Beverly Burkett v. Department of Agriculture, George Ervin “Sonny” Purdue III, Secretary, successor to…

United States Court of Appeals
For the Eighth Circuit
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No. 20-3310
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Beverly Burkett
lllllllllllllllllllllPlaintiff - Appellant
v.
Department of Agriculture, George Ervin “Sonny” Purdue III, Secretary, successor
to Thomas J. Vilsack
lllllllllllllllllllllDefendant - Appellee
Linda Newkirk, Executive Director, State of Arkansas for the U.S. Department of
Agriculture Farm Service Agency, individually and in her official capacity; David
Curtis, as successor to Linda Newkirk, Executive Director, State of Arkansas for
the U.S. Department of Agriculture Farm Service Agency
lllllllllllllllllllllDefendants
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Appeal from United States District Court
for the Eastern District of Arkansas - Pine Bluff
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Submitted: September 22, 2021
Filed: November 5, 2021
[Unpublished]
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Before SMITH, Chief Judge, GRUENDER and STRAS, Circuit Judges.
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PER CURIAM.
A jury found in favor of the United States Department of Agriculture (USDA)
on Beverly Burkett’s claims of race discrimination and retaliation in her wrongful
termination action brought pursuant to Title VII of the Civil Rights Act of 1964. On
appeal, Burkett argues that the district court1 erred in granting the USDA’s motion
in limine to exclude certain evidence at trial. We affirm.
I. Background
A. Facts
Burkett began her employment with the USDA in 1987 as a grade 2 office
clerk. In 1995, Burkett applied for the position of program technician in Jefferson
County, Arkansas. She was not selected for the position. Burkett subsequently filed
an equal employment opportunity (EEO) administrative complaint. In 2000, an
administrative judge found that Burkett was discriminated against based on her race
and ordered the USDA to place her in the position of program technician (2000
decision).
In 2001, Burkett applied for the “Farm Loan Officer Trainee (FLOT), GS-
5/9/11 position” advertised under “Vacancy Announcement Number AR-286-2001
for a position as a Loan Assistant/Specialist (Agricultural), GS-1165-5/7/9.” R. Doc.
29-2, at 32. In 2004, an administrative judge found that the USDA discriminated
against Burkett based on reprisal when it did not select her for the position (2004
decision). The administrative judge ordered the USDA to “offer Burkett placement
in the first available Loan Assistant/Specialist (Agriculture) position, at the level for
which she is qualified (or substantially equivalent position) in the Arkansas area.” Id.
at 45. As part of the USDA’s placement of Burkett in that position, the administrative
1The Honorable Brian S. Miller, United States District Judge for the Eastern
District of Arkansas.
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judge ordered the USDA to “provide the appropriate training for the position to
Burkett.” Id. at 46.
In accordance with the administrative judge’s 2004 decision, the USDA
“offer[ed] [Burkett] the position of Farm Loan Officer (FLO), GS-11-3, without loan
approval authority and requiring initial service as a Farm Loan Officer Trainee
(FLOT), in the Jefferson County, Pine Bluff, Arkansas FSA[2] office.” R. Doc. 29-3,
at 10. The offer of employment provided that the “FLOT training will provide the
knowledge, skills, and abilities to perform the job at the level required to achieve loan
approval authority, which [was] required in order for [Burkett] to maintain [her] FLO
position.” Id. Burkett’s acceptance of the offer “required [her] to successfully
complete all training for the position.” Id. The USDA gave Burkett “12 months from
the date of orientation to satisfactorily complete all training and testing requirements
of the position.” Id. Burkett accepted the position and was placed in it in April 2005.
The FLOT program consists of two phases: Phase I and Phase II. Burkett
completed Phase I in July 2007, which required her to participate in coordinated
financial assessment training, take program area tests, and pass a comprehensive
exam. Burkett then proceeded to Phase II. “Phase II was a long docket phase
. . . when the trainee would . . . independently work up and submit dockets for
review . . . .” R. Doc. 104, at 63. “The dockets . . . turned in for [the trainee’s]
. . . grade ha[d] to be independently completed” and receive a passing score of 90
percent. Id. at 92. To complete Phase II, Burkett could submit ten loan dockets and
had to receive a passing score on five of the ten submitted dockets.
Some time after July 2007, Burkett began submitting loan dockets for review.
FLOT Coordinator Dennis Stephens initially graded Burkett’s loan dockets. After
Stephens failed three of Burkett’s loan dockets, Burkett filed an EEO complaint
2“FSA” stands for “Farm Service Agency.”
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(2008 complaint). She alleged that Stephens was unfairly grading her loan dockets,
that Stephens retaliated against her because he was the subject of a prior EEO
complaint, and that she was not afforded the same treatment as other employees
because her loan dockets were not graded by an independent third party in
Washington, D.C. Ultimately, Burkett “submitted 10 [loan dockets], but only 2 met
the minimum standards and passed review.” R. Doc. 29-4, at 24.
