* The HONORABLE RICHARD H. KYLE, United States District Judge for the District of Minnesota, sitting by designation.

1 The HONORABLE GEORGE HOWARD, JR., United States District Judge for the Eastern District of Arkansas. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 08-1221

___________ Willie Littleton, *
* Plaintiff - Appellant, * * Appeal from the United States v. * District Court for the * Eastern District of Arkansas. Pilot Travel Centers, LLC, *
* Defendant - Appellee. *

___________ Submitted: December 12, 2008 Filed: June 4, 2009

___________ Before LOKEN, Chief Judge, BEAM, Circuit Judge, and KYLE, * District Judge.

___________ LOKEN, Chief Judge. Willie Littleton, an African-American, sued his employer, Pilot Travel Centers (“Pilot”), for race discrimination and retaliation in violation of Title VII, 42 U.S.C. §§ 2000e-2(a), 3(a), and the Arkansas Civ il Rights Act (“ACRA”), Ark. Code Ann. § 16-123-101 et. seq . The district court 1 granted Pilot summary judgment on the retaliation claims, denied summary judgmen t on the race discrimination claims, and2 The HONORABLE JAMES M. MOODY, United St ates District Judge for the Eastern District of Arkansas.
-2- held a bench trial on the latter claims. JudgeHoward died before issuing a post-trial decision, and the case was reassigned. After review, the district court 2found that Littleton failed to prove that Pilot’s le gitimate, non-discriminatory reason for not giving him two pay raises was a pretext fo r unlawful race discrimination. The court denied Littleton’s motion for reconsideration and entered final judgment for Pilot. Littleton appeals these rulings. We analy ze Title VII and ACRA claims in the same manner. Clegg v. Ark. Dept. of Corr. , 496 F.3d 922, 926 (8th Cir. 2007). We affirm.

I. The Retaliation Claims.

At the time in question, Littleton work ed as a fuel truck driver in West Memphis, Arkansas, delivering diesel fuel from Pilot’s fuel suppliers to its retail Travel Centers and to large independent cu stomers. West Memphis drivers reported to Regional Transportation Manager Randy Dyer, who reported to Director of Transportation David Breeding. These Tr ansportation Department supervisors had no authority over Travel Center operations.

Littleton filed a race discrimination ch arge with the EEOC in February 2003, alleging he was denied pay raises given to similarly situated white employees. Seven months later, Tommy Bradshaw, Manage r of the West Memphis Travel Center, complained to Breeding about Littleton’s conduct at the Travel Center. Breeding referred the customer complaint to Dyer to investigate. Dyer contacted Bradshaw, who reported that Ben Crow, an assistant manager, complained that Littleton, while in the Travel Center after delivering fuel , was spreading rumors that Crow was dishonest and gay. Bradshaw told Dyer he had interviewed other Travel Center employees, who likewise complained of harassment and mistreatment by Littleton.-3- After discussing Bradshaw’s complain t with Breeding and the Director of Human Resources, Dyer issued Littleton a “Co rrection Notice.” In the printed “reason for corrective action” portion of the form, Dyer wrote, “Disruptive interpersonal behavior,” “Creating rumors,” “Inappropriate sexual i nnuendo,” “Creating a potentially hostile work environment,” and “Making false claims.” In the “Future Action if problem is not corrected” portion of the form, Dyer wrote, “Failure to correct & not repeat these i ssues will result in immediate termination of employment.” Littleton signed the form to acknowledge receipt but wrote that he disagreed with the “fabricated and slanderous charges” and as ked “to confront my accusers.” He then filed a second charge with the EEOC alle ging that the Correction Notice was illegal retaliation for his earlier charge. The EEOC dismissed the retaliation charge after its investigation failed to establis h a violation and issued a right to sue letter on the initial charge of race discrimination.

