Tyree v. Lahood

United States Court of Appeals
For the First Circuit

No. 14-2092

ELIZABETH TYREE,

Plaintiff, Appellant,

v.

ANTHONY FOXX,
SECRETARY, U.S. DEPARTMENT OF TRANSPORTATION,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Torruella, Thompson, and Kayatta,
Circuit Judges.

James A.W. Shaw, with whom Segal Roitman, LLP, was on brief,
for appellant.
Christine J. Wichers, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.

August 22, 2016
 TORRUELLA, Circuit Judge. Elizabeth Tyree was a paid

graduate student intern at the John A. Volpe National

Transportation System Center 1 ("Volpe Center"). During her

internship, Tyree began conducting research for her master's

thesis. After her internship ended, she sought access to the

Volpe Center's proprietary data through a Cooperative Research and

Development Agreement ("CRADA") -- an agreement between a federal

laboratory and a nonfederal entity to share resources and conduct

research as defined in 15 U.S.C. § 3710a(d)(1)2 -- to continue her

thesis, but the CRADA was never executed. Tyree brought this

employment discrimination suit against the Secretary of

Transportation alleging that the Volpe Center did not execute the

CRADA because of her sex, race, or national origin. The district

1 The Volpe Center is part of the Research and Innovative
Technology Administration within the United States Department of
Transportation.
2 Section 3710a(d) defines a CRADA as

any agreement between one or more Federal laboratories
and one or more non-Federal parties under which the
Government, through its laboratories, provides
personnel, services, facilities, equipment,
intellectual property, or other resources with or
without reimbursement (but not funds to non-Federal
parties) and the non-Federal parties provide funds,
personnel, services, facilities, equipment,
intellectual property, or other resources toward the
conduct of specified research or development efforts
which are consistent with the missions of the
laboratory [subject to certain exceptions].

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court granted the Secretary's motion for summary judgment finding

that Tyree failed to show the challenged acts were motived by

discriminatory animus. We affirm.

I.

The facts underlying this case are largely undisputed.

"To the extent that the parties disagree about what occurred, we

adhere to the plaintiff's version in keeping with our role in

reviewing a grant of summary judgment." Ahmed v. Johnson, 752

F.3d 490, 492 (1st Cir. 2014).

During the relevant time period, Tyree, a black Hispanic

woman, was a student at Worcester Polytechnic Institute ("WPI"),

pursuing her master's degree in physics. In February 2009, Tyree

began a two-year paid internship with the Volpe Center. Before

accepting her offer and again after starting, Tyree told the Volpe

Center she hoped to conduct research for her master's thesis.

That spring, after viewing a list of research topics generated by

the Volpe Center, Tyree decided to write her thesis on the

differences between aircraft wake behavior over land and water.

While working on her research, Tyree worked closely with Dr.

Michael Geyer and Dr. Frank Wang at the Volpe Center as well as

her thesis advisor at WPI. Wang was the team lead for the aircraft

wake turbulence program and one of the people involved in Tyree's

interview process. He worked closely with her for two years.

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Tyree points to no evidence that he ever manifested, or even hinted

at, any bias against her.

In January 2011, two weeks before her internship ended,

the Volpe Center told Tyree that they would not extend her

internship to full-time employment. Tyree asked Geyer if she

would lose her thesis research. Geyer told Tyree that she could

potentially continue her research (and have access to the Volpe

Center's nonpublic wake data) through a CRADA between WPI and the

Volpe Center.

The day before her internship ended, Tyree met with

Geyer, Wang, and Felicia McBride, a Volpe Center attorney, to

discuss the possibility of executing a CRADA. McBride, an

African-American woman, explained to Tyree the CRADA process,

including that Tyree needed to provide a statement of work ("SOW")

describing her research before McBride could start writing a draft

CRADA. McBride also explained that a CRADA is a mutually

beneficial arrangement between a federal laboratory and a non-

federal entity that must be approved by different departments

within the agency, and would ultimately need approval from the

Director of the Volpe Center and the administrator of the Research

Innovation Technology Administration ("RITA") of the U.S.

