                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-27-2006

Bates v. Tandy Corporation
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3851




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                                                 NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT


                      No. 05-3851


    JOHNNIE BATES; OVERSTONE CUMMINGS;
    TODD PAYNE, ON THEIR OWN BEHALF AND
       ALL OTHERS SIMILARLY SITUATED,

                                        Appellants

                            v.

          TANDY CORPORATION, d/b/a and
                a/k/a Radio Shack




       Appeal from the United States District Court
         for the Eastern District of Pennsylvania
          (D.C. Civil Action No. 03-cv-05519)
        District Judge: Honorable Robert F. Kelly


       Submitted Under Third Circuit LAR 34.1(a)
                     June 9, 2006

Before: AMBRO, FUENTES and NYGAARD, Circuit Judges


                  (filed: June 27, 2006 )




                        OPINION
AMBRO, Circuit Judge

       Overstone Cummings, Todd Payne and Johnnie Bates appeal from the District

Court’s grant of summary judgment for Tandy Corporation (“RadioShack”).1 Appellants

brought suit under Title VII of the Civil Rights Act and 42 U.S.C. § 1981, alleging that

RadioShack improperly places African-American managers in stores in less affluent

communities with lower volume sales and does not promote African-Americans to

managerial positions above the store manager level. They contend both that the District

Court abused its discretion in deciding RadioShack’s summary judgment motion without

first allowing additional discovery, and that, even without additional discovery, the facts

in the record do not justify deciding the motion in RadioShack’s favor. For the reasons

stated below, we affirm the District Court’s order.

                           I. Factual and Procedural History

       As we write for the parties, only a brief summary of pertinent facts is necessary.

Cummings, Payne, and Bates are Philadelphia-area employees of RadioShack.

Cummings was hired as a sales associate at RadioShack’s Cherry Hill Mall store in 1986.

He quickly earned a promotion and managed several stores before returning to the Cherry

Hill Mall store (one of the largest in the district) as manager. After it was reported that

there was a $20,000 discrepancy in inventory at this store, he was terminated, then




  1
   In 2000, Tandy Corporation changed its name to RadioShack Corporation, and all
appellants were employed at RadioShack stores.

                                              2
reinstated as a sales associate at another store pending an investigation. When the

investigation vindicated him, he was again promoted and managed several stores before

returning to the Cherry Hill Mall store in 1998, which has over one million dollars in

sales. He continues to manage that store.

       Payne joined RadioShack in 1989 as a sales associate and, after an unsuccessful

stint as a store manager, he was once again promoted to manager in 1993 and assigned to

the Wenonah store with a sales volume around $500,000. In 1996, he was transferred to

the Plymouth Meeting Mall store, which generally averaged between $700,000 and

$800,000 in sales, but which was undergoing renovations at the time (thus affecting its

sales figures).

       In 2001, Payne applied to manage the Moorestown Mall Store, which has over

$1,000,000 in sales volume. After comparing the candidates using RadioShack’s

Performance Scorecard (which ranks managers according to various quantitative criteria),

the district manager, Bruce Teufel, selected another candidate who was ranked first out of

26 in the district (Payne was ranked 18th). Payne applied for the same position again in

2002. This time, although his store’s performance had not improved, Payne was the

highest-rated applicant in his district. Due to his lack of improvement, however, Teufel

sought a candidate from an adjacent district, ultimately hiring an individual who was

ranked 168th out of 267 managers in the Philadelphia region compared to Payne’s




                                             3
ranking of 208th. By 2003, Payne’s performance data had improved significantly and he

was finally selected to manage the Moorestown Mall Store, where he remains as manager.

       Bates began working as a sales associate at a RadioShack store in 1996, and

became manager of the Flourtown store (which had a sales volume of $600,000) in 1997.

His performance score was low, and he was demoted to the Horsham store, which had a

sales volume of $400,000. By 2000 his performance improved and he was promoted to

the Warminster store, which had a sales volume of $600,000. In 2001, he decided to step

down from his store manager position, taking a part-time sales associate position in the

Cherry Hill Mall store while pursuing another career.

       Appellants filed suit in the District Court in October 2003, and RadioShack moved

for summary judgment in May 2005. Appellants contend that, at that time, they had not

yet conducted discovery relating to the merits of their individual claims, but had instead

limited themselves to issues of class certification. RadioShack denies there was an

understanding between the parties to conduct discovery on a bifurcated schedule, pointing

to the fact that it did not limit its discovery to the issue of certification but (among other

things) deposed appellants on the merits of their claims. The District Court conceded that

“through oversight by both the Court and the parties” no scheduling order was entered,

and noted that correspondence between the parties on this matter was inconclusive.

Ultimately, however, the Court entered summary judgment for RadioShack, describing

the proceedings as “already protracted” and concluding that “[t]he record is sufficient to



                                               4
make a determination on the [summary judgment] motion.”