Judge Howard granted Pilot summary judgment on the retaliation claims, concluding that Littleton failed to demonstr ate two elements of a prima facie case of retaliation -- an adverse employment acti on and a causal connection between the adverse action and Littleton’s protected ac tivity. The court noted no evidence that complainant Bradshaw knew of Littleton’ s protected activity, and no evidence that Pilot “subsequently used the Correction Notice to alter plaintiff’s employment,” as required by Eighth Circuit cases such as Henthorn v. Capitol Commc’ns, Inc. , 359 F.3d 1021, 1028 (8th Cir. 2004).

Before trial of the race discriminati on claims, the Supreme Court decided Burlington Northern & Santa Fe Railway v. White , 548 U.S. 53 (2006), which modified the Eighth Circuit’s element of an adverse employment action. Under Burlington Northern , a prima facie case of retaliation requires a showing that the alleged retaliatory action wa s materially adverse, that is, the action “might have dissuaded a reasonable worker from making orsupporting a charge of discrimination.” 548 U.S. at 68 (quotation omitted). After the district court’s adverse post-trial-4- decision, Littleton filed a motion to recons ider dismissal of the retaliation claims based on Burlington Northern ’s change in Eighth Circ uit law. Judge Moody denied this motion because Littleton had failed to show that “significant harm” resulted from the Correction Notice. Littleton appeals th e dismissal of the retaliation claims. He argues that the Correction Notice, “an expr ess threat to his continued employment,” was a materially adverse action that might have dissuaded a r easonable employee from engaging in protected activity, and that evidence of Pilot’s “sham” investigation of false Travel Center accusations established a prima facie case of illegal retaliation and sufficient evidence of pretext to warrant tria l of the claims. We review the grant of summary judgment de novo

.

The material adverse action issue is difficult. Our post-Burlington Northern decisions have consistently held that, to be materially advers e, retaliation cannot be trivial; it must produce some “injury or harm.” Gilbert v. Des Moines Area Cmty. Coll. , 495 F.3d 906, 917 (8th Cir. 2007). Thus, we have concluded that commencing performance evaluations, or sending a criti cal letter that threatened “appropriate disciplinary action,” or falsely reporting poor performance, or “lack of mentoring and supervision” were actions that did not establish a prima facie case of retaliation, absent showings of materially advers e consequences to the employee. See Weger v. City of Ladue , 500 F.3d 710, 727 (8th Cir. 2007); Gilbert , 495 F.3d at 917; Devin v. Schwan’s Home Serv., Inc. , 491 F.3d 778, 786 (8th Cir. 2007); Higgins v. Gonzales , 481 F.3d 578, 590 (8th Cir. 2007).

Here, Littleton has not shown that the Co rrection Notice harmfully impacted his employment. He did not suffer a loss of pay or hours, his responsibilities did not change, and he was not excl uded from any training or ment orship available to other employees. On the other hand, he was exp licitly threatened with termination unless he stopped harassing other Pilot employees. If the co-worker accusations were false, and if Pilot knew they were false, shoul d the retaliation claim be dismissed out of hand because this kind of formal disciplinary notice, even if retaliatory, would not as-5- a matter of lawhave dissuaded a reasonable worker from making a charge of discrimination? “Context matters,” th e Supreme Court observed in Burlington Northern , 548 U.S. at 69. In these circumst ances, more analysis is needed.

Putting this issue in the context of undi sputed facts in the summary judgment record establishes that Littleton failed to show a causal connection between his first EEOC claim and the Correction Notice. First, the allege d retaliatory action was not sufficiently contemporaneous to the protected activity to raise the inference of a causal connection. See Recio v. Creighton Univ. , 521 F.3d 934, 941 (8th Cir. 2008) (sixmonths not close enough); Lewis v. St. Cloud State Univ. , 467 F.3d 1133, 1138 (8th Cir. 2006). Second, the Correction Notice concerned Littleton’s conduct months after his protected activity. “[T]he anti-discrimi nation statutes do not insulate an employee from discipline for violating the employer’s rules or disrupting the work-place.” Griffith v. City of Des Moines , 387 F.3d 733, 738 (8th Ci r. 2004), quoting Kiel v. Select Artificials, Inc. , 169 F.3d 1131, 1136 (8th Cir.) (en banc), cert. denied , 528 U.S. 818 (1999). Third, Bradshaw, who complainedabout Littleton’s conduct at the Travel Center, had no knowledge of his prior prot ected activity, and Dyer, who made the initial decision to issue the Correction Notice, had no knowledge of the protected activity when he contacted Bradshaw to learn the details of the Travel Center’s complaint. Though Breeding and the Hu man Relations Director doubtless knew of Littleton’s EEOC charge at the time they approved Dyer’s disciplinary decision, this sequence of events raises no inference that Pilot instigated eith er the Travel Center complaint or the resulting discipline for retaliatory purposes.

