Hackworth v. Progressive Casualty Insurance

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
November 14, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

K ELLY HA CK WO R TH ,

Plaintiff - Appellant,
No. 05-6198
v.

PROG RESSIVE CASUALTY
IN SURANCE COM PANY, an Ohio
corporation; JER RY JO H N SO N,
individually,

Defendants - Appellees.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FO R TH E W ESTERN DISTRICT O F O K LAH O M A
(D .C. No. 05-CV-11-R)

Scott F. Brockman, (Stanley M . W ard and W oodrow K. Glass, on the briefs),
Norman, Oklahoma, for Plaintiff - A ppellant.

Brad Leslie Roberson, (Gerard F. Pignato and R. Thompson Cooper, on the brief),
Pignato & Cooper, P.C., Oklahoma City, Oklahoma, for D efendants - A ppellees.

Before KELLY, HOL LOW A Y, and M cCO NNELL, Circuit Judges.

KELLY, Circuit Judge.

Plaintiff-Appellant Kelly Hackworth appeals from the district court’s grant

of summary judgment in favor of Defendants-A ppellees Progressive Casualty
Insurance Company and Jerry Johnson (collectively “Progressive”) on her claim

for damages pursuant to the Family and M edical Leave Act (“FM LA”), 29 U.S.C.

§§ 2601-2654. M s. Hackworth challenges deference to a Department of Labor

(“DOL”) regulation defining the term “within 75 miles” located in 29 U.S.C. §

2611(2)(B)(ii). Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm due

to the failure of M s. Hackworth to establish her FM LA claim.

Background

M s. Hackworth was employed at Progressive’s Norman, Oklahoma

worksite as an Injury Operations M anager II when, on M arch 19, 2004, she

requested paid leave under the FM LA to care for her mother. In response, M s.

Hackworth’s immediate supervisor, Jerry Johnson, told her to choose between a

demotion to an Injury Operations M anager I and a severance package. He also

gave her three days of paid time off work to make her decision. 1 At the end of the

three day period, however, M s. Hackworth was approved for FM LA leave.

During her FM LA leave, on April 23, 2004, M s. Hackworth filed a charge

of gender discrimination against Progressive with the Equal Employment

Opportunity Commission (“EEOC”), alleging that Progressive had violated her

rights under Title VII of the Civil Rights Act of 1964. On M ay 20, 2004, M s.

1
The record is unclear whether M s. Hackworth ever responded to M r.
Johnson’s offer and, if so, what that response was.

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Hackworth and Progressive agreed to conduct a mediation, which was to occur on

June 8, 2004, in an attempt to resolve M s. Hackworth’s gender discrimination

claim against the company. M eanw hile, on or about M ay 28, 2004, M s.

Hackworth contacted Amy Harland, Progressive’s Human Resource

Consultant/M anager, to express her willingness to return to work because her

FM LA leave was due to expire on June 1, 2004. M s. Harland, however, directed

M s. Hackworth not to return to work until the mediation process was complete.

At the conclusion of the June 8, 2004 EEOC mediation, by agreement of the

parties, M s. Hackw orth’s FM LA leave w as extended through the close of business

on June 22, 2004.

Before the close of business on June 22, 2004, M s. Hackworth contacted

Progressive and informed it of her intention to return to w ork as an Injury

Operations M anager I. M s. Harland, however, informed M s. Hackworth not to

return to work because the position of Injury Operations M anager I had been

eliminated. M oreover, neither M s. Harland nor any other agent or employee of

Progressive offered M s. Hackw orth equivalent work or compensation. M s.

Hackworth subsequently brought suit in the district court against Progressive

pursuant to 29 U.S.C. § 2617(a)(1) claiming it violated the FM LA in failing to

reinstate her to the same or a similar position upon her return from FM LA leave

in violation of 29 U.S.C. § 2614(a)(1), and in retaliating against her for utilizing

the FM LA to receive paid time off in violation of 29 U.S.C. § 2615(a)(1).

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 Progressive subsequently moved for summary judgment arguing that M s.

