Kenney v. Swift Transp., Inc.

• Decision Date: 17 October 2003
• Docket Number: No. 01-3240.,01-3240.
• Citation: 347 F.3d 1041
• Parties: Anthony C. KENNEY, Appellant, v. SWIFT TRANSPORTATION, INC., Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

347 F.3d 1041

Anthony C. KENNEY, Appellant, v. SWIFT TRANSPORTATION, INC., Appellee.

No. 01-3240.

United States Court of Appeals, Eighth Circuit.

Submitted: April 14, 2003.

Filed: October 17, 2003.

Counsel who presented argument on behalf of the appellant was Clifford P. Block of Little Rock, AR.

Counsel who presented argument on behalf of the appellee was Mark T. McCarty of Little Rock, AR. Scotty Shivley of Little Rock appeared on the brief.

Before LOKEN, Chief Judge, HANSEN, and BYE, Circuit Judges.

BYE, Circuit Judge.

Anthony Kenney, an African American man, challenges the grant of summary judgment in favor of Swift Transportation, Inc. (Swift) in his suit brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17. Kenney alleges Swift did not hire him for a position as a trucker because of Kenney's race. On appeal, Kenney argues the district court improperly weighed evidence in concluding he could not show Swift's nondiscriminatory reason for refusing to hire him was pretextual. Because we agree, we reverse.

I

Kenney alleges he called Swift in October of 1999 and asked its recruiter, Gary Grable, whether Swift was hiring truckers. Grable told him positions were available and the two had a lengthy conversation. After telling Grable he had completed truck-driving school, Kenney told Grable about his felony criminal conviction for theft-by-receiving and resulting imprisonment from 1990 to 1996. Grable allegedly said the criminal record was "all right."

According to Kenney, Grable told him to fill out the application with only his most recent employers and his certificate from truck-driving school, rather than providing a ten-year employment history as requested in the application. At the conclusion of the conversation, Grable confirmed he was sending Kenney the application and said he would get Kenney "in here with a trainer and [he] can go back out on the road." Based on that conversation, Kenney believed he had been hired and when he received the application he filled it out and returned it.

The application says, inter alia, "NOTE: ANSWER ALL QUESTIONS ... THIS APPLICATION WILL NOT BE CONSIDERED UNLESS COMPLETE." The application requested information for all full and part-time employment for the preceding ten years. Kenney listed six jobs he had held, the first of which began in May 1998. The form also asked if the applicant had ever been convicted of a crime, and Kenney disclosed his conviction. Along with the application, Kenney sent copies of his certificate from truck-driving school, commercial driver's license, social security card, and police background check revealing his conviction (and the fact he is African American.) The application was denied.

Kenney alleges Grable told him a "Board of Review" rejected his application. But Swift asserts and Grable testified there is no such board and Grable was the sole person involved in the decision to reject Kenney. Swift and Grable say Kenney was rejected because his application was incomplete and they deny Grable told Kenney he did not need to give the ten years of employment history as requested on the application. Swift did hire thirty drivers during the month Kenney applied, thirty-three the next month and forty-four the following month. There is no record evidence, however, of the race or qualifications or application completeness of those employees.

Kenney filed this action pro se on March 20, 2000, against a number of defendants, including Swift and Grable. The district court dismissed the entire complaint on May 16, 2000. On appeal, a panel of this court reversed with respect to Swift only, on the grounds Kenney had alleged a cause of action against it. On remand the district court appointed Kenney counsel.

After remand, Swift filed a motion for summary judgment. Kenney requested he be given until July 31, 2001, to respond to the motion because he was waiting for discovery responses from Swift. The district court allowed him that time, and granted a second extension until August 15, 2001. Just before that deadline, Kenney requested a third extension because Swift still hadn't provided the discovery. Kenney also filed a "Preliminary Response to Defendant's Motion for Summary Judgment," and brief in support thereof.

On August 28, 2001, the district court granted summary judgment in favor of Swift. In so granting, the district court assumed arguendo Kenney could make a prima facie case. The district court noted Swift had proffered a legitimate non-discriminatory reason for not hiring Kenney, namely, his failure to complete the application by providing a ten-year employment history. The district court found Kenney had not proffered evidence Swift's legitimate non-discriminatory reason was pretextual. In so doing the district court rejected Kenney's deposition testimony indicating Grable told Kenney he needn't follow the instruction to list ten years of employment because, "there is no evidence in the record to support this contention, and, in fact, it is inconsistent with the express instructions" on the application.

The district court denied Kenney's motion for continuance on the theory the discovery Kenney says he was waiting for would not have helped him on the motion for summary judgment. The district court said the outstanding discovery would only establish Kenney's prima facie case, which the district court had assumed he could meet when it granted summary judgment. Because the district court found nothing in the outstanding discovery would have undermined Swift's legitimate nondiscriminatory reason for the failure to hire, the district court denied the motion for continuance. Kenney appeals.

II

We review a grant of summary judgment de novo, applying the same standard as the district court. Jaurequi v. Carter Mfg. Co. Inc., 173 F.3d 1076, 1085 (8th Cir.1999). Summary judgment is proper if, upon viewing the facts in the light most favorable to the non-moving party, and giving her or him the benefit of all reasonable inferences, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Reich v. Hoy Shoe Co., 32 F.3d 361, 364 (8th Cir.1994). In ruling on a motion for summary judgment a court must not weigh evidence or make credibility determinations. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ("Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, [when she or] he is ruling on a motion for summary judgment ....").

Kenney has no direct evidence race was a reason for Swift's failure to hire him, so his claims are evaluated under the burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-06, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under McDonnell Douglas, Kenney has established a prima facie case of disparate treatment if "he is a member of a protected class (here, blacks ...), that he was qualified for the position for which he applied, that he was not chosen for that position, and that whites ... with the same qualifications as [Kenney] were chosen ...." White v. McDonnell Douglas Corp., 985 F.2d 434, 435 (8th Cir.1993) (citing McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817).

The court below ruled on the motion for summary judgment while discovery...