United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
April 22, 2003
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 02-60774
Summary Calendar
_____________________
CATHY GILLESPIE,
Plaintiff - Appellant,
versus
B L DEVELOPMENT CORPORATION, doing
business as The Grand Casino,
Defendant - Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No.: 2:01-CV-109-B-B
_________________________________________________________________
Before JOLLY, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PER CURIAM:*
Cathy Gillespie was employed as a floor supervisor by the
Grand Casino in Tunica, Mississippi. On May 30, 2000, Lorenzo
Johnson, who was working as a box person** at a craps table, stole
gaming chips worth approximately $5200. Following an investigation
into the thefts, Gillespie was discharged. The vice president of
table games testified in his deposition that his decision to
*
Pursuant to 5TH CIR. R. 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this opinion should not be published and is not precedent except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 5TH CIR. R. 47.5.4.
**
The box person at a craps table generally serves as the
“banker” for the game.
discharge Gillespie was based on the following: (1) Gillespie was
primarily responsible for supervising Johnson at the time of the
thefts of the chips; (2) the majority of the thefts, including the
thefts of the $500 chips, occurred while Gillespie was supervising
Johnson; (3) Gillespie had sixteen years’ experience in the gaming
industry and should have noticed and/or prevented the thefts; and
(4) casino management wanted to “tighten up” procedures on the
floor.
Gillespie filed a Title VII action against the casino,
alleging that she was discharged because of her gender, and that
similarly situated male employees were not disciplined. The
parties consented to disposition by a magistrate judge. The casino
moved for summary judgment. Two weeks after Gillespie’s response
to the summary judgment motion was due, she filed her response,
along with a motion for a retroactive grant of an extension of time
to respond. On that same day, the magistrate judge granted the
casino’s motion for summary judgment. The next day, the magistrate
judge denied Gillespie’s motion for a retroactive extension of
time, holding that counsel’s involvement with other matters was not
a sufficient excuse for the two-week delay in responding to the
motion. The magistrate judge stated further that he was confident
that the undisputed facts supported judgment for the casino as a
matter of law.
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On appeal, Gillespie argues that the magistrate judge abused
his discretion by denying her request for an extension of time.
She also argues that the district court erred by granting summary
judgment for the casino, because it failed to consider that she was
similarly situated to other male supervisors who were not
discharged, or even disciplined, for the same incident. She
contends that there is a genuine issue of material fact as to
whether the casino’s stated reasons for her discharge were a mere
pretext for intentional discrimination.
The magistrate judge did not abuse his discretion by refusing
to grant Gillespie’s motion for a retroactive extension of time to
respond to the casino’s motion for summary judgment. The only
reason offered to explain the lateness of the response was
counsel’s busy schedule:
[P]laintiff’s counsel is currently involved in
the discovery phases of two class action
litigation matters, along with the trial of a
separate employment litigation matter, all of
which have taken a substantial amount of his
time. Counsel submits that a response to the
motion requires a substantial period of
uninterrupted time, which his schedule has not
permitted him thus far.
Such excuses are insufficient to demonstrate excusable neglect
under Federal Rule of Civil Procedure 6(b)(2) (court may in its
discretion extend time “upon motion made after the expiration of
the specified period ... where the failure to act was the result of
excusable neglect”). See McLaughlin v. City of LaGrange, 662 F.2d
3
1385, 1387 (11th Cir. 1981) (district court did not abuse its
discretion by denying request for additional time to respond to
motion for summary judgment where motion was filed four days late
and the only basis for “excusable neglect” was that counsel was a
solo practitioner and was engaged in the preparation of other
cases); see also Geiserman v. MacDonald, 893 F.2d 787, 793 (5th
Cir. 1990) (where counsel failed to demonstrate excusable neglect,
district court did not abuse its discretion in refusing to consider
untimely answers to interrogatories which were not appended to
opposition to summary judgment motion) (citing McLaughlin).
We conclude further that the magistrate judge did not err by
granting the casino’s motion for summary judgment. The casino
supported its motion with evidence demonstrating the absence of a
genuine issue of material fact, and it offered legitimate, non-
discriminatory reasons for Gillespie’s discharge. Gillespie failed
to point to specific evidence that similarly situated employees
were treated differently under nearly identical circumstances.
Gillespie argues that she is similarly situated to two male floor
supervisors who were responsible for the game at the time of the
thefts, because each of them had nearly identical relevant
experience and each of them was responsible for supervising the
game at which the thefts occurred. The summary judgment evidence,
however, is that the two male supervisors worked only as “relief”
supervisors for the game where the thefts occurred, and that
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Gillespie was primarily responsible for supervising the game.
Moreover, Gillespie, and not either of the male relief supervisors,
was supervising the game when the $500 chips were stolen.
Furthermore, Gillespie has not shown that there is a genuine issue
of material fact as to whether the casino’s explanation for her
discharge was a pretext for discrimination on the basis of her
gender.
For the foregoing reasons, the summary judgment is
A F F I R M E D.
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