Hackworth was not an “eligible employee” under the FM LA because Progressive

did not employ at least 50 people within 75 surface miles of H ackworth’s

Norman, Oklahoma worksite. Progressive admitted that at the time M s.

Hackworth began her FM LA leave it employed a combined total of 47 employees

at its Norman worksite, where M s. Hackworth was employed, and its Oklahoma

City worksite, which is within 75 surface miles of its Norman worksite. 2

Progressive also admitted that it employed three additional em ployees at its

Lawton, Oklahoma w orksite but submitted evidence that that worksite is not

within 75 surface miles of the N orman worksite. In opposition to summary

judgment, M s. Hackworth submitted evidence that the Lawton worksite is 75.6

surface miles 3 and 67 linear miles from the Norman worksite. M s. Hackworth

argued that the distance between the Lawton and Norman worksites should be

measured “as the crow flies,” i.e. in linear miles, and therefore 67 miles is the

appropriate distance by w hich to measure the geographic proximity of the two

2
Specifically, Progressive admitted that its O klahoma City worksite is
31.47 surface miles from its Norman worksite.
3
Progressive submitted evidence that the Lawton worksite is 79.8 surface
miles from the Norman worksite, rather than the 75.6 miles that M s. Hackworth
alleges. Neither party adduced evidence that the distance between the Lawton
and Norman worksites is less than 75 surface miles. Because on summary
judgment we view the evidence in the light most favorable to the nonmoving
party, Oliveros v. M itchell, 449 F.3d 1091, 1095 (10th Cir. 2006), we will assume
for purposes of this appeal that the Lawton worksite is indeed 75.6 surface miles
from the Norman worksite.

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worksites. Thus, she argued that at the time her FM LA leave commenced

Progressive employed 50 people within 75 miles of her worksite and she was an

“eligible employee” under the FM LA.

The district court granted summary judgment to Progressive, holding that a

DOL regulation, 29 C.F.R. § 825.111(b) (1995), which states that the 75-mile

distance must be measured in surface miles, was owed judicial deference. This

appeal followed. On appeal, M s. Hackworth argues that: (1) Congress clearly

intended that a “radius test,” i.e. linear miles, be used when determining whether

two worksites are “within 75 miles” of each other; (2) the DOL’s use of a surface

mile test is arbitrary and capricious; (3) 75.6 miles should be considered to be

“within 75 miles”; (4) even assuming the Lawton worksite is not “within 75

miles” of the Norman worksite, the distance over 75 miles is so small that the

court should nonetheless hold that M s. Hackworth is an “eligible employee”; and

(5) the district court abused its discretion in refusing to grant M s. Hackworth

additional time to conduct discovery.

Discussion

I. Standard of Review

Because the district court granted Progressive’s motion for summary

judgment, our review is de novo and we apply the same standards as the district

court. Adamson v. UNUM Life Ins. Co., 455 F.3d 1209, 1212 (10th Cir. 2006).

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That is, summary judgment is appropriate where no genuine issue of material fact

exists, and the moving party is entitled to judgment as a matter of law. Fed. R.

Civ. P. 56(c). M oreover, we review a district court’s decision regarding the

validity of an agency regulation de novo. Reames v. Oklahoma ex. rel. OK

Health Care Auth., 411 F.3d 1164, 1168 (10th Cir. 2005).

II. The Statutory and Regulatory Framew ork

The FM LA, 29 U.S.C. §§ 2601-2654, was enacted, in part, “to balance the

demands of the workplace with the needs of families . . . [and] to entitle

employees to take reasonable leave for medical reasons . . . in a manner that

accommodates the legitimate interests of employers.” Id. at § 2601(b). The

FM LA therefore requires covered employers to provide eligible employees w ith

up to twelve weeks of unpaid, job-protected medical leave per year, among other

things, to care for a parent of the employee with a serious health condition. See

id. § 2612(a)(1)(C). However, in furtherance of the balance between the needs of

employees and the interests of employers, Congress included two exceptions to

the FM LA’s coverage. First, Congress excluded those employers with fewer than

50 total employees. See id. § 2611(4)(A)(i). Second, Congress excluded from the

FM LA’s coverage those employees whose employer employs fewer than 50

people “w ithin 75 miles” of the employee’s worksite (“the 50/75 provision”). 4

4
If an employer does not employ at least 50 people “within 75 miles” of
an individual’s worksite, that individual is not an “eligible employee” for FM LA
purposes. See 29 U.S.C. § 2611(2)(B). Despite Progressive’s contention,