Littleton argues that Pilot failed to i nvestigate the false accusations, which evidences “a deliberate attempt to begin a termination process fo r Littleton.” But this assertion misstates the summary judgment r ecord. It is undisputed that Bradshaw investigated assistant manager Crow’s in itial complaint by interviewing other Travel Center employees, and reported the results of his investigation to Dyer, who reported it to Breeding. Dyer and Breeding as Tr ansportation Department supervisors had no-6- authority to investigate employee complaints at a Travel Center. Thus, they acted reasonably in relying on what Bradshaw re ported. That the Travel Center employees who supported Crow’s complaint did not prepare written statements until the EEOC conducted its investigation di d not refute Pilot’s otherwise unrefuted evidence that Bradshaw -- the appropriate Pilot supe rvisor -- conducted informal employee interviews and reported the results of his investigation to Dyer.

Littleton further argues that Pilot revealedits retaliatory intent when Littleton called Breeding to dispute th e Travel Center accusations, and Breeding said that it did not matter whether the accusations were true or not. Of course it mattered to Littleton whether he was falsely accused. But from Breeding’s perspective, Littleton, a fuel truck driver, had no job-related reason to linger at a Travel Center after completing a fuel delivery; when the Tr avel Center manager reported that a driver was harassing Travel Center employees and disrupting operations, the operative principle, “the customer is always right,” required a stern warning to the driver, whether or not the customer’s complaint was entir ely accurate or fair. Thus, while the Correction Notice may not have been tactfully worded, there was a legitimate reason for the warning that created no inference of a causa l connection to prior protectedactivity. On this record, we conclude the district court properly granted summary judgment dismissing Littleton’s claims of unlawful retaliation.

II. The Race Discrimination Claims.

These claims involve annual pay raises given to most transport drivers but not to Littleton in January 2002 and 2003. In August 2000, Littleton was hired to work as a transport driver in Chattanooga, Tenne ssee. Transport drivers work for a “lead driver” in each area. Two months later, Littleton was transferre d to Troy, Illinois. Though he was the only driver at Troy, Pilo t designated him the lead driver, which increased his wage to $13.50 per hour. He received another raise to $13.90 per hour in January 2001.-7- Transportation Director Breeding grew unhappy with Littleton’s performance in Troy. Knowing Littleton was from the Memphis area, Breeding asked Littleton if he would become a transport driver in We st Memphis, Arkansas , where Pilot needed additional drivers, keeping his lead driverwage. Littleton agreed and transferred in June 2001. His pay rate of $13.90 per hour was higher than any other West Memphis transport driver, including lead driver Eric Meyer, all of whom had greater seniority.

Pilot gives annual raises in January. Br eeding makes all transport driver raise determinations. Generally, a ll drivers in a given location receive the same raise based on cost of living and job performance factor s, but Breeding has discretion to consider other factors. Littleton did not receive a pay raise in January 2002. Dyer told Littleton he must wait one year after return ing to a transport driver position before receiving an annual pay increase. In January 2003, Littleton again did not receive a raise. Breeding told him his pay remain ed steady because he was making more than all the other West Memphis drivers. Dyer te stified that he agreed with this decision because other West Memphis drivers complained that Littleton was being paid more to do the same job. Breeding testified this was the only reason Littleton was denied pay raises in 2002 and 2003. Hi s annual raises resumed in 2004.

