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Garland's Digest
on employment discrimination law
online since 1997
 

 

Disclaimer: The case on which this summary is based may no longer be current law. Also, if the case was decided on summary judgment, the court recited the "facts" in the light most favorable to the non-movant, which may not be the true facts.

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Kendrick v. Penske Transp. Services, Inc., 220 F.3d 1220 (10th Cir. August 8, 2000)

Keywords: 42 U.S.C. Section 1981 (race discrimination, wrongful termination; retaliation)

Introduction: Wayne Kendrick sued Penske under Section 1981 for race discrimination based upon his termination. The district court granted summary judgment on behalf of Penske. The Tenth Circuit affirms.

Facts: Kendrick, a black man, was a truck driver for Penske. On March 8, 1997, he allegedly verbally abused and pushed Richard Tirrell, a Penske Safety Supervisor. Dan Levine, a Penske Logistics Center Manager, asked Kendrick, in Tirrell's presence, to give his version of the story. He declined to do so. Levine reported the incident to Clyde Case, Penske's Regional Human Resources Manager. He also reported that Kendrick refused to respond or deny Tirrell's version of the conduct. On March 10, Case made the decision to terminate Kendrick. On March 12, Kendrick filed a union grievance.

After Kendrick was fired, Penske hired two black drivers.  

Law:

1. The Court holds that the McDonnell Douglas analysis -- which applies to Section 1981 claims as well as Title VII claims -- does not require the plaintiff to show that his replacement was someone outside of his protected class.
2. The plaintiff need only show that: (1) he belongs to a protected class; (2) he was qualified for his job; (3) despite his qualifications, he was discharged; and (4) the job was not eliminated after his discharge.
3. Penske proffered a nondiscriminatory reason for the termination -- Kendrick verbally abused and pushed a supervisor.
4. Kendrick argues that he never pushed Tirrell. But Kendrick acknowledges that he never disputed the allegation of physical contact prior to his termination. Moreover, the person who made the termination decision relied on the results of Levine's investigation -- which included the fact that Kendrick did not contradict Tirrell's version of the events. Therefore, Kendrick's belated assertion that he did not have physical contact is insufficient to establish pretext.
5. Kendrick argues that similarly-situated nonprotected employees who violated work rules of comparable seriousness were treated more favorably.
6. The Court finds that another employee, Lynn Taylor, verbally threatened a supervisor. Taylor was severely punished, but not terminated. The Court finds the conduct of the two men to be comparable. But the Kendrick fails to establish pretext based on the following:
   1. Even though the conduct was comparable, Taylor did not engage in physical contact.
   2. Kendrick and Taylor did not have the same immediate supervisor. Although Cash was involved in both employment decisions, different supervisors react differently to employee insubordination.
   3. The union defended Taylor and assured Penske that Taylor would not cause further problems. The union did not defend Kendrick.
   4. Kendrick, unlike Taylor, did not justify his conduct or otherwise make any conciliatory gestures toward his supervisor or Penske.
   5. Taylor was severely punished. If he had only received a "slap on the wrist," that fact would have more strongly supported Kendrick's argument of pretext.
   6. The Taylor incident occurred more than a year and a half after Penske's decision to terminate Kendrick. An employer's disciplinary practices necessarily change over time.
7. Kendrick also pursued a claim of retaliation. He claims he was terminated in retaliation for: (1) a complaint in September of 1996 concerning sexual harassment of another employee which he witnessed; (2) a complaint in 1996 about a racially derogatory remark made by an employee; and (3) complaints made throughout his employment concerning his belief that blacks were denied opportunities for promotion. Kendrick failed to establish a causal connection with respect to any of these allegations. The first two allegations are remote in time and the third allegation does not indicate when he complained.
8. Kendrick also claims he was retaliated against for filing a union grievance on March 12. But the termination decision was made on March 10 -- so he failed to show a causal connection on that claim as well.
9. Therefore, the Tenth Circuit affirms the district court's grant of summary judgment.
10. Click here to see actual case.