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See id. § 2611(2)(B)(ii). Congress recognized that, given these two exceptions,

the FM LA would only cover approximately “5 percent of U.S. employers and 40

percent of U.S. employees.” S. Rep. No. 102-68, at 24 (1991); see also H.R. Rep.

No. 102-35(I), at 37 (1991).

Congress, in the FM LA, also expressly granted the Secretary of Labor the

power to “prescribe such regulations as are necessary to carry out [the FM LA].”

29 U.S.C. § 2654. Pursuant to this grant of power, the DOL promulgated a

regulation, in part, to clarify the method to use in determining whether two

worksites are “within 75 miles” of one another, which provides:

The 75-mile distance is measured by surface miles, using surface
transportation over public streets, roads, highw ays and w aterways,
by the shortest route from the facility where the eligible employee
needing leave is employed. Absent available surface transportation
between w orksites, the distance is measured by using the most
frequently utilized mode of transportation (e.g. airline miles).

29 C.F.R. § 825.111(b) (1995). 5 The primary question we must resolve in this

however, one’s failure to qualify as an “eligible employee” does not mean this
court lacks subject matter jurisdiction. See Arbaugh v. Y& H Corp., 126 S. Ct.
1235, 1245 (2006) (“[T]he threshold number of employees for application of Title
VII is an element of a plaintiff's claim for relief, not a jurisdictional issue.”);
M inard v. ITC Deltacom Commc’ns, Inc., 447 F.3d 352, 357 (5th Cir. 2006)
(“Arbaugh has clearly rejected the conflicting view of the Courts of Appeals . . .
that employee-numerosity requirements in the FM LA and other statutes are
jurisdictional rather than simply an element of a plaintiff’s claim for relief.”).
5
Additionally, 29 C.F.R. 825.110(f) (1995) provides that “[w]hether 50
employees are employed within 75 miles to ascertain an employee’s eligibility for
FM LA benefits is determined when the employee gives notice of the need for
leave.”

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appeal is whether § 825.111(b) is a valid regulation implementing the FM LA.

III. Judicial Deference to 29 C.F.R. § 825.111(b)

M s. Hackworth challenges the DOL regulation clarifying that surface miles

are to be used in determining whether two worksites are “within 75 miles” of one

another. The standard to be used in analyzing an agency’s construction of a

statute it administers, articulated by the Supreme Court in Chevron, U.S.A., Inc.

v. N atural R esources D efense C ouncil, Inc., 467 U.S. 837 (1984), is well-known

and oft-applied. Pursuant to Chevron, we must analyze such a construction in a

two-step process. Id. at 842-44. First, we look to whether Congress directly

spoke to the precise question at issue. Id. at 842. In so doing, we look to, among

other things, the statutory text, history, and purpose. See Gen. Dynamics Land

Sys., Inc. v. Cline, 540 U.S. 581, 600 (2004). If congressional intent is clear on

the precise question at issue, our analysis ends and the congressional intent is

given effect. Chevron, 467 U.S. at 842-43. This follows from the fact that “[t]he

judiciary is the final authority on issues of statutory construction and must reject

administrative constructions which are contrary to clear congressional intent.” Id.

at 843 n.9.

If congressional intent is ambiguous, we proceed to the second step in the

Chevron analysis and look to “whether the agency’s answer is based on a

permissible construction of the statute.” Id. at 843. Because administrative

agencies are ordinarily more adept at reconciling conflicting policies w ithin their

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areas of expertise than are courts, we uphold an agency’s construction of a statute

it administers so long as it is not arbitrary, capricious, or manifestly contrary to

the statute at issue. Id. at 844; Harbert v. Healthcare Servs. Group, 391 F.3d

1140, 1147 (10th Cir. 2004).

