UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_________________
No. 96-11333
(Summary Calendar)
_________________
LEONARD MAULDIN,
Plaintiff-Appellant,
versus
FIESTA MART,
Defendant-Appellee.
Appeal from the United States District Court
For the Northern District of Texas
(3:95-CV-2747)
May 7, 1997
Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Leonard Mauldin appeals the district
court’s grant of summary judgment in favor of Defendant-Appellee
Fiesta Mart, Inc. (“Fiesta Mart”) on Mauldin’s claims of
discriminatory demotion and retaliation under Title VII of the
*
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that this opinion should not be published and is not precedent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.
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
Fiesta Mart, a supermarket chain, hired Mauldin, who is white,
as produce manager for its new Dallas store in August 1993.
Mauldin held this position for several months until Fiesta Mart
transferred Jaime Murillo, who is Hispanic, from Austin to replace
Mauldin as produce manager in Dallas. Fiesta Mart asserts that
Mauldin’s performance in that position had been unsatisfactory and
that Murillo was a more qualified and experienced produce manager.
Mauldin, on the other hand, denies that his performance was
substandard or, if it was, argues that any deficiencies in his
performance were due to factors beyond his control. Instead, he
alleges that Fiesta Mart demoted him because it wished to fill his
position with an Hispanic manager.
Mauldin filed a complaint with the EEOC alleging
discriminatory demotion. Some time after filing the complaint,
Mauldin asked for a raise, but his request was denied. As a
result, Mauldin filed a second EEOC charge alleging unlawful
retaliation. Mauldin continued to work for Fiesta Mart until his
resignation in 1996.
Mauldin brought this action under Title VII alleging
discriminatory demotion and retaliation. During discovery, Mauldin
served Fiesta Mart with interrogatories requesting detailed
personnel and salary information on all managers for all thirty-
four Fiesta Mart stores for the previous ten years. Fiesta Mart
-2-
provided Mauldin with information concerning its Dallas stores, but
otherwise objected to the interrogatories on the ground that they
were overly broad, unduly burdensome, and vexatious. The parties
negotiated unsuccessfully to narrow the scope of the inquiry.
Approximately two months before trial, Fiesta Mart filed a
motion for summary judgment. Mauldin submitted a request for
extension of time to file a response to the motion and moved to
compel Fiesta Mart to respond to his interrogatories. The district
court denied Mauldin’s request for an extension of time, but did
not immediately rule on his motion to compel. Mauldin then filed
a “partial response” to Fiesta Mart’s motion for summary judgment,
asserting that the additional discovery sought in the motion to
compel would produce evidence sufficient to successfully oppose
summary judgment. The district court construed Mauldin’s partial
response as a request for continuance to allow for additional
discovery under Fed. R. Civ. P. 56(f), but denied the continuance
on the ground that the additional discovery requested was a
speculative “fishing expedition” unlikely to uncover relevant
evidence. The court then granted summary judgment in favor of
Fiesta Mart and denied Mauldin’s motion to compel.
Mauldin appeals, asserting that the district court erred by
refusing to allow time for additional discovery under Rule 56(f)
and by denying his motion to compel. Rule 56(f) states that
“[s]hould it appear from the affidavits of a party opposing the
motion that the party cannot for reasons stated present by
-3-
affidavit facts essential to justify the party’s opposition, the
court . . . may order a continuance to permit . . . discovery to be
had . . . .” We review the district court’s disposition of motions
to compel and other discovery matters for abuse of discretion.
Atkinson v. Denton Pub. Co., 84 F.3d 144, 147 (5th Cir. 1996). We
likewise review the grant or denial of a continuance pursuant to
Rule 56(f) for abuse of discretion. Krim v. BancTexas Group, Inc.,
989 F.2d 1435, 1441 (5th Cir. 1993). We review the district
court's grant of summary judgment de novo. Ward v. Bechtel Corp.,
102 F.3d 199, 202 (5th Cir. 1997).
Rule 56 does not entitle a party to unlimited discovery before
summary judgment is granted; “if a party cannot adequately defend
such a motion, Rule 56(f) is his remedy.” Washington v. Allstate
Ins. Co., 901 F.2d 1281, 1285 (5th Cir. 1990); Paul Kadair, Inc. v.
Sony Corp. of Am., 694 F.2d 1017, 1029-30 (5th Cir. 1983). Mauldin
may not invoke Rule 56(f) by the mere assertion that discovery is
not yet complete, but must show how the additional discovery will
establish a genuine issue of material fact. Id. at 1286; see also
Leatherman v. Tarrant County Narcotics Intelligence and
Coordination Unit, 28 F.3d 1388, 1396 (5th Cir. 1994) (same). The
district court may deny a continuance when (1) the record shows
that the requested discovery is unlikely to produce facts necessary
to withstand summary judgment, (2) the nonmovant seeks to embark on
a “fishing expedition,” or (3) the discovery is sought for dilatory
-4-
reasons. Mills v. Damson Oil Corp., 931 F.2d 346, 350-51 (5th Cir.
1991).
Applying the Title VII burden-shifting analysis of McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S. Ct. 1817, 1824-
25, 36 L. Ed. 2d 668 (1973), the district court assumed without
deciding that Mauldin established a prima facie case of
discriminatory demotion.2 The court then determined that Fiesta
Mart satisfied its burden of production by proffering a legitimate
and nondiscriminatory reason for its actions. Mauldin offers no
evidence tending to show that Fiesta Mart’s reasons are pretextual
other than his own subjective beliefs. He now seeks to obtain
detailed employment information with respect to all persons holding
managerial positions in all thirty-four Fiesta Mart stores for a
ten-year period in the hope that such information will reveal a
company-wide preference for Hispanic managers. We agree with the
district court that Mauldin’s discovery request constitutes a
“fishing expedition” calculated to uncover something upon which to
rest the otherwise unsupported allegations in his complaint. See
Kadair, 694 F.2d at 1030 (holding that plaintiff could not rely
upon Rule 56(f) to defeat motion for summary judgment “where the
result of a continuance to obtain further information would be
2
The court, however, held that Mauldin failed to establish
a prima facie case of unlawful retaliation because denial of a
requested raise does not constitute an adverse employment action.
Mauldin does not contest this finding on appeal.
-5-
wholly speculative”); Exxon Corp. v. Crosby-Mississippi Resources,
Ltd., 40 F.3d 1474, 1487-88 (5th Cir. 1995) (same). Thus, we find
no abuse of discretion in the district court’s denial of the Rule
56(f) continuance and, consequently, no abuse of discretion in its
denial of Mauldin’s motion to compel.
Mauldin does not otherwise contest the propriety of the
district court’s ruling. Therefore, we AFFIRM the district court’s
grant of summary judgment in favor of Fiesta Mart.
-6-