United States Court of Appeals
Fifth Circuit
In the FILED
October 31, 2006
United States Court of Appeals
Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 05-11336
Summary Calendar
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GORDON DUFF CULWELL AND WILLIAM PATRICK CONRAD,
Plaintiffs-Appellants,
VERSUS
CITY OF FORT WORTH,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
m 4:04-CV-655
______________________________
Before SMITH, WIENER, and OWEN, I.
Circuit Judges. Culwell and Conrad, both white males, con-
tend they were unlawfully discriminated
JERRY E. SMITH, Circuit Judge: against when they were fired from their jobs as
building code inspectors. They allege unlawful
Culwell and Conrad appeal a summary racial discrimination and retaliation under title
judgment on their claims of employment dis- VII of the Civil Rights Act of 1964, 42 U.S.C.
crimination and unlawful retaliation bythe City 2000(e) et seq.), and the Texas Commission
of Fort Worth. We affirm in part, reverse in on Human Rights Act (“TCHRA”), TEX. LAB.
part, and remand. CODE §§ 21.001-21.556). The city claims it
terminated plaintiffs solely because an investi- “signed by a law firm”. According to plain-
gation had revealed that they used their posi- tiffs’ counsel, he did not learn that the district
tions as building inspectors to keep properties court had unfiled his rule 56(f) motion until
out of the inspection process while they ac- October 17, when he inquired about the dispo-
quired title and then resold the properties at a sition of the motion.
substantial profit.
On October 18, plaintiffs filed a duplicate
II. rule 56(f) motion that apparently was not
On November 23, 2004, the district court deemed by the district court to have been
issued a scheduling order establishing that mo- “signed by a law firm.” Nevertheless, on Oc-
tions for summary judgment must be filed by tober 19 the court issued a brief order denying
September 8, 2005, and discovery was to be plaintiffs’ motion as untimely and, anyway,
completed by October 31, 2005. The order al- meritless. The same day, the court granted
so advised that the court would not accept summary judgment.
pleadings “signed by a law firm,” for the stated
reason that individual attorneys, rather than III.
law firms, are licensed to practice. On Febru- We review for abuse of discretion any sanc-
ary 3, 2005, in response to a January 27, 2005, tions imposed to enforce a pre-trial order. See
order, plaintiffs filed an amended complaint. Bann v. Ingram Micro, Inc., 108 F.3d 625,
Until August 11, 2005, they neither made any 626 (5th Cir. 1997). We review under the
document requests nor took any depositions. same standard a decision to preclude further
discovery before entry of summary judgment,
On August 11, plaintiffs served the city though, as we explain below, that discretion is
with a request for production of documents. somewhat more limited. See Krim v. Banc-
On September 12, the city raised objections to Texas Group, Inc., 989 F.2d 1435, 1441 (5th
thirty-seven categories of documents sought. Cir. 1993).
Meanwhile, on September 8, the city moved
for summary judgment. The requested docu- The district court abused its discretion by
ments the city produced arrived at plaintiffs’ unfiling Culwell and Conrad’s first rule 56(f)
lawyer’s offices on September 23, thirteen motion as a sanction for violation of its pre-
days later than had been specified in plaintiffs’ trial order prohibiting motions signed by a law
document request. firm. As a result, the court reversibly erred by
deeming plaintiffs’ second rule 56(f) motion
On September 28, the last day of the twen- untimely. The court also abused its discretion
ty-day period for response to a motion pre- in ruling that the refiled rule 56(f) motion was
scribed by Northern District of Texas Local meritless with respect to plaintiffs’ claims of
Rule 7(e), plaintiffs filed a Federal Rule of Civ- racial discrimination.
il Procedure 56(f) motion for leave to extend
time to file their response to the city’s motion The only reason we can discern that the ini-
for summary judgment. The motion was un- tial rule 56(f) motion ran afoul of the order
filed by the district court later that day for fail- against motions “signed by a law firm” is that
ure to comply with the November 23 sched- plaintiffs’ counsel listed the name and address
uling order’s prohibition against pleadings of his law firm above his signature. The signa-
2
ture appears to be handwritten rather than dispute of material fact. See Celotex Corp. v.
machine-generated, and the page indicates that Catrett, 477 U.S. 317, 324 (1986).
the motion is submitted “By: [signature] W.
