United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-1440
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Jeanette Jackson, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
United Parcel Service, Inc., *
*
Appellee. *
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Submitted: September 20, 2010
Filed: July 5, 2011
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Before GRUENDER, BRIGHT, and SHEPHERD, Circuit Judges.
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SHEPHERD, Circuit Judge.
Jeanette Jackson appeals the district court’s1 adverse grant of summary
judgment in her employment discrimination action against United Parcel Service, Inc.
(UPS) brought pursuant to 42 U.S.C. § 1981 and Title VII of the Civil Rights Act, 42
U.S.C. § 2000e. We affirm.
1
The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas.
I.
Since 1985, Jackson has been employed by UPS in several capacities, including
part-time employee in the package center (also known as the “hub”), package car
driver, and air combo driver. Since 2006, she has been employed in a feeder driver
position, which involves transporting UPS packages on a large tractor trailer. In this
action, Jackson raised claims of discrimination and retaliation based on promotion
decisions made by UPS in 2004, 2005, and 2007.
An explanation of the two different promotion processes used by UPS is helpful
to understanding Jackson’s claims. In 2004 and 2005, UPS used an “Opt-In”
promotion process. Under this scheme, an employee interested in a promotion as a
full-time supervisor was required to submit a “letter of intent” to UPS indicating
interest. A promotion packet would then be sent to the employee’s direct manager.
The direct manager was responsible for returning the completed promotion packet to
UPS’s district human resources department. If the direct manager did not return a
completed packet, the employee would not advance in the promotion process.
Upon return of the completed packet, the employee would take an objective
test. If the employee passed the test, the employee would advance to a panel interview
during which members of management would ask the employee standardized
questions. If the employee received a passing score on the panel interview, the
employee would be placed in the “ready-now pool” of potential candidates for full-
time supervisory positions. When a position opened, the hiring manager, district
human resources manager, and applicable division manager would consider “ready-
now” candidates for the open position based on relevant work history and other job-
related factors. The hiring manager would make the final hiring decision.
In 2006, UPS adopted the Management Assessment Promotion Process (MAPP)
for selecting employees for promotion to full-time supervisory positions. As with the
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Opt-In system, employees were required to submit a letter of intent. The employee’s
manager would complete an “initial assessment,” and if the employee received a
passing score on the initial assessment, the employee would take a standardized
“Applicant Profile” test (AP test). In order to pass the AP test, the employee had to
obtain a score of two or more on a scale of one to five. Employees who passed the AP
test were administered an “In Box” written exam. Upon passing the written exam, the
employee underwent a panel interview, similar to the one used in the Opt-In process.
If the employee received a passing score on the interview, the employee would be
placed in a pool of candidates to be considered for promotion to full-time supervisory
positions.
In 2004, Jackson’s direct manager was Tom Raines. Despite the fact that
Jackson submitted a letter of intent to be promoted, as she had each year since 1988,
Raines failed to complete the promotion packet for Jackson in 2004 as required under
the Opt-In system for further processing of Jackson’s request for promotion.
Although Jackson had previously taken and passed the objective test, Jackson never
proceeded to the panel interview phase because the promotion packet was not returned
by Raines.
UPS promoted Virginia Fry, a white female, and Christopher Lee, a white male,
to positions as full-time supervisors in the hub in 2004. Jackson maintains that she
is similarly situated to these individuals and should have received one of the
promotions. In 2005, UPS promoted Sherry Grinder, a white female, from the
position of full-time supervisor to a manager position. Although Jackson has since
conceded that she does not qualify for the manager position because she was never a
full-time supervisor, she now argues that the district court should have considered
other promotion decisions UPS made in 2005 under the continuing violation doctrine.
In 2007, under the MAPP promotion system, Paul Hall, Jackson’s manager at
that time, did not give Jackson a passing score on the initial assessment. Thus,
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Jackson did not advance through the MAPP system and was not considered for a
promotion opportunity. Jackson claims that Hall did not give her a passing score in
retaliation for her prior EEOC complaints and a prior lawsuit involving actions taken
by Hall.
Jackson initiated two actions: the first challenging the promotion decisions in
2004 and 2005 and the second claiming Hall retaliated against her in 2007 when he
gave her a failing score on the initial assessment. The district court consolidated the
lawsuits, and Jackson filed a Second Amended Complaint consolidating her claims
from both actions. The district court granted summary judgment in favor of UPS on
all claims. It held, as relevant to this appeal, that Jackson was not similarly situated
to Fry or Lee, Jackson failed to challenge any promotion from 2005 other than that of
Grinder, and Jackson did not allege that Hall knew about any protected activity in
2007 or allege that the score she received from Hall was causally connected to any
protected activity. Jackson appeals the district court’s grant of summary judgment on
her race and sex discrimination claims for 2004, race discrimination claim for 2005,
and retaliation claim for 2007.
II.
