Bunch v. University of Arkansas Board of Trustees

United States Court of Appeals
For the Eighth Circuit
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No. 16-2538
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Gloria A. Bunch
lllllllllllllllllllll Plaintiff - Appellant
v.
University of Arkansas Board of Trustees
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
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Submitted: January 11, 2017
Filed: July 24, 2017
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Before RILEY,1 Chief Judge, LOKEN and BENTON, Circuit Judges.
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RILEY, Chief Judge.
Gloria Bunch appeals the grant of summary judgment to her former employer
in her lawsuit alleging discrimination and retaliation leading to wrongful termination.
1
The Honorable William Jay Riley stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 10,
2017. He has been succeeded by the Honorable Lavenski R. Smith.
We affirm the judgment of the district court.2 See 28 U.S.C. § 1291 (appellate
jurisdiction).
I. BACKGROUND
A. Factual History
In early June 2010, Gloria Bunch, an African-American woman, was hired by
the University of Arkansas for Medical Sciences as a program eligibility specialist for
STRIVE (an acronym for Seeking to Reinforce My Identity and Values Everyday),
a community outreach program that provides outpatient therapy for students in the
Little Rock, Arkansas, school system. All new employees are subject to a 90-day
probation period. In late August, before the end of her 90-day period, Bunch received
a performance review conducted by her supervisor. Bunch earned satisfactory
remarks in all categories except the category of cooperation. Bunch was informed her
probation period would be extended until late November. Bunch refused to sign her
performance review.
Shortly after the review, Bunch met with a human resources administrator and
asked to file a grievance of discrimination and retaliation because she was being
harassed and taunted by her coworkers. Bunch also met with STRIVE’s director,
Paula McCarther. Bunch complained to McCarther about her coworkers, supervisor,
and performance review. Bunch also told McCarther she suffered from disabilities
and discussed requesting time off to attend a doctor’s appointment.3 McCarther
explained to Bunch the leave policy requires employees requesting leave to do so two
weeks in advance, or, if calling in sick, to call their supervisor by 7:00 a.m. on the day
of the absence.
2
The Honorable Kristine G. Baker, United States District Judge for the Eastern
District of Arkansas.
3
Bunch suffers from depression, fibromyalgia, an anxiety disorder, and
osteoarthritis of the knee, among other medical conditions.
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On August 30, 2010, Bunch emailed McCarther stating she was making her
“formal request for the Reasonable Accommodation to attend medical appointments.”
The next morning (four minutes before 7:00 a.m.) Bunch emailed McCarther, her
supervisor, and others, “to report [she was] calling in sick on [sic] today.” Later that
day, she emailed the same group:
My Doctor is requesting for me to be off work for the next two weeks
as a Reasonable Accommodation Request and is completing the FMLA
Paperwork. I will submit the form upon his completion ASAP. Thank
you in advance for your assistance.
Bunch’s doctor submitted paperwork for unpaid leave under the Family and Medical
Leave Act (FMLA), see 29 U.S.C. §§ 2601-2654, on September 1, 2010. According
to the paperwork, Bunch needed to be out of work for two weeks due to a “flare up”
in her fibromyalgia syndrome, which left her unable to work “in any capacity.”
On September 2, 2010, McCarther left a voicemail for and emailed Bunch to
inform her she did not qualify for FMLA leave because she had not been employed
for one year and had not worked the requisite number of hours. See id. § 2611(2)(A)
(defining eligibility). Bunch filed a charge with the United States Equal Employment
Opportunity Commission (EEOC), alleging discrimination based on race, sex, age,
and disability, and also retaliation. One week later, Bunch received a letter from
McCarther notifying Bunch her employment was terminated. The letter stated Bunch
began “missing work” on August 31, 2010, and “[d]ue to the needs of the
department,” her job would be filled.