A. Chevron Step One

As previously mentioned, Chevron first demands that we determine whether

C ongress clearly spoke as to the method to be used in ascertaining whether two

worksites are “within 75 miles” of one another. 467 U.S. at 842. M s. Hackworth

argues that Congress clearly spoke on this precise issue in that the House and

Senate Reports accompanying the FM LA, in several instances, provide that the

aggregation of employees at geographically distinct worksites is limited to those

facilities within a “75-mile radius.” M s. Hackworth contends that use of the w ord

“radius” demonstrates that Congress clearly meant for a linear mileage test to be

used, rather than a surface mileage test. The text and purpose of the 50/75

provision, however, belie M s. Hackworth’s argument.

Congress did not expressly indicate in 29 U.S.C. § 2611(2)(B)(ii) how one

should measure the geographic proximity of two distinct worksites. That

subsection simply states that two worksites must be “within 75 miles” of one

another, and is devoid of the word “radius” that M s. Hackworth finds so crucial.

W hile the term “within 75 miles” is not inherently ambiguous, Bellum v. PCE

Constructors, Inc., 407 F.3d 734, 739 (5th Cir. 2005), this case itself demonstrates

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that reasonable people may differ on the term’s meaning. In fact, at oral

argument, M s. Hackworth’s counsel conceded that congressional intent is not

clear from the text of § 2611(2)(B)(ii) standing alone. The FM LA also does not

otherwise indicate how the geographic proximity of two worksites should be

measured. Thus, Congress did not express its clear intent with regard to the

precise question at issue in the statutory text.

Turning to statutory purpose, as previously noted, the FM LA was enacted,

in part, “to balance the demands of the workplace with the needs of families . . .

[and] to entitle employees to take reasonable leave for medical reasons . . . in a

manner that accommodates the legitimate interests of employers.” 29 U.S.C. §

2601(b). In striking this balance, Congress provided an exception to the FM LA’s

coverage “for small operations - that is, a potentially large company with a

relatively small satellite office in a particular area.” Harbert, 391 F.3d at 1148

(discussing 29 U.S.C. § 2611(2)(B)(ii)). The 50/75 provision was specifically

designed to accommodate employer concerns about “the difficulties an employer

may have in reassigning workers to geographically separate facilities.” H.R. Rep.

No. 102-135(I), at 37 (1991); see M oreau v. Air France, 356 F.3d 942, 945-46

(9th Cir. 2004) (“[I]t might be reasonable to expect an employer to relocate

workers from nearby facilities for the period of an FM LA leave . . ., but it would

be understandably more difficult to reassign an employee whose family lives in

Los Angeles to w ork in San Francisco for three months.”).

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 Given the statutory purpose of the FM LA and the 50/75 provision, it does

not appear that C ongress clearly intended that the geographic proximity of two

worksites is to be measured in linear miles. In fact, the statutory purpose for the

50/75 provision indicates that Congress just as likely intended a surface

measurement to be utilized. The difference in the time and cost of transportation

between a covering employee’s home worksite and a new , temporary worksite is a

significant impediment to employers with far-flung operations in covering for

employees w ho take FM LA leave. W hile in many instances the geographic

proximity of two worksites measured in linear miles is an adequate proxy for the

feasability of transferring employees between those worksites, there are a few

circumstances in which a linear measurement is deceiving. See Bellum, 407 F.3d

at 739 (giving an example of a company that is forced to transfer employees

between offices on the north and south rims of the Grand Canyon). On the other

hand, the distance between two worksites measured in surface miles is nearly

always a reasonable proxy for the feasibility of temporarily relocating an

employee to another worksite because “the overwhelming majority of workers in

this country use surface transportation to get to w ork . . . .” Id. at 740. As a

result, the 50/75 provision’s statutory purpose does not support the use of one

measurement more than the other.

