Roberta Hollins and the Equal Employment Opportunity Commission appeal the district court’s 1 grant of summary judgment in favor of defendant Con-Way Freight, Inc. The EEOC filed this action claiming that Con-Way failed to hire Ms. Hollins because of her race in violation of Title VII of the Civil Rights Act of 1964, see 42 U.S.C. §§ 2000e to 2000e-17. After the court allowed Ms. Hollins to intervene, she added claims of race discrimination in violation of 42 U.S.C. § 1981 and Missouri state law. We affirm the district court’s grant of summary judgment in favor of Con-Way on the federal claims and remand the state-law claim with directions to dismiss it without prejudice.
Ms. Hollins heard from a friend about a possible job opening at Con-Way’s office in Poplar Bluff, Missouri. Her friend’s husband, who worked for Con-Way, arranged for Ms. Hollins to meet with the branch’s service center manager, Kenneth Gaffney. Mr. Gaffney told Ms. Hollins *935 that he was seeking permission from the region manager, Kevin Beer, and the vice president of operations to create a position for a part-time customer service representative. He interviewed Ms. Hollins for the job and had her complete an application, on which she disclosed two misdemeanor shoplifting convictions. Mr. Gaffney promised to let her know when he obtained authorization to create the position.
Mr. Gaffney testified that he was very impressed by Ms. Hollins and very interested in hiring her. In a discussion with Mr. Beer about adding the customer-service position, Mr. Gaffney said that he had the “ideal candidate” in Ms. Hollins. Mr. Beer, upon learning that Ms. Hollins was black, cautioned Mr. Gaffney that he would be “opening up a can of worms” by hiring her and that he “probably [didn’t] want to go that route.” After Mr. Gaffney obtained approval to interview candidates and select one for the job, he again interviewed Ms. Hollins and post-dated her original written application. During the second interview, Mr. Gaffney asked Ms. Hollins how she would respond if derogatory racial comments were made in the workplace and stated, “When I told my boss about you, he told me not to hire you because if I hired you that I was just asking for the NAACP.” After completing the interviews, Mr. Gaffney decided that Ms. Hollins and another applicant, Angela Patterson, who is white, were his best candidates. He preferred Ms. Hollins, but testified that he continued to consider Ms. Patterson in order to have a “backup plan.” Each woman attested that Mr. Gaffney had told her individually that she (the affiant) had the job. Mr. Gaffney told Ms. Hollins that he had gone “to bat for [her]” and that the position was hers.
Mr. Gaffney then violated company policy by sending Ms. Hollins and Ms. Patterson to be drug tested. Con-Way’s hiring policy states that a manager is not authorized to send a candidate for a drug test or to make a conditional offer of employment until the personnel department runs a criminal background check and approves the chosen candidate. If the personnel department disqualifies a candidate based on the background check, the candidate cannot be hired. The personnel department, pursuant to company policy, automatically disqualified any candidate with a theft-related conviction on her application or background check.
Before choosing a candidate to submit to the personnel department for consideration, Mr. Gaffney was terminated. When Ms. Hollins did not hear from Mr. Gaffney about the drug-test results, she called his office and learned that he was no longer there; Mr. Beer answered the phone and said that he was the region manager and was not doing any hiring at that time. When she told him that she had already been hired and had taken a drug test, he said that he knew nothing about that and would “check into it and get back to [her],” but she did not hear from him. When she called again, an employee whom she had met during the interview process told her that if Mr. Gaffney was replaced, she would “make sure [Ms. Hollins’s] application was on top.”
Some time later, Anthony Godwin contacted Mr. Gaffney’s replacement, Gary Sellers, and told him that Mr. Gaffney had promised him the job as a part-time customer-service representative. After Mr. Sellers received approval to fill the position, he interviewed and hired Mr. Godwin. Ms. Hollins then filed a complaint with the EEOC that ultimately resulted in this lawsuit.
On all of the plaintiffs’ claims, the district court held that there was no direct evidence of race discrimination because Mr. Gaffney continued to consider Ms. Hollins for the position even after Mr.
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Beer’s comment about “opening up a can of worms” by hiring her, and because Mr. Gaffney’s replacement was unaware of Ms. Hollins’s application when he hired Mr. Godwin. The court also held that the plaintiffs’ federal claims could not succeed under the
McDonnell Douglas Corp. v. Green,
We review a district court’s grant of summary judgment
de novo. Phillips v. Mathews,
I.
