Barbara Murchison v. Michael Astrue

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-1200

BARBARA M. MURCHISON,

Plaintiff - Appellant,

v.

MICHAEL J. ASTRUE,

Defendant - Appellee.

No. 11-1462

BARBARA M. MURCHISON,

Plaintiff - Appellant,

v.

MICHAEL J. ASTRUE,

Defendant - Appellee.

Appeals from the United States District Court for the District
of Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:08-cv-02665-JFM)

Argued: December 8, 2011 Decided: February 15, 2012

Before TRAXLER, Chief Judge, and AGEE and DIAZ, Circuit Judges.
Affirmed in part, reversed in part, vacated in part, and
remanded by unpublished per curiam opinion.

ARGUED: Phillip R. Kete, Washington, D.C., for Appellant. Alex
Gordon, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein, United
States Attorney, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2
PER CURIAM:

Barbara Murchison commenced an action in district court,

seeking enforcement of a prior Equal Employment Opportunity

Commission (“EEOC”) order requiring that the Social Security

Administration (“SSA”), her employer, return her to her prior

position or its equivalent (“Enforcement Claim”). Murchison

also alleges that the SSA unlawfully failed to promote her on

two separate occasions (“Promotion Claims”). She now appeals

the district court’s grant of summary judgment in favor of the

SSA. She also appeals the denial of a Rule 60(b) motion for

relief from judgment. For the reasons that follow, we affirm

the grant of summary judgment with respect to the Promotion

Claims, vacate the grant of summary judgment with respect to the

Enforcement Claim, reverse the denial of the Rule 60(b) motion,

and remand for further proceedings.

I.

Prior to 2001, Murchison held the position of Social

Insurance Specialist (Team Leader), a GS-13 position with the

SSA, in the Community Affairs Section of the Office of Regional

Communications, Inter-Governmental and Community Affairs

(“ORCICA”). ORCICA is one of two offices within the Office of

External Affairs (“OEA”). Michelle Brand, the Director of

ORCICA, was Murchison’s supervisor. Murchison alleged that

3
Brand discriminated against her in a variety of ways. 1 Because

this alleged discriminatory treatment was upsetting Murchison to

the point of affecting her health, Murchison requested to be

reassigned out of OEA. Murchison specifically requested not to

be assigned to the Office of Public Inquiries (“OPI”); however,

she was reassigned to the OPI mailroom, where much of her time

was spent carrying out duties at the GS 7-9 level such as

opening and sorting mail.

Shortly after this reassignment, Brand left her position

as the Director of ORCICA. Due to the urgency of filling the

Director of ORCICA position, the SSA followed its policy of

promoting from within a department and filled the position on an

interim, non-competitive basis by promoting Robin Neal as Acting

Director for 120 days, while at the same time seeking a

permanent replacement for Brand. Neal was working within ORCICA

prior to this promotion and was merely promoted to a higher

1
For example, the record reflects that Murchison alleged
discrimination when Brand failed to recommend her for a
Recognition of Contribution award; moved her office to an annex
in a separate building; assigned her tasks that had already been
assigned to other employees; excluded her from meetings, which,
in some cases, precluded her from attending conferences; failed
to authorize religious compensatory time worked in order to make
up for time spent away from work attending to religious
obligations; failed to credit her for non-religious compensatory
time worked; assigned her a GS-12 mentor rather than providing
her with one-on-one training about new job duties; and required
her to provide a doctor’s note in order to get sick leave when
other employees had no such obligation.

4
position within the same department. Murchison, having recently

been reassigned, did not work within ORCICA at the time of the

promotion. According to one of Murchison’s former supervisors,

the policy of promoting someone from within the department

facilitates an effective transition. Thereafter, Neal was

promoted again to the position of executive officer for the

Office of Communications. Murchison applied for this position

but did not receive the promotion. The person charged with

making that hiring decision explained that he chose Neal rather

than Murchison because he was familiar with Neal’s good work

performance but had no familiarity with Murchison.

A.

Prior to requesting the reassignment out of ORCICA,

Murchison filed an internal Equal Employment Opportunity (“EEO”)

complaint on October 13, 2000, alleging harassment and

discrimination based on race, color, sex, age, religion, and

disability. After filing this complaint, she requested to be

reassigned and was assigned, as mentioned above, to the OPI.