M s. Hackworth correctly points out that Congress, on numerous occasions

in both the House and Senate Reports accompanying the FM LA, states that an

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employer must, in order to be covered by the FM LA, employ at least 50 people

“w ithin a 75 mile radius.” See, e.g., H.R. Rep. 102-35(I), at 37 (1991) (“[T]here

is a geographic limitation of a 75-mile radius that applies to the aggregation of

employees at different facilities.” (emphasis added)); S. Rep. No. 103-3, at 2

(1993) (“The employer must, in addition, employ at least 50 people within a

75-mile radius of the employee’s worksite.” (emphasis added)). For two reasons,

we conclude that this does not evidence a clear congressional intent that the 75-

mile distance be measured “as the crow flies.” First, while the House and Senate

Reports include the term “radius” on several occasions, they also omit the term

numerous times. See, e.g., H.R. Rep. No. 102-35(I), at 54 (1991) (“Title I would

not apply to any employer of less than 50 workers if the total number of

employees employed by that employer within 75 miles of that worksite is less

than 50.” (emphasis added)); S. Rep. No. 102-68, at 45 (1991) (“The employees at

. . . a worksite are not covered by the bill if the total number of those employed

by the employer within 75 miles of the worksite is less than 50.” (emphasis

added)). This irregular use of the term is not sufficient to evidence a clear

congressional intent. See M iller v. Comm’r, 836 F.2d 1274, 1282 (10th Cir.

1988) (“Though legislative history may be examined as a secondary source of a

statute’s meaning, the weight such history is given in construing a statute may

vary according to factors such as w hether the legislative history is sufficiently

specific, clear and uniform to be a reliable indicator of intent.”). Second, there is

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nothing in the legislative history to indicate that Congress, in the few instances in

which it used the term “radius,” was using that term in a technical, rather than a

colloquial, sense. Consequently, we find more persuasive that Congress did not

define a method of measuring the geographic proximity of two worksites and

therefore left an implicit statutory gap that 29 U.S.C. § 2654 authorizes the

Secretary of Labor to fill.

B. Chevron Step Two

W hen Congress leaves an implicit statutory gap, we simply ask “whether

the [regulation] is based on a permissible construction of the statute.” Chevron,

467 U.S. at 843. Because invalidating an agency regulation is strong medicine,

we will only do so when the regulation is “arbitrary, capricious, or manifestly

contrary to the statute.” Id. at 844. “[T]he agency’s interpretation need not be

the only one it could have adopted, or the one that this court would have reached

had the question initially arisen in a judicial proceeding.” A nderson v. U.S. Dep’t

of Labor, 422 F.3d 1155, 1181 (10th Cir. 2005) (quoting Salt Lake City v. W .

Area Power A dmin., 926 F.2d 974, 978 (10th Cir.1991)).

Several factors support the reasonableness of 29 C.F.R. § 825.111(b) and

lead us to conclude that it is consistent with the FM LA. First, the regulation

represents a plausible and reasonable reading of the term “within 75 miles”

contained in 29 U.S.C. § 2611(2)(B)(ii). Second, as noted, the regulation furthers

the 50/75 provision’s purpose in that a surface measurement is a reasonable proxy

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for judging an employer’s ability to relocate an employee from one worksite to

another in order to cover for an employee on FM LA leave. The FM LA

recognizes that “if any employer (large or small) has no significant pool of

employees nearby to cover for an absent employee, that employer should not be

required to provide FM LA leave to that employee.” Harbert, 391 F.3d at 1149.

The use of surface miles is a fair, reasonably accurate and commonly-understood

method of determining whether an employer has a significant pool of substitute

workers nearby. Third, the regulation is not crafted in such a way that it

unreasonably favors employers over employees. Rather, the regulation rationally

furthers the FM LA’s goal “to entitle employees to take reasonable leave for

medical reasons . . . in a manner that accommodates the legitimate interests of

employers.” 29 U.S.C. § 2601(b). Finally, the only one of our sister circuits to

consider the issue before us, the Fifth Circuit, has upheld 29 C.F.R. § 825.111(b)

as consistent with the FM LA. See Bellum, 407 F.3d at 740 (holding that 29

C.F.R. § 825.111(b) is entitled to Chevron deference).