In July 2009, Burkett and the USDA entered into a settlement agreement that
settled all issues in the 2008 complaint, as well as another complaint filed in 2006
(2006 complaint) concerning Burkett’s training and testing. As part of the settlement,
the USDA agreed to “[s]end all of [Burkett’s] remaining Farm Loan Trainee Dockets,
heretofore graded/judged as ‘not passed,’ to qualified FSA Farm Loan personnel in
a state other than Arkansas for review and evaluation.” Id. at 8.
In accordance with the settlement agreement, the three loan dockets that
Stephens failed and all Burkett’s future loan dockets were sent for review and grading
to Farm Loan Program Chief Phil Estes in Oklahoma City, Oklahoma. Estes used the
Arkansas checklist when reviewing Burkett’s dockets. Estes did not “know Beverly
Burkett,” “know her race,” or “know if she had any prior EEO activity.” R. Doc. 104,
at 92. Estes had never spoken to anyone in the Arkansas FSA office about Burkett.
Estes never saw Stephens’s grading of Burkett’s loan dockets; the graded loan
dockets were not part of the file that Estes received.
“Prior to the Oklahoma reviews, [Burkett] had successfully completed and
passed only 2 loan docket reviews.” R. Doc. 29-4, at 24. Therefore, she needed Estes
to pass three more of her loan dockets. In a letter dated March 8, 2010, Burkett
received notice that the first three submitted loan dockets “failed to meet the
minimum requirements to pass review by the independent review state (Oklahoma).”
Id. A separate letter sent on that date advised Burkett that she was receiving “an
additional 120 days . . . to submit the required number of loan dockets for review.”
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Id. On August 18, 2011, and August 26, 2011, Estes received three additional loan
dockets. Again, “all 3 [loan dockets] failed to meet the minimum credit quality
requirement.” Id. At that point, “[s]ix loan dockets [that] were submitted to
Oklahoma” failed to satisfy “the minimum credit quality requirements necessary to
pass, making it mathematically impossible for [Burkett] to pass 5 of the 10 with only
2 remaining.” Id.
Despite it being “mathematically impossible for [Burkett] to submit enough
loan dockets to pass Phase II,” on May 8, 2012, Vanessa Moore, Burkett’s supervisor,
placed her on an Opportunity to Improve (OTI) plan to obtain loan approval
authority. R. Doc. 102, at 163. During the OTI, Burkett could submit a maximum of
four loan dockets; she had to pass three of them. The OTI was originally for 90 days,
ending on August 7, 2012. But that date was ultimately extended to May 4, 2013.
During the OTI, Burkett submitted three loan dockets; these last three loan dockets
that Estes graded received scores of 62 percent, 68 percent, and 59 percent. Burkett
failed to achieve the required improvement under the OTI. In total, Estes failed all
nine of the loan dockets that Burkett submitted.
Because Burkett was unable to pass the required five loan dockets to obtain
loan approval authority, District Director Larry Segars issued a notice of proposed
removal to Burkett for failure to obtain loan approval authority. This notice listed the
nine loan dockets that Estes failed. Burkett replied to the notice, which State
Executive Director Linda Newkirk reviewed. Newkirk decided to terminate Burkett
after taking into consideration the amount of time that Burkett received to complete
the training, the assistance and opportunities Burkett received to submit the loan
dockets, and the nine failed loan dockets that Burkett submitted.
B. Procedural History
After her termination, Burkett filed an EEO complaint alleging race and age
discrimination and retaliation. After receiving a final agency decision finding of no
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discrimination, she appealed to the Merit Systems Protection Board (MSPB) on the
race discrimination and retaliation claims. An administrative judge thereafter issued
an initial decision affirming the USDA’s action and finding that Burkett failed to
establish that her termination was based on race or retaliation for her protected EEO
activity.3 Burkett subsequently filed a complaint in district court seeking review of
the MSPB’s ruling.
In her pretrial disclosures, Burkett identified excerpts from the 2004 decision
as an exhibit. Prior to trial, the USDA filed a motion in limine to exclude these
excerpts and suggested a stipulation of the relevant facts from that decision. The
USDA also moved to exclude all documents and evidence relating to the 2006
complaint and 2008 complaint. The district court granted the government’s motion
“to exclude excerpts from the 2004 EEOC decision” and “to exclude all documents
and evidence related to the [2006 complaint] and [2008 complaint].” R. Doc. 72, at
1.
Prior to opening statements at trial, Burkett proffered the entire 2004 decision
as Exhibit 1. The USDA objected to its admission and again suggested that the parties
stipulate to the relevant language. The district court overruled the USDA’s objection.
But the district court directed that Burkett must “lay a foundation for [Exhibit 1]” and
therefore did not receive Exhibit 1 into evidence at that time. R. Doc. 102, at 33.
During Newkirk’s testimony, Burkett introduced the 2004 decision as Exhibit 1; the
government did not object, and the district court admitted the exhibit into evidence.
Thereafter, Burkett testified about the 2004 decision and the underlying facts.
