for the second and third roles. She claims all three of these rejections were
discriminatory.
3
Ryan was rejected from all three positions, and he relocated to Des Moines to
take a lower level Director position.
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On November 1, 2014, Heisler applied to be an AVP, Staff Administration.
She was rejected in favor of a younger female, and she argues this, too, was
discriminatory.
On November 14, 2014, Heisler complained to HR that Nationwide was
discriminating against her because of her age and gender. HR’s director of the Office
of Associate Relations Compliance investigated the complaints. After interviewing
several people in the company, he concluded that age and gender had not played a
role in the adverse actions toward Heisler.
Heisler’s subsequent applications fared no better. Between the time of her
complaint in November 2014 and March 5, 2015, Heisler applied for ten different
roles and was apparently rejected from all ten of them. She contests three of those
rejections as discriminatory. For two jobs in particular, the hiring manager’s notes
indicated that Crosser said Heisler “had attitude issues.”
On March 5, 2015, Nationwide eliminated Heisler’s senior director position.
Although this was a termination date, the company placed her on unpaid
administrative leave because she was under consideration for other positions.
Heisler’s applications also continued during her administrative leave. She
applied to be an AVP, Sales Strategy & Performance. She was not interviewed for
the position. She does not challenge this denial as discriminatory.
In April 2015, Heisler applied to be a Senior Consultant, Finance. On April 21,
2015, Butler offered Heisler the Senior Consultant, Finance position. Because
Heisler’s previous base salary of $148,210.95 exceeded the maximum for Senior
Consultants, Butler also noted in the offer letter that Heisler’s salary would be
adjusted to the “MRV” high for the new position after approximately one year. Ryan
and two other associates also received salary reductions due to acquiring lower level
positions after the reorganization.
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In June 2015, Heisler filed a formal charge of discrimination with the Iowa
Civil Rights Commission. No one disputes that Heisler was eventually authorized to
sue on that charge.
After starting the Senior Consultant position, Heisler continued applying for
more senior roles. In July 2015, Heisler applied to be an AVP, Finance. The hiring
manager was Klett. When asked for an example of a time she was unsuccessful and
what she would do differently, Heisler used her previous three rejections from Klett
as an example. Klett selected Dielman. Heisler alleges this rejection was
discriminatory.
In October 2015, Heisler sued Nationwide in federal court, alleging seven
counts: (1) discrimination based on sex, in violation of Title VII of the Civil Rights
Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-2; (2) discrimination based on age, in
violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C.
§§ 621–634; (3) unequal pay, in violation of the Equal Pay Act of 1963, 29 U.S.C.
§ 206(d); (4) retaliation, in violation of Title VII, 42 U.S.C. § 2000e-3(a); (5)
retaliation, in violation of the ADEA, 29 U.S.C. § 623(d); (6) retaliation, in violation
of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 215; and (7) sex
discrimination and unequal pay, in violation of the Iowa Civil Rights Act (“ICRA”),
Iowa Code § 216.1–216.21.
In December 2015, Heisler applied to be an AVP, Staff Administration.
Nationwide hired a younger female. Heisler argues this rejection was discriminatory.
In February 2016, Heisler had a performance review with Dielman, her direct
supervisor. He rated her as a high three out of five, which was considered
“Successful.” She responded with an e-mail over four pages in length, single-spaced,
debating all of the feedback in the report.
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In June 2016, Heisler amended her complaint with leave of court to add the
new relevant facts, including alleging the denial of the December 2015 job was
discriminatory. She apparently never obtained another position besides the Senior
Consultant position.
In April 2017, Nationwide moved for summary judgment on all claims. A
magistrate judge recommended granting the motion. Heisler filed objections. She
also moved to supplement the record. The district court overruled the objections,
denied the motion to supplement the record, and granted summary judgment. Heisler
timely appealed.