In an attempt to demonstrate that a surface measurement is arbitrary and

capricious, M s. Hackworth proffers several “real-world example[s].” First, she

argues that 29 C.F.R. § 825.111(b) operates in an arbitrary manner because “leave

under [the] FM LA literally depends on how straight a road is.” Aplt. Br. at 12.

M s. Hackworth points out that a company’s employees could be ineligible for

FM LA leave simply because they have the misfortune of being employed with a

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company whose worksites are located on a road that “zigs and zags.” M s.

Hackworth also suggests that § 825.111(b) is arbitrary because an employee may

suddenly lose eligibility for FM LA leave when a detour is created because a route

between two worksites comes under construction, thereby rendering the driving

distance between the two points greater than 75 surface miles. Finally, M s.

Hackworth points out that employees working in heavily populated areas are more

likely to be eligible for FM LA leave under the D OL regulation than those

working in sparsely populated areas, as a result of the greater number of public

roads available to employees working in heavily populated regions.

Although M s. Hackworth is correct that an employee’s eligibility for

FM LA leave could conceivably vary depending on how straight a particular road

is, whether a particular road is under construction, or how many public roadways

are located in a particular region, that does not render § 825.111(b) arbitrary and

capricious. Rather, we see no reason why such considerations should not be

factored into the eligibility calculus given the balance the FM LA strikes between

the needs of an employee and the employer. Because the 50/75 provision was

intended to protect employers w ho do not have a sufficient source of substitute

employees nearby to cover for an absent employee, it is only logical that

conditions which negatively affect the viability of moving an employee from one

worksite to another may well come into play. This is true even if conditions such

as the straightness of an interstate or the presence of road construction may be

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occasionally determinative of an employee’s eligibility status.

Finally, at oral argument, M s. Hackworth’s counsel argued that the

arbitrariness of § 825.111(b) is demonstrated by the fact that courts, in analyzing

the 100-mile limitation on service of process contained within Fed. R. Civ. P. 4(k)

and in determining the relevant geographic market for antitrust liability purposes

under the Sherman Act, measure distance “as the crow flies.” See Sprow v.

Hartford Ins. Co., 594 F.2d 412, 417-18 (5th Cir. 1979) (holding that distance for

purposes of Fed. R. Civ. P. 4[(k)] is to be measured “as the crow flies”); Pierce v.

Globemaster Baltimore, Inc., 49 F.R.D. 63, 66 (D. M d. 1969) (same); Gordon v.

Lewistown Hosp., 423 F.3d 184, 212 (3d Cir. 2005) (holding that the district

court’s use of a linear measurement in crafting the relevant geographic market

was not clearly erroneous). This argument, though creative, is unavailing. The

statutory purpose underlying the 50/75 provision and those underlying Fed. R.

Civ. P. 4(k) and the Sherman Act are certainly not the same; therefore, the type of

geographic measurement used with regard to Fed. R. Civ. P. 4(k) and the Sherman

Act has little or no relevance to which measurement should be used with regard to

the 50/75 provision. M oreover, even assuming the purposes underlying the three

w ere sim ilar, the question w e must answer pursuant to Chevron is not whether w e

would employ a surface measurement in the first instance, see Bellum, 407 F.3d

at 740 n.7 (“[T]he only question for us is whether the Secretary’s construction of

the statute is permissible, not the best.”), but whether the DOL’s use of a surface

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measurement is arbitrary, capricious, or contrary to the FM LA. W e hold it is not.

Thus, M s. Hackworth, in order to survive summary judgment, was required

to produce evidence tending to show that Progressive employed at least 50

employees within 75 surface miles of its Norman worksite. Because M s.

Hackworth failed to rebut Progressive’s evidence that it only employed 47

individuals within 75 surface miles of its Norman worksite, we affirm the district

court’s grant of summary judgment to Progressive because, at the time M s.

Hackworth requested FM LA leave, she was not an “eligible employee.”