Murchison amended her EEO complaint on June 15, 2001. The

amended complaint alleged additional acts of discrimination,

including a claim that the SSA discriminatorily failed to

promote her to the Director of ORCICA position, and addressed

her reassignment to the OPI, which she alleged was retaliation

for having engaged in prior protected activity by filing the

5
October 13 EEO complaint. The administrative judge (“AJ”) found

that the SSA had discriminated against Murchison in a variety of

ways, including its decision to reassign her. As a result, the

AJ awarded damages to Murchison in the amount of $6,500 and

granted her various equitable relief, which included an order

that the SSA return Murchison to her prior position or its

equivalent. However, finding that the SSA had not discriminated

against Murchison by failing to promote her on two separate

occasions, the AJ found against Murchison on her Promotion

Claims. 2

Murchison appealed the AJ’s decision on her Promotion

Claims to the EEOC’s Office of Federal Operations (“OFO”).

During the pendency of the appeal of her Promotion Claims,

Murchison also raised her Enforcement Claim for the first time,

filing with the OFO two petitions for enforcement of the AJ’s

decision to return her to her prior position or its equivalent

because the SSA had yet to comply with that order. 3 On July 25,

2
Although the decision to promote Neal to the position of
executive officer for the Office of Communications occurred
after Murchison filed her amended EEO complaint, the AJ
addressed that promotion claim nonetheless.
3
According to the OFO, some of the ordered corrective
action had not taken place “because [Murchison’s] complaint was
subsumed in a class complaint certified by the Commission.”
J.A. A39. The OFO construed Murchison’s petitions to seek
“exclusion from the pending class complaint so that the relief
(Continued)
6
2008, the OFO affirmed the AJ’s decision in its entirety and

again ordered the SSA to return Murchison to her prior position

or its equivalent acceptable to her. The OFO also ordered the

SSA to “submit a report of compliance to the Commission’s

Compliance Officer”; “include [with the report] documentation of

the agency’s action as evidence that the corrective action has

been taken and implemented”; and “send a copy of all submissions

to the complainant.” J.A. A45.

On September 30, 2008, the SSA emailed the EEOC and

asserted that “Ms. Murchison was promoted and is currently in a

GS-13 Social Insurance Specialist position.” J.A. A54. The

email also stated that all required corrective actions had been

taken and that an attached document provided proof of the

corrective action. Contrary to these assertions, Murchison was

never returned to her prior position or its equivalent.

Moreover, Murchison never received the SSA’s email as required

by the OFO’s order.

B.

Murchison filed a civil action in the district of Maryland

on October 10, 2008. Her complaint set forth her Enforcement

Claim in count one and realleged her Promotion Claims in counts

ordering the agency to return her to her former position could
take effect.” J.A. A39.

7
two and three. After the initiation of this lawsuit, an EEOC

compliance officer, relying on the September 30 email and its

attachment, assured both Murchison’s attorney and the Assistant

United States Attorney representing the SSA that the SSA had

provided the EEOC sufficient documentation to demonstrate that

the SSA had complied with the OFO’s order to restore Murchison

to her prior position or its equivalent. Knowing this to be

untrue, Murchison contacted the EEOC’s compliance officer and

sought the documentation purporting to establish that the

corrective action had been taken; however, it appears that she

never received the requested information.

The district court granted the SSA’s motion for summary

judgment as to all counts. With regard to the Enforcement

Claim, the district court concluded that 29 C.F.R. § 1614.503(g)

sets forth two prerequisites to filing an enforcement action,

neither of which Murchison had satisfied. Accordingly, the

district court dismissed the Enforcement Claim without

addressing its merits. With regard to the Promotion Claims, the

district court rejected them on the merits, concluding that

Murchison failed to establish pretext with regard to both

promotions. Murchison filed a timely notice of appeal with this

court.

8
 C.

During the pendency of this appeal, the EEOC conceded that

it had erroneously determined that the SSA had complied with the

OFO’s order to restore Murchison to her prior position or its

equivalent. As a result of this concession, Murchison filed a

motion for relief from judgment with the district court pursuant

to Rule 60(b) of the Federal Rules of Civil Procedure. However,

the district court denied the motion, and Murchison also appeals

the denial of that motion. 4

II.