Department of Transportation. To do all of this, Tyree needed to

have someone at Volpe work with her. There is no evidence that

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Wang had any duty to help her at all. Nevertheless, he agreed to

do so. After the meeting, Geyer instructed Tyree to write a first

draft of the SOW and email it to Wang. Six days later, on

February 16, Tyree emailed her draft SOW to Geyer and Wang.

The SOW, however, was never completed. In March, Wang

emailed Tyree to let her know that she had received approval for

one of the steps in setting up the CRADA but that he wanted to

speak with her about "analysis ideas" he wanted to propose. At

the beginning of April, Tyree went to the Volpe Center and Wang

elaborated that he wanted Tyree to create a synthetic dataset to

test a statistical method that would be subsequently used to

analyze the wake data. In an email sent on April 28, Wang further

explained that he believed the development of this "statistical

tool" could be written into the SOW and he was concerned that the

current SOW did not "have enough technology flowing back from WPI

to [the] Volpe [Center]." Tyree, however, viewed Wang's suggestion

as beyond the scope of her original thesis and a topic that would

have merited a separate thesis in its own right.

Little work was done on the SOW between May and July of

2011. Starting in July, Tyree sent the Volpe Center several emails

asking about the status of the SOW. Wang responded by telling

Tyree that she should incorporate his suggestions about the

statistical tool into the draft SOW in order to make the CRADA

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more beneficial to the Volpe Center. McBride echoed this concern

and stated that the SOW needed "to be 'sellable' in that it will

align with a [Department of Transportation] goal." Tyree,

however, wanted Wang to type his changes into the draft SOW himself

and found it "suspicious" that, if he viewed the statistical tool

as important, he had not proposed them when she started her

research two years earlier. On July 17, Wang sent Tyree an edited

SOW with his changes (including the statistical tool and synthetic

dataset) incorporated.

Four days after receiving the edited SOW, Tyree spoke

with her thesis advisor. Tyree's thesis advisor told her that,

in his experience, SOWs (not necessarily for CRADAs) between two

institutions took a few days to complete and up to a month if there

were complications. That conversation cemented Tyree's belief

that the Volpe Center had no intention of completing the SOW or

executing the CRADA.

On August 10, 2011, Tyree sought equal employment

opportunity ("EEO") counseling, alleging that the Volpe Center's

delays in executing the CRADA were motivated by gender

discrimination. Tyree requested $300,000 from the Volpe Center

and someone other than Wang as her point of contact for the SOW

and CRADA. The EEO counselor was unable to resolve Tyree's

complaint and Tyree subsequently filed a complaint with the

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Department of Transportation alleging sex, race, and national

origin discrimination. Upon receiving a right to sue letter,

Tyree initiated this suit in the United States District Court for

the District of Massachusetts.

In her first complaint, Tyree alleged that by failing to

execute the CRADA, the Secretary discriminated against her on the

basis of her sex, race, or national origin in violation of Title

VII, 42 U.S.C. § 2000e-16(a).3 Tyree subsequently amended her

complaint to include a claim that the Volpe Center's advice on her

thesis following her internship constituted a post-employment

training program at the Volpe Center from which she was wrongfully

terminated due to her sex, race, or national origin when the CRADA

negotiations fell through. Following discovery, the district

court granted summary judgment on the CRADA and training program

claims.4 This timely appeal followed.

3 Tyree also alleged wrongful termination and retaliation, which
the district court dismissed pursuant to Federal Rule of Civil
Procedure 12(b)(6). Because these claims involved separate legal
issues, we reject Tyree's argument that she appealed them by virtue
of their being intertwined with her CRADA claim. The district
court dismissed Tyree's wrongful termination claim for failure to
exhaust administrative remedies and her retaliation claim, which
was based on Geyer not writing her a letter of recommendation after
seeking EEO counseling, for lack of causation.
4 The district court found that the claims were susceptible to
the same analysis. Additionally, Tyree does not separately brief
these claims. We agree with the district court and our analysis
applies to both claims.

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 II.

