IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
______________________________
No.96-20878
(Summary Calender)
______________________________
CARROLL H. WILKINSON,
Plaintiff-Appellant,
versus
STAR ENTERPRISES,
Defendant-Appellee.
____________________________________________
Appeal From the United States District Court
for the Southern District of Texas
(No. 96-1284)
____________________________________________
February 14, 1997
Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
This is an appeal from the district court’s grant of summary
judgment in favor of Defendant-Appellee Star Enterprises (“Star”).
Plaintiff-Appellant Carroll Wilkinson asserts that the district
court’s grant of summary judgment was improper because the court
abused its discretion in denying her motion for extension of
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
discovery deadlines. She contends that an extension was required
so that she could conduct necessary discovery to respond to the
motion for the summary judgment, noting that the court sua sponte
ordered Star to file that motion. For the reasons set forth below,
we vacate the district court’s summary judgment and remand the case
with instructions to the court to grant Wilkinson a reasonable time
to complete discovery necessary to respond to Star’s motion for
summary judgment.
I
The limited summary judgment facts and scant procedural
history of this case are not in dispute. As we perceive the time
line on which this case proceeded to be significant, we recite the
dates of each procedural step in the process.
Wilkinson is a black female accounting clerk who has been
employed continuously by Star or its parent, Texaco, Inc., since
1973.1 On April 4, 1996, following her receipt of a right-to-sue
letter from the Equal Employment Opportunity Commission, Wilkinson
filed suit in the United States District Court for the Southern
District of Texas, alleging that she suffered employment
discrimination on account of her race, in violation of Title VII of
the Civil Rights Act of 1964.2 Specifically, she alleged that she
1
Star is a New York general partnership between Texaco
Refining and Marketing (East), Inc., a Texaco subsidiary, and Saudi
Refining, Inc.
2
42 U.S.C. § 2000e et seq.
2
was (1) involuntarily reassigned and excluded from job advancements
on the basis of her race and (2) denied terms and conditions of
employment equal to those of white co-employees who were performing
essentially the same duties as she but were given higher pay
grades.
On May 23, 1996, Star filed its answer and served
interrogatories and document requests on Wilkinson, to which she
promptly responded. On July 17, 1996, pursuant to the district
court’s standing order, the parties submitted their Report of
Meeting and Joint Discovery and Case Management Plan, in which they
agreed on the deadlines for completing various stages of discovery
and other case management issues. Also, pursuant to amicable
agreement, Wilkinson’s deposition was noticed and subsequently
completed on July 23, 1993. One day earlier, on July 22nd, Star
furnished to Wilkinson its written disclosures pursuant to Rule 26
of the Federal Rules of Civil Procedure.
On July 29, 1996, both parties appeared before United States
District Judge Lynn N. Hughes for their court ordered initial pre-
trial and scheduling conference. At this conference, Judge Hughes
ordered that a second pre-trial conference take place one week
later, on August 5, 1996, and ordered Star to produce documents,
prior to the second pre-trial conference, concerning the employment
duties of Wilkinson’s co-workers. On August 3, 1996, two days
before the second pre-trial conference, Defendant Star delivered to
Wilkinson the documents containing information regarding her co-
3
workers.
At the second pre-trial conference, on August 5, 1997, the
court ordered Star to file a motion for summary judgment by August
9, 1996, “[i]f Defendant did not hear from Plaintiff by noon,
August 8th.”3 The Court also ordered Wilkinson to file her
response to the summary judgment motion one week thereafter, i.e.,
by August 16, 1996, a total of eleven days after the second pre-
trial conference.
Star complied with the court order and filed its motion for
summary judgment on August 9th. Wilkinson complied by filing her
response on August 15th, a day early. In addition to her response,
Wilkinson filed a Motion for Extension of Time to Conduct
Discovery, in which she asserted that she had not had sufficient
time to depose the co-workers identified by Star in its Rule 26
disclosures furnished on July 22nd and regarding whom the court had
ordered Star to supply additional information on August 3rd.
Star responded to Wilkinson’s extension motion, contending
that (1) the individuals identified in Star’s initial Rule 26
disclosures are supervisors of the two groups within the
Controller’s Department involved in this case whose identities
Wilkinson had known since prior to the filing of her suit, (2)
Wilkinson had also known the identities of the co-workers to whom
3
There is no indication in the record or the briefs as to
what Star was expected to hear from Wilkinson about by noon on
August 8th.
