Tina Grant, Administrator of the Estate of Johnny Lee Grant Plaintiff- Appellant
City of Blytheville, Arkansas Defendant-Appellee
Submitted: June 15, 2016
from United States District Court for the Eastern District of
Arkansas - Jonesboro
WOLLMAN, MELLOY, and COLLOTON, Circuit Judges.
WOLLMAN, Circuit Judge.
Lee Grant, a black male, was fifty-nine years old and had
been an at-will employee of the City of Blytheville,
Arkansas, (the City), for twenty-seven years when he was
fired on September 26, 2012, by Public Works Director Marvin
Crawford. Grant filed this action against the City, alleging
that he was fired on account of his race and age, in
violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e to 2000e-17, the Age Discrimination
in Employment Act of 1967 (ADEA), 29 U.S.C. §§
621-634, and 42 U.S.C. § 1983. The district
court granted the City's motion for summary
judgment, concluding that Grant had established a prima
facie case of race and age discrimination but that he
had not shown that the City's legitimate,
nondiscriminatory reason for firing him-insubordination-was
pretextual. Grant appeals. We affirm, although on the ground
that Grant failed to establish a prima facie case of
race or age discrimination.
review a grant of summary judgment de novo and will
affirm when "there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law." Torgerson v. City of Rochester,
643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). We view the
evidence in the light most favorable to the nonmoving party
and draw all reasonable inferences in that party's favor.
Id. But the nonmoving party "may not rely on
allegations or denials." Mann v. Yarnell, 497
F.3d 822, 825 (8th Cir. 2007). Instead, he must substantiate
his allegations with "sufficient probative evidence
[that] would permit a finding in [his] favor on more than
mere speculation, conjecture, or fantasy." Id.
(quoting Gregory v. City of Rogers, 974 F.2d 1006,
1010 (8th Cir. 1992)). "Where the record taken as a
whole could not lead a rational trier of fact to find for the
nonmoving party, there is no genuine issue for trial."
Torgerson, 643 F.3d at 1042. We may affirm a grant
of summary judgment on any basis supported by the record.
Noreen v. PharMerica Corp., 833 F.3d 988, 992 (8th
Cir. 2016). We relate the facts in light of these standards.
Lee Grant was employed by the Street Department, one of
several departments that fell under the purview of the
City's Public Works Division. Before he was fired, Grant
had been driving a Street Department truck that normally
transported a three-person work crew along a route through
the City to cut weeds and pick up trash. But one member of
the crew had recently died and the other had retired, leaving
Grant the sole remaining member of the crew assigned to the
truck. On the morning of September 26, 2012, Grant's
immediate supervisor in the Street Department, Roy Simmons,
went to the garage where crews were preparing their trucks
for the day. Simmons informed Grant that Steven Walker, a
forty-five-year-old black male who had recently transferred
from another department, would be driving the truck from that
point forward and that Grant would continue working on a crew
but not as a driver. It is undisputed that the reassignment
had no effect on Grant's title, work hours, or pay,
although Grant asserted that the reassignment deprived him of
some level of the prestige in the Street Department that he
previously held as a driver. After hearing of the
reassignment Grant and Simmons then left the garage and went
to Crawford's office, where, according to Grant:
[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."
stated in his deposition, however, that after Simmons told
Grant that Walker would be driving the truck, Simmons and
Grant arrived at Crawford's office and Simmons told
Crawford that Grant "wasn't going to . . . [l]et the
new man drive the vehicle." After that, according to
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.
testified that he believed Grant was refusing to work in any
capacity if he was not permitted to drive the truck and that
Grant was fired for this insubordination. Simmons, Walker,
and Sylvia Campbell (Crawford's secretary) were also
present for some part of these events. Each of them was
deposed, and their testimony corresponded in all relevant
respects to Crawford's version of events, i.e.,
that Grant refused to work at all unless he was assigned to
drive the truck. Grant, however, flatly denied that he had
refused to work.
receiving a right-to-sue letter from the Equal Employment
Opportunity Commission (EEOC), Grant filed his complaint
against the City in October 2013, asserting claims of age and
race discrimination. Grant sent a copy of his complaint by
certified mail to the Mayor of Blytheville, and a
receptionist signed for the package on December 16. The Mayor
briefly reviewed the complaint that day and, believing that
it involved a personnel matter, delivered the complaint to
the Human Resources (HR) director. The HR director reviewed
the complaint, informed the Mayor that it was related to
Grant's EEOC charge, obtained the Mayor's signature
on the acknowledgment of service, and returned the
acknowledgment on December 17. Neither the Mayor nor the HR
director realized that the complaint was separate from
Grant's EEOC charge and that the City was required to
take action by filing an answer in the district court.
the City had not filed an answer to his complaint, Grant
eventually filed a motion for entry of default with the Clerk
of Court for the Eastern District of Arkansas on April 17,
2014. The Clerk made an entry of default against the City the
next day under Rule 55(a), and Grant's counsel sent a
copy of the Clerk's Default to the Mayor on April 22.
See Fed.R.Civ.P. 55(a) (permitting the clerk to
enter default when a defendant "has failed to plead or
otherwise defend"). When the Mayor received a copy of
the Default, he realized that Grant had filed a separate
lawsuit in federal court. The Mayor delivered the documents
to the City Attorney, who promptly filed a response to set
aside the entry of default and an answer to the complaint on
behalf of the City.
district court entered an order setting aside the Clerk's
entry of default after concluding that the misunderstanding
about the nature of Grant's complaint was good cause for
the City's failure to file a timely answer. The court
found that the City's delay was excusable, that there was
no indication of intentional delay or bad faith by the City,
that the City acted promptly to file its answer once it
became aware of ...