"We review a district court's grant of summary judgment

de novo, viewing the facts in the light most favorable to the non-

moving party." Román v. Potter, 604 F.3d 34, 38 (1st Cir. 2010).

"Summary judgment is appropriate only if there is no genuine

dispute as to any material fact and the moving party is entitled

to judgment as a matter of law." Hicks v. Johnson, 755 F.3d 738,

743 (1st Cir. 2014).

When a Title VII discrimination claim rests on

circumstantial evidence, we apply the three-step burden-shifting

framework outlined by the Supreme Court in McDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1973). Ahmed, 452 F.3d at 495. Under

step one of that framework, the plaintiff must establish a prima

facie case of discrimination. Id. at 495-96. Once the plaintiff

establishes a prima facie case, "an inference of discrimination

arises, and the burden of production shifts to the defendant to

produce evidence that the challenged employment action was taken

for a legitimate, non-discriminatory reason." Hicks, 755 F.3d at

744. "If the employer supplies such evidence, the plaintiff is

left with the burden to prove 'by a preponderance of the evidence

that the employer's proffered reason is pretextual and that the

actual reason for the adverse employment action is

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discriminatory.'" Id. (quoting Johnson v. Univ. of P.R., 714 F.3d

48, 53 (1st Cir. 2013)).

A. Prima facie case

At step one, the district court assumed that Tyree met

her burden of proving a prima facie case of discrimination in

connection with the Volpe Center's failure to execute the CRADA.

We do the same.5

B. Non-discriminatory reason

Proceeding to step two, the district court concluded

that the Secretary had articulated a legitimate non-discriminatory

reason for failing to execute the CRADA -- namely, that Volpe

Center personnel needed to make Tyree's proposed SOW more

"sellable" to the higher-level officials (in particular, the Volpe

Center director and RITA administrator) who needed to approve it.

Specifically, the district court cited an email from Wang to Tyree

stating that the "true spirit" of the CRADA was "sharing resources

and analysis efforts" and it was important for him to be able to

"'sell [the SOW]' in terms of 'what does Volpe really get out of

the CRADA?'" We note McBride echoed this concern and we agree

5 In doing so, we decline to address the Secretary's two
alternative bases for affirmance: that the CRADA and training
program were educational benefits beyond Title VII's protection
and that Tyree's theory of relief was too speculative to constitute
an adverse employment action.

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with the district court that this was a legitimate non-

discriminatory reason for why the Volpe Center never executed the

CRADA.

Tyree argues, for the first time on appeal, that the

Secretary never identified a legitimate non-discriminatory reason

in his motion for summary judgment and the district court

improperly articulated a reason on his behalf. Rather than

grappling with what constitutes "extraordinary" circumstances

allowing us to relax our "raise or waive" rule, see, e.g., Lang v.

Wal-Mart Stores E., L.P., 813 F.3d 447, 455 (1st Cir. 2016); Nat'l

Ass'n of Soc. Workers v. Hardwood, 69 F.3d 622, 628-29 (1st Cir.

1995), we reject Tyree's argument outright. The "sellable"

rationale cited by the district court is articulated in both the

Secretary's motion for summary judgment and brief on appeal. We

acknowledge that the Secretary's primary argument is that the CRADA

fell through because Tyree ended the negotiations by filing her

EEO complaint, but the Secretary also makes clear that Wang

resisted Tyree's proposed SOW and intended to make it more

"sellable to the Volpe Center" through his proposed changes.6 Our

6 Because we can affirm using the rationale understood by the
district court, we decline to analyze the merits of the Secretary's
preferred rationale for why the CRADA was never executed. In
other words, we do not decide whether Tyree needed to continue
negotiating the CRADA while she sought EEO counseling.

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analysis thus turns to whether the Volpe Center's claim that

Tyree's SOW needed to be more sellable was pretext for

discrimination.

