                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-30-2003

Miller v. Ashcroft
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-4028




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                    No. 02-4028


                               SAMUEL L. MILLER,
                                            Appellant

                                         v.

                        JOHN ASHCROFT, Attorney General;
                        DEPARTMENT OF JUSTICE, Federal
                               Bureau of Prisons


           APPEAL FROM THE UNITED STATES DISTRICT COURT
             FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                          D.C. Civil No. 01-cv-01829
              Magistrate Judge: The Honorable J. Andrew Smyser


                    Submitted Under Third Circuit LAR 34.1(a)
                               September 11, 2003


              Before: ALITO, BARRY, and AM BRO, Circuit Judges


                         (Opinion Filed: September 30, 2003)


                                     OPINION




BARRY, Circuit Judge

     Appellant Samuel Miller is an African-American employee of the federal Bureau
of Prisons (BOP). Miller alleges that his January 2, 2000 demotion from the position of

case manager to that of corrections officer, and the one-day disciplinary suspension

imposed March 8, 1999, were the result of racial discrimination and unlawful retaliation

in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42

U.S.C. § 1981. Miller further alleges that his demotion and suspension breached the

settlement agreement which resolved his prior employment discrimination action against

the BOP.

       Miller now appeals the M agistrate Judge’s October 2, 2002 grant of the BOP’s

motion for summary judgment. 1 Miller’s challenge is founded largely upon his

contention that the Magistrate Judge abused his discretion in denying various motions

made by Miller concerning discovery and motion deadlines. In essence, Miller argues

that because these motions were denied, he was unable to file a timely response to the

BOP’s summary judgment motion, and that the M agistrate Judge thus erred in

considering that motion unopposed.

       We have jurisdiction over the appeal pursuant to 28 U.S.C. §§ 636(c)(3) and 1291.

We conclude that the Magistrate Judge did not abuse his discretion in denying Miller’s

motions concerning discovery and motion deadlines, including the denial of Miller’s

motion for an extension of time to file an opposition to the BOP’s summary judgment




   1
   The parties in this case consented to conduct the case before a United States
Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1).

                                             2
motion and his motion to file a brief nunc pro tunc. Accordingly, the Magistrate Judge

properly treated the BOP’s statement of facts in support of its motion as admitted, and

correctly held that the BOP had established valid, non-discriminatory reasons for Miller’s

suspension and demotion. We will, therefore, affirm.




                                              I.

       Miller started work as a corrections officer at the maximum security prison

operated by the BOP in Lewisburg, Pennsylvania in March of 1987. In 1989, he applied

for a promotion to the position of case manager. When he was not promoted, he filed an

administrative complaint contending that he had been passed over due to his race and

physical condition (Miller is a diabetic). As a result of that complaint, Miller was made a

case manager trainee in 1992. When the BOP ultimately decided not to promote him to

that position, Miller filed an employment discrimination lawsuit in federal court in 1993.

After a jury found in his favor, the BOP entered into a settlement agreement with him

which mandated, inter alia, his promotion to case manager.

       In his current complaint, Miller alleges that soon after he was promoted, his

supervisors at the Lewisburg prison treated him unfavorably in comparison to his co-

workers in retaliation for his success in his first lawsuit and because of his race.

According to the complaint, his supervisors subjected him to “hyper-scrutiny” and

“micro-management” as well as disparate application of work and leave rules. The



                                              3
complaint alleges that this disparate treatment culminated in the events that resulted in his

one-day suspension and ultimate demotion.

       Miller filed the complaint on September 19, 2001 and, after some preliminary

delays in scheduling a case management conference, the Magistrate Judge entered a case

management order on February 22, 2002. The order provided that all discovery was to be

complete by July 1, 2002, and that the deadline for dispositive motions was August 1,

2002. The order also expressly cautioned the parties that “extensions of the discovery

period will be granted only when good cause arises and application is timely made,” and

explained that “[g]ood cause shall be found only when new circumstances have occurred

that could not reasonably have been anticipated and that are of an extraordinary nature.”