Because the plaintiffs’ Title VII claim and Ms. Hollins’s § 1981 claim rely on “parallel, substantially identical, legal theories of recovery,” we analyze them in the same way.
Kim v. Nash Finch Co.,
The plaintiffs maintain that Con-Way’s evidence did not establish the existence of their alleged policy regarding theft-related convictions as a matter of law, but we believe that a reasonable jury would have to conclude that such a policy was in place. Con-Way produced evidence that within the span of eighteen months it had disqualified twenty-eight applicants solely because of theft-related convictions; that no employees working at the Poplar Bluff service center had convictions on their record; and that its designated corporate representative had personally disqualified “dozens and dozens” of applicants because of theft-related convictions. The plaintiffs argue that a reasonable jury could conclude that the policy did not exist because it was not in writing, but they do not cite *937 any legal authority for the proposition that a policy must be in writing to be effective.
The plaintiffs also point to a comment that Mr. Gaffney made to Ms. Hollins that she should not worry about the misdemeanor convictions because Con-Way “won’t go back that far” anyway. The district court excluded this statement as inadmissible hearsay, but the plaintiffs argue that it constitutes a party admission under Fed.R.Evid. 801(d)(2)(D). We have held that party admissions must concern a matter within the scope of employment of the person making the statement.
See Ahlberg v. Chrysler Corp.,
The EEOC contends that under 42 U.S.C. § 2000e-5(g)(2)(B), Con-Way’s policy regarding theft-related convictions, even if proven, would limit the plaintiffs’ available remedies but could not serve as a complete defense to liability. Section 2000e-5(g)(2)(B) provides that if a defendant can “demonstrate[ ] that it would have taken the same [employment] action in the absence of the impermissible motivating factor,” the plaintiffs’ available remedies are restricted to declaratory and injunctive relief and certain attorney’s fees. Section 2000e-2(m), enacted concurrently with § 2000e-5(g)(2)(B), provides an alternative way for plaintiffs to establish a Title VII violation — the mixed-motive approach — in addition to the single-motive approach available under § 2000e-2(a).
See Fogg v. Gonzales,
The plaintiffs’ attempts to establish a
prima facie
case under
McDonnell Douglas
fail for a similar reason. The
McDonnell Douglas
burden-shifting framework requires a plaintiff to establish a
prima facie
case of discrimination by proving that she is a member of a protected class, was qualified for the position that she sought, and was denied the position in favor of
*938
someone outside the protected class.
Dixon v. Pulaski County Special Sch. Dist.,
II.
Ms. Hollins also maintains that Con-Way discriminated against her in violation of the Missouri Human Rights Act (MHRA).
See
Mo.Rev.Stat. §§ 213.010 to 213.137, 213.041. Section 213.055.1(1)(a) prohibits an employer from failing to hire or otherwise discriminating against an individual based on race. The Missouri Supreme Court has observed that the MHRA’s “safeguards are not identical to the federal standards and can offer greater discrimination protection.”.
Daugherty v. City of Maryland Heights,
Viewing the facts in the light most favorable to the plaintiffs, Mr. Beer and Mr. Gaffney discussed Ms. Hollins’s race, in the context of discussing applicants for the open position, as a reason not to offer her the job. Further, Mr. Gaffney testified that he would have submitted Ms. Hollins’s name to fill the open position and begun the process of hiring her if his superior, Mr. Beer, had not discouraged him from hiring a black person. But Ms. Hollins does not claim that this discriminatory conduct, if proved, would be actionable: Her claim is that Con-Way denied her a position because of her race.
After careful study, we are unsure how the Missouri courts would view this claim. For one thing, it is unclear whether those courts would regard Ms. Hollins’s ultimate ineligibility as a potential supervening cause of Con-Way’s failure to hire her, so that any contribution to the causal mix that Mr. Gaffney’s improper motive might have made to that failure would have been cut off. For another thing, even assuming that this claim could survive the causation difficulty, we have discovered no guidance in the Missouri law on what kinds of damages a claim of this sort could support since Ms. Hollins would not have been hired anyway. In the circumstances, we think that the better course is to allow the state courts to decide the matter since “the claim raises ... novel [and] complex issue[s] of State law.” 28 U.S.C. § 1367(c)(1);
Gregory v. Dillard’s, Inc.,
III.
For the reasons indicated, we affirm the judgment of the district court on the federal claims and remand Ms. Hollins’s state-law claim with directions to dismiss it without prejudice.
Notes
. The Honorable Carol E. Jackson, United States District Judge for the Eastern District of Missouri.