Culwell, et al v. City of Fort Worth

In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 05-11336
Summary Calendar
_______________
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,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Culwell and Conrad appeal a summary
judgment on their claims of employment dis-
crimination and unlawful retaliation bythe City
of Fort Worth. We affirm in part, reverse in
part, and remand.
I.
Culwell and Conrad, both white males, con-
tend they were unlawfully discriminated
against when they were fired from their jobs as
building code inspectors. They allege unlawful
racial discrimination and retaliation under title
VII of the Civil Rights Act of 1964, 42 U.S.C.
2000(e) et seq.), and the Texas Commission
on Human Rights Act (“TCHRA”), TEX. LAB.
CODE §§ 21.001-21.556). The city claims it
United States Court of Appeals
Fifth Circuit
F I L E D
October 31, 2006
Charles R. Fulbruge III
Clerk

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terminated plaintiffs solely because an investi-
gation had revealed that they used their posi-
tions as building inspectors to keep properties
out of the inspection process while they ac-
quired title and then resold the properties at a
substantial profit.
II.
On November 23, 2004, the district court
issued a scheduling order establishing that mo-
tions for summary judgment must be filed by
September 8, 2005, and discovery was to be
completed by October 31, 2005. The order al-
so advised that the court would not accept
pleadings “signed by a law firm,” for the stated
reason that individual attorneys, rather than
law firms, are licensed to practice. On Febru-
ary 3, 2005, in response to a January 27, 2005,
order, plaintiffs filed an amended complaint.
Until August 11, 2005, they neither made any
document requests nor took any depositions.
On August 11, plaintiffs served the city
with a request for production of documents.
On September 12, the city raised objections to
thirty-seven categories of documents sought.
Meanwhile, on September 8, the city moved
for summary judgment. The requested docu-
ments the city produced arrived at plaintiffs’
lawyer’s offices on September 23, thirteen
days later than had been specified in plaintiffs’
document request.
On September 28, the last day of the twen-
ty-day period for response to a motion pre-
scribed by Northern District of Texas Local
Rule 7(e), plaintiffs filed a Federal Rule of Civ-
il Procedure 56(f) motion for leave to extend
time to file their response to the city’s motion
for summary judgment. The motion was un-
filed by the district court later that day for fail-
ure to comply with the November 23 sched-
uling order’s prohibition against pleadings
“signed by a law firm”. According to plain-
tiffs’ counsel, he did not learn that the district
court had unfiled his rule 56(f) motion until
October 17, when he inquired about the dispo-
sition of the motion.
On October 18, plaintiffs filed a duplicate
rule 56(f) motion that apparently was not
deemed by the district court to have been
“signed by a law firm.” Nevertheless, on Oc-
tober 19 the court issued a brief order denying
plaintiffs’ motion as untimely and, anyway,
meritless. The same day, the court granted
summary judgment.
III.
We review for abuse of discretion any sanc-
tions imposed to enforce a pre-trial order. See
Bann v. Ingram Micro, Inc., 108 F.3d 625,
626 (5th Cir. 1997). We review under the
same standard a decision to preclude further
discovery before entry of summary judgment,
though, as we explain below, that discretion is
somewhat more limited. See Krim v. Banc-
Texas Group, Inc., 989 F.2d 1435, 1441 (5th
Cir. 1993).
The district court abused its discretion by
unfiling Culwell and Conrad’s first rule 56(f)
motion as a sanction for violation of its pre-
trial order prohibiting motions signed by a law
firm. As a result, the court reversibly erred by
deeming plaintiffs’ second rule 56(f) motion
untimely. The court also abused its discretion
in ruling that the refiled rule 56(f) motion was
meritless with respect to plaintiffs’ claims of
racial discrimination.
The only reason we can discern that the ini-
tial rule 56(f) motion ran afoul of the order
against motions “signed by a law firm” is that
plaintiffs’ counsel listed the name and address
of his law firm above his signature. The signa-