B. Procedural History
The EEOC issued Bunch her right-to-sue letter in September 2011. Bunch
filed a pro se complaint against the University of Arkansas Board of Trustees
(university) in December 2011 and moved for appointment of counsel. Her initial
request for counsel was denied, and the district court explained there is no
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constitutional right to counsel in a civil case. In February 2012, the district court
issued an order putting Bunch on notice she was required to comply with the Federal
Rules of Civil Procedure and local court rules. A short time later, an attorney who
was not appointed by the district court made an appearance on Bunch’s behalf.
Bunch’s attorney filed a motion to stay, citing inability to consult with Bunch “due
to her mental status,” which the district court granted. In September 2012, Bunch
filed an amended complaint bringing claims under Title VII of the Civil Rights Act
of 1964 (Title VII), see 42 U.S.C. §§ 2000e, et seq.; the Americans with Disabilities
Act (ADA), see id. §§ 12101, et seq.; the Age Discrimination in Employment Act
(ADEA), see 29 U.S.C. §§ 621-634; 42 U.S.C. §§ 1981 and 1983; Section 504 of the
Rehabilitation Act of 1973, see 29 U.S.C. § 794; and the FMLA. The amended
complaint also added two unrelated defendants in their “individual[] and in their
official capacity.” In October 2012, Bunch’s attorney moved to withdraw, which the
district court allowed.
Between January 2013 and March 2015, the district court successively
appointed thirteen attorneys to represent Bunch. Several of the thirteen attorneys
withdrew their representation for reasons unrelated to Bunch, including conflicts of
interest. Bunch’s final appointed attorney moved to withdraw because Bunch failed
to respond to his correspondence requesting information necessary to respond to a
pending motion and court orders. The district court granted the attorney’s motion for
leave and explained it had “previously warned Ms. Bunch that she may not qualify
for the appointment of another should [current counsel] be forced to withdraw due to
lack of Ms. Bunch’s cooperation.” Considering the “procedural history of this case,”
the district court did not appoint another attorney for Bunch, and she proceeded pro
se.
In July 2015, the university moved for summary judgment. Finding “several
grounds on which summary judgment must be granted,” the district court granted
summary judgment on all of Bunch’s claims against the university. The district court
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gave Bunch 30 days to demonstrate she had served the individually named
defendants. After Bunch failed to do so, the district court dismissed the claims
against the individually named defendants without prejudice.
II. DISCUSSION
Bunch appeals the grant of summary judgment on her claims under the ADA,
the ADEA, 42 U.S.C. §§ 1981 and 1983, and Title VII.4 Emphasizing she was
without counsel at the time the motion was granted, Bunch contends the district court
failed to take into account her status as a pro se litigant. We review the district
court’s grant of summary judgment de novo, considering the evidence and making all
reasonable inferences “in the light most favorable to the nonmoving party.” Moody
v. Vozel, 771 F.3d 1093, 1096 (8th Cir. 2014) (internal quotation marks omitted).
Summary judgment shall be granted “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.” Fed. R. Civ. P. 56(a).
A. Pro Se Status
Bunch complains the district court failed to consider her status as a pro se
litigant and “ignore[d] the fact that [she] was without counsel and HAD NOT been
provided any opportunity for discovery through her numerous appointed attorneys.”
To begin, we again remind Bunch she has no constitutional right to counsel in a civil
case. See Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir. 1998); see also In re Lane,
801 F.2d 1040, 1042 (8th Cir. 1986) (“The decision to appoint counsel in civil cases
is committed to the discretion of the district court.”).
4
Bunch has not made any argument on appeal regarding the dismissal of her
claims under the FMLA and Section 504 of the Rehabilitation Act. See Jenkins v.
Winter, 540 F.3d 742, 751 (8th Cir. 2008) (“Claims not raised in an opening brief are
deemed waived.”).
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The district court did not ignore Bunch’s status as a pro se litigant; rather, it
diligently assisted Bunch throughout her lawsuit. The district court appointed
thirteen attorneys over the course of this litigation. Although the majority of the
attorneys withdrew for reasons not directly related to Bunch, one attorney withdrew
after Bunch failed to appear at a deposition, and another after Bunch failed to reply
to his correspondence. The district court warned Bunch it would not appoint another
attorney if she refused to cooperate with counsel. Bunch admits she “was clearly at
odds with appointed counsel” throughout the development of her case, and we fail to
see how her failures to maintain relationships with her court-appointed counsel
amounted to a denial of her right to discovery.
