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Kirklin v. Joshen Paper & Packaging of Arkansas Co.

United States Court of Appeals, Eighth Circuit

December 19, 2018

Calvin W. Kirklin Plaintiff - Appellant
v.
Joshen Paper & Packaging of Arkansas Co. Defendant-Appellee

          Submitted: September 27, 2018

          Appeal from United States District Court for the Eastern District of Arkansas - Little Rock

          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 court[1] 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 ...


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