Ellen Robinson v. American Red Cro

Filing

OPINION FILED - THE COURT: Roger L. Wollman, Diana E. Murphy and Raymond W. Gruender AUTHORING JUDGE:Diana E. Murphy (PUBLISHED) [4156567] [13-2394]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 13-2394
___________________________
Ellen Robinson
lllllllllllllllllllll Plaintiff - Appellant
v.
American Red Cross
lllllllllllllllllllll Defendant - Appellee
____________
Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
____________
Submitted: March 10, 2014
Filed: May 22, 2014
____________
Before WOLLMAN, MURPHY, and GRUENDER, Circuit Judges.
____________
MURPHY, Circuit Judge
Ellen Robinson is an African American woman who began working for the
American Red Cross in February 2003. She has since filed race discrimination claims
against the Red Cross under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
1981, and the Arkansas Civil Right Act of 1993 (ACRA), as well as federal age and
gender discrimination claims, retaliation claims under Title VII and ACRA, and a

Appellate Case: 13-2394

Page: 1

Date Filed: 05/22/2014 Entry ID: 4156567

state claim of outrage. The district court1 dismissed or granted summary judgment
on all of Robinson's claims. She now appeals the grant of summary judgment to the
Red Cross on her § 1981 and ACRA race discrimination claims, her Title VII race
discrimination claims alleging events taking place before January 21, 2011, her
retaliation claims, and her outrage claim. After careful examination of the record, we
affirm.
I.
Ellen Robinson is an African American woman who was hired as a
phlebotomist technician by the Red Cross in February 2003. Promoted four times
between 2004 and 2009, Robinson was a Collections Specialist II supervisor at the
time she applied for an On the Job Instructor position in September 2010. Robinson
was one of two finalists, but the job was given to the other finalist, a white man in his
twenties. The Red Cross states that he was more qualified for the job than Robinson.
During that same month, Robinson was given disciplinary counseling for having
received four separate write ups in a single month. She also received a verbal
warning that November for excessive unscheduled absences.
In July 2011, just two days after the Red Cross implemented a zero tolerance
policy with respect to blood donor complaints, a donor complained that Robinson had
exhibited rude and unprofessional behavior. After investigating the complaint and
concluding it was valid, the Red Cross suspended Robinson and issued her a final
written warning. At least two white Red Cross employees were also written up or
suspended for blood donor complaints that summer.

1

The Honorable Kristine G. Baker, United States District Judge for the Eastern
District of Arkansas.
-2-

Appellate Case: 13-2394

Page: 2

Date Filed: 05/22/2014 Entry ID: 4156567

That same July, Robinson applied for two additional positions—DOT
Administrator and Administrative Assistant II. The first position required a
commercial driver license which Robinson did not have. Red Cross policy also
prevents it from hiring anyone for a new position who is on discipline status. A
qualified applicant was hired for the DOT position and the other position was left
unfilled. Robinson then filed a discrimination charge against the Red Cross with the
EEOC during the month of July 2011.
Robinson received a verbal warning in June 2012 for two incidents described
as insubordination and unprofessional behavior. The next month she received a
written warning for allegedly screaming profanities in the blood donor room. The
Red Cross also claims that she made false accusations the next month against two
coworkers concerning an incident in which she allegedly refused to follow
instructions from a superior. Robinson was suspended for this incident. According
to the uncontroverted statement of the Red Cross, Robinson subsequently exhibited
unprofessional behavior in September 2012 and created a hostile and stressful work
environment which compromised service to blood donors. Following this incident,
she was terminated on October 1, and her position was filled with an African
American replacement. The Red Cross states that more than ten witnesses observed
Robinson's conduct and that it also terminated at least ten white employees for
behavioral issues between October 2010 and 2012.
Robinson alleged in her first charge filed with the EEOC in July 2011 that the
Red Cross had not promoted or trained her because of her race, which was also the
reason for her suspension and ultimate termination. The EEOC dismissed her charge
for lack of cause on August 8, 2011. Robinson filed her original complaint in this
case in the district court in October 2011. In that complaint she charged that the Red
Cross violated Title VII when it failed to promote her because of her race. She
amended the complaint the first time in November, adding a claim for age
discrimination, which the district court dismissed. She filed a charge of retaliation
-3-

