* After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument. This order and judgment is

not binding precedent, except under the doctrines of law of the case, res judicata,

and collateral estoppel. It may be cited, however, for its persuasive value

consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED

United States Court of Appeals

Tenth Circuit

December 2, 2009

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

MICHAEL E. MCKINZY, SR.,

Plaintiff-Appellant,

v.

NORFOLK SOUTHERN RAILROAD,

Defendant-Appellee.

No. 09-3164

(D.C. No. 2:08-CV-02599-CM-JPO)

(D. Kan.)

ORDER AND JUDGMENT*

Before TACHA, ANDERSON, and EBEL, Circuit Judges.

Plaintiff-appellant Michael E. McKinzy, proceeding pro se, appeals the

district court’s entry of summary judgment in favor of Norfolk Southern Railroad

on his claims of racial discrimination and retaliation brought under Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, and 42 U.S.C. § 1981. 

Exercising our jurisdiction under 28 U.S.C. § 1291, we affirm.
-2-

I.

The following facts are not in dispute. Norfolk Southern operates an

on-line application system, under which prospective employees are invited to

complete a single application questionnaire, which can then be used to apply for

any job posted on the company’s website. Between 2006 and 2008, McKinzy, a

licensed journeyman electrician, used this on-line application process to apply for

at least 75 jobs with Norfolk Southern. Although he applied for jobs throughout

the country and indicated a willingness to relocate, he specified Illinois as his

preferred location, explaining that he was planning a move to Chicago. McKinzy

received rejection emails for the overwhelming majority of these positions. He

did receive a handful of invitations to attend further “recruiting sessions,” mainly

for jobs in the northern Illinois area, but after he failed to attend these sessions,

Norfolk Southern notified him that he was out of contention for these jobs. 

McKinzy filed two complaints with the Equal Employment Opportunity

Commission (EEOC), accusing Norfolk Southern of refusing to hire him because

he is African American. After the EEOC closed its file and issued a right-to-sue

letter, McKinzy filed this action in the district court on December 2, 2008.

On January 12, 2009, before Norfolk Southern filed a responsive pleading,

McKinzy moved for summary judgment. In an order dated January 30, the

district court imposed a due date for Norfolk Southern’s response and a stay of

discovery pending its ruling on the motion. It explained that a stay was prudent
1 Rule 56(f) provides in relevant part that “[i]f a party opposing the motion

[for summary judgment] shows by affidavit that, for specified reasons, it cannot

present facts essential to justify its opposition, the court may . . . order a

continuance to enable affidavits to be obtained, depositions to be taken, or other

discovery to be undertaken . . . .”

-3-

because the court had yet to hold a Rule 26(f) conference and because the case

was likely to be resolved on cross-motions for summary judgment. The court

specifically excluded from the stay, however, any discovery the defendant might

seek under Fed. R. Civ. P. 56(f).1

 

On February 9, Norfolk Southern filed a motion requesting a preliminary

deposition of McKinzy, arguing that, given the numerous jobs he had applied for,

it was unclear which rejections he believed were motivated by unlawful

discrimination. Norfolk Southern argued that it could not respond to McKinzy’s

motion or file a cross-motion without a brief deposition inquiring into the factual

bases underlying McKinzy’s claims. On February 18, over McKinzy’s objection,

a magistrate judge granted Norfolk Southern’s request, reasoning that the case

was likely to be decided on cross-motions for summary judgment and that the

information sought would likely affect the resolution of such motions. The court

found Norfolk Southern’s request to be neither burdensome nor wasteful and

reiterated that its previously imposed discovery stay did not apply to specific

requests made under Rule 56(f). McKinzy fought this ruling in several motions

for reconsideration, but on February 27, the district court judge issued an order

overruling McKinzy’s objections and ordering him to appear for his deposition,
2 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973).

-4-

which he did in early March. Norfolk Southern then filed a cross-motion for

summary judgment, to which McKinzy never responded.

On June 12, the district court issued an order denying McKinzy’s motion

and entering summary judgment in favor of Norfolk Southern. With respect to

the discrimination claim, it concluded at the third step of the McDonnell Douglas2

analysis that, even if McKinzy had established a prima facie case of

discrimination, he had failed to demonstrate a triable issue as to whether Norfolk

Southern’s non-discriminatory reasons for not hiring him were pretextual. 