Littleton filed a race discrimination chargewhen he learned that a white former lead driver in Nashville, Howard Brown, received a raise two years after returning to a transport driver position. In his deposition, Littleton identified Porter Beach and Eric Meyer as two additional white former lead drivers who, like Brown, received raises more quickly than Littleton after retu rning from lead driver to a transport driver position. Littleton claimed at trial, as he does on appeal, that he was similarly situated to these three white drivers a nd therefore Pilot’s denial of two pay raises was unlawful race discrimination. Breeding and Dyer tes tified regarding the pay raise decisions at trial.-8- After reviewing the trial record, J udge Moody made the following findings. Littleton understood in June 2001 that he was transferring fro m lead driver in Troy to transport driver in West Memphis, keeping hi s lead driver wage rate. That made him the highest paid driver in West Memphis despite having the least seniority. Three other drivers complained to Dyer about this wage differential. Breeding denied Littleton a raise in 2002 because he was still earning lead driver pay. Breeding denied Littleton a raise in 2003 because he was still earning more than all other West Memphis drivers except the new lead driv er, Cedric Clark, an African-American. Littleton identified Brown, Me yer, and Beach as similarly situated white former lead drivers. Brown was promoted to lead driv er in 1990, returned to transport driver in 2001 for personal health reasons, received no raise in 2001, and received a raise in 2002 because of his many years of outstanding service. Meyer was promoted to lead driver in West Memphis in April 2000, recei ved a raise as lead driver in January 2002, was demoted to transport driver in February 2002, and was deniedpay raises in 2003 and 2004. Beach was hired as a lead driv er in Chattanooga in 1990 and returned to transport driver in 2000 after open heart surg ery. Littleton remains employed at Pilot. He does not believe Dyer is a racist, nor has Breeding ever said anything suggesting he is racist.

Based upon these findings, the court conc luded that Littleton established a prima facie case of discrimination, but that Pilot established a nondiscriminatory reason for its decision not to increase Littleton’s wage as a transport driver in West Memphis -- “he was earning more money pe r hour than any other drivers in his region, all of whom had more seniority.” As Littleton faile d to establish that Pilot’s reason was a pretext for race discriminati on, the court ordered entry of judgment dismissing Littleton’s claims and later denied his motion for reconsideration. Littleton v. Pilot Travel Ctrs., LLC , 2008 WL 53122 (E.D. Ark. Jan. 2, 2008).

On appeal, Littleton argues the district c ourt “clearly erred in ruling in [Pilot’s] favor” given inconsistencies in Breedi ng’s trial and deposition testimony, false-9- statements to the EEOC denigrating Little ton’s job performance, and discredited proffered reasons for its pay raise decisions . The argument is a collage of unrelated assertions supported by general citations to multi-page trial exhibits. To the extent we can match fact assertions to the trial record, we find them unsupported or gross exaggerations. In any event, the assertions are tangential to our limited role on appeal, which is to determine whether the distri ct court’s specific factual findings, and particularly its ultimate finding that L ittleton failed to prove intentional race discrimination, are clearly erroneous. Ha ving carefully reviewed the trial record, “[w]e cannot say that a trier of fact coul d only reach the conclusion that [Pilot] was motivated by race . . . prejudice, and we cannot reverse unless we can say that.” Cha v. Henderson , 258 F.3d 802, 806 (8th Cir. 2001). Thus, we must affirm.

III. Two Evidentiary Issues.

A. Failure To Defer to Judge Howard’s “Findings.” At the close of Littleton’s case in chief, which included testimony by Breeding and Dyer as well as Littleton, Pilot moved under Rule 52(c) of the Federal Rules of Civil Procedure for judgment based on the partial finding that Littleton submitted no evidence that Pilot’s decisionmaker, Breeding, was racist. J udge Howard asked P ilot’s counsel, “What weight and credibility is to be accorded Mr. Breeding’s testimony given the fact he has made inconsistent statements under oath ” in his deposition and at trial? Counsel for Pilot responded that the testimony in que stion was not inconsistent. Counsel for Littleton disagreed, arguing as he does on app eal that Breeding’s failure to recall a conversation in his deposition that he later recalled at trial was an inconsistency that destroyed his credibility. After posing othe r questions to both counsel, Judge Howard denied the Rule 52(c) motion, and the trial resumed.

