Hicks v. Napolitano

Filing

OPINION issued by Sandra L. Lynch, Chief Appellate Judge; Norman H. Stahl, Appellate Judge and Kermit V. Lipez, Appellate Judge. Published. [13-1741]

Case: 13-1741

Document: 00116703807

Page: 1

Date Filed: 06/20/2014

Entry ID: 5832650

United States Court of Appeals
For the First Circuit
No. 13-1741
SANDRA L. HICKS,
Plaintiff, Appellant,
v.
JEH CHARLES JOHNSON,* SECRETARY,
UNITED STATES DEPARTMENT OF HOMELAND SECURITY,
Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns,

U.S. District Judge]

Before
Lynch, Chief Judge,
Stahl and Lipez, Circuit Judges.

Richard B. Reiling for appellant.
Christine J. Wichers, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.

June 20, 2014

*

Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Jeh
Charles Johnson has been substituted for Janet Napolitano as
Secretary of the Department of Homeland Security.

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Document: 00116703807

LIPEZ,

Circuit

Page: 2

Judge.

Date Filed: 06/20/2014

Sandra

Hicks

Entry ID: 5832650

brought

this

employment discrimination action against the Secretary of Homeland
Security, claiming that the Secretary failed to promote her to the
position of Housing Manager in the United States Coast Guard
Housing Office at Air Station Cape Cod on account of her race and
gender.

The district court granted the Secretary's motion for

summary judgment, finding that Hicks failed to generate a genuine
issue of material fact on the Secretary's non-discriminatory reason
for

choosing

another

candidate.

Prior

to

granting

summary

judgment, the court also denied Hicks's motion to reopen discovery.
In response to Hicks's appeal, we conclude that the
district court did not abuse its discretion in denying Hicks's
motion to reopen discovery.

We also agree that Hicks failed to

generate a genuine issue of material fact on the issue of pretext.
We therefore affirm.
I.
Hicks,

an

African-American

woman,

has

service government employee for over twenty years.

been

a

civil

A majority of

her service has been in the United States Coast Guard Housing
Office at Air Station Cape Cod, located on the Otis Air Force Base.
The Housing Office staff consists of one Housing Manager and
approximately six subordinates.

Before the events at issue here

took place in 2009, Hicks had served nine years in the Housing
Office in two roles--six years as Housing Management Assistant and

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three as Off-Base Housing Management Specialist.

Entry ID: 5832650

The General

Schedule ("GS") levels of those positions were GS-07 and GS-09
respectively.1
In

late

2009,

Hicks's

supervisor,

Evelyn

Norton,

announced her retirement from the Housing Manager position.

The

official job posting for Norton's replacement listed, among others,
the following required qualification:

"one year of specialized

experience equivalent to at least the GS-09 level or Ph.D or
equivalent doctoral degree or 3 full years of progressively higher
level graduate education leading to such a degree."

A list was

compiled of the candidates eligible for merit promotion to the
position.

The top two candidates were Hicks and Terry Krout, a

white man who was serving in the same office as a "housing
inspector."

1

Krout was a retired Chief Warrant Officer in the

The General Schedule (GS) classification and
pay system covers the majority of civilian
white-collar Federal employees (about 1.5
million worldwide) in professional, technical,
administrative, and clerical positions. . . .
Each agency classifies its GS positions and
appoints and pays its GS employees filling
those positions following statutory and [U.S.
Office of Personnel Management] guidelines.

The General Schedule has 15 grades--GS-1
(lowest)
to
GS-15
(highest).
Agencies
establish (classify) the grade of each job
based
on
the
level
of
difficulty,
responsibility, and qualifications required.
U.S. Office of Personnel Management, General Schedule Overview,
available at http://www.opm.gov/policy-data-oversight/pay
-leave/pay-systems/general-schedule/ (last visited June 16, 2014).
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United States Coast Guard who had entered civil service in 2002.
When the Housing Manager position became available in 2009, Krout
had been serving as a GS-09 Housing Specialist for approximately
one-and-a-half years.