Appellate Case: 13-2394

Page: 3

Date Filed: 05/22/2014 Entry ID: 4156567

with the EEOC in October 2012, claiming that the Red Cross had terminated her for
filing the July 2011 charge with the EEOC. The EEOC issued Robinson a right to sue
letter on her retaliation charge. She then amended her district court complaint a
second time in November 2012, claiming discrimination under Title VII , 42 U.S.C.
§ 1981, and ACRA, and retaliation under Title VII and ACRA. She also reasserted
her dismissed age discrimination claim and added federal gender discrimination and
state outrage claims.
The Red Cross filed a motion for summary judgment along with a statement of
undisputed facts on April 18, 2013. The district court granted Robinson an extra
week to file her opposition to the motion, extending the deadline until May 9. When
the deadline passed without a response from Robinson, the Red Cross filed a request
for a decision on its pending motion. Robinson emailed her response to the Red
Cross' motion to chambers on May 14 and 15, and was directed to file the documents
with the clerk of court, which she did on May 17. Although she submitted a
responsive brief and exhibits, Robinson did not respond directly to the statement of
undisputed facts submitted by the Red Cross.
Summary judgment was granted to the Red Cross on Robinson's age
discrimination claim and her Title VII race discrimination claims alleging events
taking place before January 21, 2011 on grounds that they were time barred. In its
analysis of Robinson's remaining discrimination and retaliation claims under the
burden shifting framework established in McDonnell Douglas Corporation v. Green,
411 U.S. 792 (1973), the district court concluded that she had failed to establish
prima facie cases and it granted summary judgment on them to the Red Cross. The
district court also dismissed Robinson's gender discrimination claim because she had
failed to raise it in her original charge with the EEOC and granted summary judgment
to the Red Cross on her outrage claim. Robinson appeals the grant of summary
judgment on her race discrimination claims under § 1981 and ACRA, her Title VII
race discrimination claims which survived dismissal, and her Title VII and ACRA
retaliation and state outrage claims.
-4-

Appellate Case: 13-2394

Page: 4

Date Filed: 05/22/2014 Entry ID: 4156567

II.
We review de novo the district court's grant of summary judgment to the
American Red Cross, viewing the facts in the light most favorable to Robinson and
giving her the benefit of all reasonable inferences. Butler v. Crittenden Cnty., Ark.,
708 F.3d 1044, 1048 (8th Cir. 2013). We may affirm only if there is "no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law." Id. at 1049 (internal quotations omitted). Discrimination claims brought under
Title VII and § 1981 are analyzed under the McDonnell Douglas burden shifting
framework, id. at 1050, as are retaliation claims brought under Title VII and ACRA.
McCullough v. Univ. of Ark. for Med. Scis., 559 F.3d 855, 864 (8th Cir. 2009).
Robinson alleges that she was not promoted or trained, was suspended, and was
terminated because of race discrimination. To succeed with her claims, Robinson
must show "either direct evidence of discrimination or evidence . . . sufficient to
create an inference of discrimination under the McDonnell Douglas burden shifting
framework." Butler, 708 F.3d at 1050. Since Robinson has not offered any direct
evidence of discrimination, she must establish a prima facie case of it by showing that
"she (1) is a member of a protected class, (2) was qualified, (3) suffered an adverse
employment action, and (4) can provide facts that give rise to an inference of
unlawful . . . race discrimination." Id.
Robinson asserts that her race was the determining factor in the Red Cross
decision not to promote her to three positions: On the Job Instructor, DOT
Administrator, and Administrative Assistant II. To create an inference that the
decision not to promote her was based on unlawful race discrimination, Robinson
must show that she was qualified for the promotion for which she applied and that it
was given to a similarly situated employee who was not part of the protected class.
See Allen v. Tobacco Superstore, Inc., 475 F.3d 931, 937 (8th Cir. 2007). Courts
"may not second-guess employers' business decisions," however, and "employers are
free to make employment decisions so long as they do not discriminate unlawfully."
-5-