On appeal, Littleton argues that Judge Howard’s comment regarding Breeding’s inconsistent testimony was a finding that Br eeding’s trial testimony was not credible, and that Judge Moody erred in not deferring to that finding because Judge Howard-10- was “the only trier of fact to view th e witnesses, observe their demeanor, and determine their credibility.” This argument is without merit. Judge Howard’s comment was not a post-trial finding of fact, it was a comment explaining one reason why the court declined to enter judgment at the close of Littleton’s case in chief. Judge Moody’s findings of fact were base d on a full trial record, which included additional testimony by both Breeding and Dyer. Obviously, Judge Moody credited Breeding’s testimony as to the reason Littleton was denied two pay raises. Judge Howard’s comment during trial did not preclude that finding.

We note in this regard that Rule 63 of the Federal Rules of Civil Procedure authorized Judge Moody as successor judge, “at a party’s request, [to] recall any witness whose testimony is mate rial and disputed and who is available to testify again without undue burden,” and to recall other witnesses. Littleton made no Rule 63 request before Judge Moody issued his fi ndings and conclusions. A party “has no right to sit back and await decision of the case before objecting to the procedure.” In re Higginbotham , 917 F.2d 1130, 1133 (8th Cir. 1990) (quotation omitted).

B. Exclusion of Evidence. One week before trial, Pilot filed a motion in limine to exclude (i) witnesses who coul d only provide testimony relevant to the dismissed retaliation claims, and (ii) documents from the EEOC investigative file containing inadmissible hearsay. Littleton responded that the witnesses -- current and former employees of the West Memphis Tr avel Center -- and the EEOC investigator’s notes of what witnesses told him when in terviewed were relevant and admissible to show that Pilot “is lying . . . about the circumstances surrounding Mr. Littleton’s transfer from Illinois, Mr. Littleton’s job performance, and the reasons Mr. Littleton was denied his raises, including the issuan ce of the correction no tice.” Judge Howard granted the motion and excluded evidence related to the dismissed retaliation claims, explaining that Littleton’s “response confirms that all the eviden ce which [he] seeks to introduce is related solely to the retaliation claim,” and that “testimony of-11- employees in . . . the travel center . . . could not be relevant to the compensation decisions made in the transportation department.”

Littleton argues on appeal that Judge Howard abused his discretion in granting the motion in limine because testimony by the excluded Travel Center witnesses would have demonstrated that Pilot (i) ma de false statements to the EEOC relating to Littleton’s job performance, and (ii) atte mpted to improperly influence witnesses (Travel Center manager Bradsh aw allegedly advised store employees they would not be paid for attending the trial and s hould “remember to tell the truth”).

We will not disturb a district court’s exer cise of its wide discretion to admit or exclude evidence absent a clearabuse of discretion that “was prejudicial to the point of producing a different verdict.” Harris v. Chand , 506 F.3d 1135, 1140 (8th Cir. 2007) (quotation omitted). Littleton falls far short of meeting this rigorous standard. First, he made no showing in the districtcourt that any Travel Center witness had first-hand knowledge relevant to whether Pilot denied L ittleton pay raises because of his race, nor to the broader question of Littleton’s job performan ce prior to the pay raise decisions. Second, Judge Howard’s ru ling did not address the question of Pilot’s alleged false statements to the EEOC. Evidence that Pilot gave different, inconsistent explanations for denying the raises might well be relevant to Littleton’s race discrimination claims. But Travel Center em ployees could not speak to that question, and no such evidence was excluded at trial. Finally, the allege d witness tampering was a collateral issue and moreove r was totally without merit.

The judgment of the district court is affirmed.

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