His primary responsibility in that position

was inspecting 330 on-base housing units.
A panel consisting of Coast Guard Commander Paul Rendon,
Area Housing Officer Kevin Sullivan, and Director of Morale,
Wellbeing, and Recreation Bruce Blackman was charged with making a
recommendation to Commander John Newby,2 who would ultimately make
the

promotion

decision.3

The

panel

interviewed

the

top

two

candidates--Hicks and Krout. During the interviews, the candidates
were

asked

the

same

twenty

questions,4

and

the

interviewers

independently scored the interviewees' answers to each question on

2

Both Paul Rendon and John Newby hold the rank of commander
in the United States Coast Guard. Commander Rendon served as the
Public Works Officer on base and reported to Commander Newby who
was the Executive Officer.
3

It is undisputed that Commander Rendon, on behalf of the
panel, "selected" a candidate to be promoted and Commander Newby
"approved" that selection.
4

One of the questions asked, which is indicative of the type
that comprised the interviews, was as follows:
We work as a team in this office. What is your definition
of the word 'team' and in conjunction with this what do
you consider to be your greatest personal strength? On
the flip side what work skill or personal quality do you
feel requires further development?
Hicks characterized this question as asking for a "strength" and a
"weakness."
In her deposition she took issue with Commander
Rendon's tone of voice in asking it and with the subject matter,
suggesting that it alluded to an "inference to my race as being
weak." As noted, this question was asked of both candidates.
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a 1-3 scale (with 3 being the highest).5

Entry ID: 5832650

The scores for all of the

questions were then added up to produce total interview scores for
each candidate. The result was a split decision. Commander Rendon
scored the interview for Krout by a margin of 54-48.

Sullivan

scored the interview for Hicks by a margin of 50-49.

Blackman

scored the interview for Krout by a margin of 45-44.
these scores, Krout had 148 and Hicks 142.
recommended Krout for promotion.

Tallying all

On that basis the panel

Commander Newby adopted that

recommendation.
Commander Rendon met with Hicks in person to communicate
the promotion decision and discuss the reasoning behind it.

Hicks

was understandably disappointed, and she was offended by Commander
Rendon's suggestion that she should have practiced her interview
skills beforehand.

After exhausting her administrative remedies,

Hicks commenced this action on August 25, 2011, alleging that she
was discriminated against on the basis of race and gender.
After proceeding pro se through the discovery period,
Hicks retained Attorney Richard Reiling, who entered an appearance
on January 31, 2013, on the eve of the deadline for responding to
the Secretary's motion for summary judgment.

Hicks also moved on

that same date to reopen discovery pursuant to Rule 56(d) or, in
the alternative, to extend the summary judgment opposition deadline

5

Despite being asked the same questions, Hicks's interview
lasted one hour and forty minutes while Krout's lasted only forty
minutes.
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by 21 days.

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On February 5, having heard oral argument from the

parties, the district court issued the following order: "The court
will not reopen discovery but, in order to give plaintiff's counsel
sufficient time to familiarize himself with the case and prepare a
response, will extend by 21 days the deadline to oppose defendant's
motion for summary judgment."
After obtaining an additional extension, Hicks filed her
opposition to summary judgment on March 1.

The district court

granted the defendant's motion for summary judgment in an order
dated May 10, 2013.

This appeal followed.
II.

A. Standard of Review
Our review of a denial of a Rule 56(d) motion recognizes
the "broad [and] . . . considerable discretion" of the district
court over such matters. Ayala-Gerena v. Bristol Myers-Squibb Co.,
95 F.3d 86, 91 (1st Cir. 1996).

We reverse denials of Rule 56(d)

motions "only upon a clear showing of manifest injustice, that is,
where the lower court's discovery order was plainly wrong and
resulted

in

substantial

prejudice

to

the

aggrieved

party."

Filiatrault v. Comverse Tech., Inc., 275 F.3d 131, 137-38 (1st Cir.
2001) (internal quotation mark omitted).
Our

review

judgment is de novo.
(1st Cir. 2013).

of

a

district

court's

grant

of

summary

Johnson v. Univ. of P.R., 714 F.3d 48, 52

In conducting our "fresh look" at the record, we

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view the evidence in the light most favorable to the non-moving
party, Hicks, and draw all reasonable inferences in her favor.
Gerald v. Univ. of P.R., 707 F.3d 7, 16 (1st Cir. 2013).

Summary

judgment is appropriate only if there is no genuine dispute as to
any material fact and the moving party is entitled to judgment as
a matter of law.

Fed. R. Civ. P. 56(a); Gerald, 707 F.3d at 16.

To determine whether a trial-worthy issue exists, we look to all of
the record materials on file, including the pleadings, depositions,
and affidavits.

Fed. R. Civ. P. 56(c)(1)(A); Johnson, 714 F.3d at

52. We may neither evaluate the credibility of witnesses nor weigh
the evidence.

See Sheehan v. N. Am. Mktg. Corp., 610 F.3d 144, 149

(1st Cir. 2010).
B. Denial of 56(d) Motion
Rule

56(d)

allows,

in

certain

circumstances,

for

supplemental discovery after a motion for summary judgment has been
filed.