To the extent Bunch complains the district court prejudiced her by finding facts
in favor of the university, we disagree and observe—no material facts appear to be
in dispute. We also point out that in her pro se response to the university’s motion
for summary judgment, Bunch failed to comply with the local rule requiring litigants
to file a short statement of facts believed to be in genuine dispute. Bunch’s status as
a pro se litigant did not excuse her from following the local rules. See Bennett v. Dr
Pepper/Seven Up, Inc., 295 F.3d 805, 808 (8th Cir. 2002). And, to the extent Bunch
did respond to the university’s statement of facts in her motion in opposition, the
district court expressly considered Bunch’s responses.
B. ADA, ADEA, and 42 U.S.C. §§ 1981, 1983
The district court correctly held sovereign immunity barred Bunch’s claims
under the ADA, the ADEA, and 42 U.S.C. §§ 1981 and 1983. States are immune
from claims brought under these laws, unless the state has expressly waived
immunity. See, e.g., Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 364
(2001); Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91 (2000); Will v. Mich. Dep’t of
State Police, 491 U.S. 58, 67 (1989); see also Jones v. McNeese, 675 F.3d 1158, 1160
n.1 (8th Cir. 2012) (“When raised directly against a state actor, a § 1981 claim must
be brought under § 1983.”); Monroe v. Ark. State Univ., 495 F.3d 591, 594 (8th Cir.
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2007) (holding the doctrine of Ex Parte Young, 209 U.S. 123 (1908), bars suits for
both money damages and injunctive relief against a state university). The Arkansas
Supreme Court “has consistently held that a suit against a state university or its board
of trustees is a suit against the State and is barred by the doctrine of sovereign
immunity.” Univ. of Ark. for Med. Scis. v. Adams, 117 S.W.3d 588, 590 (Ark.
2003).
Bunch unsuccessfully attempted to amend her complaint once before by, in her
words, “inadvertently list[ing]” the (now dismissed) individual defendants by “the
wrong names.” Bunch suggests we review her appeal as if her complaint had been
properly amended to add the “individual ‘discriminators’” she says she named in a
response to an interrogatory. That, we will not do. “[A] party may amend its
pleading only with the opposing party’s written consent or the court’s leave.” Fed.
R. Civ. P. 15(a)(2). Bunch has neither. Contrary to Bunch’s assertion, the district
court is not “obligated to conform the pleadings to the evidence” by assuming certain
individuals have been named as defendants in her lawsuit. Because we agree the
claims under the ADA, the ADEA, and 42 U.S.C. §§ 1981 and 1983 are barred under
the doctrine of sovereign immunity, we need not consider the district court’s
alternative holdings that these claims failed on the merits.
C. Title VII5
The district court concluded Bunch’s amended complaint “fail[ed] to include
enough facts to state a claim for relief based on alleged race or gender discrimination
5
Title VII claims brought against a state are not barred by sovereign immunity.
See Okruhlik v. Univ. of Ark., 255 F.3d 615, 627 (8th Cir. 2001) (“Congress . . .
validly abrogated the Eleventh Amendment for claims of disparate treatment and
impact on the basis of gender and race.”).
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that is plausible on its face.”6 The district court found that even if Bunch had
sufficiently stated race and gender discrimination claims, the university was still
entitled to summary judgment because Bunch “failed to identify a similarly situated
employee who was treated differently from her.” Because the district court, despite
its conclusion about Bunch’s complaint, proceeded to evaluate her claims assuming
they were sufficiently stated, we will as well.
