United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 5, 2005 Decided January 31, 2006
No. 04-5417
MOHAMMED HUSSAIN,
APPELLANT
v.
R. JAMES NICHOLSON, SECRETARY, DEPARTMENT OF
VETERAN AFFAIRS,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 03cv00367)
Dawn V. Martin argued the cause and filed the briefs for
appellant.
Charlotte A. Abel, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Kenneth L. Wainstein,
U.S. Attorney, Michael J. Ryan, Assistant U.S. Attorney, and
Karen A. Nappo, Counsel, U.S. Department of Veterans Affairs.
R. Craig Lawrence, Assistant U.S. Attorney, entered an
appearance.
Before: HENDERSON, ROGERS, and TATEL, Circuit Judges.
2
Opinion for the Court filed by Circuit Judge TATEL.
Concurring opinion filed by Circuit Judge ROGERS.
TATEL, Circuit Judge: After eighteen years as a doctor at a
public hospital, appellant, an Indian Muslim, applied to replace
his retiring supervisor. When the hospital denied appellant the
position, he filed an administrative complaint alleging
discrimination based on race, religion, and national origin. As
he pursued his claim, his relationship with the hospital
deteriorated—among other things, officials reported concerns
about his performance and then promoted his assistant to
supervise him. Appellant eventually took early retirement and
filed suit in federal court, charging the hospital with
discrimination and retaliation in violation of Title VII of the
Civil Rights Act of 1964. Appellant’s then-attorney, however,
neglected to conduct any discovery. Finding that appellant
failed to provide sufficient evidence to support his claims, the
district court granted summary judgment to the hospital. We
affirm.
I.
Appellant Mohammed Hussain joined the Veteran Affairs
Medical Center in 1978 as Assistant Chief of Radiation Therapy.
When his supervisor retired in 1997, Hussain became Acting
Chief of Radiation Therapy, a position which, though requiring
increased administrative responsibilities, came with no
additional pay. Although Hussain expressed interest in
becoming permanent Chief of the division, he remained Acting
Chief for the next several years.
In September 2000, hospital officials merged Hussain’s
division with another division, the Imaging Service, creating one
unified Radiology Service. Dr. Klemens Barth, Chief of
Imaging, was then appointed to the new position of Chief of
3
Radiology Service. Hussain’s title, duties, and compensation
remained unchanged, but he now reported to Barth rather than
directly to the hospital’s Chief of Staff. Two months later,
Hussain filed an Equal Employment Opportunity complaint
alleging that the hospital failed to promote him to a permanent
Chief position because of his race, religion, and national origin.
Reiterating the same claims, he also filed a complaint with the
Equal Employment Opportunity Commission (EEOC).
The following July, Barth hired an African-American
woman, Dr. JoAnn Manning, as an additional staff physician in
the Radiation Therapy division. Hussain asserts that although
the hospital purported to hire Manning to assist Hussain, Barth
excluded him from the hiring process and prevented him from
supervising Manning.
Three months later, Hussain received a performance
evaluation from the Chief of Staff, Ross Fletcher. Although
Hussain’s former supervisor had consistently given him
excellent performance reviews, Fletcher rated Hussain as just
“satisfactory,” noting that “many issues have arisen regarding
Dr. Hussain.” In a later evaluation rating Hussain as “low
satisfactory,” Barth observed that Hussain failed to “provide . . .
effective leadership for the division.” Hussain v. Principi, 344
F. Supp. 2d 86, 92 (D.D.C. 2004). In December 2002, Barth
appointed Manning as permanent Chief of Radiation Therapy
and demoted Hussain to Assistant Chief, with Manning as his
supervisor.
Shortly thereafter, Hussain filed suit in federal court,
charging the hospital with various torts and Title VII violations.
In their affidavits, Manning and Barth allege that around this
time they began encountering problems with Hussain’s
performance, particularly his failure to conduct adequate follow-
up patient care. In June 2003, they renewed Hussain’s clinical
4
privileges for only three months, rather than the normal two-year
period. They also informed Hussain that he would now have to
document patient examinations and submit records for monthly
review. At the end of July, Hussain informed the hospital that
he would be taking “extended sick leave . . . until further
notice.” Id. at 93. When Hussain failed to provide medical
documentation to support his absence, the hospital placed him
on “Absence Without Leave” status. In September, Hussain
took voluntary early retirement.
