Case: 22-30002 Document: 00516543930 Page: 1 Date Filed: 11/14/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 14, 2022
No. 22-30002
Lyle W. Cayce
Clerk
Gail Dominick,
Plaintiff—Appellant,
versus
United States Department of Homeland Security,
Alejandro Mayorkas, Secretary,
Defendant—Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:20-CV-2713
Before Higginbotham, Southwick, and Higginson, Circuit
Judges.
Patrick E. Higginbotham, Circuit Judge:
Gail Dominick was dismissed from her role as a Cadre On-Call
Response Employee (CORE) for the Federal Emergency Management
Agency (FEMA) in 2017. Dominick claimed that her dismissal resulted from
race-based discrimination in violation of Title VII of the Civil Rights Act of
1964.1 Following administrative proceedings in which an administrative law
1
42 U.S.C. § 2000e et seq.
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judge rejected her complaint, Dominick filed suit in federal district court.
Dominick appeals the district court’s order granting FEMA summary
judgment and denying her motion for additional time to conduct discovery,
arguing that the court abused its discretion by declining to grant a
continuance under Rule 56(d) as required by Chandler v. Roudebush.2 We
AFFIRM.
I.
Dominick worked for FEMA as a CORE, an at-will employee hired
pursuant to the Stafford Act to support long-term disaster relief projects in
the lasting wake of Hurricane Katrina.3 She occupied the position from 2006
until her dismissal in 2017. FEMA calls the process of reducing staff as
disaster relief operations wind down “rightsizing,” and it also laid off one of
Dominick’s two coworkers while retaining the other. Dominick claimed that
racial animus motivated her supervisors’ decisions regarding which staff
member to keep.
Dominick filed an Equal Employment Opportunity complaint in July
of 2017, and she requested a hearing before an Equal Employment
Opportunity Commission administrative law judge in early 2018. Discovery
proceeded from March 25 until June 21, 2019, during which time Dominick
deposed three FEMA managers and acquired written evidence. The
administrative judge granted FEMA’s motion for a decision without a
hearing, denying her claim. FEMA then issued a final order on the matter.
Having made use of her administrative remedies, Dominick filed a
complaint in district court under 42 U.S.C. § 2000e-16(c), which allows
2
425 U.S. 840 (1976).
3
See 42 U.S.C. § 5149(b).
2
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federal employees claiming discriminatory treatment to bring their cases to
district court after an agency takes final action. FEMA moved for summary
judgment alongside its answer. Dominick sought a 30-day continuance to
engage in further discovery, but FEMA’s counsel suggested that 60 days
would be more appropriate to facilitate the three additional depositions and
written inquiries Dominick requested. The district court granted the
continuance on May 6, 2021, providing that Dominick’s opposition to the
motion for summary judgment would be due no later than July 6.
Dominick, and her counsel, took no further action until July 2, when
her counsel emailed FEMA’s counsel seeking to organize discovery and
suggesting deposition dates in mid-August. After receiving no response from
the FEMA attorney over the holiday weekend, Dominick timely filed her
opposition to the motion for summary judgment, which included a Rule 56(d)
motion to provide more time for discovery because she could not adequately
respond with the available information.
The district court granted FEMA’s motion for summary judgment
and denied Dominick’s Rule 56(d) motion. The district court reasoned that
she failed to explain how any additional facts might influence the outcome of
the summary judgment motion, as required to merit further time.4 The court
also noted that Dominick’s counsel offered no explanation for the delay in
contacting FEMA’s counsel to negotiate and schedule discovery. Dominick
timely appealed.
II.
Dominick argues that the district court erred by granting FEMA’s
motion for summary judgment without the benefit of additional discovery,
4
See Raby v. Livingston, 600 F.3d 552, 561 (5th Cir. 2010).
3
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and that the district court should have instead granted her Rule 56(d) motion.
We review a district court’s denial of a Rule 56(d) motion for abuse of
discretion.5 The district court “has broad discretion in all discovery matters,
and such discretion will not be disturbed ordinarily unless there are unusual
circumstances showing a clear abuse.”6 To provide litigants time to develop
facts necessary to defend their claims, Rule 56(d) motions are “broadly
favored and should be liberally granted.”7 In addition, “a continuance of a
motion for summary judgment for purposes of discovery should be granted
almost as a matter of course” when “the party opposing the summary
judgment informs the court that its diligent efforts to obtain evidence from
the moving party have been unsuccessful.”8
In this case, the district court did not abuse its discretion in finding
that Dominick failed to diligently pursue further discovery during the two-
month continuance the district court provided.9 She admits that she took no
action to engage in discovery between May 6—the date the district court
granted the continuance—and July 2—just four days before her opposition
to the motion for summary judgment came due. Dominick declined to explain
the 57-day delay in her Rule 56(d) declaration accompanying the opposition.
5
Am. Family Life Assurance Co. of Columbus v. Biles, 714 F.3d 887, 894 (5th Cir.
2013).
6
Kelly v. Syria Shell Petroleum Dev. B.V., 213 F.3d 841, 855 (5th Cir.2000) (internal
quotation marks omitted).
7
Raby, 600 F.3d at 561 (5th Cir. 2010).
8
Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1267 (5th Cir. 1991) (internal
quotations and citations omitted).
9
See Beattie v. Madison Cnty. Sch. Dist., 254 F.3d 595, 606 (5th Cir. 2001) (“If [the
requesting party] has not diligently pursued discovery, however, she is not entitled to
relief”); Baker v. Am. Airlines, 430 F.3d 750, 756 (5th Cir. 2005).