We first consider the district court’s resolution of

Murchison’s Rule 60(b) motion, which we review for abuse of

discretion. See L.J. v. Wilbon, 633 F.3d 297, 304 (4th Cir.

2011). “[T]he nature of our review must take into account that

Rule 60(b) was intended to preserve the delicate balance between

the sanctity of final judgments . . . and the incessant command

of the court’s conscience that justice be done in light of all

the facts.” Smalls v. United States, 471 F.3d 186, 191 (D.C.

Cir. 2006) (internal quotation marks omitted). A party moving

4
Murchison’s appeal from the district court’s grant of
summary judgment (Case No. 10-1200) is consolidated with her
challenge to the district court’s denial of her Rule 60(b)
motion for relief (Case No. 11-1462).

9
for relief under Rule 60(b) “must make a showing of timeliness,

a meritorious defense, a lack of unfair prejudice to the

opposing party, and exceptional circumstances.” Werner v.

Carbo, 731 F.2d 204, 206-07 (4th Cir. 1984) (footnote omitted).

Once a movant makes this threshold showing, she must then

satisfy one of six subparts of Rule 60(b). Id. at 207. The SSA

concedes that Murchison can make the threshold showing;

therefore, we only address the applicability of the six subparts

of Rule 60(b).

Rule 60(b)(6) permits a court to relieve a party from a

final judgment or order for “any other reason that justifies

relief.” Fed. R. Civ. P. 60(b)(6). 5 This provision “vests power

in courts adequate to enable them to vacate judgments whenever

such action is appropriate to accomplish justice.” Klapprott v.

United States, 335 U.S. 601, 615 (1949); see also Nat’l Credit

Union Admin. Bd. v. Gray, 1 F.3d 262, 266 (4th Cir. 1993)

(describing Rule 60(b)(6) as a “grand reservoir of equitable

power to do justice in a particular case” (internal quotation

5
Although Murchison relied exclusively on subpart (5) in
her Rule 60(b) motion, we consider the applicability of the
other subparts of Rule 60(b) in reviewing the district court’s
decision. See Kamen v. Kemper Fin. Servs., 500 U.S. 90, 99
(1991) (“When an issue or claim is properly before the court,
the court is not limited to the particular legal theories
advanced by the parties, but rather retains the independent
power to identify and apply the proper construction of governing
law.”).

10
marks omitted)). Although we have described this provision as a

catch-all provision, see Aikens v. Ingram, 652 F.3d 496, 500

(4th Cir. 2011) (en banc), “a motion under Rule 60(b)(6) may not

be granted absent extraordinary circumstances,” Reid v.

Angelone, 369 F.3d 363, 370 (4th Cir. 2004) (internal quotation

marks omitted). “[E]xtraordinary circumstances [are those] that

create a substantial danger that the underlying judgment was

unjust.” Margoles v. Johns, 798 F.2d 1069, 1073 (7th Cir. 1986)

(per curiam).

The district court’s decision to grant summary judgment to

the SSA on Murchison’s Enforcement Claim was based on the SSA’s

assertion of compliance and the EEOC’s acceptance of that

assertion. The EEOC has since declared that its prior

determination of compliance was erroneous. This means that the

district court’s summary judgment order relied on an admittedly

incorrect conclusion of the EEOC and on what can only be deemed

a deceptive and false assertion of compliance made by the SSA.

The district court order also relied on its conclusion that

29 C.F.R. § 1614.503(g) sets forth two prerequisites, one of

which must be met in order to file a civil action for

enforcement. The district court believed that neither

prerequisite had been established. One of these two purported

prerequisites would require that the EEOC “determine[] that an

agency is not complying with a prior decision.” Id. Had the

11
EEOC properly construed the SSA’s report of compliance during

its initial review, the EEOC would have determined that the SSA

was not complying with the OFO’s order, and this purported

prerequisite would have been met. Moreover, had the SSA

provided Murchison with all of its submissions to the EEOC, as

required by the OFO’s order, Murchison would have been able to

alert the EEOC of the compliance report’s incorrectness, which

also would have enabled the EEOC to determine that the SSA was

not complying with the OFO’s order, thus satisfying this

purported prerequisite. Therefore, assuming, but without

deciding, that § 1614.503(g) sets forth prerequisites to filing

a civil enforcement action, Murchison would have satisfied one

of those prerequisites had the SSA’s misrepresentations not been

erroneously accepted by the EEOC.

