Eley v. United States Department of Veterans Affairs ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-2782
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Stephen E. Eley, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
United States Department of Veterans *
Affairs, being sued as Veterans * [UNPUBLISHED]
Affairs/VAMC; Anthony J. Principi, *
Secretary, *
*
Appellees. *
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Submitted: April 6, 2004
Filed: April 9, 2004
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Before BYE, McMILLIAN, and RILEY, Circuit Judges.
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PER CURIAM.
Stephen E. Eley, an African American, appeals the district court’s1 adverse
grant of summary judgment in his Title VII action against his employer, the United
States Department of Veterans Affairs (VA), and VA Secretary Anthony Principi.
1
The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
Having carefully reviewed the record, see Jacob-Mua v. Veneman, 289 F.3d 517, 520
(8th Cir. 2002) (standard of review), we affirm.
When Eley returned from bereavement leave, he was admonished for being
absent without leave for 64 hours. He thereafter brought the instant lawsuit, claiming
race discrimination and retaliation, and alleging, as relevant to his appeal, that he had
not been properly credited for unused sick leave he had accumulated when he
previously held a government job, and thus the admonishment was unwarranted.
We agree with the district court that Eley failed to create a trialworthy issue as
to whether he was admonished under circumstances giving rise to an inference of race
discrimination. See Habib v. NationsBank, 279 F.3d 563, 566 (8th Cir. 2001)
(elements of prima facie case); Moody v. St. Charles County, 23 F.3d 1410, 1412 (8th
Cir. 1994) (to defeat summary judgment, party must substantiate allegations with
sufficient probative evidence that would allow finding in party’s favor on more than
just speculation). Instead, the record indicates that before Eley left for his
bereavement leave, he did not verify that he had been credited with enough unused
sick leave to cover the leave he intended to take, and he did not communicate to
anyone the length of time he planned to be absent. Further, the evidence concerning
the treatment of Eley’s Caucasian co-workers does not help him, as nothing in the
record showed that these employees took extended bereavement leave with
insufficient accumulated sick and annual leave on the books, or that they did not
complete the proper leave-request forms or at least orally notify their supervisors how
much leave they proposed to take. See Marquez v. Bridgestone/Firestone, Inc., 353
F.3d 1037, 1038 (8th Cir. 2004) (per curiam) (plaintiff must point to individuals who
dealt with same supervisor, were subject to same standards, and engaged in same
conduct without mitigating or distinguishing circumstances).
As to the retaliation claim, even if Eley’s immediate supervisor and the
department supervisor knew of his previous protected activity, see Woodland v.
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Joseph T. Ryerson & Son, Inc., 302 F.3d 839, 845 (8th Cir. 2002) (prima facie case
of retaliation), a reasonable jury could not conclude from the record below that there
was a causal connection between this protected activity and Eley’s admonishment,
see Kipp v. Mo. Highway & Transp. Comm’n, 280 F.3d 893, 896-97 (8th Cir. 2002)
(evidence that gives rise to inference of retaliatory motive is sufficient to establish a
causal link, but interval of two months between protected activity and adverse
employment action was insufficient to support such inference), given that the decision
makers were not involved in the events underlying Eley’s earlier complaint and
settlement, and that Eley was not disciplined until four months after the earlier
settlement. Moreover, even assuming that Eley established a prima facie case of
retaliation, Eley did not offer evidence showing that defendants’ reason for
admonishing him--Eley’s failure to verify that he had enough accumulated leave 2 to
cover the amount of bereavement leave he intended to take, and to communicate to
his supervisors the amount of time he planned to be gone--was pretextual, see Peebles
v. Potter, 354 F.3d 761, 770 (8th Cir. 2004).
Finally, Eley’s assertion regarding his counsel’s representation in the district
court is not a basis for reversal. See Glick v. Henderson, 855 F.2d 536, 541 (8th Cir.
1988) (there is no constitutional or statutory right to counsel in civil case).
Accordingly, we affirm.
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2
After the admonishment, Eley was credited with 80 hours of unused sick time,
but he could not have used it for the bereavement leave at issue here. See 5 U.S.C.
§ 6307(d)(3)(A).
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