4
her job responsibilities were transferred since August 1996 when
she trained them, and (3) Wilkinson had had adequate time to depose
all of these individuals and, moreover, had originally indicated an
interest in deposing a Star corporate representative prior to the
initial pre-trial conference but that Wilkinson’s counsel had
changed his mind.
On August 29, 1996, without ruling on or addressing in any way
Wilkinson’s Motion for an Extension of Time to Conduct Discovery,
the district court, in a six sentence opinion, granted Star’s
motion for summary judgment. It concluded that Wilkinson could not
show that she suffered an adverse employment action, one of the
essential elements to a claim of racial discrimination under Title
VII.
Wilkinson filed a timely Notice of Appeal. In challenging the
grant of summary judgment, Wilkinson argues that the court’s
sub silentio denial of her Motion for Extension of Time to Conduct
Discovery deprived her of adequate time to conduct discovery
necessary to respond to Star’s motion for summary judgment.
II
As both parties acknowledge, we review a district court’s
decision to preclude further discovery prior to granting summary
judgment for an abuse of discretion.4 In determining whether the
4
Krim v. BancTexas Group, Inc., 989 F.2d 1435, 1441 (5th Cir.
1993); Solo Serve Corp. v. Westowne Assoc., 929 F.2d 160, 167 (5th
Cir. 1991).
5
district court abused its discretion in this circumstance, we must
also scrutinize the propriety of the motion for an extension of
time to conduct discovery filed by the party responding to the
motion for summary judgment. Implicit in this standard of review,
however, is the requirement that the district court in fact
exercise its discretion.5 Here there is nothing in the record to
reflect an exercise of discretion.
We have previously held that such a request for additional
discovery should be denied under the following circumstances only:
(1) The record shows that the requested discovery is unlikely to
produce the facts needed to withstand the motion for summary
judgment; (2) the record shows that the denial is necessary to
protect the defendant from harassment and “fishing expeditions;” or
(3) the discovery is dilatorily, which can be determined by
examining eight specific factors.6 Absent anything on point from
the district court, we are left to inferences from the scant
summary judgment record in this case for purposes of applying this
test.
Wilkinson’s motion for extension of time is not facially
5
Cf. Faircloth v. Lamb-Grays Harbor Co., Inc., 467 F.2d 685,
697 (5th Cir. 1972) (observing that district court’s exercise of
discretion on motion for new trial is “not ordinarily reviewable on
appeal, though a failure to exercise discretion, or an abuse of it,
may be corrected”)(quoting Marsh v. Illinois Central Railroad Co.,
175 F.2d 498, 500 (5th Cir. 1949).
6
Mills v. Damson Oil Corp., 931 F.2d 346, 350-51 (5th Cir.
1991) (citing Paul Kadair v. Sony Corp. of America, 694 f.2d 1017,
1030-31 (5th Cir. 1983)).
6
improper or dilatorily sought, especially in light of the sudden,
unusually rapid acceleration of the discovery and pleading
deadlines imposed by the court —— apparently with little or no
prior warning —— at its August 5 pre-trial conference. Furthermore,
there is no indication that denial of the motion is necessary to
protect the defendant from harassment or a fishing expedition. To
the contrary, it appears that counsel for both parties were
proceeding with discovery in an amicable, professional, and timely
manner.
Finally, there is no way, given the limited scope of the
record at the time of summary judgment, for this court to determine
whether the requested discovery was likely to produce any
additional facts needed to withstand the motion for summary
judgment. But by far the most important factor requiring us to
vacate the summary judgment in this case is the total absence of
any explanation on the part of the district court of its reasons
for denying —— more accurately, for ignoring —— Wilkinson’s Motion
for Extension of Time to Conduct Discovery.
Although a district court is, as we indicated above, entitled
to exercise reasonable discretion in managing discovery, when a
district court provides absolutely no explanation for its purely
implicit denial of what facially appears to be a reasonable request
for additional discovery time, we must assume that the district
court either failed to exercise its discretion or abused it. This
is particularly so when, as here, there is no indication that
discovery was proceeding other than at a normal and reasonable
7
pace.
Given the total failure of the district court to address or
explain its implicit denial of the motion of Plaintiff to extend
the time for completing discovery, that court has left us no choice
but to vacate its grant of summary judgment and final judgment in
favor of Star, and to remand this case with instructions to the
district court to grant Wilkinson reasonable time within which to
conduct further discovery as required to respond to Star’s court-
ordered motion for summary judgment.
VACATED and REMANDED WITH INSTRUCTIONS
8