Also during trial, the district court revisited its ruling on the motion in limine
to exclude the 2008 complaint. Despite the settlement agreement’s language that
Burkett’s loan dockets would be sent to “a state other than Arkansas” for grading,
3Burkett did not pursue her age discrimination claim before the MSPB.
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R. Doc. 29-4 at 8, Burkett wanted to discuss at trial why the USDA did not send her
loan dockets to Washington, D.C., like it sent “the rest of them,” R. Doc. 103, at 15.
The parties also discussed Burkett’s plan to question Stephens about his alleged
unfair grading of Burkett. Ultimately, the district court ruled that Burkett could testify
that she thought her loans would be sent to Washington, D.C., for grading.
Additionally, the district court informed the jury that the parties had stipulated to
certain facts, stating, “The stipulation reads that Ms. Burkett submitted loan dockets
for grading. After they were graded, she complained that her dockets were unfairly
graded. The parties settled the issue by agreeing to have her dockets independent[ly]
reviewed by FSA personnel in a state other than Arkansas.” Id. at 40. Thereafter,
Burkett testified that her “understanding” when she entered the settlement agreement
was that her loan dockets would go “[t]o the national office in Washington, D.C.” but
they instead went to Oklahoma. Id. at 114.
Burkett never called Stephens as a witness. Instead, Burkett’s counsel asked
her to “relate her disagreement with his assessments” of her loan dockets. R. Doc.
104, at 138. The government objected. In response, Burkett’s counsel explained that
Burkett had “correspondence to Dennis Stephens where she . . . complain[ed] to
Dennis about the grading.” Id. at 140. Specifically, Burkett “point[ed] out errors she
didn’t even commit, asking him to review [them].” Id. at 141. The court, however,
noted that “the problem” for Burkett was that “[h]er termination was not based on
Dennis’s grading.” Id. Instead, Burkett “was terminated based on the files that were
submitted to Oklahoma.” Id. The court explained that Burkett “could disagree with
Dennis all day, but that is not why” Burkett was terminated. Id. Instead, it was Estes
who failed nine of Burkett’s loan dockets. According to the court, the relevant
question was whether Estes “kn[e]w the grades that came from Dennis” and whether
Estes engaged in “an independent review” of Burkett’s loan dockets. Id. The court
sustained the government’s objection to Burkett’s correspondence with Stephens. The
court advised Burkett’s counsel to focus on whether Estes—not Stephens—fairly
graded Burkett’s loan dockets.
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At the end of the trial, the jury returned a verdict in favor of the USDA on both
the race discrimination and retaliation claims.
II. Discussion
On appeal, Burkett argues that the district court erred in “excluding two
important components of evidence: Background evidence surrounding the 2004
EEOC decision resulting in [Burkett’s] farm loan officer position from which she was
terminated, and any evidence relating to the [2008 complaint].” Appellant’s Br. at 12.
Burkett maintains that “[t]he district court’s rulings on the evidence unfairly
prevented [her] from challenging the ‘other reasons’ defense” and denied her “the
opportunity to properly attack the circumstances used by the USDA to fire her—the
grading of loan dockets.” Id. at 13.
“We review a district court’s ruling on a motion in limine for abuse of
discretion.” Sayger v. Riceland Foods, Inc., 735 F.3d 1025, 1034 (8th Cir. 2013).
First, Burkett has not identified what evidence the district court excluded
concerning the 2004 decision. While the district court granted the government’s
pretrial motion in limine to exclude excerpts of the 2004 decision, the district court
later received into evidence during trial the entire 2004 decision as Exhibit 1.
Thereafter, Burkett testified about the decision and underlying facts. We conclude
that the district court did not abuse its discretion in excluding excerpts of the 2004
decision in its pretrial ruling when it later admitted, on Burkett’s motion, the entire
decision into evidence during trial.
Second, the district court did not abuse its discretion in granting the
government’s motion in limine to exclude evidence relating to the 2008 complaint.
Estes—not Stephens—failed the nine loan dockets identified as the basis for
Burkett’s termination. Burkett’s counsel cross-examined Estes about his grading of
Burkett’s loan dockets. Estes testified that he never saw Stephens’s grading of
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Burkett’s loan dockets and that the graded loan dockets were not part of the file that
he received. Additionally, Estes testified that he never spoke with anyone at FSA in
Arkansas about Burkett. The record contains no evidence to the contrary.
Furthermore, the district court did not exclude all evidence relating to the 2008
complaint. After the district court revisited its ruling on the motion in limine, the
parties stipulated that Burkett “complained that her dockets were unfairly graded” and
that “[t]he parties settled the issue by agreeing to have her dockets independent[ly]
reviewed by FSA personnel in a state other than Arkansas.” R. Doc. 103, at 40.
Thereafter, Burkett testified that her “understanding” when she entered the settlement
agreement was that her loan dockets would go “[t]o the national office in
Washington, D.C.” but they instead went to Oklahoma. Id. at 114.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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