Forbis v. Exeter Fin.

George F. Forbis, III, Plaintiff-Appellant, v. Exeter Finance, L.L.C., Defendant-Appellee.

No. 22-10193

United States Court of Appeals, Fifth Circuit

December 29, 2022

Appeal from the United States District Court for the Northern District of Texas USDC No. 3:20-cv-2007-C

Before GRAVES, WILLETT, and ENGELHARDT, Circuit Judges.

PER CURIAM ^[*]

Appellant George Forbis appeals the district court's denial of his motion for additional discovery under Rule 56(d) of the Federal Rules of Civil Procedure and the court's summary-judgment dismissal of his Title VII claims for retaliation and disparate treatment in favor of appellee Exeter Finance, L.L.C. ("Exeter"). Finding no reversible error, we AFFIRM.

I.

Forbis worked as a senior treasury analyst for Exeter from March of 2015 until his termination in January of 2020. According to his supervisor, Brett Bradley, his job performance was satisfactory until 2019. In October of 2019, Forbis complained to Exeter's human resources department about racial and religious discrimination. His complaint stemmed from a lunch he attended with Ben Miller - Bradley's supervisor - and other unidentified employees. In his affidavit, Forbis described that as lunch was served, he "quietly sa[id] grace to [him]self," during which Miller allegedly stated: "Let[']s all stop so that George can say his prayer. You mean to tell me that you believe in God. That there is some puppeteer in the sky pulling all the strings. You people kill me thinking there is a God." ^[1] Forbis contends that the "you people" comment "was directed at [him] [because he] was the only Black person at the table." Forbis alleges that it was only after he lodged this complaint that he received negative performance reviews. On January 27, 2020 Exeter terminated Forbis.

Exeter moved for summary judgment on all claims. Afterward, Forbis moved under Rule 56(d) for additional discovery. The district court denied the motion for additional discovery and granted the motion for summary judgment. Forbis timely appealed.

II. The Rule 56(d) Motion

We review a district court's denial of a Rule 56(d) motion for abuse of discretion. Renfroe v. Parker, 974 F.3d 594, 600-01 (5th Cir. 2020) (citing Am. Fam. Life Assurance Co. of Columbus v. Biles, 714 F.3d 887, 894 (5th Cir. 2013)), cert. denied, 141 S.Ct. 2519 (2021). "'To constitute an abuse of discretion, the district court's decision must be either premised on an erroneous application of the law, or on an assessment of the evidence that is clearly erroneous.'" Torres v. SGE Mgmt., L.L.C., 945 F.3d 347, 352 (5th Cir. 2019) (quoting In re High Sulfur Content Gasoline Prod. Liab. Litig., 517 F.3d 220, 227 (5th Cir. 2008)). "'A trial court enjoys wide discretion in determining the scope and effect of discovery,' and it is therefore 'unusual to find an abuse of discretion in discovery matters.'" JP Morgan Chase Bank, N.A. v. DataTreasury Corp., 936 F.3d 251, 255 (5th Cir. 2019) (quoting Equal Emp. Opportunity Comm'n v. BDO USA, L.L.P., 876 F.3d 690, 698 (5th Cir. 2017).

Twenty-one days after Exeter filed its motion for summary judgment, Forbis filed his Rule 56(d) motion, wherein he sought: "(1) all email communications between Brad Nall and Plaintiff from January 1, 2018 to December 31, 2019,^[2] and (2) the work performed by Barbara Zajac from March 1, 2015 to January 27,2020, stored on Defendant's Treasury drive under the folder entitled 'Barb,'"^[3] which Forbis narrowed to one "necessary" Excel file. The district court denied Forbis's Rule 56(d) motion because: (1) "several of the newly raised requests for discovery (e-mail exchange with Mr. Nall and Ms. Zajac's work) were not diligently pursued in the 15 months this lawsuit has been pending prior to Plaintiff's filing of the Motion for Additional Discovery"; and (2) "the time frame for all e-mails exchanged between Mr. Forbis and Mr. Bradley over an approximately five year period [wa]s too broad." We affirm the district court's decision, but on different grounds. See LLEH, Inc. v. Wichita Cnty., Tex., 289 F.3d 358, 364 (5th Cir. 2002) ("We may affirm for reasons other than those relied upon by the district court.") (alteration, citation, and internal quotation marks omitted).