To this day, despite two rulings in the administrative

process that required the SSA to return Murchison to her prior

position or its equivalent, the first dating back over six years

to September 2005, the SSA has steadfastly not complied.

Justice was not accomplished, and was in fact subverted, because

the EEOC improperly accepted the SSA’s compliance report and

because the SSA misled the EEOC. These factors were entirely

out of Murchison’s control. Given this factual background, it

is clear that the underlying judgment was unjust. In light of

these extraordinary circumstances, we find that the district

12
court abused its discretion in denying Murchison’s Rule 60(b)

motion for relief. Accordingly, we vacate the grant of summary

judgment with respect to the Enforcement Claim, we reverse the

denial of the Rule 60(b) motion, and we remand for further

proceedings. 6

III.

Murchison also challenges the resolution of her Promotion

Claims, which concern her failure to be promoted into both the

Director of ORCICA position and the Office of Communications

position. Related to the Promotion Claims is Murchison’s

challenge concerning access to discovery, which we turn to

first.

A.

Murchison argues that the district court abused its

discretion in denying her request for discovery prior to

rendering its judgment. Although Murchison argued her need for

discovery pertaining to all claims before the district court,

she limits her argument on appeal to discovery pertinent to her

Promotion Claims. We review the denial of discovery for abuse

6
Because we resolve Murchison’s Enforcement Claim under
Rule 60(b), we express no opinion as to whether § 1614.503(g)
sets forth prerequisites to filing civil enforcement actions.

13
of discretion. See Nader v. Blair, 549 F.3d 953, 958-59 (4th

Cir. 2008).

At the time of this action, Rule 56(f) 7 provided that a

court may refuse an application for judgment, permit additional

discovery, or “make such other order as is just” upon

determining “from the affidavits . . . that the party cannot for

reasons stated” present facts to defeat summary judgment. This

rule requires, among other things, that a non-movant “put[]

forth [in an affidavit] the reasons why [s]he is unable to

present the necessary opposing material.” Pine Ridge Coal Co.

v. Local 8377, United Mine Workers of Am., 187 F.3d 415, 421

(4th Cir. 1999) (per curiam) (internal quotation marks omitted).

Murchison filed an affidavit, but she failed to specify why she

had not yet conducted the discovery she sought. See Comm. for

the First Amendment v. Campbell, 962 F.2d 1517, 1522 (10th Cir.

1992) (noting requirement that a non-movant specify in the

affidavit “what steps have been taken to obtain the[] facts”

sought through discovery).

Moreover, of the four purported discovery needs in

Murchison’s affidavit that are pertinent to her Promotion

7
At the time of the district court’s ruling, the content of
Rule 56(d) was contained in Rule 56(f). The intervening 2010
Amendments to the Federal Rules of Civil Procedure reorganized
the content of Rule 56; however, “Subdivision (d) carries
forward without substantial change the provisions of former
subdivision (f).” Fed. R. Civ. P. 56 advisory committee’s note.

14
Claims, two seek to establish facts that would not create

genuine issues of material fact. One of these two requests

seeks to establish the identity of the selecting officials.

However, the record already discloses that Phil Gambino was the

selecting official for the Director of ORCICA position and that

David Byrd was the selecting official for the position of

executive officer for the Office of Communications. The second

of the two requests seeks to establish that Murchison’s

qualifications were superior to those of Neal. However, Gambino

selected Neal for the Director of ORCICA position because the

policy was to hire from within the department, Neal was working

within ORCICA at the time and Murchison was not, and Gambino

deemed Neal to be a competent employee who could provide for a

smooth transition. 8 The district court was within its discretion

in denying the motion with respect to these discovery needs on

the ORCICA promotion because the facts sought, if established,

would not create a genuine issue of material fact as to whether

the reasons given were pretext. See Ingle ex rel. Estate of

Ingle v. Yelton, 439 F.3d 191, 195 (4th Cir. 2006) (“Rule 56(f)

8
Whether Murchison had superior qualifications to Neal is
no longer relevant to the Office of Communications promotion
because, as explained in the subsequent section, Murchison did
not perfect an argument with regard to the alleged failure to
promote her to be an executive officer in the Office of
Communications.

