United States Court of Appeals

For the Eighth Circuit

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No. 16-2538

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Gloria A. Bunch

lllllllllllllllllllll Plaintiff - Appellant

v.

University of Arkansas Board of Trustees

lllllllllllllllllllll Defendant - Appellee

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Appeal from United States District Court 

for the Eastern District of Arkansas - Little Rock

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 Submitted: January 11, 2017

 Filed: July 24, 2017

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Before RILEY, Chief Judge, LOKEN and BENTON, Circuit Judges.

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RILEY, Chief Judge.

Gloria Bunch appeals the grant of summary judgment to her former employer

in her lawsuit alleging discrimination and retaliation leading to wrongful termination. 

The Honorable William Jay Riley stepped down as Chief Judge of the United

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States Court of Appeals for the Eighth Circuit at the close of business on March 10,

2017. He has been succeeded by the Honorable Lavenski R. Smith. 
We affirm the judgment of the district court. See 28 U.S.C. § 1291 (appellate

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jurisdiction). 

I. BACKGROUND

A. Factual History

In early June 2010, Gloria Bunch, an African-American woman, was hired by

the University of Arkansas for Medical Sciences as a programeligibility specialist for

STRIVE (an acronym for Seeking to Reinforce My Identity and Values Everyday),

a community outreach program that provides outpatient therapy for students in the

Little Rock, Arkansas, school system. All new employees are subject to a 90-day

probation period. In late August, before the end of her 90-day period, Bunch received

a performance review conducted by her supervisor. Bunch earned satisfactory

remarks in all categories except the category of cooperation. Bunch wasinformed her

probation period would be extended until late November. Bunch refused to sign her

performance review. 

Shortly after the review, Bunch met with a human resources administrator and

asked to file a grievance of discrimination and retaliation because she was being

harassed and taunted by her coworkers. Bunch also met with STRIVE’s director,

Paula McCarther. Bunch complained to McCarther about her coworkers, supervisor,

and performance review. Bunch also told McCarther she suffered from disabilities

and discussed requesting time off to attend a doctor’s appointment. McCarther

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explained to Bunch the leave policy requires employees requesting leave to do so two

weeks in advance, or, if calling in sick, to call their supervisor by 7:00 a.m. on the day

of the absence.

The Honorable Kristine G. Baker, United States DistrictJudge for the Eastern 2

District of Arkansas. 

Bunch suffers from depression, fibromyalgia, an anxiety disorder, and

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osteoarthritis of the knee, among other medical conditions.

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On August 30, 2010, Bunch emailed McCarther stating she was making her

“formalrequestfor the ReasonableAccommodation to attendmedical appointments.”

The next morning (four minutes before 7:00 a.m.) Bunch emailed McCarther, her

supervisor, and others, “to report [she was] calling in sick on [sic] today.” Later that

day, she emailed the same group: 

My Doctor is requesting for me to be off work for the next two weeks

as a Reasonable Accommodation Request and is completing the FMLA

Paperwork. I will submit the form upon his completion ASAP. Thank

you in advance for your assistance. 

Bunch’s doctor submitted paperwork for unpaid leave under the Family and Medical

Leave Act (FMLA), see 29 U.S.C. §§ 2601-2654, on September 1, 2010. According

to the paperwork, Bunch needed to be out of work for two weeks due to a “flare up”

in her fibromyalgia syndrome, which left her unable to work “in any capacity.” 

On September 2, 2010, McCarther left a voicemail for and emailed Bunch to

inform her she did not qualify for FMLA leave because she had not been employed

for one year and had not worked the requisite number of hours. See id. § 2611(2)(A)

(defining eligibility). Bunch filed a charge with the United States Equal Employment

Opportunity Commission (EEOC), alleging discrimination based on race, sex, age,

and disability, and also retaliation. One week later, Bunch received a letter from

McCarther notifying Bunch her employment wasterminated. The letter statedBunch

began “missing work” on August 31, 2010, and “[d]ue to the needs of the

department,” her job would be filled. 

