Kirklin v. Joshen Paper & Packaging of Ark. Co., 17-1935

• Decision Date: 19 December 2018
• Docket Number: No. 17-1935,17-1935
• Citation: 911 F.3d 530
• Parties: Calvin W. KIRKLIN Plaintiff - Appellant v. JOSHEN PAPER & PACKAGING OF ARKANSAS CO. Defendant - Appellee
• Court: U.S. Court of Appeals — Eighth Circuit

911 F.3d 530

Calvin W. KIRKLIN Plaintiff - Appellant

v.JOSHEN PAPER & PACKAGING OF ARKANSAS CO. Defendant - Appellee

No. 17-1935

United States Court of Appeals, Eighth Circuit.

Submitted: September 27, 2018

Filed: December 19, 2018

Stephen Lewis Curry, Little Rock, AR, for Plaintiff-Appellant.

Abtin Mehdizadegan, Carolyn B. Witherspoon, CROSS & GUNTER, Little Rock, AR, for Defendant-Appellee.

Before COLLOTON, GRUENDER, and GRASZ, Circuit Judges.

GRUENDER, Circuit Judge.

Calvin Kirklin brought this action against his former employer, Joshen Paper & Packaging of Arkansas Co. ("Joshen"), for race and age discrimination under 42 U.S.C. § 2000e et seq. ("Title VII"), the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"), and the Arkansas Civil Rights Act of 1993 ("ACRA"), Ark. Code Ann. §§ 16-123-101 et seq. , and for promissory estoppel. The district court¹ granted Joshen’s motion to strike portions of Kirklin’s statement of material disputed facts and then granted Joshen’s motion for summary judgment on all counts. We affirm.

I.

Joshen distributes paper, packaging, and sanitation supplies to wholesale and retail accounts nationwide. Kirklin is an African-American male who was fifty-six years old when he filed this lawsuit. He worked for Joshen since at least 2005 and, despite having a Class A commercial driver’s license that permitted him to operate tractor-trailer trucks, drove smaller "bob" or "straight" trucks for Joshen. He did not believe he could drive tractor trailers and did not want to drive any routes that required overnight travel.

In January 2012, Kirklin sustained an injury while making a delivery. After the injury, he went on leave until March 15, 2012 and then again between December 12, 2012 and February 3, 2013. He thereafter returned to work at Joshen on a part-time basis with instructions from his chiropractor not to work more than twenty hours per week for four weeks. By March 2013, Kirklin’s hours were no longer restricted, but he asked for and was granted permission to continue working part-time. Kirklin alleges that his supervisor, Tom Mondok, knew that Kirklin was still in pain even after his hours were no longer limited by his chiropractor.

After being instructed to make cutbacks for operational purposes, Mondok laid off Kirklin on July 29, 2013. Kirklin admitted that Mondok did not promise him that he would be rehired. But Kirklin testified that he was assured that he would be "laid off" and not "terminated," which he understood to mean that the job would be waiting for him after he fully healed from his injury. According to Joshen, no one was hired to replace Kirklin, and his delivery routes were absorbed by existing drivers.

After Joshen laid him off, Kirklin did not inquire about open positions, submit an application, or express interest in returning to work. In December 2013, another Joshen truck driver who drove a tractor trailer full-time with an overnight route became ill and took leave until his employment ended in February 2014. On December 30, 2013, a white male who is nine months younger than Kirklin applied for that position. He was hired in January 2014. According to Joshen, Kirklin was not offered the position because he had made clear that he would not drive tractor trailers and did not want to work full-time or drive overnight.

On March 12, 2014, Kirklin filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") alleging that he was "denied rehire" because of his race and age in violation of Title VII and the ADEA. The charge lists December 5, 2013 as both the earliest and latest date that the alleged discrimination took place. The EEOC issued a dismissal and notice of rights, and Kirklin filed this suit on May 28, 2015. Joshen moved for summary judgment on all claims, arguing that Kirklin did not file a timely or otherwise sufficient charge with the EEOC and, even if he had, did not establish prima facie cases for his discrimination claims. The district court granted most of Joshen’s motion to strike portions of Kirklin’s statement of material disputed facts and all of Joshen’s motion for summary judgment. Kirklin appeals.

II.

We review the district court’s order striking portions of Kirklin’s statement of material disputed facts for an abuse of discretion. Jones v. United Parcel Serv., Inc. , 461 F.3d 982, 989-90 (8th Cir. 2006) ; see also Trickey v. Kaman Indus. Techs. Corp. , 705 F.3d 788, 806 (8th Cir. 2013).

