Hicks v. Johnson

• Citation: 755 F.3d 738
• Decision Date: 20 June 2014
• Docket Number: No. 13–1741.,13–1741.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)
• Parties: Sandra L. HICKS, Plaintiff, Appellant, v. Jeh Charles JOHNSON, Secretary, United States Department of Homeland Security, Defendant, Appellee.

755 F.3d 738

Sandra L. HICKS, Plaintiff, Appellant,

v.Jeh Charles JOHNSON,^* Secretary, United States Department of Homeland Security, Defendant, Appellee.

No. 13–1741.

United States Court of Appeals,First Circuit.

June 20, 2014.

Richard B. Reiling for appellant.

Christine J. Wichers, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

Before LYNCH, Chief Judge, STAHL and LIPEZ, Circuit Judges.

LIPEZ, Circuit Judge.

Sandra Hicks brought this employment discrimination action against the Secretary of Homeland Security, claiming that the Secretary failed to promote her to the position of Housing Manager in the United States Coast Guard Housing Office at Air Station Cape Cod on account of her race and gender. The district court granted the Secretary's motion for summary judgment, finding that Hicks failed to generate a genuine issue of material fact on the Secretary's non-discriminatory reason for choosing another candidate. Prior to granting summary judgment, the court also denied Hicks's motion to reopen discovery.

In response to Hicks's appeal, we conclude that the district court did not abuse its discretion in denying Hicks's motion to reopen discovery. We also agree that Hicks failed to generate a genuine issue of material fact on the issue of pretext. We therefore affirm.

I.

Hicks, an African–American woman, has been a civil service government employee for over twenty years. A majority of her service has been in the United States Coast Guard Housing Office at Air Station Cape Cod, located on the Otis Air Force Base. The Housing Office staff consists of one Housing Manager and approximately six subordinates. Before the events at issue here took place in 2009, Hicks had served nine years in the Housing Office in two roles-six years as Housing Management Assistant and three as Off–Base Housing Management Specialist. The General Schedule (“GS”) levels of those positions were GS–07 and GS–09 respectively.¹

In late 2009, Hicks's supervisor, Evelyn Norton, announced her retirement from the Housing Manager position. The official job posting for Norton's replacement listed, among others, the following required qualification: “one year of specialized experience equivalent to at least the GS–09 level or Ph.D or equivalent doctoral degree or 3 full years of progressively higher level graduate education leading to such a degree.” A list was compiled of the candidates eligible for merit promotion to the position. The top two candidates were Hicks and Terry Krout, a white man who was serving in the same office as a “housing inspector.” Krout was a retired Chief Warrant Officer in the United States Coast Guard who had entered civil service in 2002. When the Housing Manager position became available in 2009, Krout had been serving as a GS–09 Housing Specialist for approximately one-and-a-half years. His primary responsibility in that position was inspecting 330 on-base housing units.

A panel consisting of Coast Guard Commander Paul Rendon, Area Housing Officer Kevin Sullivan, and Director of Morale, Wellbeing, and Recreation Bruce Blackman was charged with making a recommendation to Commander John Newby, ² who would ultimately make the promotion decision.³ The panel interviewed the top two candidates—Hicks and Krout. During the interviews, the candidates were asked the same twenty questions,⁴ and the interviewers independently scored the interviewees' answers to each question on a 1–3 scale (with 3 being the highest).⁵ The scores for all of the questions were then added up to produce total interview scores for each candidate. The result was a split decision. Commander Rendon scored the interview for Krout by a margin of 54–48. Sullivan scored the interview for Hicks by a margin of 50–49. Blackman scored the interview for Krout by a margin of 45–44. Tallying all these scores, Krout had 148 and Hicks 142. On that basis the panel recommended Krout for promotion. Commander Newby adopted that recommendation.

Commander Rendon met with Hicks in person to communicate the promotion decision and discuss the reasoning behind it. Hicks was understandably disappointed, and she was offended by Commander Rendon's suggestion that she should have practiced her interview skills beforehand. After exhausting her administrative remedies, Hicks commenced this action on August 25, 2011, alleging that she was discriminated against on the basis of race and gender.

After proceeding pro se through the discovery period, Hicks retained Attorney Richard Reiling, who entered an appearance on January 31, 2013, on the eve of the deadline for responding to the Secretary's motion for summary judgment. Hicks also moved on that same date to reopen discovery pursuant to Rule 56(d) or, in the alternative, to extend the summary judgment opposition deadline by 21 days. On February 5, having heard oral argument from the parties, the district court issued the following order: “The court will not reopen discovery but, in order to give plaintiff's counsel sufficient time to familiarize himself with the case and prepare a response, will extend by 21 days the deadline to oppose defendant's motion for summary judgment.”

