Grant v. Blytheville Arkansas, City of
ORDER granting 31 motion for summary judgment; finding as moot 42 Motion in Limine; denying 44 Motion for Leave to File. Signed by Judge D. P. Marshall Jr. on 5/7/2015. (ks)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CITY OF BLYTHEVILLE, ARKANSAS
Johnny Grant, an older African American gentleman, worked for the
Blytheville street department for almost thirty years. He worked his way up
to be a driver of a truck that hauled two other workers around to weed-eat
and pick up litter. Being the driver was a position of some prestige. One
member of the crew passed away, and the other quit. Marvin Crawford, the
director of the Blytheville Public Works department, then called Grant in for
a conversation. According to Grant, it went this way:
[Crawford] told me that I wouldn't be driving the truck no
more. I said "Well that ain't no problem. I mean, you're the
boss, that ain't no problem." And he said, "Well, what you
gonna do?" And he said, "What you gonna do, quit?" I told him,
"No, no, I'm not gonna quit." And he said, "You ain't gonna
quit? Well, you're fired, then." And I said, "Well, okay."
NQ 33-1 at 7. According to Crawford, and others present, Grant refused to
work on the truck unless he could drive it. NQ 33-2at17-19; NQ 33-5at10; NQ
33-3 at 9. Mr. Crawford testified:
[A supervisor] came back to me and told me that
Johnny said he wasn't going to do it.
Wasn't going to do what?
Let the new man drive the vehicle .... I walked up
there and I asked Johnny, I said "Johnny," I said,
"what do you mean, you're not going to do it?" He
says, "I ain't gonna do it." I said, "Well, Johnny," I
said, "what do you want to do? Are you gonna
retire?" He said, "Nope, not going to retire." I said,
"well, Johnny," I said, "if you don't do what I ask,
then I've got no use for you." He said, "well." I said,
"The only thing I know to do is just go up and see Ms.
Ng 33-2 at 18.
Under Arkansas law, Grant was an employee at will. That doctrine
casts a shadow over his whole case.
For example, Grant's Fourteenth
Amendment claim fails as a matter of law because he didn't have any
protected property interest in his job. Thompson v. Adams,268 F.3d 609, 611-13
(8th Cir. 2001). Blytheville could fire him at any time for a good reason, bad
reason, or no reason at all, so long as no impermissible factor- such as race
or age- motivated the City's decision.
Ball v. Arkansas Department of
Community Punishment,340Ark.424,430, 10S.W.3d873,877 (2000). Granthas
also made those kinds of claims, arguing that his African-American race, and
his being 59 years old, prompted Crawford's decision. Grant has made a
prima facie case of discrimination. His job performance was excellent; he is a
member of both these protected groups; and he has provided some facts that
raise an inference of discrimination based on race and age. The question is
whether Grant has presented sufficient evidence that Blytheville' s reason for
firing him-insubordination -was a pretext for discrimination. Torgerson v.
City of Rochester, 643 F.3d 1031, 1046 (8th Cir. 2011).
The Court is not persuaded by Grant's argument that Blytheville' s
reason for firing him is unworthy of being credited because it has no basis in
the facts. As Grant points out, Roy Simmons and Sylvia Campbell both heard
Grant say that he wasn't going to quit. Ng 33-5 at 7; Ng 33-3 at 9. But each of
them also heard Grant refuse to work on the truck if he couldn't be the driver.
Ng 33-5 at 7-8; Ng 33-3 at 8-9. Crawford's insubordination rationale therefore
had a factual basis. Muor v. U.S. Bank National Association, 716 F.3d 1072,
1076-77 (8th Cir. 2013); Torgerson, 643 F.3d at 1051.
Grant's race discrimination claim fails for lack of a sufficient
comparator. At the pretext stage, the test for determining whether employees
are similarly situated is rigorous. Johnson v. Securitas Security Services USA,
Inc., 769 F.3d 605, 613 (8th Cir. 2014), cert. denied, 2015 WL 504942 ( 30 March
2015). Grant must show that he and at least one other employee outside of his
protected class "were similarly situated in all relevant respects." Ibid. They
must have dealt with the same supervisor, been subject to the same standards,
and engaged in misconduct of comparable seriousness without any mitigating
or distinguishing circumstances. Ibid.; see also Ridout v. JBS USA, LLC, 716
F.3d 1079, 1085 (8th Cir. 2013). Grant has offered no valid comparator.
Both blacks and whites in the sanitation department had been fired
under Crawford's supervision. One of these individuals was a white truckdriver.
And Grant has provided no evidence that another employee of a
different race failed to follow an order about a work assignment, but received
more lenient discipline. Importantly, Grant's intended replacement as a
driver, Steven Walker, is also black. Grant's reliance on Crawford's handling
of a co-worker's racial slurs on the job doesn't save this claim. Simmons
testified that he told Crawford about the racial remarks twice and Crawford
fired the employee thereafter. Although Crawford's having fired four blacks
and only two whites indicates some disparity, there were more black workers
in the street department than white workers.