On appeal, Forbis only addresses his Rule 56(d) request for the Zajac-related file.^[4] He contends that the facts therein will show: (1) "almost identical situations between Mr. Forbis and Ms. Zajac"; (2) that Zajac "refused to work on any special projects"; and (3) that Forbis was working on four major special projects. Forbis submitted to the district court that "[he] need[ed] the Excel file under the folder Barb for the work which was performed by Zajac to evidence her failure to any work on any project, yet no disparage [sic] treatment of Zajac such as termination [sic]." He continued: "[t]he Excel Spread Sheet [sic] file on Zajac will establish that not only has Barbara Zajac never worked on any project during the period from March 1, 2015 to January 27, 2020, but she has also she was not been performing [sic] the essential functions of Senior Treasury Analyst as defined by Defendant's Job Description of a senior treasury analysis."

Four days before filing his Rule 56(d) motion, Forbis's counsel informally requested "'the records of the work performed by Barbara Zajac on the Excel Spread Sheet Format.'" To this request, Exeter responded:

[W]e do not even know whether a document you now claim is so vital to this case even exists, or ever existed. Your request for what you describe as an Excel spreadsheet which records the work performed by Barbara Zajac on special projects is simply irrelevant and unnecessary. Exeter does not dispute that Ms. Zajac did not work on the same projects that Mr. Forbis did. Indeed, Ms. Zajac addresses this very point in her declaration - that she and Mr. Forbis worked on different things. This is not a disputed fact between the parties.

In addition to Exeter's concession that Zajac did not work on the same projects as Forbis, there is other ample record evidence supporting what Forbis sought to discover, namely, "evidence that Zajac has never done any work on a project[] since [Forbis] ha[d] been employed with Defendant," and that "Barbara Zajac was working on no projects and was performing only the daily assignments [] [while Forbis] was performing [his] daily assignment comparable to the daily assignments to Zajac plus all of the additional projects."

It is for this reason that we affirm the district court's denial of Forbis's Rule 56(d) motion. "[T]he party filing the motion must demonstrate how additional discovery will create a genuine issue of material fact." Jacked Up, L.L.C. v. Sara Lee Corp., 854 F.3d 797, 816 (5th Cir. 2017) (quoting Smith v. Reg'l Transit Auth., 827 F.3d 412, 422-23 (5th Cir. 2016)). "In particular, the party opposing summary judgment 'must "set forth a plausible basis for believing that specified facts, susceptible of collection within a reasonable time frame, probably exist and indicate how the emergent facts, if adduced, will influence the outcome of the pending summary judgment motion."'" Id. (quoting Am. Fam. Life Assur. Co. of Columbus v. Biles, 714 F.3d 887, 894 (5th Cir. 2013)). Even assuming that Exeter produced a spreadsheet showing that Zajac was not working on special projects, the spreadsheet would add nothing to the case that was not already undisputed. It could not create a genuine issue of material fact. The district court did not err in denying Forbis's Rule 56(d) motion where the purported purpose of the spreadsheet sought was to evidence that Zajac did not work on projects while Forbis did. That evidence is both undisputed and readily available in other parts of the record. The spreadsheet, then, could hardly influence the outcome of the summary-judgment motion. Had the hypothetical spreadsheet been produced, the fact that Zajac and Forbis performed different job responsibilities would not constitute summary-judgment-defeating evidence. As explained below, that fact, in part, compels us to grant summary judgment. So, putting aside the district court's findings of overbreadth and lack of due diligence, we AFFIRM.

III. The Motion for Summary Judgment

We review a district court's grant of summary judgment de novo. Saketkoo v. Adm'rs of Tulane Educ. Fund, 31 F.4th 990, 997 (5th Cir. 2022) (citing Rogers v. Bromac Title Servs., L.L.C., 755 F.3d 347, 350 (5th Cir. 2014). "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "'A fact is "material" if its resolution in favor of one party might affect the outcome of the lawsuit under governing law.'" Saketkoo, 31 F.4th at 997 (quoting Hamilton v. Segue Software Inc., 232 F.3d 473, 477 (5th Cir. 2000) (per curiam)). "'An issue is "genuine" if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party.'" Id. (quoting Hamilton, 232 F.3d at 477).

"Title VII's antiretaliation provision forbids employer actions that 'discriminate against' an employee (or job applicant) because he has 'opposed' a practice that Title VII forbids or has 'made a charge, testified assisted, or participated in' a Title VII 'investigation, proceeding, or hearing.'" Id. at 999 (quoting Burlington N. &Santa Fe Ry. Co. v. White, 548 U.S. 53, 59 (2006)). Its disparate treatment provision prohibits employers from intentionally discriminating against any individual with respect to compensation, terms, conditions, or privileges of employment based on the individual's gender or other protected class. 42 U.S.C. § 2000e-2(a)(1); Roberson v. Alltel Info. Servs., 373 F.3d 647, 651 (5th Cir. 2004)....