Bailey v. KS Mgmt. Servs., L. L.C.

• Decision Date: 26 May 2022
• Docket Number: 21-20335
• Citation: 35 F.4th 397
• Parties: Dana BAILEY, Plaintiff—Appellant, v. KS MANAGEMENT SERVICES, L.L.C., Defendant—Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

35 F.4th 397

Dana BAILEY, Plaintiff—Appellant,

v.KS MANAGEMENT SERVICES, L.L.C., Defendant—Appellee.

No. 21-20335

United States Court of Appeals, Fifth Circuit.

FILED May 26, 2022

Edwin Enrique Villa, Matthew P. Swiger, Villa Law Firm, Houston, TX, for Plaintiff-Appellant.

Kimberly Rose Stuart, Juliann Hale Panagos, Crain, Caton & James, P.C., Houston, TX, for Defendant-Appellee.

Before Jones, Southwick, and Oldham, Circuit Judges.

Per Curiam:

This is the third time we have been asked to consider whether a particular district court can deny discovery rights protected by the Federal Rules of Civil Procedure because, in the district court's view, that discovery is unnecessary. We have twice held no. Miller v. Sam Houston State Univ. , 986 F.3d 880 (5th Cir. 2021) ; McCoy v. Energy XXI GOM, LLC , 695 F. App'x 750 (5th Cir. 2017) (per curiam). Today we so hold a third time.

I.

Plaintiff-Appellant Dana Bailey worked for KS Management Services, LLC ("KSM") from March 24, 2014 until March 8, 2019. She was hired as a nurse and promoted to nurse coordinator in September 2016. She resigned from the nurse coordinator position and returned to her role as a nurse in March 2018. She was terminated from that role one year later.

On January 7, 2020, Bailey sued KSM under the Age Discrimination in Employment Act ("ADEA"), claiming that KSM engaged in unlawful age discrimination and retaliation. The next day, January 8, the district court entered an order setting the date for an initial pretrial conference. That order instructed the parties to exchange initial disclosures but ordered that "[n]o interrogatories, requests for admission, or depositions ... be done without court approval."

On January 9, 2020, the district court entered an "Order for Disclosure." The order requires the company to furnish certain information (e.g. , the worker's emails), and it requires the worker to furnish certain other information (e.g. , a list of others who can corroborate the worker's allegations of mistreatment). The order concludes:

3. The company and worker will file a joint chronology from the time the worker applied to work until he left or sued. This will include only significant events given in an objective, factual form; legal posturing, abstractions, and quibbling will be crushed.

4. The parties may not delay exchanging this information, even by agreement. If a particular in this order docs not fit your case, make similar disclosures that reasonably fit your issues.

The order thus purports to create a one-size-fits-all system of rough justice; it both recognizes that particular requirements might be inapplicable and threatens to "crush[ ]" discovery efforts that run afoul of the district court's expectations. Both parties (understandably) attempted to comply with it.

The district court held its initial pretrial conference on September 10, 2020. It then entered an order permitting KSM to move for summary judgment by September 16 and Bailey to respond by October 2. But it declined to authorize any discovery other than the initial disclosures compelled by the "Order on Disclosure." KSM moved for summary judgment on September 15.

The next day, Bailey filed an unopposed motion to extend time to respond to KSM's motion for summary judgment, noting she "need[ed] to do discovery (requests for production, depositions, etc.)," but had so far been barred by the court's January 8 order, which prohibited such discovery. She requested additional time so that KSM could respond to her requests for production, and then so she could "take depositions" and "have ... adequate time to review said production and respond." The court denied the motion.

Bailey next filed an unopposed Rule 56(d) motion to defer consideration of KSM's summary-judgment motion and allow time for Bailey to take discovery, or in the alternative to deny KSM's motion. See FED. R. CIV. P. 56(d). She argued she was unable to "present facts (through supporting documents not accessible to her) essential to justify her opposition to certain allegations made by KSM" in its motion.

The court declined to rule on the 56(d) motion and instead entered a discovery order with three instructions. First, the court ordered there would be "no further discovery until Dana Bailey is deposed by October 15, 2020." Second, the court said it would consider other discovery requests—but only after Bailey's deposition. Third, the court suspended the deadline for Bailey to respond to KSM's summary-judgment motion.

October 15 came and went, and KSM elected not to depose Bailey. After the October 15 deadline passed, Bailey filed a motion asking permission to depose three witnesses to gather evidence needed to respond to KSM's summary-judgment motion. The court denied the motion without explanation and ordered Bailey to respond to the summary-judgment motion by October 30.

