Garrett v. City

Decision Date10 June 1987
Docket NumberNo. 86-2144,86-2144
PartiesBilly Eugene Garrett, Plaintiff-Appellant, v. City and County of San Francisco, San Francisco Fire Department, Defendants-Appellees
CourtU.S. Court of Appeals — Ninth Circuit

Rufus L. Cole, for the Plaintiff-Appellant.

Paula Hagan Bennett, for the Defendants-Appellees.

Noonan, Jr., and O'Scannlain, Circuit Judges, and Tashima, **District Judge.

TASHIMA, District Judge:

This is an appeal from the judgment 1 of the district court, entered upon the grantingof defendants-appellees' motion for summary judgment in an action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"). Upon granting the motion, the district court invited defendants to apply for attorney's fees, which they did. Attorney's fees and, alternatively sanctions were awarded to defendants. Appellant Billy Eugene Garrett ("Garrett" or "plaintiff") appeals those rulings, as well as the denial of his motion to compel discovery. 2 We reverse and remand the action to the district court.


Garrett is a black man who began his employment as a firefighter with defendant San Francisco Fire Department (the "Fire Dept.") in 1974. He was accused of having taken 13 silver dollars from the scene of a fire on June 30 1981, and charged with violating Fire Dept. Rule 2222, which requires firefighters to "immediately report" to their supervisors all monies jewels or other valuables discovered at the scene of a fire.

It is unnecessary to set forth the substantial evidence adduced in support of this charge; it suffices that in September, 1982, after having held extensive hearings, the San Francisco Fire Commission (the "Commission") found that Garrett had violated Fire Dept. rules and ordered his discharge. Garrett then sought judicial review of the Commission's order in state court. See Cal Code Civ. Proc. § 1094.5. The order was upheld by the superior court and on appeal the trial court's judgment was affirmed. While the state court proceedings were still pending, Garrett, acting pro se, commenced this Title VII action in federal district court.


On October 25, 1985, the district court issued a scheduling order setting the discovery cut-off date as March 15, 1986, the motion deadline as May 1, 1986, and the trial date as June 2, 1986. Garrett filed and served defendants with a request for production of documents on November 15, 1985. Request No. 8 sought the personnel records of 16 named Fire Dept. firefighters. Defendants, on December 20, 1985, objected to Request No. 8 on the ground that "the information contained in the personnel records is privileged and confidential, and disclosure of these documents would constitute an invasion of privacy. Further, much of the information contained in them is irrelevant to this case, " and refused to produce these files.

On February 6, 1986, Garrett moved to compel production of the documents sought by Request No. 8 and to extend the discovery cut-off date for 30 days. He contended that these documents would establish that black firefighters and white firefighters received different disciplinary sanctions for the same or similar offenses, i.e., that there was disparate treatment, and that the purported justification for his discharge was merely a pretext for racial discrimination.

Earlier, on January 22, 1986, defendants-appellees had moved for summary judgment.

Both motions were to be heard on March 6, 1986. At the hearing, the district court addressed the summary judgment motion first. It found that given the hearing procedure, the nature of the violation, the overwhelming evidence of Garrett's guilt, and the lack of evidence of disparate treatment, there was no material issue of fact; therefore, it granted defendants' motion for summary judgment. Having granteddefendants' dispositive motion, the court then denied Garrett's discovery motion as "moot" without considering it on the merits. The court next invited defendants to apply for attorney's fees. Defendants did so and on May 8, 1986, defendants' motion was granted in part. The court ordered Garrett to pay defendants $ 5, 000 as partial attorney's fees or, alternatively, as sanctions under F. R. Civ. P. 11 for bringing the action in bad faith and for purposes of harassment. This appeal followed.


1. Was summary judgment properly granted without the trial court first ruling on the merits of plaintiff's discovery motion.

2. May summary judgment be sustained by the application of collateral estoppel, thus mooting the issue of further discovery.

3. Were attorney's fees and sanctions properly assessed against plaintiff.

I. Summary Judgment v. Further Discovery

We do not decide whether on the record before it summary judgment should or should not have been granted by the district court. We assume arguendo that on the state of the record before the district court, no disputed issues of fact were raised. The issue is whether Garrett should have been granted an opportunity, as contemplated by F. R. Civ. P. 56(f), to pursue further discovery or at least to complete then-pending discovery.