Hussain then amended his complaint (the second amended
complaint) dropping several claims and retaining only those
based on Title VII: failure to promote based on race, religion,
and national origin; retaliation; hostile work environment; and
constructive discharge. Although Hussain’s then-attorney, Tony
Shaw, took several depositions in connection with proceedings
before the EEOC, he took no discovery at all during the six-
month period allotted by the district court. After discovery
closed, the hospital moved for summary judgment, at which
point Hussain, represented by new counsel, Dawn Martin,
moved to reopen discovery. The district court denied Hussain’s
motion and granted summary judgment to the hospital on all
claims. See id. at 93-94, 107.
Hussain now appeals, arguing that the district court erred in
(1) denying his motion to reopen discovery, (2) finding no
genuine issue of material fact with regard to his employment
discrimination and retaliation claims, and (3) finding that he
failed to state hostile work environment or constructive
discharge claims.
II.
We begin with the discovery issue. In July 2004, after
discovery closed, Hussain notified the district court that Martin
had replaced Shaw as his attorney. Upon learning that Shaw had
5
failed to conduct any discovery during the allotted time frame,
Martin moved to reopen discovery under Rule 16(b). See Fed.
R. Civ. P. 16(b) (permitting courts to modify their schedules if
the requesting party shows “good cause”). Critical to the issue
before us, this request came over three months after discovery
closed and several weeks after the hospital filed its motion for
summary judgment. Martin argued that because the hospital had
only just filed its answer to Hussain’s second amended
complaint, the district court had good cause to grant a 90-day
extension for discovery: “A defendant should not be permitted
to obtain repeated extensions from the Court to respond to a
Complaint, such that it delays the plaintiff [an] Answer to
his/her Complaint throughout the entire discovery period, and
then denies the Plaintiff the right to discovery.” Pl.’s Mot. to
Reopen Disc. 2. Martin also argued that without an opportunity
for additional discovery, Hussain would be unable to establish
that hospital officials had acted with discriminatory intent.
At a hearing on the motion to reopen discovery—a hearing
attended by both Shaw and Martin—Shaw acknowledged “some
lack of diligence” on his part, Mot. Hr’g Tr. 4, July 22, 2004,
but pointed out that the hospital also operated with “unclean
hands” by repeatedly requesting extensions for its filings, id. at
6. The district court, observing that Hussain had a “great
malpractice action” against Shaw, id., stated: “You can’t cite me
a case . . . that says that I’m supposed to extend [discovery]
because of your incompetence, can you? That is not good
cause,” id. at 8. The court also explained that although the
hospital had asked for several extensions, it had always filed its
motions in a timely manner. In its written ruling denying
Hussain’s motion, the court noted that since Hussain had taken
several depositions during the administrative proceedings, he
had not been “completely deprived of discovery.” Hussain, 344
F. Supp. 2d at 93.
6
We review discovery rulings for abuse of discretion. See
Military Audit Project v. Casey, 656 F.2d 724, 750 (D.C. Cir.
1981). We are especially reluctant to interfere with district court
decisions regarding their own day-to-day operations. See, e.g.,
United States v. Microsoft Corp., 253 F.3d 34, 100 (D.C. Cir.
2001) (“[A]n appellate court will not interfere with the trial
court’s exercise of its discretion to control its docket and
dispatch its business . . . except upon the clearest showing that
the procedures have resulted in actual and substantial prejudice
to the complaining litigant.”) (quoting Eli Lilly & Co., Inc. v.
Generix Drug Sales, Inc., 460 F.2d 1096, 1105 (5th Cir. 1972)).
In particular, district courts have “broad discretion in structuring
discovery.” Edmond v. U.S. Postal Serv. Gen. Counsel, 949
F.2d 415, 425 (D.C. Cir. 1991); see also In re Multi-Piece Rim
Prods. Liab. Litig., 653 F.2d 671, 679 (D.C. Cir. 1981) (“A
district court has broad discretion in its resolution of discovery
problems that arise in cases pending before it.”). Given this
highly deferential standard, we see no basis for questioning the
district court’s denial of an enlargement of time for additional
discovery.