See Fed. R. Civ. P. 56(d).

We have previously cautioned

that Rule 56(d) relief is not to be granted as a matter of course.
Ayala-Gerena, 95 F.3d at 92.

As we have explained:

To benefit from the protections of Rule
56[(d)], a litigant ordinarily must furnish
the nisi prius court with a timely statement
-- if not by affidavit, then in some other
authoritative manner -- that (i) explains his
or her current inability to adduce the facts
essential to filing an opposition, (ii)
provides a plausible basis for believing that
the sought-after facts can be assembled within
a reasonable time, and (iii) indicates how
those facts would influence the outcome of the
pending summary judgment motion.
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Velez v. Awning Windows, Inc., 375 F.3d 35, 40 (1st Cir 2004).

In

addition, the movant must "set forth good cause to explain [her]
failure to have conducted the desired discovery at an earlier
date."

Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass'n, 142

F.3d 26, 44 (1st Cir. 1998).
Even upon submission of the required materials, the
district court is entitled to refuse a Rule 56(d) motion if it
concludes that the party opposing summary judgment is unlikely to
garner useful evidence from supplemental discovery. See FDIC v.
Kooyomjian, 220 F.3d 10, 15 (1st Cir. 2000); Greebel v. FTP
Software, Inc., 194 F.3d 185, 202 n.15 (1st Cir. 1999).
Hicks's decision to seek supplemental discovery shortly
after retaining counsel is understandable.

As a pro se litigant,

she likely had little understanding of the discovery process and
had not conducted any depositions.

The Secretary had already made

affidavits from Commander Rendon, Commander Newby, Blackman, and
Sullivan part of the record at the time of her motion, as well as
a significant amount of documentary evidence.

Specifically, in

addition to requesting an opportunity to conduct depositions of
those individuals, Hicks sought to depose Krout, who was awarded
the position over her, and Norton, her former supervisor.

Neither

of those individuals were involved in the decision-making process
on the promotion at issue. Hicks did not specify the evidence that
she expected to obtain from any of this additional discovery.

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Hicks's request to reopen discovery came late in the
process.

She also sought vague information from deponents, some

of whom were not even relevant to her case.

Furthermore, it is far

from clear that the requested depositions of the decisionmakers
would yield any useful information beyond what was in their
affidavits.

The district court, while sympathetic to Hicks's

situation, acted within the bounds of its discretion in concluding
that the additional discovery sought would not alter the summary
judgment landscape and that simply granting an extension to the
opposition deadline was sufficient to account for the fact that
Hicks had been proceeding pro se.
C.

Summary Judgment
Where, as here, a claim of discrimination under Title VII

rests on circumstantial evidence, we apply the burden-shifting
analysis of McDonnell Douglas v. Green, 411 U.S. 792 (1973), to
help "sharpen the inquiry into the elusive factual question" of the
employer's motivation. Tex. Dep't of Cmty. Affairs v. Burdine, 450
U.S. 248, 256 n.8 (1981); see also Johnson, 714 F.3d at 53-54.
Under that framework, if the plaintiff establishes a prima facie
case of discrimination, an inference of discrimination arises, and
the burden of production shifts to the defendant to produce
evidence that the challenged employment action was taken for a
legitimate, non-discriminatory reason. Johnson, 714 F.3d at 53-54.
If the employer supplies such evidence, the plaintiff is left with

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the burden to prove "by a preponderance of the evidence that the
employer's proffered reason is pretextual and that the actual
reason for the adverse employment action is discriminatory."

Id.

at 54; see also Pearson v. Mass. Bay Transp. Auth., 723 F.3d 36, 40
(1st Cir. 2013).
Here, the Secretary concedes that Hicks has established
a prima facie case of race and gender discrimination.6

The

Secretary contends, however, that the decision to promote Krout
rather than Hicks was motivated by a non-discriminatory reason:
their

performance in the interviews.

maintains

that

the

undisputed

Specifically, the Secretary

fact

that

two

of

the

three

interviewers scored Krout higher was the dispositive factor in the
promotion

decision.

According

to

Commander

Rendon,

the

recommending panel based its selection solely on the interview
scoring.
The district court found that Hicks failed to generate a
genuine issue of material fact as to whether that proffered reason
was pretextual.

