Appeal from the United States District Court for the Eastern District of Arkansas.
The opinion of the court was delivered by: Ericksen, District Judge.
Before BYE and MELLOY, Circuit Judges, and ERICKSEN,*fn1 District Judge.
Ellis Ray Barber sued C1 Truck Driver Training, LLC, C & S Acquisition, Inc., and Driver Holdings, LLC ("C1"). He asserts racial discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000e to 2000e-17) and the Arkansas Civil Rights Act (Ark. Code Ann. §§ 16-123-101 to -108) ("ACRA"). The district court granted*fn2 C1's motion for summary judgment on all claims. For the reasons set forth below, we affirm.
We state the facts in the light most favorable to Barber, "drawing all reasonable inferences" in his favor "without resort to speculation." Wierman v. Casey's Gen. Stores, 638 F.3d 984, 993 (8th Cir. 2011). C1 is a truck driver training school based in Indianapolis, Indiana, with locations around the country. In August 2003, Barber began work for C1 as a classroom instructor in North Little Rock, Arkansas.
In 2006, C1 hired Barber's wife, Karmen Barber, to work in the administrative office. She was terminated later that year and filed a racial discrimination charge with the Equal Employment Opportunity Commission ("EEOC"). In 2007, the EEOC dismissed Karmen Barber's charge and she did not pursue litigation.
In November 2007, David Morgan, then Director of the North Little Rock campus, announced he was leaving C1. Barber and Tami Simpson, a recruiter in the administrative office in C1's North Little Rock location, both applied for the position. The President of C1, Matt Carroll, and the Vice President of Operations, Tim Megard, traveled to North Little Rock to interview Barber and Simpson.
According to Barber, the Training Coordinator/Lead Instructor David Moore informed Barber that he had heard a rumor that the "selection process was a sham, because the company had already decided that Tami would get the position." (App. 403) Barber told Moore that if he did not get the position, he "would exercise [his] right under the law to challenge that" decision. (App. 68) In a written statement dated January 16, 2008, Moore described that on November 26, 2007, Barber approached him and "said if Tami gets this position that [Barber] was going to put his 2 weeks notice in and file a lawsuit for discrimination." (App. 126) Moore told Carroll about this conversation. (App. 50)
After interviewing both candidates and discussing their qualifications with Morgan, Megard and Carroll selected Simpson for the position. Carroll documented the decision in a memo dated November 30, 2007. (App. 51) Carroll also detailed the decision in an undated memo labeled "Hiring Decision." (App. 49-50)
The "Hiring Decision" memo states that Morgan recommended Simpson for the position because Barber's style could be abrasive and divisive; Barber could be arrogant; Morgan thought C1 would lose staff if Barber were hired; and Morgan was concerned about Barber's ability to put in the required hours. In contrast, Morgan believed Simpson had the respect of all of the staff; Simpson had "deep roots with government agencies" that could boost enrollment; Simpson was dependable; and Simpson had experience running C1 when Morgan was absent. The "Hiring Decision" memo also evaluates the performance of Barber and Simpson during their interviews, concluding that Simpson gave superior answers. The "Hiring Decision" memo also notes, "Per David Moore," that Barber stated he would file a lawsuit for discrimination if not promoted. The "Hiring Decision" memo states, "Honestly, why in the world would the company want to promote a person who had such a negative view of the company?" (App. 50) Finally, the "Hiring Decision" memo notes that Barber raised the issue of his wife's termination in his interview "unprompted and on his own." Barber maintains that this was in response to a question about his most difficult experience at C1. The "Hiring Decision" memo states, "I personally believe he did this so that he could later sa[y] that it was brought up and if he wasn't hired, he could use that as a reason." The November 30 memo recounts that Morgan had positive things to say about both candidates but "strongly recommended" Simpson. (App. 51) The November 30 memo also discusses the interview performance of both candidates and is specific about perceived differences between the candidates. For example, the November 30 memo states:
Mr. Barber understands fully what is required to train students. Ms. Simpson understands the process pretty well which is good but not as good. Ms. Simpson, however, has managed the office. She understands all the paperwork that must be completed and communicated to corporate, the same for our carrier customers such as CRST, how to recruit students, and she has relationships with caseworkers at the WIA offices across the state that are a vital source of our revenue. We believe that her knowledge base is far more important to the over all success of the new director. Because of these duties, she also has a relationship with employees at corporate in three of our other companies and those individuals speak highly of her.
In an affidavit filed on May 17, 2010, with Barber's brief in opposition to C1's motion for summary judgment, Morgan asserts that he discussed both candidates with Megard and Carroll but that he did not specifically recommend either one. Morgan stated that Barber "had superior qualifications" because he had fleet management experience in the military, he had a commercial driver's license ("CDL"), and he was an "excellent instructor." Morgan also stated that several people at C1 were "not very fond" of Barber but estimated that the numbers of employees who disliked Barber and Simpson were approximately equal. Morgan observed that Simpson had sales and office experience but that some trainers were concerned she did not have the "qualifications and experience to be the site director, and [she] did not have a CDL." According to Morgan, a CDL was important for any new director because it would help to gain the respect and confidence of the trainers.