       As the discovery deadline neared, the BOP moved for a one-month extension of

that deadline due to defense counsel’s illness and time spent preparing for trial in an

unrelated case. The Magistrate Judge granted this consent motion on July 2, 2002, set a

new discovery deadline of August 1, 2002, and extended the deadline for dispositive

motions to September 1, 2002.

       On July 25, 2002, one week before the revised discovery deadline, Miller moved

for a one-month extension. In the motion, counsel alleged that he had served discovery

requests and interrogatories in late April 2002, but that the BOP had only responded on

July 24, 2002 despite counsel’s repeated inquiries in late May. Counsel further alleged

that the defendants’ responses to his interrogatories were insufficient to allow him to



                                             4
determine which individuals he needed to depose in advance of trial. In response,

defense counsel alleged that Miller’s discovery requests were not properly served until

June 26, 2002, and denied having been contacted by counsel in late May. Further,

defense counsel contended that his response to Miller’s discovery requests was complete,

and noted that the joint case management plan filed by the parties on December 28, 2001

had identified four individuals that Miller could have deposed. Defense counsel also

emphasized that Miller had already received most of the document discovery he had

requested, as well as affidavits from most of the relevant witnesses, during the course of

administrative proceedings before the Equal Employment Opportunity Commission

(EEOC) prior to filing the complaint.

       On August 1, 2002, the Magistrate Judge issued an order, faxed to the parties,

scheduling a hearing on Miller’s motion for an extension for 1:30 pm on August 6, 2002.

The day after Miller’s counsel failed to appear for the scheduled hearing, an order was

entered denying Miller’s motion. Two weeks later, on August 21, 2002, Miller filed a

motion to compel discovery pursuant to F.R.Civ.P. 37, which essentially reiterated the

reasons he had given in his July 25 motion to extend the discovery deadline. Miller’s

motion to compel failed to comply with several local rules of the Middle District of

Pennsylvania: it did not state whether defense counsel consented to the motion, it did not

contain a certification that counsel had made an attempt to resolve the dispute without

court intervention, and it was not accompanied by a supporting brief. See M.D. Pa. R. 7.1,



                                             5
7.5 & 26.3.

       On September 3, 2002, the BOP filed a motion for summary judgment. 2 The

statement of material facts in support of the motion set forth the circumstances of Miller’s

one-day suspension and subsequent demotion. According to the local rules, Miller’s

opposition to the motion was due on September 23, 2002.3 The day after his opposition

was due, on September 24, 2002, Miller moved for a five-week extension of time in

which to file opposition papers. In the motion, counsel stated that he had mistakenly

believed that the relevant rules gave him 23 days, instead of 18, to file opposition. He

further stated that had been out of the office for two weeks before the BOP’s motion was

filed and had been ill for three days after it was filed.

       Three days later, on September 27, 2002, the Magistrate Judge denied Miller’s

motion for an extension of time to respond. On September 30, 2002, Miller’s counsel

moved for reconsideration of that denial, simply reiterating his contentions in the original

motion for an extension, and adding only that he had also been occupied with moving

plans and that the associate working on Miller’s opposition had unexpectedly accepted

employment elsewhere. That same day, Miller also filed a response to the BOP’s



   2
    Because the September 1, 2002 deadline for dispositive motions fell on a Sunday,
and the following Monday, September 2, was a federal holiday, the September 3 filing
was timely.
   3
    Local Rule 7.6 requires that opposition to a motion be filed within fifteen days of
service of the movant’s brief, F.R.Civ.P. 6(e) added three days to this period, and Miller
had two extra days because the due date fell on a Saturday.

                                               6
statement of undisputed facts along with various exhibits, but no supporting brief.

       The very next day, Miller filed yet another motion, this time to strike the BOP’s

motion for summary judgment. The motion to strike essentially argued that the BOP’s

failure to timely and fully respond to Miller’s interrogatories warranted the sanction he

was seeking. Miller also filed a brief in opposition to the summary judgment motion,

along with a motion for an extension of time to file the brief nunc pro tunc.