When a party opposing a motion for summary judgment cannot present "facts essential to justify his opposition" to the motion, Rule 56(f) permits the party to submit an affidavit stating such reasons. Hancock v. Montgomery Ward Long Term Disability Trust, 787 F.2d 1302, 1306 (9th Cir. 1986). The court may continue a motion for summary judgment if the opposing party needs to discover essential facts. Hall v. Hawaii 791 F.2d 759, 761 (9th Cir. 1986); Hancock, 787 F.2d at 1306. The trial court's refusal to permit further discovery is reviewed for an abuse of discretion. Id.; Landmark Dev. Corp. v. Chambers Corp., 752 F.2d 369, 373 (9th Cir. 1985) (per curiam).

Clearly, a trial court's exercise of discretion will rarely be disturbed. This case, however, involves the failure of the trial court to exercise its discretion, not the abuse of it. Here, the court did not address the merits of Garrett's motion to compel production of the personnel records; it merely denied the motion as "moot" after having disposed of the case. 3

First, although not formally denominated as a request under Rule 56(f) under Ninth Circuit precedent Garrett's discovery motion was sufficient to raise the issue of whether he should be permitted additional discovery. Hancock, 787 F.2d at 1306 n.1 (pending motion to compel discovery was sufficient to raise Rule 56(f) consideration); see also, Program Eng'g, Inc. v. Triangle Publications, Inc., 634 F.2d 1188, 1193 (9th Cir. 1980) (motion to strike portions of summary judgment motion was sufficient to raise Rule 56(f) consideration); cf. Brae Transp., Inc. v. Coopers & Lybrand, 790 F.2d 1439, 1443 (9th Cir. 1986) (references in memoranda and declarations to a need for discovery do not qualify as motions under Rule 56(f)). Under Rule 56(f), an opposing party must make clear what information is sought and how it would preclude summary judgment. Hall, 791 F.2d at 761; Brae Transp., 790 F.2d at 1443; Taylor v. Sentry Life Ins. Co., 729 F.2d 652, 656 (9th Cir. 1984) (per curiam).

Garrett's pending discovery motion satisfied Rule 56(f). It made clear the information sought, did not seek broad additional discovery, but rather sought only the personnel records of 16 named firefighters and indicated the purpose for which thisinformation was sought, namely, to determine whether similarly situated firefighters were being treated differently on the basis of race. Defendants' refusal to produce these documents lead to Garrett's motion to compel. The motion was timely made under the scheduling order and was set for hearing before the discovery cut-off date.

In denying the discovery motion as "moot" after having first granted defendants' summary judgment motion, the district court failed to exercise its discretion with respect to the discovery motion. SeePatty Precision v. Brown & Sharpe Mfg. Co., 742 F.2d 1260, 1264-65 (10th Cir. 1984) (trial court's failure to rule on opposing party's Rule 56(f) affidavit prior to granting summary judgment against it reversed as a failure to exercise discretion); Sames v. Gable, 732 F.2d 49, 52 (3d Cir. 1984) (error to grant motion for summary judgment while pertinent discovery requests were outstanding); Schering Corp. v. Home Ins. Co., 712 F.2d 4, 10 (2d Cir. 1983) (summary judgment should not be granted while opposing party timely seeks discovery of potentially favorable information). 4

As the district court stated, the summary judgment motion was granted in part because of, "the lack of evidence of disparate treatment." In a Title VII case, regardless of the interim allocations of the burden of going forward, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), plaintiff retains the ultimate burden of persuasion. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). The rule applies in a summary judgment context. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986).5 Plaintiff can meet this burden by showing that other employees (firefighters) who engaged in similar acts of wrongdoing of "comparable seriousness... were nevertheless retained." McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 283 n.11, 49 L. Ed. 2d 493, 96 S. Ct. 2574 (1976) (emphasis in original) (citing McDonnell Douglas, 411 U.S. at 804). See also, IBT v. United States, 431 U.S. 324, 335-36 n.15, 52 L. Ed. 2d 396, 97 S. Ct. 1843 (1977). This is precisely the type of evidence plaintiff's motion to compel sought to elicit. 6 Thus, this case presents the circumstance where "a party's access to... material is of crucial importance... where the information is likely to be in the sole possession of the opposing party." Patty Precision, 742 F.2d at 1264.

It was error for the trial court to have...

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