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ture appears to be handwritten rather than
machine-generated, and the page indicates that
the motion is submitted “By: [signature] W.
Christopher W. Haynes.” Haynes lists his
state bar number and indicates that he is attor-
ney for plaintiffs. Most importantly, he ap-
pears to be an individual rather than a law
firm.
The form of the motion was not obviously
violative of the order against submissions
signed by firms,1 and it certainly did not war-
rant de facto dismissal on the basis of what
must appear to the casual observer to be judi-
cial petulance. Although we have been unable
to find a case in which a court of appeals has
reviewed a dismissal based on the fact that the
opposition was “signed by a law firm,” it
seems a basic principle of fairness and good
judgment that no party should lose a case sole-
ly because his lawyer listed the name and ad-
dress of a law firm above, rather than below,
the lawyer’s signature.
A court may not use dismissal with preju-
dice as a sanction under Federal Rule of Civil
Procedure 16(f) unless it finds that a lesser
sanction would not serve the interests of jus-
tice and there is a clear record of delay or con-
tumacious conduct by a party. See Bann, 108
F.3d at 627. Although the act of unfiling the
motion was not technically a dismissal with
prejudice, the applicable summary judgment
standard placed the burden squarely on plain-
tiffs to come forward with specific facts from
the record indicating that there was a genuine
dispute of material fact. See Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986).
Once the court unfiled the otherwise proper
and timely motion, dismissal with prejudice
was inevitable. Thus, in this case the unfiling
of the motion must be held to the high stan-
dard we established in Bann.
Plaintiffs’ conduct did not even approach
that necessary to warrant such a sanction. Al-
though they had had previous submissions un-
filed for failure to comply with the pretrial or-
der, the rule against motions signed by a law
firm—insofar as it prohibited placing the name
and address of a law firm above a by-line and
signature block (a practice that does not seem,
to the casual reader, even to be a viola-
tion)—was inconsistently applied. As a result,
the (at most) technical violation of the rule did
not rise to the level of a pattern of contuma-
cious conduct, and the interests of justice
would have been better served by accepting
the motion and, if necessary, issuing another
order clarifying the rule, perhaps directing
plaintiffs to substitute a motion whose form
comported with the district judge’s interpreta-
tion of his rule.
IV.
The court also abused its discretion when it
determined, with respect to the October 18
motion, that even had it been timely filed, it
would have been meritless. Rule 56(f) allows
for further discovery to safeguard non-moving
parties from summary judgment motions that
they cannot adequately oppose. See Washing-
ton v. Allstate Ins. Co., 901 F.2d 1281, 1285
(5th Cir. 1990). Such motions are broadly fa-
vored and should be liberally granted. See
Int’l Shortstop, Inc. v. Rally’s Inc., 939 F.2d
1257, 1267 (5th Cir. 1991). The district court
concluded that plaintiffs had not exercised due
1 This is particularly true in light of the fact that
the district court did not sanction or record any dis-
approval of plaintiffs’ June 22, 2004 motion for
withdrawal and substitution of counsel, which had
been signed in exactly the same format as the un-
filed Rule 56(f) motion.

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diligence in making discovery requests. We
disagree.
Although plaintiffs’ diligence in pursuing
discovery was not exemplary, this case is dis-
tinguishable from the one case to which defen-
dant points in which we affirmed denial of a
non-movant’s rule 56(f) motion on the ground
that plaintiff had failed diligently to pursue dis-
covery from the opposing party.2 In Baker,
where the district court had issued a schedul-
ing order similar to the one here, plaintiff filed
no discovery requests until thirty-one days be-
fore the scheduled end of the discovery period,
at which point the deadline for submitting
summary judgment motions had passed. As a
result, given that defendant had thirty days to
comply with the document production re-
quests, no documents were due to plaintiff un-
til two weeks after her response was due to a
summary judgment motion filed on the last day
permitted by the scheduling order. Because
plaintiff, as a result of her inexplicable delay in
filing any discovery requests, was entirely re-
sponsible for creating the situation, we af-
firmed the denial of her rule56(f) motion. See
Baker, 430 F.3d at 756.
Here, in contrast, plaintiffs filed their docu-
ment requests more than two months before
the end of the discovery period and roughly six
weeks in advance of the deadline to oppose
summary judgment motions filed on the due
date. Hence, the instant plaintiffs are in the
position that the plaintiff in Baker would have
been in had she filed her request for document
production roughlyseven weeks before she ac-
tually did. Though it would have been better
for all concerned if these plaintiffs had acted
more promptly in pursuing discovery, we con-
clude, in light of our presumption in favor of
granting rule 56(f) motions, that the delay did
not (quite) warrant denial of their motion for
lack of due diligence.
The city points out that granting plaintiffs’
motion for a fourteen-week extension for dis-
covery, followed by a three-week period to re-
spond to the summary judgment motion,
would have required altering the deadline for
concluding discovery set by the November
scheduling order—an order it has broad dis-
cretion to enforce. See Geiserman v. Mac-
Donald, 893 F.2d 787, 790 (5th Cir. 1990).
Significantly, we do not say that plaintiffs were
entitled to all the time for which they asked,
but only that they were entitled to some exten-
sion. Because the district court granted none,
we review under the standards applicable to
rule 56(f) motions, where a district court’s dis-
cretion is limited by our presumption that such
motions should be liberally granted.
We are mindful, of course, that a district
court, in response to a rule 56(f) motion, has
authority to make any order that is just. See
Fed. R. Civ. P. 56(f). Had the court granted
an extension only until the end of the discovery
period specified in the pre-trial order, we
would review the denial of additional time un-
der the standard applicable to motions for
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
modify a scheduling order. See Geiserman,
893 F.2d at 792. We express no opinion as to
whether plaintiffs have shown good cause for
such modification. Because we remand, the
scheduling order is moot.
2 See Baker v. Am. Airlines, Inc., 430 F.3d 750,
756 (5th Cir. 2005); see also Wichita Falls Office
Assocs. v. Banc One Corp., 978 F.2d 915, 919
(5th Cir. 1992) (“[T]he trial court need not aid
non-movants who have occasioned their own pre-
dicament through sloth.”).

