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The Honorable Howard F. Sachs, United States District Judge for the Western

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-3920

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Jamesetta Battle, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Western District of Missouri.

Federal Express Corporation, *

* [UNPUBLISHED]

Appellee. *

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Submitted: December 6, 2005

Filed: December 12, 2005

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Before ARNOLD, FAGG, and SMITH, Circuit Judges.

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PER CURIAM.

Jamesetta Battle appeals the district court’s1

 adverse grant of summary

judgment in her action under Title VII and 42 U.S.C. § 1981 against her former

employer, Federal Express Corporation (Fed Ex). We affirm.

Initially, we agree with the district court that Ms. Battle filed her judicial

complaint more than 90 days after receiving her right-to-sue notice, and hence, her

Title VII claims are time-barred. See Maegdlin v. Int’l Ass’n of Machinists &
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Aerospace Workers, 309 F.3d 1051, 1052 (8th Cir. 2002) (per curiam) (plaintiff must

file Title VII complaint within 90 days after receipt of right-to-sue letter); Baldwin

County Welcome Ctr. v. Brown, 466 U.S. 147, 148 n.1 (1984) (per curiam)

(presumption exists that claimant received right-to-sue notice 3 days after its mailing).

The district court also correctly concluded that several of the incidents

underlying Ms. Battle’s discrimination and retaliation claims were not adverse

employment actions, and thus could not support a section 1981 claim. See Davis v.

KARK-TV, Inc., 421 F.3d 699, 703-04 (8th Cir. 2005) (prima facie case of

discrimination under § 1981 requires adverse employment action); Kim v. Nash Finch

Co., 123 F.3d 1046, 1060 (8th Cir. 1997) (adverse employment action is element of

retaliation claim under § 1981). These incidents included potential relocation, a

temporary termination that was rescinded, and refusal to recertify her on a particular

truck type. See Hoffman v. Rubin, 193 F.3d 959, 964 (8th Cir. 1999) (adverse

employment action occurs when employee suffers loss with respect to term, condition,

or privilege of employment).

Ms. Battle’s poor reviews and her exclusion from the management training

program may have constituted adverse employment actions, but the record contains

no evidence from which to infer that racial discrimination motivated these poor

reviews, or that similarly situated white employees were more favorably treated. See

Philip v. Ford Motor Co., 413 F.3d 766, 768 (8th Cir. 2005). Further, Ms. Battle

failed to establish the requisite causal connection between these events and any

protected activity for purposes of her retaliation claim. See Smith v. Riceland Foods,

Inc., 151 F.3d 813, 819 (8th Cir. 1998) (third element of prima facie case of retaliation

is causal connection between adverse employment action and protected activity). 

Ms. Battle also failed to establish a prima facie case of discriminatory

failure-to-promote, because she did not provide any information about the
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qualifications for the 1998 promotion that she sought, whether she met those

qualifications or whether a similarly situated white person, received the job instead.

See Younts v. Fremont County, 370 F.3d 748, 754-55 (8th Cir. 2004). Ms. Battle’s

claim that she was denied promotions after September 1999 fails as well, because the

record contains no evidence that she applied, or was otherwise eligible, for any

promotion during that time. With respect to the claim that Fed Ex discriminatorily

denied Ms. Battle extra working hours, Fed Ex offered legitimate, nondiscriminatory

reasons for its actions, which Ms. Battle did not rebut with any evidence. See Ruby

v. Springfield R-12 Pub. Sch. Dist., 76 F.3d 909, 911-12 (8th Cir. 1996) (affirming

grant of summary judgment where plaintiff failed to offer evidence to rebut

employer’s non-discriminatory reasons for its actions).

Accordingly, we affirm.

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