On October 27, Bailey filed a supplement to her Rule 56(d) motion, again asking the court to defer consideration of KSM's summary-judgment motion and allow Bailey to conduct discovery, or alternatively, deny KSM's motion. Again, Bailey explained that she was unable to "properly and fully respond to the claims and allegations made in KSM's MSJ" without conducting discovery. The court denied the Rule 56(d) motion and supplement—again without explanation—and maintained its deadline for Bailey to respond to the pending summary-judgment motion.

Bailey filed her response to KSM's motion for summary judgment. The district court granted KSM's motion and entered final judgment for KSM. Bailey timely appealed.

II.

We review a district court's denial of a Rule 56(d) motion for abuse of discretion. See Prospect Cap. Corp. v. Mut. of Omaha Bank , 819 F.3d 754, 757 (5th Cir. 2016). Rule 56(d) provides:

If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or take discovery; or (3) issue any other appropriate order.

FED. R. CIV. P. 56(d). Summary judgment is appropriate only where "the plaintiff has had a full opportunity to conduct discovery." McCoy v. Energy XXI GOM, L.L.C. , 695 F. App'x 750, 758–59 (5th Cir. 2017) (per curiam) (emphasis omitted) (quoting Brown v. Miss. Valley State Univ. , 311 F.3d 328, 333 (5th Cir. 2002) ). And Rule 56(d) permits "further discovery to safeguard non-moving parties from summary judgment motions that they cannot adequately oppose." Curtis v. Anthony , 710 F.3d 587, 594 (5th Cir. 2013) (quotation omitted).

To win relief, the Rule 56(d) movant must make two showings. She first must show (A) that "additional discovery will create a genuine issue of material fact." Jacked Up, L.L.C. v. Sara Lee Corp. , 854 F.3d 797, 816 (5th Cir. 2017) (quotation omitted). Then she must show (B) that she "diligently pursued discovery." Id. (quotation omitted). Bailey made both showings, and the district court abused its discretion in holding otherwise.

A.

A Rule 56(d) movant first must demonstrate that additional discovery will create a genuine issue of material fact. See Smith v. Reg'l Transit Auth. , 827 F.3d 412, 422–23 (5th Cir. 2016). "More specifically, the non-moving party must set forth a plausible basis for believing that specified facts, susceptible of collection within a reasonable time frame, probably exist and indicate how the emergent facts, if adduced, will influence the outcome of the pending summary judgment motion." Id. at 423 (quoting Am. Family Life Assurance Co. v. Biles , 714 F.3d 887, 894 (5th Cir. 2013) ). "The nonmovant may not simply rely on vague assertions that discovery will produce needed, but unspecified, facts." Id. (quoting Washington v. Allstate Ins. Co. , 901 F.2d 1281, 1285 (5th Cir. 1990) ). Our court "generally assesses whether the evidence requested would affect the outcome of a summary judgment motion" and has found an abuse of discretion "where it can identify a specific piece of evidence that would likely create a material fact issue." Id. Bailey has identified such evidence for (1) her age-discrimination claim, and (2) her retaliation claim.

1.

To establish a prima facie case of age discrimination, Bailey must show that she was fired, was qualified for the position, was within the protected class at the time she was fired, and was replaced by someone outside the protected class, replaced by someone younger, or otherwise discharged because of her age. Rachid v. Jack in the Box, Inc. , 376 F.3d 305, 309 (5th Cir. 2004). Bailey argues she suffered discrimination in two instances: First, she argues age discrimination caused her constructive discharge from the nurse coordinator position. Second, she argues age discrimination caused her eventual termination from her position as a nurse.

a.

We start with Bailey's constructive discharge from the nurse coordinator role. As part of her prima facie case, Bailey must establish she was replaced in that position by someone outside her protected class. The district court concluded she was not. But the parties disagreed on this point. Bailey says "she was replaced by Tamara Ballew and then Paul Chavez, both of whom are younger than Bailey and outside of her protected class[.]" KSM said, and the district court agreed, that those two individuals "only assisted with answering the telephones," and the "nurse coordinator position remained unfilled until Oluwatoyin Clay, 57, was promoted to it."

The district court rested its conclusion on KSM's summary-judgment motion and the Declaration of Denise Backus. Backus explained that the nurse coordinator position "was not filled after Bailey's resignation because the ASC patient census did not dictate a need for the position." Backus further explained that after Bailey resigned from the nurse coordinator position in March 2018, KSM didn't replace Bailey until January 2019 when it "determined the RN Coordinator position was again needed because the ASC...