Kendrick v. Penske Transp. Serv., No. 99-3160

• Decision Date: 08 August 2000
• Docket Number: No. 99-3160
• Citation: 220 F.3d 1220
• Parties: (10th Cir. 2000) WAYNE R. KENDRICK, Plaintiff-Appellant, v. PENSKE TRANSPORTATION SERVICES, INC., Defendant-Appellee
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1220

220 F.3d 1220 (10th Cir. 2000)

WAYNE R. KENDRICK, Plaintiff-Appellant, v. PENSKE TRANSPORTATION SERVICES, INC., Defendant-Appellee.

No. 99-3160

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

Aug. 8, 2000.

As Amended August 11, 2000.

Appeal from the United States District Court for the District of Kansas. D.C. No. 98-CV-2289

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Charles S. Scott, Jr., Shawnee, Kansas, for Plaintiff-Appellant.

J. Randall Coffey (Von E. Hays with him on the brief), of Bioff, Singer & Finucane, LLP, Kansas City, Missouri, for Defendant-Appellee.

Before EBEL, KELLY,and ELLISON^*, Circuit Judges.

EBEL, Circuit Judge.

Plaintiff-Appellant Wayne R. Kendrick ("Kendrick") was formerly an employee of Defendant-Appellee Penske Transportation Services, Inc. ("Penske"). Penske terminated Kendrick from his position as a Penske truck driver in March 1997. Kendrick brought an action in United States District Court for the District of Kansas pursuant to 42 U.S.C. § 1981 alleging discriminatory discharge on the basis of race and retaliation for the filing of various complaints with management and for the filing of a union grievance while an employee at Penske. The district court granted summary judgment for Penske. Kendrick appeals the judgment. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM the judgment of the district court.

BACKGROUND

Kendrick, a black man, was hired as a truck driver for Penske in 1995.¹ On March 8, 1997, Kendrick was driving his truck through the gate of the Penske facility when Richard Tirrell, Penske Safety Supervisor and Driver Recruiter, signaled Kendrick to stop. Todd George, Penske Logistics Center Manager, and Dan Levine, Penske Logistics Center Manager, were standing beside Tirrell. After Kendrick stopped, Tirrell told Kendrick that he was driving too fast. Kendrick told Tirrell that it was impossible he was speeding because he had just entered the gate when Tirrell stopped him. Tirrell then said, "You were speeding in the parking lot and you got to slow down." Kendrick drove off following the exchange.

As he drove away, Kendrick received a call from Frank Godley, the dispatcher, to report to the dispatcher's office. When he arrived at the dispatcher's office, Tirrell was inside with Godley. Kendrick asked Godley what the problem was, and Tirrell answered, "They want to see you [Kendrick] in the front office." Kendrick again asked what the problem was and Tirrell repeated that Kendrick needed to go up front. When Kendrick asked again what the problem was, Tirrell approached Kendrick and said, in a hostile tone, "They want to see you up front now." Tirrell was standing "face-to-face" with Kendrick and prompted Kendrick to "do it, do it" as if he were trying to provoke Kendrick into a physical confrontation. Kendrick walked away and Tirrell yelled after him, "That's it, you're fired." Kendrick responded by swearing at Tirrell.

After leaving the dispatcher's office, Kendrick met Ken Hill, the union steward. Kendrick told Hill that he was leaving because he had been fired. Hill told Kendrick to wait and go with him to the front office. About twenty minutes later, Levine, Tirrell, Kendrick, and Hill met together at the front office. At the meeting, Tirrell gave his version of the events that occurred during his encounter with Kendrick at the dispatcher's office. Tirrell stated that Kendrick had charged at him and pushed him and then verbally abused him.² Although Levine asked Kendrick to give his version of the story at the meeting Kendrick declined to do so. At the conclusion of the meeting, Levine suspended Kendrick without pay pending an investigation.

On Monday March 10, Levine contacted Clyde Cash, Penske's Regional Human Resources Manager, who is also black, concerning the March 8 incident. Levine told Cash that he, George, and Tirrell observed Kendrick speeding at the Penske terminal and that Levine advised Tirrell to give Kendrick a warning letter. Levine also advised Cash that Tirrell later reported to him that Kendrick verbally and physically abused him when he tried to give Kendrick the warning letter. Levine informed Cash that Tirrell had indicated that Kendrick had cursed at Tirrell and bumped him with his chest and asked, "Do you want a piece of me?" Levine also told Cash that he had held a meeting with Kendrick, Tirrell, Hill, George, and Craig Clark to address the incident. Levine informed Cash that Kendrick had declined to give his own version of the events at the meeting. Levine provided Cash with sworn statements by Tirrell and Levine recounting the events of March 8. Based on what Levine told Cash about the verbal and physical abuse by Kendrick toward Tirrell and Kendrick's refusal to respond to or deny Tirrell's version of the conduct, Cash instructed Levine to terminate Kendrick's employment.