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V.
The city makes a number of arguments, on
the merits, in support of the summary judg-
ment. Those arguments are based on the
premise, however, that plaintiffs have filed no
opposition to the summary judgment motion
and that the motion must be decided solely on
the basis of the facts that have been discovered
so far. Because we conclude that plaintiffs’
rule 56(f) motion was timely filed and that they
were not so slothful in discovery as to warrant
rejection of their motion on that ground, we
must first determine whether the motion ade-
quately specified how the discoverythey want-
ed could give rise to a genuine issue of mate-
rial fact. See Access Telecom, Inc. v. MCI
Telecomm. Corp., 197 F.3d 694, 719-20 (5th
Cir. 1999).
To qualify for relief under rule 56(f), a par-
ty must show
both why it is currently unable to present
evidence creating a genuine issue of fact
and how a continuance would enable the
party to present such evidence. The . . .
party may not simply rely on vague asser-
tions that additional discovery will produce
needed, but unspecified facts in opposition
to summary judgment.
Id. Plaintiffs have met this standard.
To survive summary judgment on a claim of
unlawful racial discrimination in employment,3
a plaintiff must prove, at least, that there is a
genuine dispute of material fact concerning his
prima facie case. If the employer comes for-
ward with a legitimate, alternative, non-dis-
criminatory reason for its employment action,
the plaintiff must point to disputed facts from
which a reasonable factfinder could conclude
either that the alternative reason is a pretext or
that it was only one of multiple reasons for de-
fendant’s conduct, another of which was racial
animus. See Keelan v. Majesco Software,
Inc., 407 F.3d 332, 341 (5th Cir. 2005). To
make a prima facie case, plaintiffs must prove
that they (1) are white, (2) were qualified for
the positions from which they were dis-
charged; (3) were subjected to an adverse em-
ployment action, and (4) were treated less fa-
vorablythan were similarly-situated individuals
who are not white under nearly identical cir-
cumstances. See Wheeler v. BL Dev. Corp.,
415 F.3d 399, 406 (5th Cir. 2005).
Plaintiffs’ rule 56(f) motion stated that they
needed discovery of documents relating to the
City’s treatment of two black employees who
they allege engaged in conduct similar to that
for which the city claims it fired them. Plain-
tiffs seek to prove that the city knew of the
similar activities of the other employees, yet
launched no investigation and took no disci-
plinary action. If the sought-after documents
support that theory, the documents would be
sufficient to create a genuine dispute of mate-
rial fact with respect to (1) whether the black
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
Rights Act of 1964 and its subsequent amend-
ments.” TEX. LABOR CODE § 21.001(1). Because
the Texas Supreme Court looks to federal prece-
dents for guidance as to how to meet this legislative
(continued...)
3(...continued)
mandate, we analyze plaintiffs’ state law claims
and their title VII claims under the same legal stan-
dard. See Quantum Chem. Corp. v. Toennies, 47
S.W.3d 473, 474 (Tex. 2001).

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motivated discharge. Because the city does
not contest the first three elements of the pri-
ma facie case, such a dispute would be suffi-
cient to preclude summary judgment. Because
documents indicating what the cityknew about
the activities of other employees are likely to
be solely in possession of the city, it is reason-
able that plaintiffs would need further discov-
ery to prove their theory.4 With respect to the
claims of unlawful discrimination, the rule
56(f) motion should have been granted.5
VI.
Plaintiffs also claim that the city unlawfully
retaliated against them and created a hostile
work environment. They elected, however, to
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,
263 (5th Cir. 1991). Likewise, plaintiffs have
made no answer to the City’s showing that
there is no evidence giving rise to a dispute of
material fact as to whether they were subjected
to a hostile work environment. The city is en-
titled to summary judgment on these claims as
well.
VII.
In sum, we AFFIRM the summary judg-
ment with respect to unlawful retaliation and
hostile work environment. We REVERSE the
summary judgment as to unlawful discrimina-
tion, and we REMAND for further discovery
and other proceedings not inconsistent with
this opinion.
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).

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