Case Information
*1 Before WOLLMAN, MURPHY, and GRUENDER, Circuit Judges.
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MURPHY, Circuit Judge
*2
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 state claim of outrage. The district court dismissed or granted summary judgment [1]
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.
*3 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 *4 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,
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.,
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.,
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,
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,
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,
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,
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
*9
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,
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.,
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.
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Notes
[1] The Honorable Kristine G. Baker, United States District Judge for the Eastern District of Arkansas.