                         II. Jurisdiction and Standard of Review

       The District Court had subject matter jurisdiction under 28 U.S.C. § 1331, and we

have jurisdiction over the appeal under 28 U.S.C. § 1291.

       The District Court’s decision to refuse additional discovery before granting

summary judgment is reviewed for abuse of discretion. Bradley v. United States, 299

F.3d 197, 206 (3d Cir. 2002). Whether the District Court erred in granting summary

judgment is subject to plenary review. Doe v. County of Centre, 242 F.3d 437, 446 (3d

Cir. 2001). In considering this question, we apply the same standard as the District Court,

asking whether there are any genuine issues of material fact such that a reasonable jury

could find for the plaintiffs. Id. (citing Fed. R. Civ. P. 56(c)).

                                         III. Analysis

       A.      Discovery

       Appellants contend that the District Court abused its discretion when it decided

RadioShack’s motion for summary judgment before allowing for additional discovery.

See Fed. R. Civ. P. 56(f) (“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 . . . discovery to be had . . . .”).




                                                5
       Appellants, however, never formally filed a Rule 56(f) motion. “This circuit

generally requires that a party file a Rule 56(f) affidavit in order to preserve the issue for

appeal.” Radich v. Goode, 866 F.2d 1391, 1393 (3d Cir. 1989); see Bradley, 299 F.3d at

206-07 (same). Appellants urge that their brief in opposition to RadioShack’s motion for

summary judgment, which included a discussion of the purported inadequacy of the

discovery process, be taken as the functional equivalent of a Rule 56(f) motion. Our

Court, however, employs a “strong presumption against a finding of constructive

compliance with Rule 56(f).” Bradley, 299 F.3d at 207.2

       Ultimately, however, we do not need to decide the issue of constructive

compliance. Even if the appellants submitted the equivalent of a Rule 56(f) motion, there

is no basis for concluding that the District Court abused its discretion in implicitly

denying it. First, our Court generally denies relief under Rule 56(f) if the purported

inadequacy of the record is attributable to the movant’s own failure to take advantage of

the discovery period, rather than the other party’s lack of cooperation. See Lunderstadt v.

Colafella, 885 F.2d 66, 71-72 (3d Cir. 1989). Here, almost a year and a half passed

between the opening of the discovery period and RadioShack’s motion for summary



  2
    In Miller v. Beneficial Management Corp., we did rule that the District Court had
prematurely granted the defendant summary judgment despite the fact that a Rule 56(f)
affidavit was never filed by the plaintiff. 977 F.2d 834, 846 (3d Cir. 1992). The basis for
making an exception in that case, however, was that the plaintiffs relied detrimentally on
the Magistrate Judge’s order waiving the Rule 56(f) affidavit requirement. Id. See
Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 511 n.4 (3d Cir. 1994) (limiting the
applicability of Miller to those facts). Nothing like that occurred here.

                                               6
judgment. Moreover, appellants’ main outstanding request is for an opportunity to

depose Bruce Teufel (the district manager), someone with whom they twice scheduled

and cancelled depositions.

       Second, appellants cannot establish that the information they seek would, if

uncovered, preclude summary judgment, as they must do to prevail on a Rule 56(f)

motion. Horvath v. Keystone Health Plan East, Inc., 333 F.3d 450, 458 (3d Cir. 2003).

As discussed below, the District Court correctly based its grant of summary judgment on

two undisputed facts: (1) RadioShack’s decisions to transfer appellants were dictated by

objective performance scorecards; and (2) appellants never applied for the promotions

that form the basis of their failure to promote claim. Nothing that might emerge from

further discovery could cast doubt on either of these facts.

       Thus, in light of appellants’ own culpability for failing to complete discovery, and

their inability to establish that the discovery they seek would be material to the issues

raised in the summary judgment motion, the District Court properly refused to delay

consideration of RadioShack’s motion.

       B.     Employment Discrimination

       Under Title VII, an aggrieved employee must file a charge of discrimination with

the Equal Employment Opportunity Commission within 180 days of the adverse

employment action. 42 U.S.C. § 2000e-5(e)(1). Under 42 U.S.C. § 1981, an action for

race discrimination must be brought within four years of the treatment alleged to be



                                              7
discriminatory. Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382 (2004) (citing 28

U.S.C. § 1658(a)). Thus, appellants are barred from bringing employment discrimination

claims stemming from events prior to October 1999. That leaves only the claims relating

to: (1) Payne’s inability to obtain a transfer to the more successful Moorestown Mall store

in 2001 and 2002; (2) Bates’ transfer to the less successful Horsham store in 1999; and

(3) Cummings’ and Payne’s respective failures to be promoted to the position of district

manager during the four-year statutory period.3

         The same elements of proof are necessary to establish employment discrimination

under Title VII and § 1981. Schurr v. Resorts Int’l Hotel, Inc., 196 F.3d 486, 499 (3d Cir.

