Appeal from the United States District Court for the Eastern District of Arkansas.
The opinion of the court was delivered by: Gruender, Circuit Judge.
Submitted: September 19, 2011
Before RILEY, Chief Judge, COLLOTON and GRUENDER, Circuit Judges.
Devonna Culpepper, a hearing-impaired employee of the United States Department of Agriculture ("USDA"), brought this action against the secretary of that department for workplace discrimination and retaliation in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. She appeals an adverse bench trial verdict. We affirm the judgment of the district court.*fn1
Culpepper has suffered from a severe hearing impairment, which the parties agree qualifies her for protection from discrimination and retaliation under the Rehabilitation Act, since her early childhood. Culpepper began working for the USDA in 1979 and at the time of the filing of her suit was a loan technician in the Single Family Housing Section of USDA Rural Development's Little Rock, Arkansas office with a federal employee grade of GS-7. Over the course of her employment with the USDA, she has filed numerous complaints of workplace discrimination. On January 17, 2005, she sent a letter to the USDA's Office of Civil Rights alleging discrimination against her because of her impairment and retaliation for her previous complaints. She raised a number of issues including her non-selection for a purchasing agent job announced in November 2004 for which she had applied. On May 22, 2006, Culpepper sent another letter alleging discrimination and retaliation related to the announcement of a loan specialist position in April 2006 for which she had not applied, claiming that the inclusion in the announcement of language referring to "experience in listening" was discriminatory. The Office of Civil Rights never acknowledged these administrative complaints, even after Culpepper sent follow-up letters requesting final agency decisions, and later claimed first that it had not received the complaints and then that it had lost them.
After receiving no response to her first complaint letter, Culpepper filed suit in the United States District Court for the Eastern District of Arkansas on February 6, 2006, alleging discrimination on the basis of her disability and retaliation for her prior complaints. She later amended her complaint to include claims relating to her May 2006 complaint letter. The USDA filed a motion to dismiss or for summary judgment on the ground that Culpepper had not followed the pre-complaint processing procedure provided by 29 C.F.R. § 1614.105, resulting in a failure to exhaust her administrative remedies prior to filing suit. After the district court granted summary judgment, we reversed and remanded in Culpepper v. Schafer, 548 F.3d 1119 (8th Cir. 2008), holding that Culpepper's letters to the Office of Civil Rights, if they were timely, satisfied the requirements of administrative exhaustion, id. at 1124. The district court later found her letters to have been timely.
During a three-day bench trial, Culpepper alleged a large number of acts of discrimination or retaliation, including: (1) the 2004 failure to promote her to the purchasing agent position for which she applied; (2) the "experience in listening" language in the 2006 loan specialist vacancy announcement; (3) an inflation of the required employee grade level to be eligible to apply for positions to which she could otherwise have applied, allegedly in order to prevent her from applying to these positions; (4) the failure to promote her through the non-competitive "accretion of duties" process; (5) the use of an intercom system that she could not hear to make announcements to employees; (6) a failure to notify her of various computer issues via her telecommunications device for the deaf ("TDD"), instead relying only on email; (7) a failure to recognize Disability Awareness Month; (8) her omission from two employee telephone extension lists distributed in March 2004; (9) a supervisor's failure to include her on the initial copy of an email about a telephone conversion process; (10) the failure to provide her with an interpreter at a meeting in July 2009 called to discuss her request for sick leave; (11) a supervisor's demand that she take notes during a meeting in July 2009; (12) the failure to provide open or closed captioning for a number of informational and training "webinars" in March 2009; and (13) a delay in the issuance of her annual performance plan, due in October 2009 but not issued until April 2010. Culpepper also argued that the various actions taken against her cumulatively gave rise to a valid claim of discrimination. As further proof of discriminatory or retaliatory intent, Culpepper presented evidence that one of her supervisors had maintained a secret "drop file" on her and argued that the maintenance of such a file showed bias and retaliatory intent on the part of that supervisor.
In a lengthy and detailed opinion, the district court held that Culpepper's tenth, eleventh, twelfth, and thirteenth allegations ("the 2009 claims") had not been properly pled and thus could not provide a basis for relief, and that, for a variety of reasons, neither any of the allegations considered individually nor the cumulative effect of all of the allegations entitled Culpepper to relief. With respect to the drop file, the district court found that Culpepper had failed to establish that she was adversely affected by it. Culpepper timely appeals.
On appeal of a judgment rendered after a bench trial, "[w]e review the district court's factual findings, including the ultimate determination of whether discrimination occurred, for clear error, and its legal conclusions de novo." Betz v. Chertoff, 578 F.3d 929, 933 (8th Cir. 2009), cert. denied, 559 U.S. ---, 130 S. Ct. 1911 (2010). "Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574 (1985).
Culpepper makes four arguments on appeal. First, with respect to the April 2006 loan specialist job announcement, Culpepper contends that the district court erred in finding that her failure to apply for the job was not excused by futility and erred in finding that the language referring to "listening" in the announcement was not discriminatory. Second, Culpepper argues that the district court erred in finding that the failure to promote her through the accretion-of-duties process was not discriminatory and in finding that, similarly, the classification of positions at grade levels in excess of those for which Culpepper was eligible to apply was not discriminatory. Third, Culpepper challenges the district court's holding that the 2009 claims were not properly raised and its alternative finding that those allegations were not meritorious. Finally, Culpepper reasserts her "totality of the circumstances" argument, arguing that the district court clearly erred in finding that, even considering her allegations cumulatively, she had not "suffered an adverse action capable of supporting her claims for discrimination or retaliation."
To plead a prima facie case of employment discrimination for an employer's failure to promote an employee, typically that employee must show that "she applied for the promotion and was rejected." Lockridge v. Bd. of Trs., of the Univ. of Ark., 315 F.3d 1005, 1010 (8th Cir. 2003) (en banc). However, in cases where the very discrimination alleged would have made it futile for the plaintiff to apply for the position in question, the plaintiff's failure to apply may be excused if she can show that in the absence of such discrimination she would have applied. See ...