Appellate Case: 13-2394

Page: 5

Date Filed: 05/22/2014 Entry ID: 4156567

Haigh v. Gelita USA, Inc., 632 F.3d 464, 471 (8th Cir. 2011) (internal quotation
marks omitted). By not opposing the Red Cross motion for summary judgment on her
claims that she was not promoted to the DOT Administrator and Administrative
Assistant positions due to race discrimination, Robinson has waived those claims.
See Satcher v. Univ. of Ark. at Pine Bluff Bd. of Trs., 558 F.3d 731, 735 (8th Cir.
2009).
In her briefs and exhibits opposing summary judgment and supporting this
appeal Robinson alleges that the candidate the Red Cross hired for the On the Job
Instructor position was less qualified than she was. She also alleges that the Red
Cross promotes white employees more frequently and rapidly than African Americans
even though they do less work. Robinson has overlooked the local rules of the
federal district court which treat as undisputed the statement of material facts made
by the moving party "unless controverted by" the nonmoving party's "separate, short
and concise statement of the material facts as to which it contends a genuine dispute
exists to be tried." U.S.Dist.Ct.Rules Ark., LR 56.1(b)–(c). Robinson did not submit
responses to the Red Cross statement of undisputed material facts. We therefore
consider it to be undisputed that the candidate the Red Cross hired instead of
Robinson was more qualified than she, and thus not similarly situated. The record
also shows that the Red Cross promoted Robinson four times, suggesting that her race
was not a factor in its employment decisions. We conclude that Robinson has not
established a prima facie case of race discrimination based on the Red Cross decision
not to promote her.
Robinson also alleges that the Red Cross failed to provide her with training
because of her race. To establish that the alleged failure to train was an adverse
employment action, Butler, 708 F.3d 1050, Robinson must show it caused her a
"material employment disadvantage," such as termination, a cut in pay or benefits, or
loss of future career prospects. Kerns v. Capital Graphics, 178 F.3d 1011, 1016 (8th
Cir. 1999). Robinson claims that the organization's failure to train her caused delays
in serving donors, resulting in customer dissatisfaction and loss of self esteem, and
-6-

Appellate Case: 13-2394

Page: 6

Date Filed: 05/22/2014 Entry ID: 4156567

that it made her a less competent applicant for promotions. Even when viewed in the
light most favorable to Robinson, the record does not support an inference that donor
dissatisfaction with her was caused by service delays. Although it is true that
Robinson was turned down for three promotions, she has not provided any evidence
that it was because of training the Red Cross denied her but provided to white
employees. Robinson thus fails to establish a prima facie case of race discrimination
based on the failure to train her.
Robinson finally alleges that the decisions to suspend and terminate her were
the result of race discrimination. To establish a prima facie case that she was
suspended or terminated because of her race, Robinson must show that she met her
employer's legitimate expectations. Higgins v. Gonzales, 481 F.3d 578, 584 (8th Cir.
2007) (suspension), abrogated on other grounds by Torgerson v. City of Rochester,
643 F.3d 1031 (8th Cir. 2011) (en banc); Martinez v. W. W. Grainger, Inc., 664 F.3d
225, 230 (8th Cir. 2011) (termination). Robinson was suspended the first time in July
2011 following a donor complaint about her unprofessional behavior just days after
the Red Cross instituted a "zero tolerance" policy with respect to donor complaints.
She was suspended again in June 2012 after receiving a written warning for yelling
profanities in the blood donor room and making false accusations against coworkers
regarding an incident in which she refused to follow a superior's instructions. The
Red Cross terminated Robinson in September 2012 for having created a hostile work
environment which compromised service to blood donors. We conclude on this
record that Robinson failed to meet her employer's legitimate expectations.
Even if Robinson were able to show she had met her employer's legitimate
expectations, she would still have to show that similarly situated employees
committed the same conduct but were treated differently. Higgins, 481 F.3d at 584;
Martinez, 664 F.3d at 230. The Red Cross suspended or otherwise disciplined at least
two white employees and terminated at least ten white employees at around the same
time Robinson was suspended and terminated. It also filled her position with an
African American replacement. Since Robinson has failed to establish a prima facie
-7-