IV . Additional Arguments Regarding Eligibility

M s. Hackworth makes tw o additional arguments in support of her eligibility

for FM LA leave notwithstanding the 50/75 provision. First, she argues that the

75.6 surface mile distance between Progressive’s Norman and Lawton worksites

should be considered “within 75 miles,” thereby rendering her eligible for FM LA

leave. The common meaning, however, of the word “within” as being “below the

number or amount mentioned” contradicts M s. Hackworth’s argument. Oxford

English Dictionary Online (from the 2d print ed. 1989). In using the term “within

75 miles,” Congress, at most, intended that, in order to be an eligible employee,

one’s employer must employ an aggregate of at least 50 people at worksites which

are a distance of 75 miles or less from one another. Being that the Norman

w orksite is 75.6 surface miles away from the Lawton worksite, those two

worksites cannot be considered “w ithin 75 miles” of one another.

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 Second, M s. Hackworth asserts that the intent of the 50/75 provision “is not

advanced by its application in this matter,” and consequently, she requests that w e

make an exception in this case and find that she is an eligible employee. She

contends that application of the mileage limitation in this case does not advance

the intent of the 50/75 provision because “Progressive is [in] no way prejudiced

by conceivably having a Lawton employee drive an extra six-tenths of a mile to

fill in for Hackworth at the Norman site” and because “Progressive could have

filled Hackworth’s position . . . with an employee from any of the offices in

Oklahoma, . . . because the Norman site was not essential to Hackworth’s job

duties.” Aplt. Br. at 21, 22. Even assuming, without deciding, that the intent of

the 50/75 provision is not furthered by its application in this case, that in no way

changes the fact that Congress included the 50/75 provision in the FM LA as a

limitation on the class of eligible employees, and that the authority to create an

additional exception to that provision lies with Congress, not the courts. See

Special Devices, Inc. v. OEA, Inc., 270 F.3d 1353, 1357 (Fed. Cir. 2001) (“If []

an exception is to be created, Congress, not this court, must create it.”); United

States v. Petrov, 747 F.2d 824, 826 (2d Cir. 1984) (“[W]e think it is for

[C]ongress, and not this court, to create exceptions to [a] statute’s clearly

expressed, broad coverage.”).

V. Additional Time for Discovery

M s. Hackworth alternatively requests that we reverse the district court’s

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decision and remand the case so that she may conduct additional discovery. M s.

Hackworth contends that the district court abused its discretion in denying her

request for additional discovery pursuant to Rule 56(f) of the Federal Rules of

Civil Procedure because (1) additional discovery is needed to ensure that all of

Progressive’s Oklahoma employees are accounted for and (2) the difference

between her eligibility and non-eligibility is only three employees. M s.

Hackworth admits, however, that she failed to file an affidavit pursuant to Rule

56(f) in response to Progressive’s motion for summary judgment. In an effort to

convince us that she fully complied with Rule 56(f)’s dictates, M s. Hackworth

instead relies on statements made in her response brief to Progressive’s motion

for summary judgment and on an affidavit attached to her motion for

reconsideration following the district court’s grant of summary judgment. W e

must, therefore, determine whether these actions w ere sufficient to satisfy Rule

56(f) and whether the district court abused its discretion in denying additional

discovery. See Price ex. rel. Price v. W . Res., Inc., 232 F.3d 779, 783 (10th Cir.

2000) (holding that a district court’s decision to deny relief under Rule 56(f) is

reviewed for an abuse of discretion).

Rule 56(f) grants a court discretion to deny summary judgment or order a

continuance when the nonmovant submits an affidavit averring that it possesses

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insufficient facts to oppose a summary judgment motion. Fed. R. Civ. P. 56(f). 6

The crux of Rule 56(f) is that “summary judgment [should] be refused where the

nonmoving party has not had the opportunity to discover information that is

essential to his opposition.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250

n.5 (1986). The nonmoving party, however, must expressly invoke Rule 56(f)’s

protections and, in so doing, must satisfy certain requirements. Price, 232 F.3d at

783. M ore specifically, the nonmovant must submit an affidavit “identifying the

probable facts not available and w hat steps have been taken to obtain these facts”

and must “explain how additional time w ill enable him to rebut movant’s

allegations of no genuine issue of fact.” Comm. for the First Amendment v.