C. Discriminatory intent

"At the summary judgment stage, the plaintiff 'must

produce evidence to create a genuine issue of fact with respect to

two points: whether the employer's articulated reason for its

adverse action was a pretext and whether the real reason was . . .

discrimination.'" Quiñones v. Buick, 436 F.3d 284, 289–90 (1st

Cir. 2006) (quoting Thomas v. Eastman Kodak Co., 183 F.3d 38, 62

(1st Cir. 1999)). At this stage, "it is insufficient for a

plaintiff merely to undermine the veracity of the employer's

proffered justification." Dichner v. Liberty Travel, 141 F.3d 24,

30 (1st Cir. 1998). "[I]nstead, she must muster proof that enables

a factfinder rationally to conclude that the stated reason behind

the adverse employment decision is not only a sham, but a sham

intended to cover up the proscribed type of discrimination." Id.

Nonetheless, this court does not always require the plaintiff to

adduce direct evidence of an employer's discriminatory animus.

"When the prima facie case is very strong and disbelief of the

proffered reason provides cause to believe that the employer was

motivated by a discriminatory purpose, proof of pretext 'may' be

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sufficient." Lattimore v. Polaroid Corp., 99 F.3d 456, 466 (1st

Cir. 1996).

It is this latter scenario into which Tyree contends her

case falls. Tyree's discriminatory intent argument rests on the

Volpe Center's proffered reason being pretextual. In particular,

she argues that because the Volpe Center originally approved of

her thesis topic and Wang had not brought up his concerns about

its statistical rigor earlier, her original SOW must have contained

sufficient benefits to the Volpe Center to be worthy of a CRADA.

As a threshold matter, we do not view the Volpe Center's

actions as inconsistent. Tyree ultimately did not receive a CRADA

because she and Wang reached an impasse over what would be an

acceptable SOW. But even if we assume Wang (or other Volpe Center

personnel) was stonewalling, Tyree's prima facie case is not so

strong that she could prevail on pretext alone. At best, Tyree

has described a scenario in which she and her employer disagreed

about the scope of her research. Her description of the nature

of this disagreement would not allow a reasonable fact-finder to

conclude it stemmed from discriminatory animus. All Tyree cites

to us is her feeling that Wang and Geyer were motivated by

discriminatory animus.7 As the district court observed, subjective

7 The district court noted four anecdotes Tyree provided during
her deposition as evidence of discriminatory animus. These
anecdotes, consisting of male non-black or -Hispanic colleagues

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belief of discrimination is not sufficient to withstand summary

judgment. See Román, 604 F.3d at 40. Without further evidence,

"[s]ubmitting the issue of discriminatory intent to a jury on this

record would amount to nothing more than an invitation to

speculate." Lattimore, 99 F.3d at 467-68. We therefore conclude

that summary judgment was proper.

III.

Our colleague's dissent argues that Tyree's Title VII

claim was unable to withstand summary judgment because her

discovery was unduly cut short. Specifically, the dissent focuses

on Tyree's Interrogatory No. 3, which requested that the Volpe

Center provide a list of all of its agreements that also involved

producing a SOW and, for each agreement, the amount of time the

SOW took to complete. In response, the Volpe Center provided

Tyree with information regarding CRADA-related SOWs only, viewing

other SOWs as irrelevant.

Tyree filed a motion to compel, which the district court

denied on the grounds that Tyree's requests were overbroad and

lacked relevancy to her claims. Tyree served a second set of

receiving more favorable performance reviews and a sexist remark
made by a Volpe Center employee who had no role in the SOW or
CRADA, were rejected by the district court. We do not consider
this evidence given that Tyree did not mention it on appeal in any
of her briefs or at oral argument.

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interrogatories on the Volpe Center which reiterated her request

for information about the timelines for other SOWs. Volpe Center

objected to these interrogatories and Tyree subsequently filed a

second motion to compel which argued that the Volpe Center's

objections were untimely and that non-CRADA SOWs were relevant to

her claims. The district court denied Tyree's motion.

We review a district court's discovery orders for abuse

of discretion. Cascade Yarns, Inc. v. Knitting Fever, Inc., 755

F.3d 55, 59 (1st Cir. 2014). "Under that standard, we may reverse

a district court only upon a clear showing of manifest injustice,

that is, where the lower court's discovery order was plainly wrong

and resulted in substantial prejudice to the aggrieved party."