On appeal, Hicks points to four strains of

6

As the district court noted, "a generous reading of the
entire charge includes a claim of gender discrimination." However,
the court focused its analysis on the race issue. The briefs on
appeal take the same approach, prompting us to focus only on the
race discrimination issue. See United States v. Zannino, 895 F.2d
1, 17 (1st Cir. 1990) ("[I]ssues adverted to in a perfunctory
manner, unaccompanied by some effort at developed argumentation,
are deemed waived.").
The claim of gender discrimination also
appears weak in light of the undisputed fact that three of the
previous four housing managers had been women.
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evidence that she contends were sufficient to create a genuine
issue of material fact on the question of pretext.
1.

Differences in Qualifications

Hicks

focuses

primarily

on

between her qualifications and Krout's.
259.

the

alleged

differences

See Burdine, 450 U.S. at

The Secretary responds with evidence that the interviewers

saw Hicks and Krout as essentially equally qualified, and therefore
based

the

promotion

decision

exclusively

on

their

relative

performance in the interviews.
Hicks begins with a technical argument that Krout did not
qualify for the position.
alone

promoting

him,

Therefore, even interviewing him, let

indicated

a

questionable

motive.

This

argument cites the language of the job posting, which stated that
"[a]pplicants must have one-year of specialized experience" at the
level.7

GS-09

The

posting

went

on

to

define

"specialized

experience" as "experience in the field of housing management that
required application of a variety [of] general business principles
and practices concerning the purchase, lease, rental, and overall
utilization of housing facilities."
Hicks contends that because Krout served only as a
housing inspector in his prior position, he lacked the requisite

7

It is undisputed that although Hicks and Krout had different
responsibilities in their prior positions, they had the same formal
job title and GS level--Housing Specialist, GS-09. Accordingly,
they both met the part of the experience requirement calling for at
least one year of service at a GS-09 level.
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leasing experience to fulfill the requirement.

Entry ID: 5832650

It is undisputed

that as a housing inspector Krout was responsible for inspecting
more than 330 on-base units at Otis Air Force Base; he was not
responsible for the leasing or purchasing of those, or any other,
housing units.
Hicks's

argument

is

premised

on

an

overly

narrow

interpretation of the "specialized experience" requirement.

That

requirement is not stated so precisely that experience with the
"overall utilization of housing facilities" would be disqualifying
if it did not happen to include direct experience with leasing.
The requirement gives discretion to decisionmakers to evaluate
whether a candidate's previous "experience in the field of housing
management" was relevant.

Indeed, if Hicks's narrow reading were

correct, she would not have been qualified for the position because
she lacked direct experience purchasing housing facilities.8
Hicks
technically

further

qualified

contends

for

the

that

position,

even
his

if

Krout

experience

were
and

qualifications were so inferior to hers as to permit a reasonable
jury to infer discrimination in the decision to interview him and,
ultimately, to promote him over her.9

She asserts that given this

8

Hicks avers that her specific responsibilities included
inspecting housing units; obtaining and administering leases for
Coast Card service members; and locating new properties for the
Coast Guard to lease as additional housing.
9

Hicks appears to use her superior qualifications argument in
two ways. She asserts that her qualifications were so superior to
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disparity, the interviewers' contention that they viewed the two
candidates as equally qualified for the promotion could not be
credited by a reasonable fact-finder.

We disagree.

The Supreme Court has acknowledged that "qualifications
evidence may suffice, at least in some circumstances, to show
pretext."

Ash v. Tyson Foods, Inc., 546 U.S. 454, 457 (2006)

(emphasis added).

We have nonetheless cautioned that "subjective

evidence of competing qualifications seldom provides a principled
way for a factfinder to determine whether a given employment
decision,

even

garden-variety

if

wrong-headed,

mistake

in

was

corporate

anything
judgment.'"

more

than

'a

Rathbun

v.

Autozone, Inc., 361 F.3d 62, 74 (1st Cir. 2004) (quoting Freeman v.
Package Mach. Co., 865 F.2d 1331, 1341 (1st Cir. 1988)); see also
Burdine, 450 U.S. at 259 ("The fact that a court may think that the
employer misjudged the qualifications of the applicants does not in
itself expose him to Title VII liability, although this may be

Krout's that he should not even have been interviewed. She also
asserts that her slightly weaker performance in the interview
should not have affected the promotion decision because her
qualifications were so superior to his. For our purposes, it is
not material whether the decisionmaker considered their relative
qualifications before, after, or throughout the interview. Having
established that both candidates were technically eligible for the
promotion, the decisionmaker was free to consider their relative
qualifications at any stage in the decision process. Accordingly,
we will focus the remainder of our analysis on the merits of
Hicks's argument about the disparity in their qualifications
without parsing out the decision to interview from the decision to
promote.
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probative of whether the employer’s reasons are pretexts for
discrimination.").
It is true that Hicks had more years of experience in the
housing office (nine years) than did Krout (one-and-a-half years).
Her

particular

experience

in

unquestionably surpassed his.

the

management

of

housing

However, Krout had more years of

total government service (31 years) than Hicks (20 years).
Furthermore, the vast majority of Krout's government service was as
a Chief Warrant Officer in the United States Coast Guard.

