Brown v. City of Jacksonville

• Decision Date: 29 March 2013
• Docket Number: No. 12–1730.,12–1730.
• Parties: June BROWN, Plaintiff–Appellant v. CITY OF JACKSONVILLE; Paul Mushrush; Cheryl Erkel, Defendants–Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

711 F.3d 883

June BROWN, Plaintiff–Appellant

v.CITY OF JACKSONVILLE; Paul Mushrush; Cheryl Erkel, Defendants–Appellees.

No. 12–1730.

United States Court of Appeals,

Eighth Circuit.

Submitted: Oct. 3, 2012.

Filed: March 29, 2013.

Lucien Ramseur Gillham, argued and on the brief, Benton, AR, for appellant.

John Lennon Wilkerson, argued and on the brief, North Little Rock, AR, for appellee.

Before RILEY, Chief Judge, LOKEN and BENTON, Circuit Judges.

RILEY, Chief Judge.

The City of Jacksonville, Arkansas (City), terminated June Brown's employment for “Failure in Performance of Duties” and “Failure in Personal Conduct.” On November 10, 2010, Brown sued the City and her supervisors, Paul Mushrush and Cheryl Erkel, claiming the City's reasons for terminating her employment were pretextual. Brown's suit raised seven claims: (1) age discrimination in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq.; (2) gender discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e–2000e–17¹; (3) disability discrimination in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq.; (4) retaliation for taking protected leave in violation of the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq.; (5) interference with protected rights in violation of the FMLA; (6) retaliation in violation of Title VII; and (7) retaliation in violation of the Arkansas Civil Rights Act of 1993 (ACRA), Ark.Code Ann. §§ 16–123–101–108. The district court ² granted the City and supervisors' motion for summary judgment on all of Brown's claims. Brown, having abandoned her gender discrimination claim, appeals. Because there is no evidence or reasonable inference that the City's reasons for terminating Brown's employment were pretextual, and having appellate jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND³A. Facts

The City hired Brown in 1998 as a purchasing agent and promoted her in 1999 to purchasing manager. On June 9, 2009, the City terminated Brown's employment. Throughout Brown's employment, Paul Mushrush, the City's director of finance, was her supervisor. From December of 2007 until Brown ceased working for the City, Cheryl Erkel, the City's assistant finance director, also had supervisory authority over Brown.

Viewed in the light most favorable to Brown, the facts are as follows. Before August 9, 2008, Brown suffered from hip problems that caused chronic pain and required her to walk with a cane. Between October 2006 and March 2007, Mushrush, who is older than Brown, referred to her as an “old woman” on several occasions and said each of the following once: “Hey old woman, we moving slow,” “such an old woman, can't even straighten up,” and “Hey, Crip [sic].” ⁴ Brown filed a charge of discrimination with the United States Equal Employment Opportunity Commission (EEOC) on May 24, 2007, which the EEOC dismissed on May 8, 2008.

On November 11, 2007, Mushrush instructed Brown to work only from 8 a.m. to 5 p.m. as part of a “process change” designed to solve persistent delays in paying vendors. Beginning as early as 2004, Brown had repeatedly informed Mushrush that she worked “at least 50–60 hours a week.” Brown maintains she could not perform her job without working late. Mushrush testified “the job could be done in a 40–hour week, and [Brown] was not willing to cooperate or use the resources offered.” On January 3, 2008, Mushrush observed Brown in her office past 5:30 p.m. He asked her why she was still in the office. “[J]ust trying to do my job,” Brown says she replied. According to Brown, she was actually chatting with a coworker and making a personal phone call. She left at 5:36 p.m. after Mushrush instructed her to do so. On January 11, 2008, Mushrush completed an “employee counseling form” regarding the incident, in which he noted her actions “constitute[d] insubordination ... by first defying [his] direct orders and second by not making use of the department[']s resources to complete tasks.”

On August 9, 2008, Brown began a period of FMLA leave, during which she had hip replacement surgery. Her final day of FMLA leave was October 18, 2008. There is no evidence in the record indicating that Brown remained physically impaired or that anyone perceived her to be physically impaired after she returned from leave.

Before her FMLA leave, Brown had used a peculiar filing system which, according to undisputed evidence from other department employees, made it difficult for anyone except Brown to locate documents. While Brown was on leave, Erkel—who had previously advised Brown to reorganize her files to make them more accessible to the rest of the office—and Angela Blacklock, Brown's subordinate, handled Brown's responsibilities. When Brown returned to work, she learned that Erkel had reorganized, alphabetized, and centralized the purchasing department's files.