Id. (internal quotation marks omitted) (quoting In re Subpoena to

Witzel, 531 F.3d 113, 117 (1st Cir. 2008)).

We cannot say that Tyree met this standard. The theory

of relevance advanced in our colleague's dissent is that if other

SOWs were prepared more quickly, a factfinder could infer that the

longer time here evidenced discrimination. This theory of

relevance seems both a stretch, and likely to involve, if pursued,

sideshow examinations of differences between the different SOWs,

who did them, complexities, etc. In any event, the Volpe Center

agreed to produce the requested SOWs that would on their face be

most relevant: those produced in pursuit of a CRADA. Tyree offers

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no argument or evidence that examinations of those most facially

comparable SOWs provided any suppo1t for her claim. Discovery

involves drawing lines, especially when targeted at logical

inferences several times removed from the dispositive issue at

hand. In drawing the line where it did, the district court

certainly did not abuse its discretion.

As for the district court's summary decision not to deem

the Volpe Center's discovery objections waived in the face of

competing claims about when service occurred, such housekeeping

attendance to managerial time limits are routinely made day-in and

day-out in our trial courts, and we can find no precedent for

reversing such a decision in this context as somehow being an abuse

of discretion, especially where the parties' dispute about the

timing of discovery service implicated no prejudice to Tyree even

if objections were delayed.

Finally, although Tyree's pro se brief baldly asserts

error in the discovery ruling, it offers no argument at all for

why the line drawn between CRADA SOWs and non-CRADA SOWs was

unreasonable. See United States v. Zannino, 895 F.2d 1, 17 (1st

Cir. 1990) ("[I]ssues adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are

deemed waived."). We therefore make no claim that appointed

counsel dropped a presented argument. Rather, we observe only

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that appointed counsel (likely cognizant of the trial court's wide

discretion) developed no argument even when aware that Tyree was

also not doing so. We do make allowances for pro se parties, in

this instance going so far as to secure very capable

representation. No rule or sense requires that we go further and

sign on ourselves as her counsel.

IV.

For the foregoing reasons, we affirm the district

court's grant of summary judgment.

Affirmed.

"Dissenting opinion follows"

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 THOMPSON, Circuit Judge, dissenting. While it is true

that the record, as is, fails to demonstrate discriminatory animus,

Tyree cannot be expected to prove that which she was not properly

afforded an opportunity to ascertain during discovery. The

majority dismisses Tyree's claim that she was wrongly denied a

fair opportunity to discover crucial evidence (namely, information

regarding how quickly the Volpe Center responded to other SOWs).

Because I agree with Tyree that the district court erred in denying

her pro se discovery requests, and therefore incorrectly denied

her the opportunity to discover the very evidence she needed to

survive the Volpe Center's motion for summary judgment, I

respectfully dissent.

I. A Recap

During discovery, Tyree filed two sets of

interrogatories, both of which requested information regarding

other SOWs approved by the Volpe Center. Tyree specifically

sought information regarding the customer type or collaborators

involved in the creation of each SOW and the amount of time it

took to complete the SOWs and enter into the resulting agreements.8

8 Tyree's First Set of Interrogatories specifically sought:

. . . a list, describ[ing] with great detail and
specificity all of the agreements the Volpe Center
has accepted and approved from January 1st, 2007 to
July 1st, 2013, that either contained a statement of
work or required a reference to a statement of work

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In response to Tyree's discovery requests, the Volpe Center

provided information regarding CRADA-related SOWs only, which it

argued were the only type of SOWs relevant to Tyree's case.

Thwarted in her attempts to uncover this and other

information, Tyree filed a motion to compel the First Set of

Interrogatories, requesting, among other things, that the district

court require the Volpe Center to provide the requested information

regarding all SOWs. The district court denied this first motion,

finding the interrogatories sought irrelevant.