B. Procedural History

The EEOC issued Bunch her right-to-sue letter in September 2011. Bunch

filed a pro se complaint against the University of Arkansas Board of Trustees

(university) in December 2011 and moved for appointment of counsel. Her initial

request for counsel was denied, and the district court explained there is no

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constitutional right to counsel in a civil case. In February 2012, the district court

issued an order putting Bunch on notice she was required to comply with the Federal

Rules of Civil Procedure and local court rules. A short time later, an attorney who

was not appointed by the district court made an appearance on Bunch’s behalf. 

Bunch’s attorney filed a motion to stay, citing inability to consult with Bunch “due

to her mental status,” which the district court granted. In September 2012, Bunch

filed an amended complaint bringing claims under Title VII of the Civil Rights Act

of 1964 (Title VII), see 42 U.S.C. §§ 2000e, et seq.; the Americans with Disabilities

Act (ADA), see id. §§ 12101, et seq.; the Age Discrimination in Employment Act

(ADEA), see 29 U.S.C. §§ 621-634; 42 U.S.C. §§ 1981 and 1983; Section 504 of the

Rehabilitation Act of 1973, see 29 U.S.C. § 794; and the FMLA. The amended

complaint also added two unrelated defendants in their “individual[] and in their

official capacity.” In October 2012, Bunch’s attorney moved to withdraw, which the

district court allowed. 

Between January 2013 and March 2015, the district court successively

appointed thirteen attorneys to represent Bunch. Several of the thirteen attorneys

withdrew their representation for reasons unrelated to Bunch, including conflicts of

interest. Bunch’s final appointed attorney moved to withdraw because Bunch failed

to respond to his correspondence requesting information necessary to respond to a

pending motion and court orders. The district court granted the attorney’s motion for

leave and explained it had “previously warned Ms. Bunch that she may not qualify

for the appointment of another should [current counsel] be forced to withdraw due to

lack of Ms. Bunch’s cooperation.” Considering the “procedural history of this case,”

the district court did not appoint another attorney for Bunch, and she proceeded pro

se. 

In July 2015, the university moved for summary judgment. Finding “several

grounds on which summary judgment must be granted,” the district court granted

summary judgment on all of Bunch’s claims against the university. The district court

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gave Bunch 30 days to demonstrate she had served the individually named

defendants. After Bunch failed to do so, the district court dismissed the claims

against the individually named defendants without prejudice. 

II. DISCUSSION

Bunch appeals the grant of summary judgment on her claims under the ADA,

the ADEA, 42 U.S.C. §§ 1981 and 1983, and Title VII. Emphasizing she was 4

without counsel at the time the motion was granted, Bunch contendsthe district court

failed to take into account her status as a pro se litigant. We review the district

court’s grant ofsummary judgment de novo, considering the evidence and making all

reasonable inferences “in the light most favorable to the nonmoving party.” Moody

v. Vozel, 771 F.3d 1093, 1096 (8th Cir. 2014) (internal quotation marks omitted). 

Summary judgment shall be granted “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). 

A. Pro Se Status

Bunch complains the district court failed to consider her status as a pro se

litigant and “ignore[d] the fact that [she] was without counsel and HAD NOT been

provided any opportunity for discovery through her numerous appointed attorneys.”

To begin, we again remind Bunch she has no constitutional right to counsel in a civil

case. See Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir. 1998); see also In re Lane,

801 F.2d 1040, 1042 (8th Cir. 1986) (“The decision to appoint counsel in civil cases

is committed to the discretion of the district court.”). 

Bunch has not made any argument on appeal regarding the dismissal of her

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claims under the FMLA and Section 504 of the Rehabilitation Act. See Jenkins v.

Winter, 540 F.3d 742, 751 (8th Cir. 2008) (“Claims not raised in an opening brief are

deemed waived.”).