       On October 2, 2002, the Magistrate Judge granted the BOP’s summary judgment

motion as to Miller’s discrimination claims and dismissed Miller’s claim based on breach

of the settlement agreement for lack of subject matter jurisdiction. In his opinion, the

Magistrate Judge treated the BOP’s statement of material facts and exhibits in support of

the motion for summary judgment as uncontested due to M iller’s failure to file a timely

opposition. The Magistrate Judge thus held that Miller had failed to establish a prima

facie case of racial discrimination or retaliation, and that, in any event, the BOP had

shown legitimate, non-discriminatory reasons for suspending and demoting Miller based

upon his refusal to follow orders and his consistently poor job performance. The

Magistrate Judge also explained that Miller’s motion to compel, which was still pending,

was deemed withdrawn due to his failure to file a supporting brief. On the next day,

October 3, 2002, the Magistrate Judge issued separate orders summarily denying Miller’s

pending motions for reconsideration of his motion for an extension of time to file

opposition to the summary judgment motion, and his motion for leave to file an



                                              7
opposition brief nunc pro tunc.

       On October 11, 2002, Miller moved for reconsideration of the grant of summary

judgment. On November 22, 2002, the Magistrate Judge denied that motion as well as

Miller’s earlier motion to strike. The Magistrate Judge noted that Miller had not

presented any newly discovered evidence, and concluded that “[t]he plaintiff failed to

timely oppose the motion for summary judgment and we conclude that we did not commit

error in holding the plaintiff to the consequences of that failure.” As to the motion to

strike, he concluded that Miller’s allegations of the BOP’s insufficient discovery

responses should have been presented in a timely and properly briefed motion to compel.




                                             II.

       On appeal, Miller argues that the Magistrate Judge’s denial of his numerous

motions, particularly those motions seeking to file a late response to the BOP’s summary

judgment motion or requesting that the Magistrate Judge consider his late-filed response

and exhibits, effectively denied him his day in court. Miller contends that his late-filed

opposition to the summary judgment motion and supporting exhibits indicate the

existence of triable issues of fact which would have precluded the grant of summary

judgment. He insists that, in these circumstances, the Magistrate Judge’s refusal to grant

an extension of time or to consider his late-filed opposition, especially where the lateness

of the filing would have resulted in no prejudice to the defendants, constitutes reversible



                                             8
error.

         As Miller concedes, however, our review of the Magistrate Judge’s denial of each

of his motions – to extend the discovery deadline, to compel discovery, for an extension

of time to file his opposition to the summary judgment motion, to allow him to file a late

opposition, to strike defendants’ summary judgment motion, and for reconsideration of

the grant of summary judgment – is for abuse of discretion. See In re Fine Antitrust Litig.,

685 F.2d 810, 817 (3d Cir. 1982) (“Appellants have a heavy burden to bear . . . as matters

of docket control and conduct of discovery are committed to the sound discretion of the

trial court.”); see also, e.g., In re Cendant Corp. PRIDES Litig., 235 F.3d 176, 181 (3d

Cir. 2000) (motion for reconsideration); Armstrong v. Dwyer, 155 F.3d 211, 214 (3d Cir.

1998) (motion to compel discovery). Under the abuse of discretion standard, “[w]e will

not interfere with a trial court’s control of its docket ‘except upon the clearest showing

that the procedures have resulted in actual and substantial prejudice to the complaining

litigant.” In re Fine Antitrust Litig., 685 F.2d at 817 (quoting Eli Lilly & Co. v. Generix

Drug Sales, Inc., 460 F.2d 1096, 1105 (5 th Cir. 1972)). Likewise, a trial court’s conduct

of discovery procedures will be affirmed “absent ‘a demonstration that the court’s action

made it impossible to obtain crucial evidence, and implicit in such a showing is proof that

more diligent discovery was impossible.’” Id. at 818 (quoting Eli Lilly & Co., 460 F.2d at

1105).