Without direct evidence of discrimination, Bunch must advance her claims
under the McDonnell Douglas framework. See McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-03 (1973). Under this standard, the plaintiff must first establish
a prima facie case by showing she: “(1) is a member of a protected group; (2) was
meeting the legitimate expectations of the employer; (3) suffered an adverse
employment action; and (4) [suffered] under circumstances permitting an inference
of discrimination.” Moody, 771 F.3d at 1097 (internal quotation marks omitted). If
the plaintiff satisfies the prima facie case, the burden shifts to the employer to provide
a “legitimate, non-discriminatory justification for its adverse employment action.”
Id. If the employer meets this burden, the plaintiff must “prove [the employer’s]
justification is a mere pretext for discrimination.” Id.
Assuming Bunch can meet her low burden of establishing a prima facie case,
the university has offered a legitimate, nondiscriminatory reason for terminating
Bunch—her failure to come to work, and the university’s need to fill her position.
Bunch argues this reason was pretext for discrimination because a similarly situated
young, white, female employee was allowed to take unpaid leave during her probation
period. In an affidavit, McCarther stated the employee in question, like Bunch, was
not allowed to take unpaid leave during her probation period. In her deposition,
6
In Bunch’s amended complaint she conclusively alleged, without additional
detail, she was “discriminated against because of her race and gender” and
“[s]imilarly situated whites, males, or younger employees were not discharged under
the same or similar . . . circumstances.”
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Bunch admitted she did not know if the employee’s leave was paid or unpaid, and
Bunch, before her termination, was allowed to use her allotted paid leave to attend
medical appointments. Bunch has not shown she was “treated differently” than any
similarly situated employee. Onyiah v. St. Cloud State Univ., 684 F.3d 711, 716 (8th
Cir. 2012).
Bunch also contends the district court ignored other circumstantial evidence
of discrimination. Bunch claims her job title was “falsified.” Although Bunch was
hired as a program eligibility specialist, on her 90-day evaluation, her job title was
listed as “Social Service Rep. II,” which, according to Bunch, was her supervisor’s
title. One of the categories under which Bunch was evaluated during her performance
review was supervision, but Bunch had no supervisory duties. Her performance
review subsequently was amended to remove that category, and that amended copy
was given to Bunch. Bunch also claims she was coerced by a physician to perform
group therapy without a license, but when she reported this instance to her supervisor,
her supervisor “immediately said, ‘No, that’s his job. You’re not to do group.’”
Neither of these situations demonstrates the adverse action taken against Bunch was
based on a discriminatory motive. Bunch’s other “skeletal,” unsupported allegations
“are insufficient to create a genuine issue of fact so as to preclude granting summary
judgment.” Thomas v. Corwin, 483 F.3d 516, 530 (8th Cir. 2007).
Lastly, Bunch alleges her termination was retaliation for taking protected
actions.7 “To establish a prima facie case of retaliation, [Bunch] must show (1) she
engaged in protected conduct, (2) she suffered a materially adverse employment act,
and (3) the adverse act was causally linked to the protected conduct.” Guimaraes v.
SuperValu, Inc., 674 F.3d 962, 978 (8th Cir. 2012). The district court found the
7
Bunch argues she engaged in protected conduct by requesting medical leave,
refusing to engage in conduct at work she perceived as against policy or as illegal,
inquiring about filing a grievance of discrimination, filing a charge with the EEOC,
and complaining about her job title and wage disparities.
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“undisputed evidence” showed Bunch’s employment was terminated “approximately
one week” after she was denied FMLA leave, and, taking the facts in her favor,
assumed her supervisors at STRIVE were aware she had filed a charge with the
EEOC. As the district court reasoned, temporal proximity alone is insufficient to
demonstrate a genuine issue of material fact as to whether conduct was retaliatory.
See Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999) (“Generally,
more than a temporal connection between the protected conduct and the adverse
employment action is required to present a genuine factual issue on retaliation.”).
The district court found “no such other evidence has been presented.” We agree.
Bunch’s cursory reference in her appeal brief to “other indicia of retaliation found in
the deposition” is not adequately presented on appeal. See Fed. R. App. P.
28(a)(8)(A).
III. CONCLUSION
We affirm.
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