Christopher W. Haynes.” Haynes lists his Once the court unfiled the otherwise proper
state bar number and indicates that he is attor- and timely motion, dismissal with prejudice
ney for plaintiffs. Most importantly, he ap- was inevitable. Thus, in this case the unfiling
pears to be an individual rather than a law of the motion must be held to the high stan-
firm. dard we established in Bann.
The form of the motion was not obviously Plaintiffs’ conduct did not even approach
violative of the order against submissions that necessary to warrant such a sanction. Al-
signed by firms,1 and it certainly did not war- though they had had previous submissions un-
rant de facto dismissal on the basis of what filed for failure to comply with the pretrial or-
must appear to the casual observer to be judi- der, the rule against motions signed by a law
cial petulance. Although we have been unable firm—insofar as it prohibited placing the name
to find a case in which a court of appeals has and address of a law firm above a by-line and
reviewed a dismissal based on the fact that the signature block (a practice that does not seem,
opposition was “signed by a law firm,” it to the casual reader, even to be a viola-
seems a basic principle of fairness and good tion)—was inconsistently applied. As a result,
judgment that no party should lose a case sole- the (at most) technical violation of the rule did
ly because his lawyer listed the name and ad- not rise to the level of a pattern of contuma-
dress of a law firm above, rather than below, cious conduct, and the interests of justice
the lawyer’s signature. would have been better served by accepting
the motion and, if necessary, issuing another
A court may not use dismissal with preju- order clarifying the rule, perhaps directing
dice as a sanction under Federal Rule of Civil plaintiffs to substitute a motion whose form
Procedure 16(f) unless it finds that a lesser comported with the district judge’s interpreta-
sanction would not serve the interests of jus- tion of his rule.
tice and there is a clear record of delay or con-
tumacious conduct by a party. See Bann, 108 IV.
F.3d at 627. Although the act of unfiling the The court also abused its discretion when it
motion was not technically a dismissal with determined, with respect to the October 18
prejudice, the applicable summary judgment motion, that even had it been timely filed, it
standard placed the burden squarely on plain- would have been meritless. Rule 56(f) allows
tiffs to come forward with specific facts from for further discovery to safeguard non-moving
the record indicating that there was a genuine parties from summary judgment motions that
they cannot adequately oppose. See Washing-
ton v. Allstate Ins. Co., 901 F.2d 1281, 1285
1
This is particularly true in light of the fact that (5th Cir. 1990). Such motions are broadly fa-
the district court did not sanction or record any dis- vored and should be liberally granted. See
approval of plaintiffs’ June 22, 2004 motion for Int’l Shortstop, Inc. v. Rally’s Inc., 939 F.2d
withdrawal and substitution of counsel, which had 1257, 1267 (5th Cir. 1991). The district court
been signed in exactly the same format as the un- concluded that plaintiffs had not exercised due
filed Rule 56(f) motion.
3
diligence in making discovery requests. We production roughlyseven weeks before she ac-
disagree. tually did. Though it would have been better
for all concerned if these plaintiffs had acted
Although plaintiffs’ diligence in pursuing more promptly in pursuing discovery, we con-
discovery was not exemplary, this case is dis- clude, in light of our presumption in favor of
tinguishable from the one case to which defen- granting rule 56(f) motions, that the delay did
dant points in which we affirmed denial of a not (quite) warrant denial of their motion for
non-movant’s rule 56(f) motion on the ground lack of due diligence.