II. Analysis
Because many of Heisler’s arguments concern facts applicable to multiple
claims, we first review (1) the relevant law and statutes of limitations. We then
address (2) her arguments regarding the summary judgment standard collectively,
followed by (3) her individual arguments regarding protected conduct for her
retaliation claim, (4) the burden of proof for demonstrating pretext in a discrimination
claim, and (5) her motion to supplement the record in the district court.
A. Relevant Law
To establish discrimination on the basis of sex under Title VII or discrimination
on the basis of sex or age under ICRA, a plaintiff needs to show that her employer
discriminated against her with respect to the terms and conditions of employment on
the basis of the relevant impermissible category. See 42 U.S.C. § 2000e-2; Iowa
Code § 216.6(1)(a). In cases such as this one where no direct evidence of
discrimination exists, the McDonnell Douglas framework for indirect evidence
applies. See Grant v. City of Blytheville, 841 F.3d 767, 773 (8th Cir. 2016) (citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). First, the plaintiff has the
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burden of making a prima facie case of discrimination. Id. If she makes a prima facie
case, the employer has the burden of articulating a legitimate, nondiscriminatory
reason for the adverse employment action. Id. If the employer meets this burden,
then the plaintiff has the burden to produce evidence that the proffered
nondiscriminatory reason is a pretext for discrimination. Id. Despite this shifting of
the burden of production, the “plaintiff at all times bears the ‘ultimate burden of
persuasion.’” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993). Nationwide
conceded that Heisler established a prima facie case of sex and age discrimination,
but argued it had legitimate non-discriminatory reasons for its adverse acts against
her.
To establish retaliation under Title VII or the FLSA, Heisler must show
“(1) . . . she engaged in statutorily protected activity; (2) an adverse employment
action was taken against . . . her; and (3) a causal connection exists between the two
events.” Green v. Franklin Nat’l Bank of Minneapolis, 459 F.3d 903, 914 (8th Cir.
2006) (quoting Gilooly v. Mo. Dep’t of Health & Senior Servs., 421 F.3d 734, 739
(8th Cir. 2005)); see also Montgomery v. Havner, 700 F.3d 1146, 1148–49 (8th Cir.
2012) (applying the same test to the FLSA). Nationwide did not concede a prima
facie case on the retaliation claims. These claims are also considered under the
shifting burden of production of the McDonnell Douglas framework. See Green, 459
F.3d at 914; Grey v. City of Oak Grove, 396 F.3d 1031, 1034 (8th Cir. 2005).
The ADEA has similar elements to Title VII for any claim for discrimination
or retaliation. Grant, 841 F.3d at 773. While we have applied McDonnell Douglas
to ADEA claims when addressing them along with other discrimination claims, it is
unclear whether McDonnell Douglas technically applies to the ADEA because the
ADEA has a “but-for” causation standard rather than the mixed motives standard used
in other statutes. See Ridout v. JBS USA, LLC, 716 F.3d 1079, 1083 (8th Cir. 2013)
(noting the different standards). It is clear, though, that a plaintiff who fails to meet
the lower standard of Title VII or ICRA necessarily fails to meet the ADEA’s
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standard as well. See id. Accordingly, we discuss the claims first in light of the
McDonnell Douglas framework and need not reach the ADEA’s separate burden if
no claim survives McDonnell Douglas.
“To establish a claim of sex-based wage discrimination under the Equal Pay
Act or [ICRA] ‘a plaintiff must show by a preponderance of the evidence that (1) she
was paid less than a male employed in the same establishment, (2) for equal work on
jobs requiring equal skill, effort, and responsibility, (3) which were performed under
similar working conditions.’” Dindinger v. Allsteel, Inc., 853 F.3d 414, 421–22 (8th
Cir. 2017) (footnote omitted) (quoting Hunt v. Neb. Pub. Power Dist., 282 F.3d 1021,
1029 (8th Cir. 2002)).