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The district court did not ignore Bunch’s status as a pro se litigant; rather, it

diligently assisted Bunch throughout her lawsuit. The district court appointed

thirteen attorneys over the course of this litigation. Although the majority of the

attorneys withdrew for reasons not directly related to Bunch, one attorney withdrew

after Bunch failed to appear at a deposition, and another after Bunch failed to reply

to his correspondence. The district court warned Bunch it would not appoint another

attorney if she refused to cooperate with counsel. Bunch admits she “was clearly at

odds with appointed counsel” throughout the development of her case, and we fail to

see how her failures to maintain relationships with her court-appointed counsel

amounted to a denial of her right to discovery.

To the extentBunch complainsthe district court prejudiced her by finding facts

in favor of the university, we disagree and observe—no material facts appear to be

in dispute. We also point out that in her pro se response to the university’s motion

for summary judgment, Bunch failed to comply with the local rule requiring litigants

to file a short statement of facts believed to be in genuine dispute. Bunch’s status as

a pro se litigant did not excuse her from following the local rules. See Bennett v. Dr

Pepper/Seven Up, Inc., 295 F.3d 805, 808 (8th Cir. 2002). And, to the extent Bunch

did respond to the university’s statement of facts in her motion in opposition, the

district court expressly considered Bunch’s responses. 

B. ADA, ADEA, and 42 U.S.C. §§ 1981, 1983 

The district court correctly held sovereign immunity barred Bunch’s claims

under the ADA, the ADEA, and 42 U.S.C. §§ 1981 and 1983. States are immune

from claims brought under these laws, unless the state has expressly waived

immunity. See, e.g., Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 364

(2001); Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91 (2000); Will v. Mich. Dep’t of

State Police, 491 U.S. 58, 67 (1989); see also Jones v. McNeese, 675 F.3d 1158, 1160

n.1 (8th Cir. 2012) (“When raised directly against a state actor, a § 1981 claim must

be brought under § 1983.”); Monroe v. Ark. State Univ., 495 F.3d 591, 594 (8th Cir.

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2007) (holding the doctrine of Ex Parte Young, 209 U.S. 123 (1908), bars suits for

both money damages and injunctive relief against a state university). The Arkansas

Supreme Court “has consistently held that a suit against a state university or its board

of trustees is a suit against the State and is barred by the doctrine of sovereign

immunity.” Univ. of Ark. for Med. Scis. v. Adams, 117 S.W.3d 588, 590 (Ark.

2003). 

Bunch unsuccessfully attempted to amend her complaint once before by, in her

words, “inadvertently list[ing]” the (now dismissed) individual defendants by “the

wrong names.” Bunch suggests we review her appeal as if her complaint had been

properly amended to add the “individual ‘discriminators’” she says she named in a

response to an interrogatory. That, we will not do. “[A] party may amend its

pleading only with the opposing party’s written consent or the court’s leave.” Fed.

R. Civ. P. 15(a)(2). Bunch has neither. Contrary to Bunch’s assertion, the district

court is not “obligated to conform the pleadingsto the evidence” by assuming certain

individuals have been named as defendants in her lawsuit. Because we agree the

claims under the ADA, the ADEA, and 42 U.S.C. §§ 1981 and 1983 are barred under

the doctrine of sovereign immunity, we need not consider the district court’s

alternative holdings that these claims failed on the merits. 

C. Title VII5

The district court concluded Bunch’s amended complaint “fail[ed] to include

enough facts to state a claim for relief based on alleged race or gender discrimination

Title VII claims brought against a state are not barred by sovereign immunity. 

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See Okruhlik v. Univ. of Ark., 255 F.3d 615, 627 (8th Cir. 2001) (“Congress . . .

validly abrogated the Eleventh Amendment for claims of disparate treatment and

impact on the basis of gender and race.”).

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that is plausible on its face.” The district court found that even if Bunch had

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sufficiently stated race and gender discrimination claims, the university was still

entitled to summary judgment because Bunch “failed to identify a similarly situated

employee who was treated differently from her.” Because the district court, despite

its conclusion about Bunch’s complaint, proceeded to evaluate her claims assuming

they were sufficiently stated, we will as well.

