Dannie Cuningkin, an African-American male, brought race discrimination and retaliation claims against his employer, the City of Benton, pursuant to 42 U.S.C. § 2000e et seq. (Title VII of the Civil Rights Act of 1964), 42 U.S.C. § 1981, and the Fourteenth Amendment to the United States Constitution. The defendant has filed a motion in limine, but because the motion seeks a determination that no genuine issue of material fact exists as to the issues raised, the Court will treat it as a motion for summary judgment.*fn1 For the reasons stated below, this motion is denied.
A court should grant summary judgment when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The party moving for summary judgment bears the initial responsibility of informing the district court of the basis of its motion and identifying the portions of the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Group Health Plan, Inc. v. Philip Morris USA, Inc., 344 F.3d 753, 763 (8th Cir. 2003). When the moving party has carried its burden under Rule 56(c), the non-moving party must "come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1985) (quoting FED. R. CIV. P. 56(e)). The non-moving party sustains this burden by showing that there are "genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson, 477 U.S. at 250. When a non-moving party cannot make an adequate showing on a necessary element of the case on which that party bears the burden of proof, the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323. In deciding a motion for summary judgment, the Court must view the facts and inferences in the light most favorable to the party opposing summary judgment. Boerner v. Brown & Williamson Tobacco Corp., 260 F.3d 837, 841 (8th Cir. 2001) (citing Rabuska v. Crane Co., 122 F.3d 559, 562 (8th Cir. 1997)). If the evidence would allow a reasonable jury to return a verdict for the non-moving party, summary judgment should be denied. Derickson v. Fidelity Life Assoc., 77 F.3d 263, 264 (8th Cir. 1996) (citing Anderson, 477 U.S. at 248).
The Eighth Circuit has said that summary judgment should seldom be granted in discrimination cases where inferences are often the basis of the claim. Duncan v. Delta Consol. Indus., Inc., 371 F.3d 1020, 1024 (8th Cir. 2004) (citing Breeding v. Arthur J. Gallagher & Co., 164 F.3d 1151, 1156 (8th Cir. 1999)); Bassett v. City of Minneapolis, 211 F.3d 1097, 1099 (8th Cir. 2000). But see Bainbridge v. Loffredo Gardens, Inc., 378 F.3d 756, 762 (8th Cir. 2004) (Arnold, J. dissenting).
Dannie Cuningkin is a Meter Reader for the City of Benton's Utilities Department, subdepartment of Water & Lights. He has held this position since 1988.
In 2002, the City entered into a collective bargaining agreement with the American Federation of State, County and Municipal Employees ("AFSCME"). This agreement provides in pertinent part:
Section 3 The principles of seniority and necessary qualifications shall govern in promotions, demotions, lay-off, recall, filling vacancies and transfers.
Section 4 Whenever a job opening occurs in any existing job classification or as the result of the development or establishment of new job classifications, a notice of such opening shall be posted . . . . Qualified applicants, within the department, shall receive preference in filling the open position. Those employees, that meet the qualifications listed for the job that work outside of the department, shall receive preference if no qualified employee within the department applies.
The Employer shall fill the vacancy by promoting from among the applicants the senior qualified employee. Should a question arise as to whether or not the senior employee is qualified, the Union will be notified in writing at least five (5) working days prior to implementation of the promotion and shall have the right to take up the matter as a grievance at the third step of the grievance procedure.
Section 1 This agreement shall be Effective as of the first day of January 2002 and shall remain in full force and effective until the 31st of December 2004. It shall be automatically renewed from year to year thereafter unless either party shall notify the other in writing at least (60) days before the anniversary date that it desires to modify this Agreement. In the event that such noticed is given, negotiations shall begin at least thirty (30) days before ...