After obtaining an additional extension, Hicks filed her opposition to summary judgment on March 1. The district court granted the defendant's motion for summaryjudgment in an order dated May 10, 2013. This appeal followed.

II.

A. Standard of Review

Our review of a denial of a Rule 56(d) motion recognizes the “broad [and] ... considerable discretion” of the district court over such matters. Ayala–Gerena v. Bristol Myers–Squibb Co., 95 F.3d 86, 91 (1st Cir.1996). We reverse denials of Rule 56(d) motions “only upon a clear showing of manifest injustice, that is, where the lower court's discovery order was plainly wrong and resulted in substantial prejudice to the aggrieved party.” Filiatrault v. Comverse Tech., Inc., 275 F.3d 131, 137–38 (1st Cir.2001) (internal quotation mark omitted).

Our review of a district court's grant of summary judgment is de novo. Johnson v. Univ. of P.R., 714 F.3d 48, 52 (1st Cir.2013). In conducting our “fresh look” at the record, we view the evidence in the light most favorable to the non-moving party, Hicks, and draw all reasonable inferences in her favor. Gerald v. Univ. of P.R., 707 F.3d 7, 16 (1st Cir.2013). Summary judgment is appropriate only if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Gerald, 707 F.3d at 16. To determine whether a trial-worthy issue exists, we look to all of the record materials on file, including the pleadings, depositions, and affidavits. Fed.R.Civ.P. 56(c)(1)(A); Johnson, 714 F.3d at 52. We may neither evaluate the credibility of witnesses nor weigh the evidence. See Sheehan v. N. Am. Mktg. Corp., 610 F.3d 144, 149 (1st Cir.2010).

B. Denial of 56(d) Motion

Rule 56(d) allows, in certain circumstances, for supplemental discovery after a motion for summary judgment has been filed. SeeFed.R.Civ.P. 56(d). We have previously cautioned that Rule 56(d) relief is not to be granted as a matter of course. Ayala–Gerena, 95 F.3d at 92. As we have explained:

To benefit from the protections of Rule 56[ (d) ], a litigant ordinarily must furnish the nisi prius court with a timely statement—if not by affidavit, then in some other authoritative manner—that (i) explains his or her current inability to adduce the facts essential to filing an opposition, (ii) provides a plausible basis for believing that the sought-after facts can be assembled within a reasonable time, and (iii) indicates how those facts would influence the outcome of the pending summary judgment motion.

Velez v. Awning Windows, Inc., 375 F.3d 35, 40 (1st Cir.2004). In addition, the movant must “set forth good cause to explain [her] failure to have conducted the desired discovery at an earlier date.” Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass'n, 142 F.3d 26, 44 (1st Cir.1998).

Even upon submission of the required materials, the district court is entitled to refuse a Rule 56(d) motion if it concludes that the party opposing summary judgment is unlikely to garner useful evidence from supplemental discovery. See FDIC v. Kooyomjian, 220 F.3d 10, 15 (1st Cir.2000); Greebel v. FTP Software, Inc., 194 F.3d 185, 202 n. 15 (1st Cir.1999).

Hicks's decision to seek supplemental discovery shortly after retaining counsel is understandable. As a pro se litigant, she likely had little understanding of the discovery process and had not conducted any depositions. The Secretary had already made affidavits from Commander Rendon, Commander Newby, Blackman, and Sullivan part of the record at the time of her motion, as well as a significant amount of documentary evidence. Specifically, in addition to requesting an opportunity to conduct depositions of those individuals, Hicks sought to depose Krout, who was awarded the position over her, and Norton, her former supervisor. Neither of those individuals were involved in the decision-making process on the promotion at issue. Hicks did not specify the evidence that she expected to obtain from any of this additional discovery.

Hicks's request to reopen discovery came late in the process. She also sought vague information from deponents, some of whom were not even relevant to her case. Furthermore, it is far from clear that the requested depositions of the decisionmakers would yield any useful information beyond what was in their affidavits. The district court, while sympathetic to Hicks's situation, acted within the bounds of its discretion in concluding that the additional discovery sought would not alter the summary judgment landscape and that simply granting an extension to the opposition deadline was sufficient to account for the fact that Hicks had been proceeding pro se.

C. Summary Judgment

Where, as here, a claim of discrimination under Title VII rests...