         After a thorough review of the record and careful consideration of Miller’s



                                              9
arguments, we conclude that he has not carried his “heavy burden” of showing that the

Magistrate Judge abused his discretion in denying Miller’s myriad motions filed in an

attempt to overcome what appears to be counsel’s lack of diligence in prosecuting the

case. At the outset, concerning discovery, we note that Miller has never – not in his

various motions nor in his briefs on appeal – effectively refuted the BOP’s contentions

that he did not properly serve his discovery requests and interrogatories until June 26,

2002 and that it fully responded to his requests on July 24, 2002. Miller also has not

refuted the BOP’s contention that he learned the identities of relevant witnesses and

received most of the relevant documents over the course of the EEOC investigation.

Finally, Miller has not explained why he failed to depose the four key witnesses identified

by the BOP in the joint case management plan filed by the parties or why he never

inspected the relevant documents also identified therein.

       Ultimately, Miller fails to identify a single relevant witness or document that was

not identified or made available to him at some point either before or during the discovery

period, a failure no doubt aggravated by his counsel’s failure to attend the hearing on his

July 25, 2002 motion for an extension of the discovery deadline. The M agistrate Judge’s

denial of Miller’s motions based upon the BOP’s allegedly dilatory discovery responses –

his July 25, 2002 motion to extend the discovery deadline, his August 21, 2002 motion to

compel, and his October 1, 2002 motion to strike defendants’ summary judgment motion

– was not an abuse of discretion. If Miller was deprived of any crucial evidence in this



                                            10
case, it was surely not attributable to the Magistrate Judge’s denial of his motions but,

rather, to counsel’s lack of diligence.

       Turning to the Magistrate Judge’s denial of Miller’s motions seeking relief from

his failure to file a timely opposition to the BOP’s motion for summary judgment, we

likewise discern no abuse of discretion. Miller was properly served with the summary

judgment motion on September 3, 2002. Local Rule 7.6 provides that “[a]ny party

opposing any motion shall file a responsive brief, together with any opposing affidavits,

deposition transcripts or other documents within fifteen days after service of the movant’s

brief.” Thus, after adding the three additional days provided by F.R.Civ.P. 6(e) and

accounting for the fact that September 21 fell on a Saturday, Miller’s opposition was due

on September 23, 2002. Miller filed his motion for an extension of time to submit an

opposition on September 24, 2002, the day after his opposition itself was due.

       Even if we accept as true the multitude of excuses proffered by Miller’s counsel

for his failure to file a timely opposition – that counsel had miscalculated the deadline,

had been ill for three days after the motion was filed, and had been unable to contact

opposing counsel after he realized his mistake on September 20 – counsel failed to

explain why he could not have at least requested an extension at some point during the

twenty days before the filing deadline. In these circumstances, where counsel was well

aware that the BOP’s dispositive motion was due on September 1, 2002, had been

properly served with the motion on September 3, and where counsel had failed to appear



                                             11
at a scheduled hearing on his own earlier motion for a separate extension two weeks

earlier, the Magistrate Judge’s denial of Miller’s motion for an extension does not amount

to an abuse of discretion. It follows from this conclusion that it was also well within the

Magistrate Judge’s discretion to deny Miller’s subsequent September 30, 2002 motion for

reconsideration and October 1, 2002 motion for leave to file an opposition nunc pro tunc.

Each of these motions simply asked the Magistrate Judge to reconsider his earlier denial

of an extension, without proffering any additional arguments or new reasons.

       Our holding that the Magistrate Judge did not abuse his discretion in denying

Miller’s motions, however, does not end our inquiry. Even though the applicable local

rules provide that a summary judgment motion is to be considered unopposed and its

statement of material facts admitted where a responsive brief is not timely filed, see M.D.