Simpson began working as the director in December 2007. Around the same time, Barber received an award recognizing him as "the person with the most outstanding performance for the month of December, 2007." On December 14, 2007, Barber filed an EEOC charge alleging that he did not receive the promotion because of racial discrimination and in retaliation for complaining of racial discrimination and for his association with an individual who had previously filed an EEOC charge. Though the EEOC told Barber that it would mail the charge to C1 in ten days, C1 did not receive notice of the EEOC charge until after the promotion decision was final.*fn3
On January 14, 2008, Simpson, now the director of C1's North Little Rock location, instructed Barber to administer drug tests to the students. The weekly drug testing was usually a two-person task but Barber completed the work alone. On January 15, 2008, Barber and Simpson had a meeting during which Barber told Simpson that he thought she had made him perform the drug tests alone in retaliation for his having filed an EEOC charge. Simpson denied this, explaining that she had been too busy to assist with the testing. Barber recalls telling Simpson that "a person could have the right to refuse an order from their supervisor if they believed it to be discriminatory or retaliatory." (App. 90) Barber testified that Simpson asked whether he had told other C1 employees and students about his wife's EEOC charge. He explained that he had discussed it with other employees. Simpson then asked Barber how his job was going or if there were any issues preventing him from doing his job effectively. Barber answered that there were no issues and Simpson told him that she would be watching his job performance closely. (App. 448-50) Barber responded that this could be construed as retaliation. Simpson testified that she merely meant to say that, as a new director, she would be working with each instructor to see how they did their job and "learn their jobs."
On January 16, 2008, Barber and Simpson met again. Barber told Simpson that he was feeling ill because of their meeting the previous day-from "being harassed for filing a charge"-and that he wanted to see a doctor. Simpson told him he could take paid time off, but that she needed to call Megard first. Simpson called Megard who spoke with Barber on speaker phone. Megard wrote the following description in an e-mail to Carroll:
Tami [Simpson] called me this [morning] at about 7:20 as I was driving to the office. She had Ray [Barber] in her office along with Althea and another C1 staff member as a witness. Ray wanted to talk to me on speaker about his issues. He claimed that he was ill after yesterday and wanted to . . . see a doctor. He stated that he was dehydrated, couldn't sleep or eat after the day he had on Tuesday. He cited that Tami had asked him why he was telling students that C1 had wronged his wife and that she had taken action against us.
He said that we had been served on December 20th papers on his lawsuit and he had also filed with EEOC yesterday after work I guess. He wanted to start arguing and I told him that I was not going to argue with him. I had him pick up the phone earlier in the conversation because I couldn't hear him. Once I told him I was not going to argue he seemed to get more irritated. I told him that I couldn't tell him what to do or not do but that C1 had hired him to be a classroom instructor and him being able to perform his duties did concern me. Once he could tell that I wasn't going to argue and make a scene about it, he hung up[,] and Tami said he walked out.
I am going to have Tami and others present also write a statement on Ray's behavior. I called back after relaying to Matt [Carroll] that Ray blew up and I feel he is trying to do anything to get us to fire him. Maybe after talking to a lawyer and EEOC, he feels the only way to better his position is if we actually fire him. I guess we need to decide today what Tami should tell him if and when he comes back. I am having Tami also get statements from any students that Ray talked to about Karmen.
(App. 137) Barber was absent on January 16 and 17, 2008. On January 17, he saw a doctor. Simpson requested that Barber provide a doctor's note. Before producing the note, Barber questioned Simpson's authority to require the submission of a note, citing a provision of C1's policy manual that requires a doctor's note before an employee may return to work after missing "more than" two consecutive days. (App. 169) On January 23, 2008, Barber received a final written warning for insubordination. The warning describes the conversations of January 15 and 16, and states that future insubordination will result in termination:
On January 15, 2008 Ray [Barber] met with Tami Simpson. In the meeting Ray was rude and disrespectful toward Tami. Ray told Tami that she should not have gotten the director[']s position. He also told her that he could do whatever he wants because he is covered by the EEOC based on his wife filing a claim against C1. This behavior is intolerable. Tami is Ray Barber's supervisor and there is no excuse for speaking to anyone in the company this way let alone his supervisor. It is also insubordination to tell his supervisor that she cannot supervise him because if she does, he will go to the EEOC and say that he was retaliated against because of his wife's prior EEOC claim. Future insubordination will result in termination.
On January 16, 2008 Ray spoke in a loud and rude manner to both Tami Simpson and Tim Megard. He then stormed out of the office saying he had to go to the doctor immediately. Upon returning to work on January 20th, Tami told Ray that he would need to get a doctor[']s excuse. Ray told Tami that per [the] handbook he did not have to which is insubordination. Tami had to again tell Ray that he must get a doctor[']s excuse. After following up with the doctor's office, Tami found out that Ray never went to the doctor on the 16th. He went the following morning[,] but he got the doctor's office to write an excuse beginning on the 16th. Rude speech toward your supervisor and other employees is grounds for termination. Leaving work in the middle of the day and lying about the necessity of doing so is grounds for termination. Similar behavior in the future will result in termination.
What is also apparent after the two discussions on the 15th and 16th and some follow up with other employees is that Ray talks about C1 to other employees in a very negative way. We promote a positive work environment for our employees and cannot tolerate an employee that has nothing but negative things to say. If ...