We also note the statutes of limitations prevent Heisler from asserting some
relevant conduct as actionable conduct. Under Title VII, the ADEA, and ICRA,
Heisler had to file her charge within 300 days of the alleged unlawful employment
practice. 42 U.S.C. 2000e-5(e)(1); 29 U.S.C. § 626(d)(1)(B); Iowa Code
§ 216.15(13). Because she filed her formal charge in Iowa in June 2015, she agreed
her actionable claims under those statutes were limited to actions on or after August
10, 2014. Under the FLSA or the EPA, Heisler had to file her claims of pay
discrimination within two years of alleged disparate pay or within three years of
alleged willful disparate pay. 29 U.S.C. § 255(a). Because she filed her complaint
on October 8, 2015, and because she does not argue willfulness, her actionable claims
under the EPA are limited to disparate pay on or after October 8, 2013. No one
appears to dispute the timeliness of any potential retaliation claim under the FLSA.
Thus, while we discuss facts outside of these dates to examine Nationwide’s motives
in later actions, only the actions within these time constraints are cognizable claims.
In light of the statutes of limitations, Heisler challenges only timely acts as part
of her claims for discrimination or retaliation. She particularly asserts discriminatory
action in rejections from nine jobs: the three positions from her October 2014
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interview; the AVP, Staff Administration position in early November 2014; a director
and a consultant position in November 2014, a consultant job in February 2015, an
AVP job reporting to Klett that she interviewed for in July 2015, and an AVP position
in December 2015. She also asserts that her performance review in 2016 was an
adverse employment action. She similarly limits her EPA claim data to timely
information.
B. Arguments Regarding the Summary Judgment Standard
Four of Heisler’s issues on appeal essentially contest whether the district court
violated the summary judgment standard. Because she raises many arguments under
each heading, we address the most significant arguments first. “This court reviews
de novo a grant of summary judgment.” Torgerson v. City of Rochester, 643 F.3d
1031, 1042 (8th Cir. 2011) (en banc).
At the outset, viewing the record in Heisler’s favor produces one observation
necessary to reviewing all of her arguments: the record indicates any pretext in
Nationwide’s proffered reasons for adverse acts was masking the fact one of its
supervisors, Crosser, disliked his employees being direct. One can understand
Heisler’s sense of unreasonable treatment stemming from Crosser’s overreaction to
Heisler’s e-mail about the Harleysville job. Nevertheless, there is no evidence in the
record suggesting that age or gender motivated Crosser. Ryan testified that he, too,
had been criticized for being too direct. He suffered a demotion, like Heisler, even
though he was more agreeable about moving between offices to take different
positions. Nationwide’s treatment of a younger male like Ryan is the clearest
example of a record reflecting a displeased manager rather than discrimination based
on age or gender. Hostile treatment by a manager based on employee conduct and not
motivated by any protected characteristic or conduct, even if unreasonable, does not
amount to a legally actionable type of discrimination.
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Several of Heisler’s main arguments address the individual job rejections she
contends were discriminatory. Her more particular arguments still fail to show
anything more than speculation is possible based on this summary judgment record.
One of Heisler’s principal arguments on appeal concerns whether the district
court inferred facts in Nationwide’s favor when discussing her rejection from three
positions after an interview on October 11, 2014, with Crosser and others. Our
review of the record supports the district court’s description of Nationwide’s
proffered reasons for rejection, and it appears Heisler’s true grievance is the district
court’s conclusion about whether she could show those statements were pretext.
We agree with the district court that Heisler cannot meet her burden for these
three positions on this record. “[T]o support a finding of pretext, the applicant must
show that [the employer] hired a less qualified applicant.” Torgerson, 643 F.3d at
1049 (first alteration in original) (quoting Kincaid v. City of Omaha, 378 F.3d 799,
805 (8th Cir. 2004)). She makes a plausible argument that she was more qualified for
the first position than was Rothermel, but even if that were true, she undermined that
argument by her admission that Ryan (a younger male) was the most qualified for the
same position. On the other two positions, she introduced too little evidence to prove
her qualifications. There is at least a potential she was the most qualified candidate
for the third position because she noted, and Nationwide apparently does not dispute,
that she had more AVP-level experience than French. The record seems to indicate
Ryan had as much AVP-level experience as Heisler, though, which would undermine
her argument that the pretext here was pretext for age or gender discrimination.