Undeterred, Tyree filed a second motion to compel,

seeking solely information regarding other SOWs approved by the

or required a reference to a statement of work (sow)
in the agreement. For each agreement include the
following in the description:

a) the agreement type,

b) the customer type or vendor type,

c) the RVT number(s) associated with the agreement,

d) the frequency of contact between the Volpe Center's
Point of Contact (POC) or a representative and the
customer/vendor (POC) or any of their
representatives,

e) the duration of time it took each agreement to be
turnaround/approved form initial contact concerning
the agreement to the date it was finalized and signed,

f) the date of initial contact concerning the
agreement,

g) the date the agreement was finalized and signed.

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Volpe Center. In this second motion, she argued that the Volpe

Center's usual treatment of SOWs, whether CRADA-related or

otherwise, was directly relevant to her claim that the Volpe Center

had improperly delayed her SOW for discriminatory reasons. She

also argued that the Volpe Center had waived its objections to her

Second Set of Interrogatories because its responses had been

untimely. The district court denied Tyree's second motion to

compel with a one-line docket entry sans explanation. Tyree

appealed both denials, along with the court's later summary

judgment ruling.

II. Merits

As stated by the majority, we review discovery orders

for abuse of discretion and may reverse upon a showing that the

lower court's discovery order was plainly wrong and resulted in

substantial prejudice to the aggrieved party. See In re Subpoena

to Witzel, 531 F.3d 113, 117 (1st Cir. 2008) (quoting Saldaña-

Sánchez v. López-Gerena, 256 F.3d 1, 8 (1st Cir. 2001)). Contrary

to my colleagues, I think Tyree has met that standard here.

Although a district court typically has broad discretion

in resolving discovery objections, "[s]ummary judgment should not

be granted until the party opposing the motion has had an adequate

opportunity for discovery." Dean v. Barber, 951 F.2d 1210, 1213

(11th Cir. 1992) (quoting Snook v. Trust Co. of Ga., 859 F.2d 865,

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870 (11th Cir. 1988)). Tyree, who was pro se at the time she

sought the discovery at issue, did not have an adequate opportunity

for discovery in this case.

In her First and Second Interrogatory Requests, Tyree

sought a list of all SOWs accepted and approved for any agreements

entered into by the Volpe Center. 9 Tyree specifically sought

information regarding the "duration of time it took each Statement

of Work to be completed," including "the date the Statement of

Work was initiated" and "the customer type or vendor type or

collaborators" involved in the creation of the SOWs.

Despite the district court's ruling to the contrary,

these requests were clearly relevant to Tyree's claim that the

Volpe Center delayed the process of creating her SOW in particular,

and could have supported her claim that the Volpe Center

discriminated against her in ultimately failing to enter the

proposed CRADA. In other words, if Tyree could have shown that

in other similar agreements, the Volpe Center took significantly

less time to produce SOWs and then swiftly entered into the

resulting agreements, this could have served as circumstantial

9 Tyree's First and Second Interrogatory Requests contain requests
that are substantively similar, with her First Interrogatory
seeking information including all of the "agreements" entered into
by the Volpe Center which contained SOWs, and her Second
Interrogatory seeking information regarding all "SOWs within
agreements" entered into by the Volpe Center.

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evidence that the delays in Tyree's case were unusual, and thus

perhaps due to discriminatory animus. How the Volpe Center

handled other SOWs therefore could have answered whether Tyree was

treated disparately and, by extension, may have created a genuine

issue of fact with respect to whether the Volpe Center's

articulated reason for failing to enter into the CRADA with Tyree

was a pretext for discrimination.

But because the district court denied Tyree's motions to

compel, we have no idea what other SOWs were entered into by the

Volpe Center, what their usual procedure was in creating the SOWs,

the time that it took to create those SOWs and eventually enter

into the resulting agreements, or with whom those SOWs were created

-- all information that very well could have demonstrated disparate

treatment potentially driven by discriminatory animus in Tyree's

case.