We have recently clarified the appropriate standard for consideration of motions
for summary judgment, including those filed in employment discrimination cases, as
follows:
Summary judgment is proper if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no
genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law. The movant bears the initial responsibility
of informing the district court of the basis for its motion, and must
identify those portions of the record which it believes demonstrate the
absence of a genuine issue of material fact. If the movant does so, the
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nonmovant must respond by submitting evidentiary materials that set out
specific facts showing that there is a genuine issue for trial. On a motion
for summary judgment, facts must be viewed in the light most favorable
to the nonmoving party only if there is a genuine dispute as to those
facts. Credibility determinations, the weighing of the evidence, and the
drawing of legitimate inferences from the facts are jury functions, not
those of a judge. The nonmovant must do more than simply show that
there is some metaphysical doubt as to the material facts, and must come
forward with specific facts showing that there is a genuine issue for trial.
Where the record taken as a whole could not lead a rational trier of fact
to find for the nonmoving party, there is no genuine issue for trial.
Torgerson v. City of Rochester, No. 09-1131, 2011 WL 2135636, at *7 (8th Cir. June
1, 2011) (en banc) (citations and quotations omitted). Our review of a district court’s
grant of summary judgment is de novo. Id.
Absent proof of direct evidence of discriminatory motive, a discrimination
action is analyzed under the McDonnell Douglas burden-shifting framework, and the
claim proceeds in three stages. See McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802-05 (1973). First, the plaintiff must establish a prima facie case of
discrimination. Id. at 802. Second, the defendant may rebut the prima facie case by
articulating a non-discriminatory rationale for its action. Texas Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 254-55 (1981). Third, the plaintiff must prove that
the defendant’s proffered rationale was merely pretext for discrimination. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000).
To establish a prima facie case of race or sex discrimination in a
failure-to-promote claim, a plaintiff must show that: “(1) she is a member of a
protected group; (2) she was qualified and applied for a promotion to an available
position; (3) she was rejected; and (4) similarly situated employees, not part of the
protected group, were promoted instead.” Shannon v. Ford Motor Co., 72 F.3d 678,
682 (8th Cir. 1996). Failure to formally apply for a position does not bar a plaintiff
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from establishing a prima facie case, as long as the plaintiff “made every reasonable
attempt to convey [her] interest in the job to the employer.” Chambers v. Wynne Sch.
Dist., 909 F.2d 1214, 1217 (8th Cir. 1990) (quotation omitted).
A.
With respect to the 2004 promotion decisions, Jackson argues that the district
court erred in determining that she was not similarly situated to Fry or Lee. First,
Jackson maintains that the failure to have a completed application packet should not
disqualify her from being considered similarly situated because UPS knew of her
interest in a promotion. Second, she argues that UPS’s rationale for promoting Fry
and Lee–that each had prior part-time supervisory experience in the hub–was merely
pretext for discrimination because Jackson would be equally qualified after attending
training for the position upon promotion.
To be similarly situated, Jackson needed to show that she was “considered a
viable candidate[] for the position.” See Peterson v. Scott Cnty., 406 F.3d 515, 523
(8th Cir. 2005) (abrogated in part by Torgerson, No. 09-1131, 2011 WL 2135636, at
*7, *23) (citing Ottman v. City of Independence, Mo., 341 F.3d 751, 757 (8th Cir.
2003) (finding candidates similarly situated where both met the minimum
qualifications for the position)). Under the “Opt-In” promotion system utilized by
UPS in 2004, to be considered a “viable candidate” the applicant needed to have
completed the promotion application process, which involved the applicant’s direct
manager returning a completed promotion packet with respect to the applicant and the
applicant completing a panel interview. UPS promoted Fry and Lee who were in the
“ready-now” pool of candidates. Jackson was not among the “ready-now” candidates
because her direct manager elected not to complete and submit Jackson’s promotion
packet and Jackson never underwent a panel interview. Accordingly, Jackson was not
a viable candidate and thus was not similarly situated to Fry and Lee, both of whom
had completed promotion packets and had successfully participated in panel
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interviews. We note that Raines was not Fry or Lee’s direct manager, and Raines did
not complete and return a promotion packet for any employee under his direction in
2004. While we may question the wisdom of UPS using a system that allows it to
deny promotion opportunities to interested employees due merely to the negligence
or apathy of a direct manager such as Raines, the fact that Fry and Lee had completed
packets and Jackson did not, standing alone, evinces no discriminatory motive on
behalf of defendants.
