The opinion of the court was delivered by: J. Leon Holmes United States District Judge
This is an employment discrimination case. Dannie Cuningkin, an African-American male, brought race discrimination and retaliation claims against his employer, the City of Benton, Arkansas, pursuant to 42 U.S.C. § 2000e et seq. (Title VII of the Civil Rights Act of 1964), 42 U.S.C. §§ 1981 and 1983, and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The defendant has moved for summary judgment. 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.
During the spring of 2005 the Utilities Department announced a job vacancy for Customer Service Representative, also referred to as a Serviceman position. The job description for this position required that the person selected must have a high school education or GED and a current driver's license, know how to read KWH (kilowatt-hour) and water meters, know how to install and remove an electric KWH meter safely, and have the abilities to deal with disgruntled customers and to detect theft of utility service. Cuningkin and J. B. Barnes, a white male, both applied. Barnes was selected for the position.
On April 27, 2005, Cuningkin sent a letter of complaint to Rick Holland, Mayor of the City of Benton. Cuningkin's letter stated:
I recently applied for a promotion, Serviceman position. In response to my application I received a letter from [Cindy] Hawkins denying me the position for which I meet all the qualifications that were described in the Job description . . . stating that J. B. Barnes, who worked in this department less than 2 years, was the most qualified because he has experience as an electrical lineman and water pipe fitter of which neither are listed as a job requirement. J. B. Barnes has been given extra credit for what is not considered a requirement for the job. I feel I have been unfairly overlooked for this promotion. The person who previously held this position . . . did not have the experience that I have, neither did he have the electrical lineman and water pipe fitter experience that emphasis was placed on. . . . I feel I have been purposely overlooked and denied this opportunity for advancement. I asked for appeal papers and was informed that there was none.
I have eighteen (18) years of dedicated service to this department. In the past seniority has always played a key role in the promotional process. It is discouraging to know that this is no longer applicable as told to me by Cindy Hawkins. There seems to be a gross disparity in treatment in this facility. I am unsatisfied with the decision and I am asking to be reconsidered for this position/promotion for which I feel I'm a highly qualified applicant. At present, I think that 18 years of experience in this area would outweigh the non-required experience that you place so much emphasis on. By your staff's report Cindy Hawkins, I have been a valuable employee. This is the door for advancement I applied for, not some future placement/ position that was suggested there might be. Again, I would like for you to reconsider your decision.
Kathy Kirk, Director of Human Resources for the City of Benton, responded in writing on May 4. Kirk's memorandum to Cuningkin stated:
Mayor Holland has asked me to reply to your letter of April 27 concerning your seniority with the City and past past [sic] practice (under Union contract agreement) of promoting based on the senior qualified person in the department. The decision was being revisited per your request.
However, effective Monday night, the Utilities Commission indefinitely delayed the creation of the position that the current Customer Services Representative had hoped to accept. Therefore, any opening is negated at this time.
Thank you for expressing your concern. I assure you that we value our employees and want to foster an atmosphere of equal opportunity in all areas of employment.
Kirk testified in an affidavit that, while the City was reconsidering the decision to award the Customer Service Representative position to Barnes, the Utility Commission discussed "rewriting of job descriptions" and decided in a meeting on May 2, 2005, that all job postings would be discontinued until revision of job descriptions was complete. Kirk further testified that this "moratorium" on job postings was a response to an effort to rewrite almost 80 job descriptions, including the Customer Service Representative position. Kirk stated that this project had begun in ...