On his age discrimination claim, Grant must present evidence that
creates a fact issue as to whether the defendant's proffered reasons are
pretextual" and raises a reasonable inference that age was a determinative
factor in the adverse employment decision." Tusing v. Des Moines Independent
Community School District, 639 F.3d 507, 516 (8th Cir. 2011) (internal
quotations omitted). But Grant hasn't shown that any similarly situated
younger employee received more favorable treatment. Johnson, 769 F.3d at
613. Grant's intended replacement was younger than him. But age alone is
not dispositive. There's no evidence that his replacement was insubordinate
or engaged in similar misconduct. There's no evidence-for example, unfair
discipline or derogatory remarks- that Crawford had it in for older workers.
There are situations where an age claim is for the jury because of
evidence that some other factor was a proxy for age. For instance, an
employer's considering an employee's medicare or retirement eligibility
might allow a reasonable inference of age discrimination. Hilde v. City of
Eveleth, 777 F.3d 998, 1006 (8th Cir. 2015). Grant made about$ 9.00/hour
based on his many years of good work. His salary was thus higher than
many of his co-workers. But Grant has no evidence tending to show that
Crawford considered the salary as a proxy for age. Erickson v. Farmland
Indus., Inc.,271F.3d718, 725 (8th Cir. 2001). Grant's testimony that Crawford
didn't like it that Grant had a higher salary doesn't create an inference of age
discrimination. Hanebrink v. Brown Shoe Co., 110 F.3d 644, 647 (8th Cir. 1997).
The only reasonable inference is that Blytheville may have fired Grant partly
to save some money. If true, this was unfair but not forbidden by the ADEA.
That statute requires evidence that age was the determinative factor in the
firing decision. Tusing, 639 F.3d at 516.
Though Grant doesn't argue the point, the Court acknowledges
Crawford's testimony on deposition that, during the firing meeting, Crawford
referred to the new driver as "the young man" and asked Grant if he was
retiring. These passing references, in context, do not show age-based animus.
Referring to a worker as young, without more, is innocent.
Chezik/Sayers Iowa, Inc., 361 F. Supp. 2d 926, 933 (S.D. Iowa 2005). And
Crawford asked about retirement only in response to what he says was
Grant's refusal to work. The only reasonable inference is that Crawford was
seeking an explanation, not nudging Grant toward retirement based on his
age. Montgomery v. John Deere & Co., 169 F.3d 556, 560 (8th Cir. 1999).
Moreover, Grant didn't testify that Crawford asked him about retirement; he
testified that Crawford asked him if he was going to "quit." NQ 33-1 at 7.
To support both of his discrimination claims, Grant focuses on the street
department's demographics. Statistics, though, must evaluate comparable
employees to be meaningful indicators of pretext. Evers v. Alliant Techsystems,
Inc., 241 F.3d 948, 958 (8th Cir. 2001). The numbers here simply do not create
a dispute of material fact because there's no indication that any of the other
employees were subject to the same circumstances as Grant. There's no
evidence of a demonstrated pattern of preferring for younger workers. In
fact, half of the employees hired under Crawford's supervision were more
than 40 years old. NQ 38-11 at 1-3. And the affidavits from two former
employees are nothing more than generalized statements about Crawford's
treatment of older black employees. This is insufficient. Burkett v. Glickman,
327 F.3d 658, 661 (8th Cir. 2003).
Grant's failure to present any
details-particular incidents of race and age animus - is fatal to his claims.
Finally, no substantial change in the reason for firing Grant occurred.
Neither Crawford nor Andrews offered two completely different reasons for
Grant's firing. E.E.0.C. v. Trans States Airlines, Inc., 462 F.3d 987, 995 (8th Cir.
2006). Blytheville has been consistent: Grant was insubordinate to Crawford
when the driving responsibilities were eliminated. The fact that Andrews
didn't witness the conversation but wrote a statement describing the event
doesn't affect the reason given for Grant's termination and certainly doesn't
create any inconsistency.
Grant's motion for leave to file a surreply, NQ 44, is denied. The Court
has taken the record in the light most favorable to Grant, giving him all
reasonable inferences. There's just insufficient evidence to support a verdict
that discrimination based on his age or his race prompted his firing. As an
employee at will, Grant may have been treated unfairly. But that doesn't
mean he was discriminated against.
* * *
Blytheville's motion for summary judgment, NQ 31, is granted.
Blytheville' s motion in limine, NQ 42, is denied as moot. Grant's motion to file
a surreply, NQ 44, is denied.
D .P. Marshall Jr.
United States District Judge
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