Although Hussain now points to Rule 56(f) in support of his
request to reopen discovery, see Fed. R. Civ. P. 56(f) (allowing
courts to order additional discovery prior to ruling on a summary
judgment motion), his district court motion relied solely on Rule
16(b). We will therefore consider only his arguments relating to
Rule 16(b). See District of Columbia v. Air Fla., Inc., 750 F.2d
1077, 1084 (D.C. Cir. 1984) (“It is well settled that issues and
legal theories not asserted at the District Court level ordinarily
will not be heard on appeal.”). In that regard, Hussain argues
that the district court’s “no good cause” finding rests on three
factual errors and thus amounts to an abuse of discretion.
First, Hussain asserts that the court erred in finding that he
had an opportunity to obtain adequate discovery at the
7
administrative level, given that the hospital refused to comply
with several administrative law judge (ALJ) orders to produce
documents and witnesses for deposition, and that the ALJ took
an indefinite leave of absence prior to completing the
proceedings. The district court made no such error.
Acknowledging that Hussain “may not have had a full
administrative hearing,” the court found only that he “did have
an opportunity to obtain discovery at the administrative level
regarding many of the same claims he pursues here.” Hussain,
344 F. Supp. 2d at 93-94. This is accurate—Hussain took
lengthy depositions of several key witnesses during the EEOC
proceedings, including both Fletcher and Barth.
Hussain next claims that the district court incorrectly
believed that the hospital filed all its motions on time, when in
fact both its summary judgment motion and its answer to the
second amended complaint were late. But even if this is true,
we see no reason to think the court would have held differently
had it realized these filings were untimely. The court explained
that “[b]ecause . . . there was no legitimate reason why
discovery had not yet been conducted, [it] had ample reason to
reject plaintiff’s motion.” Id. at 93. Accordingly, the alleged
error—if error at all—was harmless. See, e.g., Barth v. Gelb, 2
F.3d 1180, 1188-89 (D.C. Cir. 1993) (explaining that errors
which have no effect on the outcome of a case are not grounds
for reversal or remand).
Finally, Hussain argues that the district court’s refusal to
reopen discovery represents an overly harsh penalty for Shaw’s
negligence, given that the lawyer’s “future misconduct was . . .
more than sufficiently deterred” when his client fired him and
the judge then “berated [him] in open court.” Appellant’s Br. 54.
Hussain misunderstands the district court’s holding. The court
denied Hussain’s motion not because it determined that Shaw
deserved punishment, but because Hussain failed to establish
8
good cause for modifying the discovery schedule. See Hussain,
344 F. Supp. 2d at 93-94.
We sympathize with Hussain, the victim of Shaw’s
negligence, and with Martin, who has tried hard to salvage her
client’s case. But as the Supreme Court has held, a party who
voluntarily chooses his attorney “cannot . . . avoid the
consequences of the acts or omissions of this freely selected
agent.” Link v. Wabash R.R. Co., 370 U.S. 626, 633-34 (1962).
Accordingly, because the primary reason for reopening
discovery would have been to mitigate the damage Shaw
inflicted on Hussain’s case, the district court did not abuse its
discretion in denying Hussain’s motion.
III.
We turn to Hussain’s discrimination and retaliation claims.
We review de novo the district court’s order granting summary
judgment to the hospital, viewing the evidence in the light most
favorable to Hussain. See Tao v. Freeh, 27 F.3d 635, 638 (D.C.
Cir. 1994).
Hussain’s first claim is that the hospital unlawfully
discriminated against him when it created the new Radiology
Service and named Barth as its Chief. Because Hussain alleges
discrimination via disparate treatment, the McDonnell Douglas
three-step “shifting burdens” test applies. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). We have
described the McDonnell Douglas framework as follows:
[T]he complainant must first establish a prima facie case
of prohibited discrimination. Once he has done so, the
burden then shifts to the employer to articulate
legitimate, nondiscriminatory reasons for the challenged
employment decision. Should the employer succeed in
presenting such reasons, the burden shifts back to the
9
complainant, who then has an opportunity to discredit
the employer’s explanation. . . . [T]he plaintiff at all
times retains the ultimate burden of persuasion.
Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1288-89 (D.C. Cir.
1998) (en banc) (internal citations omitted). The district court
found that although Hussain established a prima facie case, he
failed to rebut the legitimate reason offered by the hospital for
putting Barth in the new Chief position, i.e., that Barth was
better qualified than Hussain.