On April 8, 2009, Erkel issued Brown a formal “employee counseling form” for failure to perform her duties as purchasing manager. On many prior occasions, both Mushrush and Erkel informally explained to Brown that her performance was unsatisfactory. Brown responded by filing an internal EEOC complaint with the City, alleging Mushrush and Erkel were retaliating against her for filing the May 2007 EEOC charge. Two EEOC officers for the City conducted an investigation, recorded and transcribed by a court reporter, and informed Brown they “found no evidence or witness to support [her] belief that [she was] the subject of retaliation due to [her] filing of a previous complaint in 2007 with the [EEOC].” On the contrary, the investigation revealed numerous employees in the finance department, including Brown's subordinate Blacklock, who considered Brown to be a negative presence in the workplace. Blacklock said during the investigation that her workplace was “very stressful” because “[a]nything [Brown] [wa]s going through ... affect[ed] the whole office, especially [Blacklock] since [Blacklock] work[ed] ... close[ly] with [Brown].” Blacklock also said she believed Brown was handling only 25% of the City's purchasing work while Blacklock did 75% of the work. Blacklock suggested the City's purchasing work was performed well and with “less stress” while Brown was on leave, although the department hired no one to cover for Brown. Another finance department employee, Debbie Jernigan, reported everyone in their workplace “kind of walk[ed] on pins and needles when it c[a]me[ ] to [Brown].” Jernigan also complained about Brown's “attitude and ... her non-responsiveness to a lot of things that she should be doing in the office,” explaining she and other employees had “dealt with it for quite a while.”

On May 21, 2009, based on concerns that Brown's behavior was creating a hostile workplace for Blacklock and other employees in the finance department, the City's human resources director, Jill Ross, and Erkel launched an internal investigation. During the internal investigation, Brown acknowledged asking Blacklock and another employee, Linda Dupree, to provide information about the investigation. On May 26, 2009, Brown filed a second EEOC discrimination charge against the City. On June 8, 2009, Ross and Erkel completed their internal investigation and issued a report. The report concluded Brown had created a “hostile work environment” and had “acted in a manner so [as] to intimidate and harass her employee [ (i.e., Blacklock) ] and another ... employee [ (i.e., Dupree) ] regarding [the] investigation.” On June 9, 2009, Mushrush terminated Brown's employment for “Failure in Performance of Duties” and “Failure in Personal Conduct.” On August 17, 2010, the EEOC dismissed Brown's second discrimination charge.

B. District Court Proceedings

After spending “many hours” reviewing Brown's bewildering brief in opposition to summary judgment, the district court granted the City and supervisors' motion for summary judgment on all of Brown's claims. First, the district court found that Brown failed to identify any evidence the City's reason for terminating her was a pretext for age discrimination. Second, the district court dismissed as time barred Brown's claim that Erkel's promotion to assistant finance director represented age-based discrimination against Brown, because Brown failed to file EEOC charges within 300 days of the promotion. Third, the district court dismissed Brown's gender discrimination claim because she failed to make a prima facie case. Fourth, the district court rejected Brown's disability discrimination claim for two alternate reasons: (1) she failed to make a prima facie case because she offered no evidence as to her disability after the surgery, and (2) there was no “genuine dispute” the City's reasons for terminating her employment were pretextual. Fifth, the district court dismissed her FMLA claims because she failed to make a prima facie case of retaliation. Sixth, the district court dismissed her Title VII and ACRA retaliation claims because there was no evidence the City's “legitimate, non-discriminatory reasons” for terminating Brown were pretextual. Brown appeals.

II. DISCUSSION

On this appeal from entry of summary judgment, we review de novo the district court's factual findings and legal conclusions, “giving Brown the benefit of all reasonable inferences.” Brown v. Kan. City Freightliner Sales, Inc., 617 F.3d 995, 997 (8th Cir.2010). We affirm a grant of summary judgment only if “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.

Because Brown's brief, filled as it is with unsupported legal and factual assertions, sometimes borders on incomprehensible, the precise issues she is raising in this appeal are unclear. Like the district court, we struggle to decipher seemingly inconsistent claims, and we have interpreted Brown's counsel's pages of arguments as favorably as the...