Robinson v. Cross

• Decision Date: 22 May 2014
• Docket Number: No. 13–2394.,13–2394.
• Citation: 753 F.3d 749
• Parties: Ellen ROBINSON, Plaintiff–Appellant v. AMERICAN RED CROSS, Defendant–Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

753 F.3d 749

Ellen ROBINSON, Plaintiff–Appellant

v.AMERICAN RED CROSS, Defendant–Appellee.

No. 13–2394.

United States Court of Appeals,

Eighth Circuit.

Submitted: March 10, 2014.

Filed: May 22, 2014.

Evelyn Moorehead, Little Rock, AR, for Plaintiff–Appellant.

Nicholas Thomas Moraites, Jeffrey William Larroca, Washington, DC, for Defendant–Appellee.

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 state claim of outrage. The district court ¹ 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.

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 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, 93 S.Ct. 1817, 36 L.Ed.2d 668 (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.

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.” 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...