Instead, it again appears more likely that Crosser was influencing the hiring process
against certain applicants. Thus, the district court was correct that Heisler failed to
meet her burden of proof on these positions because she introduced sparse evidence
and because Ryan’s similar rejection from all three positions undercuts any allegation
of age or gender bias.
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Heisler next argues the district court erred by finding it was immaterial whether
she was interviewed for the AVP, Staff Administration position in early November
2014. The district court concluded the dispute was material to whether Nationwide
offered a false reason for rejecting her (failing an initial interview), but it also
concluded there was no indication any false statement was pretext for age or gender
bias. Regardless of whether Heisler was interviewed, it is undisputed Heisler was not
in the final round of interviews. Heisler did not offer evidence to show all of the final
candidates were younger or less qualified, nor did she offer any other basis to
conclude her elimination from consideration was due to age or gender. Thus, even
if the interview issue were genuinely relevant, there is no material dispute about
whether Heisler’s rejection was based on age or gender.
Heisler argues the district court errantly accepted Nationwide’s stated reasons
for rejecting her for the Financial Business Director and Senior Consultant positions
in November 2014. Three people, including Crosser, told the hiring manager not to
hire her. In view of that fact, her argument again fails because she cannot show
Crosser’s actions against her were based on age or gender, and Crosser’s advice is a
nondiscriminatory reason for the hiring manager to reject her for both positions.
Heisler argues the district court erred by stating that she was rejected from an
AVP, Finance position in July 2015 due to using dated examples in interview
questions. The district court also noted that Klett rejected Heisler for citing past
rejections from Klett in response to Klett’s question about a time she was
unsuccessful. Even if Heisler did not use old work examples in response to interview
questions, the district court cited sufficient other evidence to show that the interview
went poorly, and Heisler did not submit any contrary evidence. Thus, any error by
the district court here was not reversible error.
Heisler argues the district court erred when it found the mediocre 2015
performance evaluation given in 2016 was not an adverse employment action. The
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district court alternatively found that, even if the evaluation were an adverse act, there
is no evidence the evaluation was motivated by age or gender discrimination.
Because Heisler does not challenge that conclusion, we affirm on the unchallenged
ground.
Heisler raises no arguments on appeal regarding the two remaining rejections
she argued were discriminatory. Thus, we do not address those positions.
Heisler’s arguments regarding her remaining discrimination claims based on
pay disparity are waived. She makes four pay-related arguments in the brief,
separately arguing about four potential comparators. She waived her claim regarding
three of them in the summary judgment briefing, and she previously conceded the
fourth was not a valid comparator. Thus, none of those arguments are cognizable on
appeal.
Beyond those main issues, Heisler makes a number of meritless arguments.
Several mischaracterize the district court’s order. Others are foreclosed by her own
admissions and waivers. A few arguments do not concern anything prejudicial to her
claim. We are unpersuaded by any of them.
Heisler finally tries to survive summary judgment through three arguments that
aggregate her various allegations. First, she argues the district court improperly
considered each event “in a vacuum” rather than examining a pattern of
discrimination. She cites two Eighth Circuit cases about aggregating adverse acts to
suggest the court should find an aggregate pattern of discrimination. See Phillips v.
Collings, 256 F.3d 843, 849 (8th Cir. 2001); Kim v. Nash Finch Co., 123 F.3d 1046,
1060 (8th Cir. 1997). Neither cited case is on point because there is no dispute that
adverse acts occurred here, but instead there is a dispute about whether adverse acts
were motivated by age or gender. No case supports aggregating instances of possible
discrimination to establish probable discrimination. Second, she argues she should
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have been allowed to use the “cats’ paw” theory of liability throughout the case by
showing that adverse acts were motivated by Crosser even if the final decision maker
was someone other than Crosser. The district court’s order does not reject her theory
of Crosser’s animus, though, except on whether Crosser was motivated by age or
gender. She presents no other evidence or argument here about his motivations.