15
motions may be denied . . . if the additional evidence sought

for discovery would not have by itself created a genuine issue

of material fact sufficient to defeat summary judgment.”

(internal quotation marks omitted)).

The remaining two relevant discovery needs pertain to the

agency officials who participated in the promotion decisions.

Specifically, Murchison stated that without discovery she

“cannot know the identities of all the agency officials”;

“cannot take their depositions”; and “cannot obtain . . .

contemporaneous written records and communications.” J.A. A236.

Given the vagueness of these discovery needs, the district court

was within its discretion in denying the motion with respect to

these requests as well. See Everson v. Leis, 556 F.3d 484, 493

(6th Cir. 2009). 9

B.

Having considered the Rule 56(f) motion, we next address

the district court’s grant of summary judgment on Murchison’s

Promotion Claims, which we review “de novo, applying the same

legal standards as the district court.” Nader, 549 F.3d at 958.

9
Although the district court denied Murchison’s motion
under former Rule 56(f) for different reasons, “we are entitled
to affirm the court's judgment on alternate grounds, if such
grounds are apparent from the record.” MM ex rel. DM & EM v.
School Dist. of Greenville Cnty., 303 F.3d 523, 536 (4th Cir.
2002).

16
With regard to the Office of Communications position, Murchison

did not advance any arguments in her opening brief, and she has,

therefore, abandoned that claim. See A Helping Hand, LLC v.

Balt. Cnty., Md., 515 F.3d 356, 369 (4th Cir. 2008) (“It is a

well settled rule that contentions not raised in the argument

section of the opening brief are abandoned.” (internal quotation

marks omitted)).

With regard to the Director of ORCICA position, the SSA

hired someone from within ORCICA based on a policy that it

believed would provide for an effective transition. Murchison

argues that she should have been promoted because she knew the

most about the inner workings of ORCICA, having only left ORCICA

approximately one month prior to Neal’s promotion. This

argument is insufficient to establish pretext because it does

not undermine the SSA’s legitimate nondiscriminatory explanation

of hiring a person who was working within ORCICA and whom it

believed could effectuate the smoothest transition. Murchison

was not considered because she had wanted out of OEA and, hence,

out of ORCICA.

Murchison is correct that an employer cannot defeat a

failure-to-promote claim by initially and discriminatorily

removing an employee from the selection pool, see Shannon v.

Ford Motor Co., 72 F.3d 678, 682-83 (8th Cir. 1996); however,

the reassignment was at Murchison’s request. It was only after

17
the SSA had accommodated Murchison’s request that the vacancy

occurred and the agency decided to promote from within ORCICA. 10

Murchison has presented no evidence that the SSA does not have a

policy of promoting from within ORCICA; that Murchison was

transferred for the purpose of removing her from the selection

pool; or that the policy of promoting from within ORCICA was

ever ignored in other circumstances involving recently

transferred employees. Therefore, Murchison’s attempt to

connect her transfer with the SSA’s subsequent promotion

decision does not rise above mere speculation, and she

accordingly fails to establish pretext.

IV.

For the reasons stated herein, we affirm the district

court’s grant of summary judgment as to the Promotion Claims

including the denial of the discovery claims. However, we

vacate the grant of summary judgment with respect to the

10
Although Murchison was transferred to the OPI, where she
requested not to be reassigned, she does not present evidence
connecting that transfer with the SSA’s subsequent hiring
decision. Therefore, the SSA’s decision to transfer Murchison
to the OPI, rather than a different department, is not
determinative in our pretext analysis. See DeJarnette v.
Corning Inc., 133 F.3d 293, 299 (4th Cir. 1998) (“[T]his Court
does not sit as a kind of super-personnel department weighing
the prudence of employment decisions . . . .” (internal
quotation marks omitted)).

18
Enforcement Claim, reverse the denial of the Rule 60(b) motion

for relief, and remand with instructions for the district court

to enforce the OFO’s order to return Murchison to her prior

position or its equivalent acceptable to her.

AFFIRMED IN PART,
REVERSED IN PART,
VACATED IN PART,
AND REMANDED

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