On March 26, 1997, Kendrick received two letters from Levine on behalf of Penske. The first was dated March 8 and informed him that he was suspended. The second was dated March 10 and informed him that he was being terminated because his actions constituted gross insubordination. The envelopes for both letters were postmarked March 12, 1997. After Kendrick was fired, Penske hired two black drivers.

Kendrick prepared a union grievance concerning the March 8 suspension on March 12, 1997. Hill and Kendrick both signed the grievance, and it was ultimately delivered to Penske. Penske denied the grievance on March 31, 1997.

Kendrick brought an action in federal district court for the District of Kansas against Penske alleging violations of 42 U.S.C. § 2000e ("Title VII") and 42 U.S.C. § 1981, as well as various state law claims. As relevant to this appeal, Kendrick specifically alleged: (1) Penske terminated him in violation of Title VII and § 1981; (2) Penske retaliated against him in violation of Title VII and § 1981 for protesting against Penske's discriminatory practices; and (3) Penske retaliated against him in violation of Kansas law for filing a union grievance.

The district court dismissed the Title VII claims on the ground that Kendrick had failed to exhaust his administrative remedies and granted summary judgment for Kendrick on the state law retaliation claim because Kendrick did not establish causation. Kendrick does not allege any error on appeal in connection with either of these determinations. Turning to the § 1981 discrimination claim, the district court found that Kendrick had put forth a prima facie case although, as we shall address shortly, it used an erroneous prima facie standard that required Kendrick to compare his situation to that of nonprotected status employees at Penske. The district court then concluded that Penske had articulated a racially-neutral explanation for terminating Kendrick and that Kendrick had failed to show pretext. Thus, the district court entered summary judgment for Penske on the discrimination claim. Finally, the court also granted summary judgment for Penske on the § 1981 retaliation claims after finding that Kendrick had failed to show causation. On appeal, Kendrick argues that the district court erred in granting summary judgment for Penske on the § 1981 discriminatory discharge claim and the § 1981 retaliation claims.³

DISCUSSION

"We review the district court's grant of summary judgment de novo, applying the same legal standard used by the district court." Simms v. Oklahoma, 165 F.3d 1321, 1326 (10th Cir. 1999). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). "When applying this standard, we view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party." Simms, 165 F.3d at 1326.

I. § 1981 Discrimination Claim

A plaintiff alleging discrimination on the basis of race may prove intentional discrimination through either direct evidence of discrimination (e.g., oral or written statements on the part of a defendant showing a discriminatory motivation) or indirect (i.e., circumstantial) evidence of discrimination. See Shorter v. ICG Holdings, Inc., 188 F.3d 1204, 1207 (10th Cir. 1999); Elmore v. Capstan, Inc., 58 F.3d 525, 529 (10th Cir. 1995). Kendrick offers no direct evidence of discrimination. We must therefore determine if there is sufficient indirect evidence of discrimination for Kendrick to survive summary judgment.

The Supreme Court set forth the framework for assessing circumstantial evidence of discrimination in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). "While McDonnell Douglas involved a Title VII claim for failure to hire, the analytical framework it pioneered applies equally to claims brought pursuant to section 1981."⁴ Perry v. Woodward, 199 F.3d 1126, 1135 (10th Cir. 1999); see also Patterson v. McLean Credit Union, 491 U.S. 164, 186, 109 S. Ct. 2363, 105 L. Ed. 2d 132 (1989).

Under the McDonnell Douglas framework, the plaintiff "must carry the initial burden under the statute of establishing a prima facie case of racial discrimination." McDonnell Douglas, 411 U.S. at 802. Once the plaintiff has established a prima facie case, "[t]he burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason" for its employment action. See id. at 802. If the defendant makes this showing, the plaintiff must then show that the defendant's justification is pretextual. See id. at 804. Importantly, the three-part McDonnell Douglas burden-shifting analysis is limited to the summary judgment context. Once there has been "a full trial on the merits, the sequential analytical model adopted from McDonnell Douglas . . . drops out and we are left with the single overarching issue whether pl...