Without direct evidence of discrimination, Bunch must advance her claims

under the McDonnell Douglas framework. See McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802-03 (1973). Under this standard, the plaintiff must first establish

a prima facie case by showing she: “(1) is a member of a protected group; (2) was

meeting the legitimate expectations of the employer; (3) suffered an adverse

employment action; and (4) [suffered] under circumstances permitting an inference

of discrimination.” Moody, 771 F.3d at 1097 (internal quotation marks omitted). If

the plaintiffsatisfies the prima facie case, the burden shifts to the employer to provide

a “legitimate, non-discriminatory justification for its adverse employment action.”

Id. If the employer meets this burden, the plaintiff must “prove [the employer’s]

justification is a mere pretext for discrimination.” Id. 

Assuming Bunch can meet her low burden of establishing a prima facie case,

the university has offered a legitimate, nondiscriminatory reason for terminating

Bunch—her failure to come to work, and the university’s need to fill her position. 

Bunch argues this reason was pretext for discrimination because a similarly situated

young, white, female employee was allowed to take unpaid leave during her probation

period. In an affidavit, McCarther stated the employee in question, like Bunch, was

not allowed to take unpaid leave during her probation period. In her deposition,

In Bunch’s amended complaint she conclusively alleged, without additional 6

detail, she was “discriminated against because of her race and gender” and

“[s]imilarly situated whites, males, or younger employees were not discharged under

the same or similar . . . circumstances.” 

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Bunch admitted she did not know if the employee’s leave was paid or unpaid, and

Bunch, before her termination, was allowed to use her allotted paid leave to attend

medical appointments. Bunch has not shown she was “treated differently” than any

similarly situated employee. Onyiah v. St. Cloud State Univ., 684 F.3d 711, 716 (8th

Cir. 2012). 

Bunch also contends the district court ignored other circumstantial evidence

of discrimination. Bunch claims her job title was “falsified.” Although Bunch was

hired as a program eligibility specialist, on her 90-day evaluation, her job title was

listed as “Social Service Rep. II,” which, according to Bunch, was her supervisor’s

title. One ofthe categories under whichBunch was evaluated during her performance

review was supervision, but Bunch had no supervisory duties. Her performance

review subsequently was amended to remove that category, and that amended copy

was given to Bunch. Bunch also claims she was coerced by a physician to perform

group therapywithout a license, but when she reported thisinstance to her supervisor,

her supervisor “immediately said, ‘No, that’s his job. You’re not to do group.’” 

Neither of these situations demonstrates the adverse action taken against Bunch was

based on a discriminatory motive. Bunch’s other “skeletal,” unsupported allegations

“are insufficient to create a genuine issue of fact so as to preclude granting summary

judgment.” Thomas v. Corwin, 483 F.3d 516, 530 (8th Cir. 2007). 

Lastly, Bunch alleges her termination was retaliation for taking protected

actions. “To establish a prima facie case of retaliation, [Bunch] must show (1) she

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engaged in protected conduct, (2) she suffered a materially adverse employment act,

and (3) the adverse act was causally linked to the protected conduct.” Guimaraes v.

SuperValu, Inc., 674 F.3d 962, 978 (8th Cir. 2012). The district court found the

Bunch argues she engaged in protected conduct by requesting medical leave, 7

refusing to engage in conduct at work she perceived as against policy or as illegal,

inquiring about filing a grievance of discrimination, filing a charge with the EEOC,

and complaining about her job title and wage disparities. 

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“undisputed evidence” showed Bunch’s employment wasterminated “approximately

one week” after she was denied FMLA leave, and, taking the facts in her favor,

assumed her supervisors at STRIVE were aware she had filed a charge with the

EEOC. As the district court reasoned, temporal proximity alone is insufficient to

demonstrate a genuine issue of material fact as to whether conduct was retaliatory. 

See Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999) (“Generally,

more than a temporal connection between the protected conduct and the adverse

employment action is required to present a genuine factual issue on retaliation.”). 

The district court found “no such other evidence has been presented.” We agree. 

Bunch’s cursory reference in her appeal brief to “other indicia of retaliation found in

the deposition” is not adequately presented on appeal. See Fed. R. App. P.

28(a)(8)(A). 

III. CONCLUSION

We affirm.

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