Joshen’s motion to strike challenged fifty-two paragraphs in Kirklin’s statement of material facts for (1) failing to cite to the record, (2) lacking the support of admissible evidence at trial, or (3) containing statements that were not properly supported by the material cited or that were otherwise irrelevant or immaterial. The district court examined all fifty-two paragraphs and struck most of them. Kirklin challenges the district court’s decision regarding twenty-five of those paragraphs and, inexplicably, three that were not struck. Having carefully reviewed the paragraphs that were struck, we agree with the district court that they were deficient for the reasons described in its opinion. Thus, we find no abuse of discretion. See 8th Cir. R. 47B.

III.

We review a grant of summary judgment de novo , considering the facts "in the light most favorable to the nonmoving party." Hiland Partners GP Holdings, LLC v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA , 847 F.3d 594, 597 (8th Cir. 2017). Summary judgment is proper if the moving party "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).

Both Title VII and the ADEA require that an employee complaining of discrimination follow administrative procedures before filing a lawsuit in federal court. Williams v. Little Rock Mun. Water Works , 21 F.3d 218, 222 (8th Cir. 1994) (Title VII); Shelton v. Boeing Co. , 399 F.3d 909, 912 (8th Cir. 2005) (ADEA). Those procedures include filing a charge of discrimination with the EEOC within 180 days of an allegedly unlawful employment practice. 42 U.S.C. § 2000e-5(e)(1) ; 29 U.S.C. § 626(d)(1)(A). Failure to exhaust administrative remedies is an affirmative defense that a defendant must prove. Miles v. Bellfontaine Habilitation Ctr. , 481 F.3d 1106, 1107 (8th Cir. 2007) (per curiam).

Kirklin filed a charge with the EEOC on March 12, 2014 alleging that he was "denied rehire" on December 5, 2013. For claims arising from employment decisions made more than 180 days before he filed his charge, the district court properly granted summary judgment in favor of Joshen because Kirklin failed to exhaust administrative remedies. The district court also properly granted summary judgment in favor of Joshen on the merits as to Kirklin’s failure-to-rehire claim, which arose within the 180-day window.²

A.

Kirklin maintains that the EEOC charge he filed encompassed claims of discriminatory failure to promote, discriminatory layoff, and hostile work place. We need not decide whether these claims are within the scope of his EEOC charge because they arose more than 180 days before Kirklin filed his charge with the EEOC. He therefore failed to exhaust his administrative remedies. Kirklin’s three arguments to the contrary are unpersuasive.

Kirklin first argues that the 180-day limitations period should be tolled and that Joshen should be estopped from arguing untimeliness. "[E]quitable tolling is appropriate when the plaintiff, despite all due diligence, is unable to obtain vital information bearing on the existence of his claim." Dring v. McDonnell Douglas Corp. , 58 F.3d 1323, 1328 (8th Cir. 1995) (quoting Chakonas v. City of Chicago , 42 F.3d 1132, 1135 (7th Cir. 1994) ). The doctrine of equitable tolling "does not require any misconduct on the part of the defendant." Id. We ask whether a "reasonable person" in a plaintiff’s situation would have been aware of the existence of a claim. See id. at 1329. The doctrine of equitable estoppel, however, "comes into play when a defendant takes active steps to prevent a plaintiff from suing on time." Id. (quoting Chakonas , 42 F.3d at 1136 ).

Kirklin asserts that he was "lulled into a sense of security through representations by his supervisor that he would be rehired to his job." This assertion focuses on an alleged affirmative action by Joshen and therefore sounds like a claim for equitable estoppel. As a claim for equitable estoppel, it fails because Kirklin provided no evidence that Joshen took any affirmative actions to prevent him from filing a timely claim. See Kriegesmann v. Barry-Wehmiller Co. , 739 F.2d 357, 358-59 (8th Cir. 1984) (quoting Price v. Litton Bus. Sys., Inc. , 694 F.2d 963, 965 (4th Cir. 1982) ). Kirklin admitted that Mondok never promised him that he would be rehired. But Kirklin nevertheless maintains that he was "promised and assured that he would be recalled to his job after he healed, because he was not terminated." Considering the facts in the light most favorable to Kirklin, Mondok’s alleged promise that Kirklin would be "laid off" and not "terminated" can at best be considered an assurance that Kirklin would remain eligible for rehire. But being eligible for rehire is not the same as being promised his job back and is not a sufficient basis for application of the doctrine of equitable estoppel, especially when Kirklin expressed no interest in returning to work after his layoff.

Kirklin’s assertion also fails if we consider it to be a claim for equitable tolling. The district court concluded that "the undisputed record evidence with all reasonable inferences drawn in favor of Mr. Kirklin would not support application of that doctrine." Kirklin v. Joshen Paper & Packaging of Ark. Co. , No. 4:15-cv-00304, 2017 WL 1179969, at *13 (E.D. Ark. Mar. 29, 2017). Kirklin’s sole argument on appeal is that he believed he would be rehired until learning in December 2013 that "other white and younger...