Bunch v. Univ. of Ark. Bd. of Trs.

• Decision Date: 24 July 2017
• Docket Number: No. 16-2538,16-2538
• Citation: 863 F.3d 1062
• Parties: Gloria A. BUNCH, Plaintiff–Appellant v. UNIVERSITY OF ARKANSAS BOARD OF TRUSTEES, Defendant–Appellee
• Court: U.S. Court of Appeals — Eighth Circuit

863 F.3d 1062

Gloria A. BUNCH, Plaintiff–Appellant

v.UNIVERSITY OF ARKANSAS BOARD OF TRUSTEES, Defendant–Appellee

No. 16-2538

United States Court of Appeals, Eighth Circuit.

Submitted: January 11, 2017

Filed: July 24, 2017

Counsel who represented the appellant was Julius Donald Kearney of Pine Bluff, AR.

Counsel who represented the appellee was JoAnn C. Maxey, of Little Rock, AR., Sherri L. Robinson of Little Rock, AR.

Before RILEY,¹ Chief Judge, LOKEN and BENTON, Circuit Judges.

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. 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.

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 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 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.").

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, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001) ; Kimel v. Fla. Bd. of Regents , 528 U.S. 62, 91, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000) ; Will v. Mich. Dep't of State Police , 491 U.S. 58, 67, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) ; see also Jones v. McNeese , 675 F.3d 1158, 1160 n.1 (8th...