that plaintiff had failed diligently to pursue dis-
covery from the opposing party.2 In Baker, The city points out that granting plaintiffs’
where the district court had issued a schedul- motion for a fourteen-week extension for dis-
ing order similar to the one here, plaintiff filed covery, followed by a three-week period to re-
no discovery requests until thirty-one days be- spond to the summary judgment motion,
fore the scheduled end of the discovery period, would have required altering the deadline for
at which point the deadline for submitting concluding discovery set by the November
summary judgment motions had passed. As a scheduling order—an order it has broad dis-
result, given that defendant had thirty days to cretion to enforce. See Geiserman v. Mac-
comply with the document production re- Donald, 893 F.2d 787, 790 (5th Cir. 1990).
quests, no documents were due to plaintiff un- Significantly, we do not say that plaintiffs were
til two weeks after her response was due to a entitled to all the time for which they asked,
summary judgment motion filed on the last day but only that they were entitled to some exten-
permitted by the scheduling order. Because sion. Because the district court granted none,
plaintiff, as a result of her inexplicable delay in we review under the standards applicable to
filing any discovery requests, was entirely re- rule 56(f) motions, where a district court’s dis-
sponsible for creating the situation, we af- cretion is limited by our presumption that such
firmed the denial of her rule56(f) motion. See motions should be liberally granted.
Baker, 430 F.3d at 756.
We are mindful, of course, that a district
Here, in contrast, plaintiffs filed their docu- court, in response to a rule 56(f) motion, has
ment requests more than two months before authority to make any order that is just. See
the end of the discovery period and roughly six Fed. R. Civ. P. 56(f). Had the court granted
weeks in advance of the deadline to oppose an extension only until the end of the discovery
summary judgment motions filed on the due period specified in the pre-trial order, we
date. Hence, the instant plaintiffs are in the would review the denial of additional time un-
position that the plaintiff in Baker would have der the standard applicable to motions for
been in had she filed her request for document modification of a pre-trial scheduling order.
See FED. R. CIV. P. 16(b). Unlike rule 56(f),
rule 16(b) requires a showing of good cause to
2
See Baker v. Am. Airlines, Inc., 430 F.3d 750, modify a scheduling order. See Geiserman,
756 (5th Cir. 2005); see also Wichita Falls Office 893 F.2d at 792. We express no opinion as to
Assocs. v. Banc One Corp., 978 F.2d 915, 919 whether plaintiffs have shown good cause for
(5th Cir. 1992) (“[T]he trial court need not aid such modification. Because we remand, the
non-movants who have occasioned their own pre- scheduling order is moot.
dicament through sloth.”).
4
V. a plaintiff must prove, at least, that there is a
The city makes a number of arguments, on genuine dispute of material fact concerning his
the merits, in support of the summary judg- prima facie case. If the employer comes for-
ment. Those arguments are based on the ward with a legitimate, alternative, non-dis-
premise, however, that plaintiffs have filed no criminatory reason for its employment action,
opposition to the summary judgment motion the plaintiff must point to disputed facts from
and that the motion must be decided solely on which a reasonable factfinder could conclude
the basis of the facts that have been discovered either that the alternative reason is a pretext or
so far. Because we conclude that plaintiffs’ that it was only one of multiple reasons for de-
rule 56(f) motion was timely filed and that they fendant’s conduct, another of which was racial
were not so slothful in discovery as to warrant animus. See Keelan v. Majesco Software,
rejection of their motion on that ground, we Inc., 407 F.3d 332, 341 (5th Cir. 2005). To
must first determine whether the motion ade- make a prima facie case, plaintiffs must prove
quately specified how the discoverythey want- that they (1) are white, (2) were qualified for
ed could give rise to a genuine issue of mate- the positions from which they were dis-
rial fact. See Access Telecom, Inc. v. MCI charged; (3) were subjected to an adverse em-
Telecomm. Corp., 197 F.3d 694, 719-20 (5th ployment action, and (4) were treated less fa-
Cir. 1999). vorablythan were similarly-situated individuals
who are not white under nearly identical cir-
To qualify for relief under rule 56(f), a par- cumstances. See Wheeler v. BL Dev. Corp.,
ty must show 415 F.3d 399, 406 (5th Cir. 2005).