Jackson responds that there was a genuine issue of material fact as to whether
she had a completed promotion packet and should have been considered a “ready-
now” candidate in 2004. To support this claim, Jackson cites several statements from
the depositions of various UPS employees and managers, pointing particularly to the
deposition testimony of Bob Cowan to demonstrate that she should have received
consideration for the supervisor positions. Reviewing these depositions in the light
most favorable to Jackson, there is nothing to support the conclusion that Jackson had
a completed promotion packet in 2004. Cowan’s deposition merely reflects that had
Raines returned the completed promotion packet, Jackson would have received a panel
interview. Accordingly, Jackson did not have a completed promotion packet and was
not similarly situated to Fry or Lee. Thus, she has failed to carry her burden of
showing a prima facie case of race or sex discrimination based on UPS’s promotions
of Fry and Lee, and the district court properly granted summary judgment on these
claims.
B.
In 2005, Jackson filed only one EEOC complaint which concerned the
promotion of Sherry Grinder to the position of manager. Jackson admits that she was
not qualified for that manager position because she did not have supervisory
experience, but she argues that the district court should have construed her complaint
under the continuing violation doctrine as challenging all of UPS’s 2005 promotion
decisions, including that of two white, male employees.
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Jackson’s reliance on the continuing violation doctrine is misplaced. The
continuing violation doctrine is not applicable to failure-to-promote claims, which
arise from discrete employment actions. See Nat’l R.R. Passenger Corp. v. Morgan,
536 U.S. 101, 114 (2002); High v. Univ. of Minn., 236 F.3d 909, 909 (8th Cir. 2000)
(per curiam) (“This court has never applied the continuing violations doctrine to a
discrete act, such as failure to promote, and we decline to do so now.”). Jackson’s
complaint does not allege a claim concerning the promotion of the two white, male
employees in 2005 nor does Jackson allege that she was similarly situated to them.
Accordingly, the district court properly granted summary judgment on claims arising
from UPS’s 2005 promotion decisions.
C.
Jackson next argues that Hall, her manager in 2007, retaliated against her by
giving her a failing score on her initial assessment, which in turn disqualified her from
taking the supervisor test under the MAPP system. Jackson argues that Hall was
retaliating against her because she filed grievances against him in 2006. In that year,
Hall disqualified Jackson from driving after she was involved in an accident. As we
noted in Jackson v. United Parcel Service, Inc., 548 F.3d 1137, 1139 (8th Cir. 2008),
Jackson filed grievances related to this disqualification with the union and the EEOC
in June 2006. UPS responds that Jackson has presented no evidence that Hall knew
about her filed grievances or gave her a failing grade on the supervisor test in 2007
because of the grievances.
As we explained in Jackson’s prior case,
Title VII prohibits retaliation against an employee who files charges of
discrimination. Because Jackson presented no direct evidence of
retaliation, we apply the burden-shifting analysis established in
McDonnell Douglas, 411 U.S. 792. Therefore, the plaintiff first must
demonstrate a prima facie case of retaliation to survive summary
judgment. To meet this burden, Jackson must show that (1) she engaged
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in a protected activity, (2) she suffered an adverse employment action,
and (3) there was a causal connection between the protected activity and
the adverse employment action.
Jackson, 548 F.3d at 1142 (citations and quotations omitted).
The only proffered evidence from Jackson to show retaliatory motive is her own
statement that Hall gave her a failing grade because he was retaliating against her for
filing an EEOC complaint. A party’s “unsupported self-serving allegation[]” that her
employer’s decision was based on retaliation does not establish a genuine issue of
material fact. See Smith v. Int’l Paper Co., 523 F.3d 845, 848 (8th Cir. 2008) (quoting
Bass v. SBC Commc’ns, Inc., 418 F.3d 870, 872 (8th Cir. 2005)). Accordingly, the
district court correctly determined that Jackson failed to make a prima facie showing
of retaliation. Furthermore, even if Jackson had presented a prima facie case, UPS
proffered legitimate, non-discriminatory reasons for why Jackson received a failing
score on her initial assessment, which Jackson failed to rebut.
D.
Finally, Jackson argues that the district court abused its discretion when it
struck her statement of disputed facts for failure to conform to local court rules. See
Nw. Bank & Trust Co. v. First Ill. Nat’l Bank, 354 F.3d 721, 725 (8th Cir. 2003)
(standard of review). Local Rule 56.1 of the Rules of the United States District Court
for the Eastern and Western Districts of Arkansas provides, “If the non-moving party
opposes the [summary judgment] motion, it shall file, in addition to any response and
brief, a separate, short and concise statement of the material facts as to which it
contends a genuine issue exists to be tried.” In striking Jackson’s statement, the
district court described the submission as “265 random and disembodied quotations
from various depositions (including a verbatim recitation of a question from UPS’s
counsel to Jackson at her deposition and Jackson’s statements of opinion) and is
neither short nor concise and does not comply with Local Rule 56.1.”
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In her brief before this court, Jackson offers no argument as to why the district
court’s striking of the statement for noncompliance with the local rule was error.
Finding no abuse of discretion, we affirm. See Jones v. United Parcel Serv., Inc., 461
F.3d 982, 991 (8th Cir. 2006).
III.
Accordingly, we affirm the district court’s grant of summary judgment.
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