Relying on the defendant’s unrebutted documentary evidence, the court explained:

Plaintiff’s online applications were primarily rejected at a prescreening stage–by screeners who did not have access to race

information, or to plaintiff’s EEOC charges–because the positions for

which he applied were outside plaintiff’s stated geographic

preference, which was Chicago, Illinois, and his area of residence at

the time, which was Country Club Hills, Illinois, just south of

Chicago. Defendant’s uncontested motion establishes that defendant

screens for candidates who live in the area of the vacancy. . . . 

[D]efendant declines applicants who have been invited to a recruiting

session for a particular position and who do not attend. On five

occasions, plaintiff was invited to recruiting sessions for particular

positions, . . . [but] failed to attend any of these sessions, and was

therefore not considered for the positions.

R. Doc. 49 at 4-5. Since McKinzy failed to contest these reasons for the decision

not to hire him, the court concluded Norfolk Southern was entitled to judgment as

a matter of law on the discrimination claim. It went on to reject the retaliation

claim at the first step of the McDonnell Douglas analysis, explaining that
-5-

McKinzy’s bare assertion of a causal relationship between the defendant’s hiring

decisions and his EEOC complaints was insufficient to establish a prima facie

case of retaliation. This appeal followed.

II.

“We review the district court’s grant of summary judgment de novo and

must apply the same legal standard used by the district court.” Swackhammer v.

Sprint/United Mgmt. Co., 493 F.3d 1160, 1167 (10th Cir. 2007) (internal

quotation marks omitted). Under this standard, we will affirm a grant of summary

judgment “if the pleadings, the discovery and disclosure materials on file, and any

affidavits show that there [was] no genuine issue as to any material fact and that

the movant [was] entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). 

A district court’s discovery rulings, including the court’s decision in this case to

permit a limited deposition of the plaintiff, is reviewed for abuse of discretion. 

See Regan-Touhy v. Walgreen Co., 526 F.3d 641, 647 (10th Cir. 2008).

McKinzy’s appeal largely neglects the merits of the district court’s

summary judgment decision and focuses instead on its discovery rulings. 

Affording his brief the solicitous construction due pro se filings, however, see

Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007), we interpret his

arguments broadly as a challenge to the court’s findings that he failed to show

pretext for discrimination or establish a prima facie case of retaliation. Only,

McKinzy has no basis to make these challenges. Having failed to respond to
-6-

Norfolk Southern’s summary judgment motion, McKinzy left the company’s

nondiscriminatory reasons for not hiring him completely unrebutted. Likewise,

he failed to counter Norfolk Southern’s evidence demonstrating that those

responsible for rejecting his job applications were unaware of his EEOC

complaints and thus without motivation to retaliate against him. We conclude

this alone was sufficient to warrant summary judgment in favor of Norfolk

Southern. See Swackhammer, 493 F.3d at 1169 (noting that summary judgment

for the employer is appropriate when its nondiscriminatory explanations remain

unrebutted). 

As for the order granting Norfolk Southern a limited deposition, McKinzy’s

arguments with respect to this issue are downright frivolous. As the plaintiff in a

discrimination lawsuit, McKinzy had no basis, either under the federal rules or

the district court’s previous orders, to resist Norfolk Southern’s attempt to learn

the basic facts underlying his claims. It goes without saying that a plaintiff

cannot be permitted to thwart his opponent’s ability to launch a defense by filing

a summary judgment motion before the Rule 26(f) conference and then insisting

that discovery in advance of the conference is premature. Furthermore, as we

explained in McKinzy’s last appeal, the district court does not abuse its discretion

in granting a discovery request under Rule 56(f) without an affidavit where, as

here, the grounds for the motion are self evident. See McKinzy v. Union Pac.

R.R., No. 09-3108, 2009 WL 3303699, at *2 (10th Cir. Oct. 15, 2009) (finding no
-7-

abuse of discretion in granting continuance where need was readily apparent from

the docket sheet). It was the immediacy of McKinzy’s motion that precluded

Norfolk Southern from submitting evidence in response, a situation readily

apparent from the docket sheet. As such the court acted well within its discretion

in ordering McKinzy to appear for a deposition. The judgment of the district

court is therefore AFFIRMED. 

Norfolk Southern’s motion for sanctions is DENIED, but we echo the

district court’s warning to McKinzy that he is perilously close to being deemed an

abusive litigant. If he continues to appeal dismissals of frivolous discrimination

lawsuits, he will be subject to sanctions under this court’s inherent powers to

control its docket. This may include, among other things, monetary sanctions,

dismissal of his appeal, and future filing restrictions.

Entered for the Court

Deanell Reece Tacha

Circuit Judge