both why it is currently unable to present Plaintiffs’ rule 56(f) motion stated that they
evidence creating a genuine issue of fact needed discovery of documents relating to the
and how a continuance would enable the City’s treatment of two black employees who
party to present such evidence. The . . . they allege engaged in conduct similar to that
party may not simply rely on vague asser- for which the city claims it fired them. Plain-
tions that additional discovery will produce tiffs seek to prove that the city knew of the
needed, but unspecified facts in opposition similar activities of the other employees, yet
to summary judgment. launched no investigation and took no disci-
plinary action. If the sought-after documents
Id. Plaintiffs have met this standard. support that theory, the documents would be
sufficient to create a genuine dispute of mate-
To survive summary judgment on a claim of rial fact with respect to (1) whether the black
unlawful racial discrimination in employment,3 employees to whom Culwell and Conrad point
were, in fact, similarly situated and (2) whether
the investigation was a pretext for a racially
3
The goal of the TCHRA is to “provide for the
execution of the policies of Title VII of the Civil
3
Rights Act of 1964 and its subsequent amend- (...continued)
ments.” TEX. LABOR CODE § 21.001(1). Because mandate, we analyze plaintiffs’ state law claims
the Texas Supreme Court looks to federal prece- and their title VII claims under the same legal stan-
dents for guidance as to how to meet this legislative dard. See Quantum Chem. Corp. v. Toennies, 47
(continued...) S.W.3d 473, 474 (Tex. 2001).
5
motivated discharge. Because the city does 263 (5th Cir. 1991). Likewise, plaintiffs have
not contest the first three elements of the pri- made no answer to the City’s showing that
ma facie case, such a dispute would be suffi- there is no evidence giving rise to a dispute of
cient to preclude summary judgment. Because material fact as to whether they were subjected
documents indicating what the cityknew about to a hostile work environment. The city is en-
the activities of other employees are likely to titled to summary judgment on these claims as
be solely in possession of the city, it is reason- well.
able that plaintiffs would need further discov-
ery to prove their theory.4 With respect to the VII.
claims of unlawful discrimination, the rule In sum, we AFFIRM the summary judg-
56(f) motion should have been granted.5 ment with respect to unlawful retaliation and
hostile work environment. We REVERSE the
VI. summary judgment as to unlawful discrimina-
Plaintiffs also claim that the city unlawfully tion, and we REMAND for further discovery
retaliated against them and created a hostile and other proceedings not inconsistent with
work environment. They elected, however, to this opinion.
rely solely on a rule 56(f) motion in response
to the city’s motion for summary judgment and
did not file an answer on the merits. None of
the information that they declare will be re-
vealed through further discovery would pre-
clude summary judgment as to these other
claims.
As the district court stated, plaintiffs’
claims of unlawful retaliation were beyond the
scope of their complaints to the EEOC and the
Texas Commission on Human Rights. Be-
cause complaints to these bodies are prerequi-
sites to filing retaliation claims in court, the
district court lacked jurisdiction and appropri-
ately dismissed the retaliation claims. See
Pope v. MCI Telecom Corp., 937 F.2d 258,
4
See Walters v. City of Ocean Springs, 626
F.2d 1317, 1321 (“The parties’ comparative access
to the witnesses or material relevant to the disposi-
tion of the Rule 56(f) motion is a particularly sali-
ent factor the trial court to consider in exercising
its discretion.”) (citations omitted).
5
See id. Cf. Littlejohn v. Shell Oil Co., 483
F.2d 1140, 1146 (5th Cir. 1973) (en banc).
6