Appellate Case: 13-2394

Page: 7

Date Filed: 05/22/2014 Entry ID: 4156567

case of race discrimination with respect to her suspension and termination, we
conclude that the district court did not err in granting summary judgment to the Red
Cross on her discrimination claims.
In her retaliation claim under Title VII and ACRA, Robinson alleges that she
was terminated in October 2012 in retaliation for filing her July 2011 discrimination
charge with the EEOC. Since Robinson does not allege direct evidence of retaliatory
motive, she must first demonstrate that (1) she engaged in protected activity, (2) the
Red Cross subsequently took materially adverse action against her, and (3) the
materially adverse action was causally linked to her protected activity. Ellis v.
Houston, 742 F.3d 307, 319 (8th Cir. 2014). By filing charges with the EEOC in
July 2011 and October 2012, Robinson engaged in protected activity. Tyler v. Univ.
of Ark. Bd. of Trs., 628 F.3d 980, 986 (8th Cir. 2011).
Robinson must demonstrate that her lack of promotion, suspension, and
termination are causally linked to the filing of her first EEOC charge. She must thus
show that her conduct was a "determinative—not merely motivating—factor" in the
Red Cross actions. Id. at 985 (internal quotation marks omitted). Direct evidence of
such causation is rarely available, but an inference of causation may be established
through indirect evidence, such as the closeness in time between the protected and
adverse actions. Id. at 986. The more time that elapses between the two events,
however, the weaker the inference of causation. Id. Any inference of causation
evaporates if the adverse action occurs months after the protected activity. Id. In
such cases a plaintiff must present additional evidence of a causal link, which can
include "escalating adverse and retaliatory action." Id. at 986–87 (internal quotation
marks omitted).
Robinson claimed in her October 2012 retaliation charge that the Red Cross
began to retaliate against her in June 2012, a year after she filed her July 2011
discrimination charge. The district court concluded that the nearly twelve months of
elapsed time between the two events was too long to support an inference of
-8-

Appellate Case: 13-2394

Page: 8

Date Filed: 05/22/2014 Entry ID: 4156567

causation. Robinson argues that the district court erred in not counting as protected
actions the original and amended complaints she filed in October and November
2011, as well as her attorney's appearance in court on her behalf in January 2012. She
asserts that the six months of elapsed time between her attorney's appearance and
June 2012 establishes causation. This argument fails, however, because a lapse of
even just two months may by itself be too long to support an inference of retaliation.
Trammel v. Simmons First Bank of Searcy, 345 F.3d 611, 616 (8th Cir. 2003).
Alternatively Robinson argues that the Red Cross first retaliated against her
EEOC filing sometime before June 2012 with escalating adverse activity thereafter
which included soliciting coworker comments about her behavior and requiring her
to meet with a human resources manager about her job performance. These
arguments fail because Robinson did not raise them in her administrative charge,
Williams v. Little Rock Mun. Water Works, 21 F.3d 218, 223 (8th Cir. 1994), or in
the federal district court. Barber v. C1 Truck Driver Training, LLC, 656 F.3d 782,
797 n.8 (8th Cir. 2011). Moreover, solicitation of coworker comments or required
performance meetings have not been seen as adverse employment actions. There is
also no evidence in the record showing that the decision makers at the Red Cross
even knew that she had filed an EEOC charge, and Robinson herself testified that
nothing had changed in how the organization treated her after she had done so. We
thus conclude that Robinson has failed to raise a genuine issue of material fact to
show a causal link between her protected activity and the adverse employment actions
taken against her. Because she has not established a prima facie case of retaliation,
the district court did not err in granting the Red Cross summary judgment on this
claim.
We also conclude that the district court did not err in granting the Red Cross
summary judgment on Robinson's outrage claim. Arkansas courts have adopted "an
especially strict approach to outrage claims arising from employment relationships."
Burkhart v. Am. Railcar Indust., Inc., 603 F.3d 472, 478 (8th Cir. 2010). Robinson
must prove with "clear cut" evidence (1) the Red Cross' intent to inflict emotional
-9-

Appellate Case: 13-2394

Page: 9

Date Filed: 05/22/2014 Entry ID: 4156567

distress, (2) "extreme and outrageous" conduct "beyond all possible bounds of
decency," (3) causation, and (4) emotional distress "so severe that no reasonable
person could be expected to endure it." Id. (quoting Kiersey v. Jeffrey, 253 S.W.3d
438, 441 (Ark. 2007)). Robinson based her outrage claim on having been written up,
watched, and "nit picked" by her employer. The district court concluded that no
reasonable jury could conclude that this conduct was so extreme and outrageous as
to go beyond all possible bounds of decency, and we agree.
III.
The undisputed facts in this case fail to establish a prima facie case of
discrimination or retaliation under the McDonnell Douglas framework and entitle the
Red Cross to summary judgment as a matter of law on Robinson's outrage claim. We
therefore affirm the judgment of the district court.
______________________________

-10-

Appellate Case: 13-2394

Page: 10

Date Filed: 05/22/2014 Entry ID: 4156567