Finally, she argues that a case with a complex factual pattern like this one is
inappropriate for summary judgment, but her only citation is to a pre-Celotex case in
this circuit that does not accurately reflect the current standard for summary
judgment. See, e.g., Torgerson, 643 F.3d at 1042 (providing the current standard for
summary judgment); see also Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)
(“Summary judgment procedure is properly regarded not as a disfavored procedural
shortcut, but rather as an integral part of the Federal Rules as a whole.”). Thus, we
see no error in the district court’s handling of these cumulative issues.
After reviewing all of Heisler’s arguments about compliance with the summary
judgment standard, we see no material errors in the district court’s application of the
summary judgment standard.
C. Protected Conduct
Heisler argues her e-mail to Connie McVey in HR was protected conduct and
that, as a result, her retaliation claims date back to 2013. Opposing a company
practice is only protected conduct supporting a retaliation claim if the plaintiff “had
a ‘good faith, reasonable belief that the underlying challenged conduct [was
unlawful].’” Brannum v. Mo. Dep’t of Corr., 518 F.3d 542, 547 (8th Cir. 2008)
(quoting Bakhtiari v. Lutz, 507 F.3d 1132, 1137 (8th Cir. 2007)). The e-mail in
evidence shows that Heisler complained to McVey about her managers
misrepresenting her job role and unfairly demoting her to senior director. The
message asserts an inaccurate portrayal of her role in the company, not discriminatory
conduct. She did not tell McVey of any unlawful employment practice that would
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support retaliation, nor could Heisler have reasonably believed the inaccurate
portrayal was unlawful. Thus, the district court was correct that the statements to
McVey were not protected conduct.
D. Standard of Proof for Pretext
Heisler argues that the district court imposed a heightened standard for finding
pretext. The district court’s one imposition of a higher standard was just an
observation that Heisler had to show illegal discrimination was a “but-for” cause to
satisfy the ADEA’s stricter standard for age discrimination. Although Title VII and
ICRA allowed mixed motives in the pretext analysis, the ADEA does not. Tusing v.
Des Moines Indep. Cmty. Sch. Dist., 639 F.3d 507, 514 (8th Cir. 2011); see Grant,
841 F.3d at 773 (applying the mixed motives analysis of McDonnell Douglas to Title
VII). Thus, the ADEA standard is a heightened standard for pretext, but it is an
appropriate one for her ADEA claims.
Beyond the ADEA claims, we see no evidence the district court imposed a
heightened standard of pretext. As explained above, Heisler might have been more
qualified than the candidates hired for the three positions in October 2014, but we
lack sufficient information in this record to reach that conclusion. Her repeated
uncited references in her briefs to her experience only confirm the record lacks the
needed evidence. She is correct that one method of proving pretext is showing no
basis in fact for Nationwide’s purported motives. See Torgerson, 643 F.3d at 1047.
But there is evidence of awkward interviews and some unsavvy conduct, which is at
least an arguable basis for Nationwide’s purported motives. She needed to use the
qualifications comparison evidence to prove pretext, and she did not introduce
enough evidence to meet her burden in that way.
Accordingly, we affirm the district court’s judgment that Heisler failed to meet
her burden of production to show pretext.
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E. Motion to Supplement the Record
Heisler argues the district court erred in not granting her motion to supplement
the record. Both statute and the Federal Rules provide that a district judge may
receive further evidence when reviewing a magistrate judge’s order. 28 U.S.C.
§ 636(b)(1)(C); Fed. R. Civ. P. 72(b)(3). Heisler was belatedly trying to add evidence
she should have introduced six months earlier. Her realization after reading the
magistrate judge’s recommendation that she had failed to introduce all of the
evidence she needed to survive summary judgment is not a particularly persuasive
ground for convincing a district court to accept new evidence. The district court was
free to accept further evidence, but it was under no obligation to permit a party to fix
its own errors in compiling the summary judgment record.
III. Conclusion
For the foregoing reasons, we affirm the judgment of the district court.
______________________________
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