           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                         February 8, 2008

                                     No. 07-20437                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk




MARION CAMPBELL,

                                                  Plaintiff-Appellant,
v.

MICHAEL GRIFFIN,
Administrator of the National Aeronautics and Space Administration,

                                                  Defendant-Appellee.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                                 No. 4:05-CV-1288




Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*


       After reviewing the briefs and the record, we affirm, essentially for the


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                       No. 07-20437

reasons stated by the district court. Summary judgment is appropriate, because
Marion Campbell has failed to establish that similarly situated, i.e. “nearly iden-
tical,” Bryant v. Compass Group USA, Inc., 413 F.3d 471, 478 (5th Cir. 2005),
employees were treated more favorably than she was, and her speculative con-
tentions regarding how other employees were treated are not sufficiently sup-
ported as to create a genuine issue of material fact.1 She has failed to establish
retaliation, because she has insufficiently pleaded a link between filing her sec-
ond complaint with the Equal Employment Office and her paid leave’s being de-
nied, and, in any event, NASA has articulated non-discriminatory and non-pre-
textual reasons for denying her claim, principally, that Campbell failed to pro-
vide the required return-to-work date with her application.2
       The district court did not abuse its discretion by declining to amend the
scheduling order to provide Campbell more time to conduct discovery, even
though her motion was unopposed. Her request for extension of time was her
second discovery request; the district court had previously extended discovery


       1
         In her reply brief, Campbell argues that she was similarly situated because, like the
cited white employees, she provided a return-to-work date, but this ignores the great differenc-
es between Campbell’s so-called return-to-work date, see infra note 2, and those of the white
employees. Campbell’s “similarly situated” argument in her reply brief, in essence, is one of
discrimination, i.e. that she was discriminated against because NASA did not require the white
employees to have physicians verify their return-to-work dates, but NASA did for her. That
argument, which is not the same as claiming she was similarly situated to the white em-
ployees, is waived. See Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994) (“An appellant
abandons all issues not raised and argued in its initial brief.”).
       2
          Alleging that it is “undisputed that she provided a return date of July 12, 2003,”
Campbell argues that NASA incorrectly relies on her failure to provide such a date. But, in
her email written in response to her incomplete application, she stated that she “purposefully
left [the date the medical emergency was expected to end] blank because [she] applied for
workman’s comp. . . . If a date is required, please put not to exceed July 12, 2003.”

       Campbell thus concedes that her initial application was incomplete. And, in regard to
her statement to use July 12, NASA received a note dated March 17, 2003, from her treating
physician, stating that Campbell would not be able to return to work. When confronted with
that inconsistency, Campbell failed to offer a return-to-work date. When she did provide a re-
turn-to-work date, she was admitted into the program.

                                               2
                                         No. 07-20437

for over six months. And Campbell waited until the last day of discovery under
the amended schedule before requesting additional time, suggesting a lack of
diligence.3 Because, “for pretrial procedures to continue as viable mechanisms
of court efficiency, appellate courts must exercise minimal interference with trial
court discretion in matters such as the modifications of its orders,” Hodges v.
United States, 597 F.2d 1014, 1018 (5th Cir. 1979), the district court did not
abuse its discretion.4
       AFFIRMED.




       3
         Although Campbell argues that the “inadvertent error” of her previous attorney should
not be imputed to her, the nature of representation is that, as a general rule, the conduct of
attorneys is imputed to clients. Cf. Coleman v. Thompson, 501 U.S. 722, 753 (1991) (“[T]he
attorney is the petitioner’s agent when acting, or failing to act, in furtherance of the litigation,
and the petitioner must bear the risk of attorney error.”) (internal citations and quotations
omitted). Campbell also contends that because her attorney “had less than one week to discov-
er his error before he would have been required to seek an extension of the discovery deadline,”
we should not find lack of diligence. To the contrary, even if Campbell was not excessively
lackadaisical in failing to ensure that written discovery arrived on time, she was derelict in
waiting until the day discovery was scheduled to close before requesting the second extension.
       4
         Campbell’s citation to Foman v. Davis, 371 U.S. 178 (1962), is misplaced. Foman con-
cerned rule 15 of the Federal Rules of Civil Procedure, which states that district courts “should
freely give leave [to amend pleadings] when justice so requires.” FED. R. CIV. P. 15(a)(2). Rule
16SSthe rule at issue hereSSdoes not include such language, instead merely stating that “[a]
schedule may be modified only for good cause and with the judge’s consent.” FED. R. CIV. P.
16(b)(4). Where rule 16 is at issue, district courts are entitled to “broad discretion to preserve
the integrity and purpose of the pretrial order.” Hodges, 597 F.2d at 1018.

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