Hussain contends that the district court erroneously
discounted evidence of his own qualifications, including his
special skill in implementing brachytherapy, his involvement in
charitable work and professional committees, and his faculty
position at Georgetown University. He also points to various
documents which contradict the hospital’s claim that he failed
to hire necessary staff, correct personnel problems, and request
important equipment. But even viewed in the light most
favorable to Hussain, this evidence merely shows that Hussain
was a better candidate than the hospital admits, not that he was
more qualified than Barth. Under Aka, comparing qualifications
is insufficient to establish discriminatory intent unless the
plaintiff is “significantly better qualified” than the person who
obtained the position. 156 F.3d at 1294. Given Barth’s
numerous publications, several university affiliations, and
success in running the significantly larger Imaging Service, we
agree with the district court that Hussain failed to discredit the
hospital officials’ claim that they believed Barth to be better
suited for the promotion. Hussain argues that the district court
failed to consider whether evidence of “religious alliances and
animosity” revealed hospital officials’ discriminatory intent,
Appellant’s Br. 41, but the district court correctly found that
Hussain’s evidence of religious animus consisted merely of
conclusory allegations in his own affidavit. See Dist. Intown
10
Props. Ltd. P’ship v. District of Columbia, 198 F.3d 874, 878
(D.C. Cir. 1999) (“In deciding whether there is a genuine issue
of material fact, the court must assume the truth of all statements
proffered by the non-movant except for conclusory allegations
lacking any factual basis in the record.” (emphasis added)).
Accordingly, the district court properly granted summary
judgment to the hospital on this claim.
Hussain next claims that hospital officials discriminated
against him when they declined to appoint him permanent Chief
of Radiation Therapy and instead promoted Manning to the
position. Following McDonnell Douglas, the district court again
found that Hussain failed to rebut the hospital officials’ claim
that they gave the job to the most qualified candidate. Although
Hussain had worked at the hospital much longer than Manning,
Manning had fifteen years of radiation therapy experience,
numerous publications, and an affiliation with Georgetown
Hospital. Given this evidence, we agree with the district court
that because Hussain failed to demonstrate pretext, summary
judgment on this claim was proper.
For his third claim, Hussain argues that the hospital
unlawfully retaliated against him for pursuing his discrimination
complaint. In particular, he cites twelve alleged acts of
retaliation: (1) Manning’s appointment as permanent Chief of
Radiation Therapy, (2) a report to the hospital’s Peer Review
Panel regarding Hussain’s possible involvement in a malpractice
suit, (3) denial of special pay, (4) denial of clinical privileges,
(5) heightened monitoring by supervisors, (6) poor performance
evaluations, (7) denial of medical leave, (8) delay in forwarding
retirement application forms, (9) denial of counsel during a
discussion about retirement and failure to provide a written copy
of retirement options, (10) denial of access to his personnel file,
(11) termination threats, and (12) failure to address
insubordination by other employees.
11
Under Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999),
plaintiffs alleging retaliation must demonstrate that (1) they
engaged in statutorily protected activity, (2) the employer took
an adverse employment action against them, and (3) a causal
connection existed between the two. The district court found
that although Hussain’s discrimination complaint satisfied the
first requirement, each of his twelve claims failed either because
the alleged act fell short of an actionable adverse action or
because Hussain provided insufficient evidence of a causal
connection. The court then dismissed Hussain’s hostile work
environment and constructive discharge claims, explaining that
Hussain failed to show that “any allegedly disparaging conduct
by the defendant was based on plaintiff’s race, religion, or
national origin.” Hussain, 344 F. Supp. 2d at 107.
Rather than responding to these findings directly, Hussain
argues that the district court overlooked his claim that the twelve
alleged retaliatory acts, when combined, created a hostile work
environment and constituted constructive discharge.
“Retaliation,” Hussain argues, “may take the form [of] one or
more separate, discreet acts, or may be so frequent, severe,
pervasive and harassing, that, together, the individual acts create
a retaliatory hostile work environment under Title VII.”
Appellant’s Br. 42.
As a matter of law, Hussain makes an excellent point. In
this circuit, a hostile work environment can amount to retaliation
under Title VII. See Singletary v. District of Columbia, 351
F.3d 519, 526 (D.C. Cir. 2003). To prevail on such a claim,
however, Hussain must show that the hospital subjected him to
“discriminatory intimidation, ridicule, and insult” of such
“sever[ity] or pervasive[ness] [as] to alter the conditions of [his]
employment and create an abusive working environment.”