Campbell, 962 F.2d 1517, 1522 (10th Cir. 1992).

Here, M s. Hackworth’s statements, made in her response brief to

Progressive’s motion for summary judgment, to the effect that she “has not had a

chance to review Progressive’s payroll records to determine if the [employee]

number represented . . . is correct or incorrect,” are obviously insufficient to

6
Rule 56(f) specifically provides:

Should it appear from the affidavits of a party opposing the motion
that the party cannot for reasons stated present by affidavit facts
essential to justify the party’s opposition, the court may refuse the
application for judgment or may order a continuance to permit
affidavits to be obtained or depositions to be taken or discovery to
be had or may make such other order as is just.

Fed. R. Civ. P. 56(f).

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comply with Rule 56(f). Cf. Pasternak v. Lear Petroleum Exploration, Inc., 790

F.2d 828, 833 (10th Cir. 1986) (holding that the statement “Although discovery

has not yet been completed . . .” contained within the nonmovant’s response brief

was insufficient to comply with Rule 56(f)). These statements are not contained

within an affidavit, do not explain what steps have already been taken to obtain

information regarding the accuracy of Progressive’s stated employee number, and

do not explain how additional time will enable M s. Hackw orth to oppose

Progressive’s summary judgment motion. See Campbell, 962 F.2d at 1522

(“[C]ounsel’s unverified assertion in a memorandum opposing summary judgment

does not comply with Rule 56(f) and results in a waiver.”).

Similarly, the affidavit of M s. Hackworth’s counsel attached to her motion

for reconsideration, which was filed following the district court’s grant of

summary judgment, is ineffectual because it was untimely. A nonmoving party

wishing to invoke the protections of Rule 56(f) must attempt to do so by

submitting an affidavit in direct response to a motion for summary judgment, not

following the district court’s disposition of that motion. See Adler v. W al-M art

Stores, Inc., 144 F.3d 664, 672 (10th Cir. 1998) (“[T]he nonmovant must carry its

burden in the district court in a timely fashion pursuant to Rule 56(e) and Celotex

or explain w hy it cannot pursuant to Rule 56(f). Otherwise, the nonmovant acts,

or fails to act, at its peril.” (internal citation omitted)). Rule 56(f) grants the

district court the power to either deny a summary judgment motion or order a

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continuance; it does not grant the power to vacate a prior grant of summary

judgment so that additional discovery can be conducted. See Fed. R. Civ. P.

56(f). Because M s. Hackworth’s statements in her response brief to the motion

for summary judgment did not comply with Rule 56(f)’s requirements and the

Rule 56(f) affidavit her counsel submitted was untimely, we conclude that the

district court did not abuse its discretion in refusing to grant M s. Hackworth

additional time for discovery. 7 See Pasternak, 790 F.2d at 832-33 (“W here a

party opposing summary judgment and seeking a continuance pending completion

of discovery fails to take advantage of the shelter provided by Rule 56(f) by filing

an affidavit, there is no abuse of discretion in granting summary judgment if it is

otherw ise appropriate.”).

A FFIR ME D.

7
In arguing that the district court prematurely granted summary judgment,
M s. Hackworth cites W eir v. Anaconda Co., 773 F.2d 1073, 1081-82 (10th Cir.
1985), inter alia, for the proposition that a party “should be given sufficient time
to conduct discovery where relevant facts are exclusively in the control of the
opposing party.” A plt. Reply Br. at 5. M s. Hackworth, however, omits the W eir
court’s statement that, “There is no requirement in Rule 56, Fed. R. Civ. P., that
summary judgment not be entered until discovery is complete.” 773 F.2d at 1081.
The W eir court additionally observed that “[i]n the absence of a Rule 56(f)
affidavit, other courts have generally upheld the grant of summary judgment
before the completion of discovery.” Id. at 1083 n.10. Finally, whether evidence
is within the exclusive control of the opposing party only becomes a factor, and
not a controlling one, where the nonmovant timely submits an affidavit which
fully complies with Rule 56(f). See id. at 1083. M s. Hackworth never submitted
such an affidavit.

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