Employment Law Daily Diligent assistance (13 lawyers) provided to pro se employee guts her wrongful discharge appeal
Wednesday, July 26, 2017

Diligent assistance (13 lawyers) provided to pro se employee guts her wrongful discharge appeal

By Kathleen Kapusta, J.D.

Affirming summary judgment against a university employee’s wrongful termination claims, the Eighth Circuit found the court below did not fail to take into account her status as a pro se litigant; rather it diligently assisted her throughout her lawsuit, appointing 13 attorneys over the course of the litigation. Further, the district court correctly held that sovereign immunity barred her ADA, ADEA, Section 1981, and Section 1983 claims. As to her Title VII race and gender discrimination claim, she failed to show she was treated differently than any other similarly situated employee. Finally, although she was terminated one week after she was denied FMLA leave, and assuming her supervisors knew of her EEOC charge, temporal proximity alone was not enough to support her retaliation claim (Bunch v. University of Arkansas Board of Trustees, July 24, 2017, Riley, W.).

The African-American employee was hired by the university as a program specialist for a community outreach program providing outpatient therapy for students in the Little Rock, Arkansas, school system. During her 90-day probationary period, she received a performance review in which she earned satisfactory remarks in all but one category. After the review, she met with an HR administrator and asked to file a grievance, claiming she was being harassed and taunted by her coworkers. She also met with the outreach program’s director to complain about her coworkers, supervisor, and performance review.

Accommodation request. The employee informed the director that she suffered from depression, fibromyalgia, and an anxiety disorder, among other things, and asked about requesting time off to attend a doctor’s appointment. The director told her that pursuant to policy she was required to request leave two weeks in advance and if calling in sick, to call her supervisor by 7:00 a.m. on the day of the absence. Not long after that, she emailed the director stating she was making a formal accommodation request to attend medical appointments. The next morning just before 7:00 a.m. she emailed the director and her supervisor to report she was calling in sick. Later that day, she informed them her doctor was requesting she be off work for the next two weeks as a reasonable accommodation for her fibromyalgia and she needed FMLA leave.

Terminated. Told she did not qualify for FMLA leave because she had not been employed for a year and had not worked the requisite number of hours, she filed a charge with the EEOC alleging retaliation and race, sex, age, and disability discrimination. One week later, she was terminated.

Lower court proceedings. The employee sued the university board of trustees and moved for appointment of counsel. After her initial request was denied, an attorney filed a motion to stay, citing inability to consult with her due to her mental status. During the course of the litigation, the court appointed 13 attorneys to represent her, however she ultimately proceeded pro se. The university moved for summary judgment and the court granted the motion as to all claims.

Pro se status. On appeal, the employee argued that 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.” After reminding the employee that “she has no constitutional right to counsel in a civil case,” the Eighth Circuit observed that the district court appointed 13 attorneys over the course of this litigation.

Although the most of them withdrew for reasons not directly related to the employee, one withdrew after she failed to appear at a deposition, and another after she failed to reply to his correspondence. Noting that the district court warned her it would not appoint another attorney if she refused to cooperate with counsel, and that she admitted she “was clearly at odds with appointed counsel” throughout the development of her case, the appeals court could not see “how her failures to maintain relationships with her court-appointed counsel amounted to a denial of her right to discovery.” Finding further that she failed to comply with the local rule requiring litigants to file a short statement of disputed facts, the court pointed out that her status as a pro se litigant did not excuse her from following the local rules.

Immunity. The appeals court next found the court below correctly held sovereign immunity barred the employee’s claims under the ADA, ADEA, and Sections 1981 and 1983. Refusing to review her appeal as if her complaint had been properly amended to add the “individual ‘discriminators’” she purportedly named in a response to an interrogatory, the court found that contrary to her assertion, the district court was not “obligated to conform the pleadings to the evidence” by assuming certain individuals have been named as defendants in her lawsuit.

Title VII claims. As to her Title VII race and gender discrimination claims, the court found that assuming she could establish a prima facie case, the university offered a legitimate, nondiscriminatory reason for terminating her—her failure to come to work and its need to fill her position. Although the employee argued that a young, white, female coworker was allowed to take unpaid leave during her probation period, the director disputed this and the employee admitted she did not know if the coworker’s leave was paid or unpaid. Further, the employee was allowed to use her allotted paid leave to attend medical appointments, said the court, finding that she failed to show she was “treated differently” than any similarly situated employee.

Retaliation. As to her retaliation claim, the appeals court observed that she was terminated approximately one week after she was denied FMLA leave. Even assuming her supervisors were aware of her EEOC charge, the appeals court, in agreement with the court below, found that temporal proximity alone was insufficient to establish a fact issue as to whether the conduct was retaliatory.

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