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993) (quoting
12
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986)). But
Hussain has failed to make such a showing. As the district court
explained, Hussain exaggerates several of his claims: The record
clearly shows that the hospital never reported him for
malpractice, revoked his clinical privileges, or denied him
special pay or medical leave. See Hussain, 344 F. Supp. 2d at
104 n.25. Although the work environment described by Hussain
was hardly ideal, we think no reasonable jury could find it
“abusive” under the standard set forth in Harris. Cf. Singletary,
351 F.3d at 528-29 (declining to grant summary judgment
against an employee claiming hostile work environment where,
for over a year and a half, the employee was forced to work in
a poorly lit, unheated, and unventilated storage room full of
brooms and boxes of debris). Nor do we believe that a
reasonable jury could find in Hussain’s favor with regard to his
constructive discharge claim: Even when considered
collectively, his allegations fail to establish a “working
environment . . . so intolerable that [his] resignation qualified as
a fitting response.” Pa. State Police v. Suders, 542 U.S. 129,
134 (2004).
IV.
Concluding that the district court neither abused its
discretion in refusing to reopen discovery nor erred in finding
that Hussain failed to present any triable Title VII claims, we
affirm the grant of summary judgment to the hospital on all
counts.
So ordered.
ROGERS, J., concurring: As the court observes, our review
of discovery rulings for abuse of discretion reflects a
“reluctan[ce] to interfere with district court decisions regarding
their own day-to-day operations.” Op. at 6. However, the
court’s reluctance is tempered where there is “the clearest
showing that the procedures have resulted in actual and
substantial prejudice to the complaining litigant.” Id. (quoting
United States v. Microsoft Corp., 253 F.3d 34, 100 (D.C. Cir.
2001)). In my view, our conclusion that the district court did not
abuse its discretion in denying Hussain’s motion to reopen
discovery follows from a slightly different analysis than is
adopted by the court of Hussain’s contention that the refusal to
grant his motion was an overly harsh penalty for his attorney’s
negligence. See Op. at 7-8.
Federal Rule of Civil Procedure 16(b) provides that a
scheduling order “shall not be modified except upon a showing
of good cause . . . .” The advisory committee notes on the Rule
explain that there is good cause “if [the schedule] cannot
reasonably be met despite the diligence of the party seeking the
extension.” FED. R. CIV. P. 16(b) advisory committee’s notes
(1983 amendments). Several circuit courts of appeal have held
that “Rule 16(b)’s ‘good cause’ standard primarily considers the
diligence of the party seeking the [modification]. . . . If that
party was not diligent, the inquiry should end.” Johnson v.
Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992);
see also O’Connell v. Hyatt Hotels of Puerto Rico, 357 F.3d
152, 155 (1st Cir. 2004); Inge v. Rock Fin. Corp., 281 F.3d 613,
625 (6th Cir. 2002); Bradford v. DANA Corp., Inc., 249 F.3d
807, 809 (8th Cir. 2001); Parker v. Columbia Pictures Indus.,
204 F.3d 326, 340 (2d Cir. 2000). Some courts secondarily
consider the “possible prejudice to the party opposing the
modification.” Inge, 281 F.3d at 625; see also Reliance Ins. Co.
v. Louisiana Land & Exploration, 110 F.3d 253, 257 (5th Cir.
1997).
2
Under those precedents, the primary consideration in
determining whether the district court abused its discretion by
refusing to reopen discovery is whether Dr. Hussain was diligent
in conducting discovery within the schedule set by the district
court. Hussain’s attorney conducted no discovery within that
period, and his motion to reopen discovery came three and a half
months after the discovery period had ended. The only asserted
reason for this lack of diligence was attorney neglect. Yet
“carelessness is not compatible with a finding of diligence and
offers no reason for a grant of relief.” Johnson, 975 F.2d at 609.
The question remains whether Hussain can be deemed
diligent in complying with the scheduling order although his
attorney was not. The general rule is that a client is held
accountable for his attorney’s conduct. See, e.g., Link v.