1999). Because appellants have not introduced any direct evidence of discrimination, we

evaluate their claims under the familiar burden-shifting framework established in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Appellants first bear the

burden of establishing a prima facie case of racial discrimination. Once they have done

so, the burden shifts to the employer to present a legitimate, non-discriminatory reason for

its decision. If that burden has been met, appellants must demonstrate that the proffered

business reason is pretextual. Id. at 802-04.

                1.     Transfer

         RadioShack concedes that Payne and Bates have made out their prima facie case

of employment discrimination with respect to their store assignments. In response, it



  3
      Bates was not eligible for a district manager position during this period.

                                                8
offers the same business reason for each decision: the employee’s score on its

performance scorecard system. Payne was not promoted to manager of the Moorestown

Mall store in 2001 and 2002 because of his relatively low score, and Bates was demoted

to the Horsham store in 1999 because of his similarly low ranking. The District Court

granted summary judgment on this issue based on its finding that Payne and Bates could

not demonstrate that RadioShack’s reliance on its performance scorecards was a pretext

for discrimination.

        Payne and Bates argue that the District Court erred in not evaluating

RadioShack’s use of its scorecards in light of the company’s overall environment of racial

animus and the low numbers of African-Americans occupying upper management

positions. They contend that, taking this broader context into account, a factfinder could

reasonably conclude that RadioShack uses its seemingly objective scoring system in a

discriminatory fashion, either by manipulating the candidate pool so as to avoid a

situation in which an African-American candidate has the highest score or by

systematically placing African-American managers in underperforming stores in order to

keep their scores artificially low.

       We find this argument unpersuasive. That Payne and Bates each received

favorable employment decisions as soon as their scores improved blocks any reasonable

inference that their scores were not the real reason behind prior adverse decisions, or that

the scoring system was used in a manipulative fashion to deny them promotions because



                                              9
of their race. “[T]o avoid summary judgment, the plaintiff’s evidence rebutting the

employer’s proffered legitimate reasons must allow a factfinder reasonably to infer that

. . . the employer’s proffered non-discriminatory reason[ ] . . . was either a post hoc

fabrication or otherwise did not actually motivate the employment action.” Fuentes v.

Perskie, 32 F.3d 759, 764 (3d Cir. 1994). Payne and Bates cannot meet this burden.

Thus, the District Court acted correctly in granting summary judgment to RadioShack on

this issue.

              2.     Failure to Promote

       To make their prima facie failure to promote case, Cummings and Payne must

establish that: (1) they belong to a protected category; (2) they applied for and were

qualified for a job in an available position; (3) they were rejected; and (4) after they were

rejected, the position stayed open and the employer continued to seek applications from

similarly qualified individuals. Bray v. Marriot Hotels, 110 F.3d 986, 990 (3d Cir. 1997).

The District Court concluded that Cummings and Payne failed the second and third

prongs of the test, because neither applied for a district manager position. In fact, both

declined invitations to attend annual open houses for the district manager training

program, which is the first step in the application process.

       Cummings and Payne argue that the District Court erred in treating as dispositive

their failure to apply for promotions. First, they contend they were not required to apply

for the promotions because doing so would have been futile, given the company’s history



                                              10
of discriminatory hiring. See Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 365-

66 (1977) (“When a person’s desire for a job is not translated into a formal application

solely because of his unwillingness to engage in a futile gesture he is as much a victim of

discrimination as he who goes through the motions of submitting an application.”) We

believe International Brotherhood is clearly distinguishable. There, it was already

established that employees who had applied for promotions were denied because of their

race. The question was simply whether those who had been discouraged from applying

for promotions because of that history would be allowed to piggyback on the employment

discrimination claims of those who did apply. Id. at 363-64. Here, Cummings and Payne

have no comparable basis for establishing that they would not have received the

promotions had they applied for them. Thus, they cannot be relieved of the precondition

that they apply for a position before bringing a claim based on not receiving it.

       Second, Cummings and Payne contend that their failure to apply for district

manager positions is irrelevant because RadioShack does not, in fact, fill district manager

vacancies through a formal application process; rather, candidates must receive a

recommendation from their district manager in order to obtain the promotion. A review

of the record, however, undercuts this assertion. Cummings and Payne were clearly

eligible, even without a recommendation from their district manager, to apply for

manager training school, which is the first step in the process of becoming a district

manager. It is true that, at that point, the company would have solicited the opinion of the



                                             11
district manager. But receiving such a recommendation is not a prerequisite for attending

manager training school. Therefore, since they never reached the recommendation stage

of the application process, there is no need for additional factfinding to discover why they

were never recommended for district manager positions.

       The District Court, then, was correct in finding that Cummings and Payne cannot

state a prima facie case of failure to promote.

                                       * * * * *

       For the reasons stated above, we affirm the District Court’s grant of summary

judgment to RadioShack.




                                             12