That

position required him to manage the contracting office of the ship
or

base

where

he

was

serving,

supervise

as

many

as

subordinates and oversee budgets as large as $15 million.

twelve
As part

of this role he evaluated and awarded supply contracts.
Weighing the value of this management experience against
Hicks's housing management experience required the interview panel
to make a judgment that it was entitled to make.
that

her

probative

qualifications
value.

As

were

the

superior

district

to

court

Hicks's own view

Krout's
aptly

has

put

little

it,

"no

reasonable jury could conclude that Hicks’s qualifications so
outweighed those of Krout – hers were superior in some respects,
but Krout’s were superior in others – that it was more likely than
not, discriminatory animus provided the job clincher."

Hicks v.

Napolitano, No. 11–11517–RSG, 2013 WL 1992204, at *4 (D. Mass. May
10, 2013).

If the interviewers erred in judging the candidates'

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relative qualifications, as Hicks argues, there is nothing to
suggest

that

the

error

was

anything

but

"garden-variety mistake in corporate judgment."

a

permissible

Freeman, 865 F.2d

at 1341.
2.

Reliance on Subjective Interview Questions

Hicks argues that the panel’s reliance on "subjective"
interview questions -- clearly the tie-breaker in this case -provided a "ready mechanism for discrimination" and is therefore
evidence of pretext.

This argument is misguided.

It is true that

the subjectivity necessarily introduced by the interview process
can mask discrimination.

Cf. Keyes v. Secretary of the Navy, 853

F.2d 1016, 1026 n.12 (1st Cir. 1988) (noting that "[e]valuating an
applicant at an interview is a highly subjective exercise").

We

have nonetheless declined, for good reason, to invalidate reliance
on interviews in hiring decisions.

See, e.g., Velazquez-Ortiz v.

Vilsack, 657 F.3d 64, 76 (1st Cir. 2011) (affirming an award of
summary judgment to the employer when the promotion decision was
based, in large part, on the assessment that one candidate "did
exceptionally well during the interview" (internal quotation marks
omitted)).
Here, the Coast Guard took pains to standardize the
interview process, as well as record and quantify the candidates'
performance on a uniform scale.

The same twenty questions were

asked of both candidates, and, as the district court remarked, they

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were "so broadly worded as to provide an interviewee with ample
running room to tout her qualifications and experience."

In

essence, the Coast Guard made the subjective part of the promotion
process as objective as possible, taking much of the ultimate
discretion away from the interviewers.

We are not suggesting that

such measures are required to immunize an interview process against
charges of discrimination. However, on this record, these measures
do preclude any reasonable inference that the interview process was
evidence of pretext.
3.

Lack of African Americans in Supervisory Positions

Hicks attempts to show pretext by pointing to the lack of
African-American workers and managers at Air Station Cape Cod. See
Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 54
(1st Cir. 2000) (holding that evidence of discriminatory animus may
also serve to prove pretext).

Such historical evidence may inform

the jury's evaluation of the decisionmakers' actions.

Here,

however, the historical evidence is so limited that it does not
permit a reasonable inference of discrimination.

There is no

evidence that any other African American ever applied for the
position sought by Hicks.

The housing office at the base did not

employ a large staff -- seven total employees. The fact that Hicks
was the only African American in the group, without more, does not
establish a genuine issue of material fact as to discriminatory
animus within the office.

Furthermore, there is no evidence as to

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the number of African Americans working on the base in general or
their opportunities for advancement.

This meager record simply

does not permit any reasonable conclusion about a disparity between
the opportunities for African Americans and whites at the Air
Station Cape Cod, let alone the housing office.
4.

Alleged Comments about Race

In

an

attempt

to

show

pretext

with

evidence

of

discriminatory animus, Hicks cites a statement attributed to her
former supervisor, departing Housing Manager Norton, describing
Hicks as an "angry black woman."

However, it is undisputed that

Norton took no part in the promotion decision.

Accordingly, this

evidence does nothing to establish a genuine issue of material fact
as to whether the promotion decision was motivated by anything
other than Krout's documented scoring edge in the interviews.
III.
The district court's denial of the Rule 56(d) motion to
reopen discovery was not an abuse of discretion.
entitled to summary judgment.
Affirmed.

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The Secretary is