Wabash R.R. Co., 370 U.S. 626, 633-34 (1962); Camps v. C &
P Tel. Co., 692 F.2d 120, 123-24 (D.C. Cir. 1981). The First
Circuit has confronted two cases under Rule 16(b) in which
parties blamed their lack of diligence on attorney error, and in
both cases the court replied, “Attorneys represent clients, and,
as a general rule, an attorney’s blunder binds her client.”
O’Connell, 357 F.3d at 155; Rosario-Diaz v. Gonzalez, 140 F.3d
312, 315 (1st Cir. 1998). Were this court to follow the
interpretation of Rule 16(b) adopted by other circuits and hold
Hussain accountable for his counsel’s behavior, “the inquiry
should end” because Hussain “was not diligent.” Johnson, 975
F.2d at 609.
This court, however, has not viewed the attorney-blunder
rule to be without exception. The court has recognized in the
context of the dismissal of a complaint that a party should not
bear the consequences of attorney misdeeds when the lawyer
“misled the client by reassuring him that the litigation was
continuing smoothly when in fact it was suffering severely from
lack of attention.” Jackson v. Washington Monthly Co., 569
3
F.2d 119, 122 (D.C. Cir. 1977). And on appeal, as noted, the
court will determine whether there is “the clearest showing [of]
actual and substantial prejudice.” Microsoft, 253 F.3d at 100.
Although Hussain does not assert that he was misled by his
attorney as in Jackson, he did argue to the district court that he
was being unfairly punished for his former attorney’s negligence
by being forced to oppose the hospital’s motion for summary
judgment without discovery. In my view, the district court’s
evaluation of the nature of the discovery that Hussain obtained
during the EEOC proceedings precludes a finding that Hussain
has made the clear showing of “actual and substantial prejudice”
required for the court to conclude that the district court abused
its discretion in denying his motion to reopen discovery. Thus,
were this court to interpret “good cause” under Rule 16 to
embrace consideration of prejudice, Hussain’s contention that
the lack of evidence with which to respond to the hospital’s
motion constituted good cause to reopen discovery would fail.
The district court expressly addressed whether Hussain
would be unfairly prejudiced in his ability to oppose summary
judgment if he were not permitted to reopen discovery. See
Hussain v. Principi, 344 F. Supp. 2d 86, 93-94 (D.D.C. 2004) .
In denying Hussain’s motion to reopen discovery, the district
court relied partially on the ground that he was not “completely
deprived of discovery” because his attorney had taken “lengthy
depositions” of Dr. Barth, Dr. Fletcher and Mr. Garfunkel
during the EEOC proceedings. Id. The district court noted that
“[t]hese depositions covered the merger of the Radiation
Therapy and Imaging Services, Dr. Barth's appointment as Chief
of Radiology, the Peer Review Panel, the hiring of Dr. Manning,
the administration’s reaction to [Hussain's] EEO complaints, and
many other topics.” Id. at 94. The district court thus found that
Hussain “did have an opportunity to obtain discovery at the
administrative level regarding many of the same claims he
pursues here.” Id. at 93-94.
4
Because a litigant seeking discovery may be unable to
identify the nature of the information sought, it would be
inappropriate to place such a burden on the moving party. But
Hussain is in a somewhat different position as a result of the
administrative discovery he had obtained. In the district court,
Hussain suggested a number of inquiries he would pursue were
discovery reopened, for the most part involving new lines of
questioning with the individuals he had previously deposed, but
also involving his desire to depose Dr. Manning and Dr. Patel,
both of whom he was unable to depose in the administrative
proceeding. Assuming further depositions could reveal helpful
information, Hussain nonetheless fails, in light of the evidence
he could rely upon in opposing the hospital’s motion for
summary judgment, to make “the clearest showing [of] actual
and substantial prejudice.” Microsoft, 253 F.3d at 100. He
could rely upon the depositions of Dr. Barth, Dr. Fletcher, and
Mr. Garfunkel; the EEO investigative file; his own deposition
and affidavit; the 109 exhibits from his personal files; and any
affidavits he could collect from current and former hospital
employees. Deposing Drs. Manning and Patel would appear to
be of questionable worth as neither was a central figure in
Hussain’s discrimination or retaliation claims; he sought their
depositions only to show that Dr. Manning’s view of his poor
performance was inspired by her self-interest and that Dr.
Patel’s view of his poor performance was inspired by anti-
Muslim bias.
Accordingly, I concur.