4
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A “party suspends discovery at [her] own risk,” and Dominick’s arguments
to excuse this fault are not availing.10
Dominick first takes issue with the district court for allowing FEMA
to move for summary judgment prior to a Rule 26(f) conference and formal
discovery. Yet “Rule 56 does not require that any discovery take place before
summary judgment can be granted; if a party cannot adequately defend such
a motion, Rule [56(d)] is his remedy.”11 If the federal rules do not require
discovery prior to summary judgment, then it stands to reason that they do
not require a Rule 26(f) conference. She further faults FEMA for failing to
hold the discovery conference. Yet, as Dominick points out, counsel are
“jointly responsible” for seeking this conference, which places the onus back
on her and her counsel’s own shoulders, particularly given that FEMA
planned to conduct no further discovery.12 In granting a continuance until
mid-July, the district court provided Dominick with the tools to mount a
defense against the motion for summary judgment. She simply failed to use
them.
Furthermore, Dominick was not deprived discovery. She had the
benefit of nearly 1,000 pages of deposition testimony and records with which
to create a genuine issue of material fact. She collected these documents
during a three-month period before the administrative law judge. That she
sought only “frugal discovery” belies any contention that she was unable to
10
Beattie, 254 F.3d at 606.
11
Leatherman v. Tarrant Cnty. Narcotics Intel. & Coordination Unit, 28 F.3d 1388,
1396 (5th Cir. 1994) (citations omitted). See also Washington v. Allstate Ins. Co., 901 F.2d
1281, 1285 (5th Cir. 1990) (“This court has long recognized that a plaintiff’s entitlement to
discovery prior to a ruling on a motion for summary judgment is not unlimited.”).
12
Rule 26(f)(2). See also USA Gymnastics v. Liberty Ins. Underwriters, Inc., 27 F.4th
499, 514 (7th Cir. 2022).
5
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diligently pursue what information remained during the allotted time. And
that Dominick’s counsel expressed no qualms initially about the 60-day
continuance only further emphasizes this conclusion.
Dominick also berates opposing counsel for failing to respond
promptly to an email sent on Friday, July 2, seeking to depose one individual,
re-depose two others, engage in further written discovery, and continue for
another two months. It was unreasonable for Dominick’s counsel, having
delayed 57 days, to rely on opposing counsel’s availability over the Fourth of
July weekend.
Because Dominick failed to diligently pursue her limited discovery
needs during the two-month continuance, the district court did not abuse its
discretion in denying her Rule 56(d) motion.
III.
Dominick contends that federal law compels the district court to here
allow a wider scope of discovery under de novo review by virtue of Chandler
v. Roudebush.13 She posits that this means discovery should have taken place
as if the underlying administrative proceedings never occurred. Chandler,
Dominick argues, prevents a federal employer-defendant from prevailing in
a motion for summary judgment based solely on the administrative
proceedings without de novo discovery. Dominick reads too much into
Chandler’s guidance to federal courts.
In Chandler, the Supreme Court resolved disagreement among
circuits about how to approach lawsuits under § 2000e-16(c). Some circuits
determined that a de novo trial was not necessary in these circumstances, and
that district courts could simply review the administrative record to
13
425 U.S. 840 (1976).
6
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determine whether the clear weight of the evidence supported the agency’s
conclusion in accordance with traditional principles of administrative law.14
Other circuits concluded that the statute provided for a de novo trial that
extended beyond the administrative record.15 The Supreme Court reviewed
the statute’s text and legislative history, determining that when choosing
“between record review of agency action based on traditional appellate
standards and trial de novo,” Congress selected de novo.16 Chandler dictates
that public employees seeking redress under Title VII should be afforded all
the trappings of the civil action, “treat[ing] private- and federal-sector
employees alike,” and expressing no deference to the administrative
proceedings below.17
Yet Chandler does not support Dominick’s position that evidence
produced during discovery in administrative proceedings is immaterial. The
Supreme Court noted that “[p]rior administrative findings made with
respect to an employment discrimination claim may, of course, be admitted
as evidence at a federal-sector trial de novo.”18 Nothing in the opinion
indicates that a district court must allow litigants to engage in discovery
deemed duplicative or unnecessary, and nothing bars the district court from
considering evidence unearthed during administrative proceedings when
14
Chandler, 425 U.S. at 843. See, e.g., Salone v. United States, 511 F.2d 902, 904
(10th Cir. 1975) (vacated by Chandler).
15
Chandler, 425 U.S. at 843 n.4. See, e.g., Abrams v. Johnson, 534 F.2d 1226, 1228
(6th Cir. 1976).
16
Chandler, 425 U.S. at 861. See also Payne v. Salazar, 619 F.3d 56, 62 (D.C. Cir.
2010) (“[W]hat the Court meant by ‘trial de novo’ was the traditional federal trial of a civil
action—in contrast to the limited, deferential review of agency decisionmaking afforded,
for example, under the Administrative Procedure Act.”)
17
Chandler, 425 U.S. at 861.
18
Id. at 863 n.39.
7
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evaluating a Rule 56(d) motion. And Chandler cannot be construed as
demanding further discovery where, as here, the government acquiesces, but
the employee fails to diligently pursue it.19 Dominick received a de novo trial
and treatment equal to that afforded to a private sector employee. The
district court did not contravene Chandler by denying further discovery and
granting the summary judgment motion.20
****
We AFFIRM the judgment of the district court.
19
In Chandler, “[t]he [government] moved for an order prohibiting discovery on
the ground that the judicial action authorized by [§ 2000e-16(c)] is limited to a review of
the administrative record.” Id. at 842. Not so in Dominick’s case.
20
Dominick does not provide substantive arguments on the merits of the district
court’s summary judgment order, such as asserting that there existed a genuine issue of
material fact. Although FEMA’s response addressed the issue, it is deemed waived. See
Quick Techs., Inc. v. Sage Grp. PLC, 313 F.3d 338, 343 n.3 (5th Cir. 2002).
8