The majority finds the link between non-CRADA and CRADA

related SOWs to be so attenuated as to render non-CRADA SOWs

irrelevant to Tyree's claims, maintaining that even if pursued

such discovery would result in "sideshow examinations of

differences between the different SOWs, who did them,

complexities, etc." However, relevancy is not contingent on the

avoidance of complexity or the parsing out of similarities and/or

differences. To the contrary, "[i]n discovery, the parties are

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given broad range to explore 'any matter, not privileged, which is

relevant to the subject matter involved in the pending action' so

that they may narrow and clarify the issues and obtain evidence or

information leading to the discovery of evidence for future use in

the trial." See Anderson v. Cryovac, Inc., 805 F.2d 1, 12 (1st

Cir. 1986) (quoting Fed. R. Civ. P. 26(b)(1)). Discovery demands

the very examination derided by the majority.

The information Tyree requested was thus clearly

relevant, and the district judge's ruling as to both motions to

compel was plainly wrong. This also resulted in substantial

prejudice, as Tyree was foreclosed from discovering the very

information essential to withstand the Volpe Center's motion for

summary judgment.

Moreover, the district judge's denial of Tyree's second

motion to compel, without so much as a cursory explanation of her

rationale was, in itself, an abuse of discretion. See Howland v.

Kilquist, 833 F.2d 639, 646 (7th Cir. 1987) (quoting Darden v.

Illinois Bell Tel. Co., 797 F.2d 497, 502 (7th Cir. 1986)) ("[A]

decision made in the absence of a basis is an abuse of

discretion"). The majority's contention that the district court

did not abuse its discretion in rejecting Tyree's argument that

the Volpe Center waived its discovery objections ignores the issue

at hand. The issue is not the district court's rejection of

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Tyree's waiver argument -- the issue is that the district court

proffers no explanation of its rationale or the basis of its

finding. That, I believe, was an abuse of discretion.

The majority lastly notes that Tyree's pro se briefs

"baldly assert[] error in the discovery ruling" without offering

any arguments for why non-CRADA related SOWs were necessary. My

colleagues seek to dismiss Tyree's discovery claims because of

their inartful development in her pro se briefs. But I disagree

that we can so hastily dispose of her pro se arguments. While the

majority is correct that "issues adverted to in a perfunctory

manner, unaccompanied by some effort at developed argumentation

are [typically] deemed waived," United States v. Zannino, 895 F.2d

1, 17 (1st Cir. 1990), that simply is not the case here, where a

pro se plaintiff clearly asserted her complaints to the best of

her abilities and, as made apparent by the quality of her pro se

briefs, did her best to develop arguments in support of her

discovery claims.

Generously construing her arguments, as we are required

to do for pro se litigants, see Wedeen v. Green River Power Sports,

14 F. App'x 6, 6-7 (1st Cir. 2001) (noting that "our judicial

system zealously guards the attempts of pro se litigants on their

own behalf") (citing Ahmed v. Rosenblatt, 118 F.3d 886, 889 (1st

Cir. 1997)), I think it is clear that Tyree sufficiently raised

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her discovery claims and accompanied her claims with some effort

at developed argumentation. Her briefing cannot be held to the

same standards of trained counsel. See United States v. Dunbar,

553 F.3d 48, 63 n.4 (1st Cir. 2009) (holding that, although an

argument was not stated "artfully," it was not waived where the

brief identified the relevant facts and law).

Because I think the judge abused her discretion in

denying Tyree access to relevant information during discovery, I

respectfully dissent from the majority opinion. Plaintiffs

"rarely possess 'smoking gun' evidence to prove their employers'

discriminatory motivations," Vélez v. Thermo King de Puerto Rico,

Inc., 585 F.3d 441, 446 (1st Cir. 2009) (quoting Arroyo-Audifred

v. Verizon Wireless, Inc., 527 F.3d 215, 218-19 (1st Cir. 2008)),

and the reality remains that outright admissions of impermissible

discriminatory animus are infrequent and hard to come by. See

Hunt v. Cromartie, 526 U.S. 541, 553 (1999). Against this

backdrop, the importance of adequate discovery is all the more

vital, particularly for pro se plaintiffs. Thus, I think the

proper course here would be to reverse both the judge's discovery

rulings and her grant of summary judgment in favor of the Volpe

Center, so that Tyree might properly conduct discovery.

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