Pa. R. 7.6 & 56.1, the Magistrate Judge was still required to find that the undisputed facts

warranted judgment as a matter of law. See Fed. R. Civ. P. 56; Lorenzo v. Griffith, 12

F.3d 23, 28 (3d Cir. 1993); Anchorage Assocs. v. Virgin Island Board of Tax Review,

922 F.2d 168, 175 (3d Cir. 1990). In other words, the Magistrate Judge “must determine

that the deficiencies in the opponent’s evidence designated in or in conjunction with the

motion entitle the moving party to judgment as a matter of law.” Anchorage Assocs., 922

F.2d at 175.

       It is clear from the Magistrate Judge’s written opinion, however, that he did not

grant the BOP’s motion for summary judgment solely because it was unopposed, but



                                            12
properly analyzed the motion under the familiar burden-shifting analysis applicable to

discrimination claims established in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). Our review of the application of the McDonnell Douglas analysis is plenary.

Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994).

       It is well understood that under McDonnell Douglas, the plaintiff bears the burden

of adducing sufficient evidence to establish a prima facie case of discrimination. If he

succeeds, the burden shifts to the defendant to show a legitimate, non-discriminatory

reason for the adverse employment action. If the defendant makes such a showing, the

plaintiff must adduce sufficient evidence to allow a reasonable jury to infer that the

defendant’s stated reason for the adverse action was a pretext for unlawful discrimination.

See McDonnell Douglas, 411 U.S. at 803-04; Fuentes, 32 F.3d at 763.

       Because the evidence submitted in support of the summary judgment motion

primarily focused on the reasons for suspending and demoting Miller, we will assume for

the sake of this appeal that Miller would have been able to establish a prima facie case of

discrimination if he had timely filed an opposition to the BOP’s motion. Moving to the

second step of the McDonnell Douglas analysis, then, the record is clear that the BOP

proffered legitimate, non-discriminatory reasons for Miller’s suspension and demotion.

As to the suspension, the affidavits submitted by the BOP clearly establish that on July

22, 1998, internal affairs investigator Robby Wilson explained to Miller that he was not at

that time under investigation for misuse of sick leave and would have plenty of time to



                                             13
prepare for such an investigation if one was initiated. The affidavit of Miller’s

supervisor, Anthony Alexander, explains that he suspended Miller for one day because,

despite being informed that he was not under investigation, Miller refused to return to

work for over an hour and repeatedly insisted that he be given emergency administrative

leave to prepare for the investigation.

       The evidence also establishes non-discriminatory reasons for Miller’s ultimate

demotion. A March 25, 1999 letter from Alexander to Miller clearly explained that

Miller had failed to complete several work tasks by established deadlines and had failed

to properly perform other specified tasks. The letter also set forth a “performance

improvement plan” which outlined the work performance improvements that Miller had

to make to retain his job. A subsequent September 22, 1999 letter from Associate

Warden Sniezek to Miller in turn clearly explained that Miller’s performance had failed to

improve and detailed as examples numerous work assignments that he had failed to

complete, assignments long overdue, or completed assignments rife with errors. In light

of these painstakingly specified performance deficiencies, Snizek recommended Miller’s

demotion.

       This detailed documentation showing that Miller’s job performance problems

continued even after he was given six months to meet defined minimal performance

standards convincingly establishes a non-discriminatory reason or reasons for his

demotion. Because Miller failed to timely submit anything which could show that these



                                            14
documented non-discriminatory reasons for the suspension and termination were

pretextual, the Magistrate Judge correctly concluded that the federal defendants were

entitled to judgment as a matter of law. Moreover, after reviewing the limited evidence

Miller submitted in support of his untimely opposition to the summary judgment motion,

we conclude that it is insufficient, in any event, to allow a reasonable jury to find that the

BOP’s stated reasons for the suspension and demotion were pretextual. “[T]o avoid

summary judgment, the plaintiff’s evidence rebutting the employer’s proffered legitimate

reasons must allow a factfinder reasonably to infer that each of the employer’s proffered

non-discriminatory reasons was either a post hoc fabrication or otherwise did not actually

motivate the employment action.” Fuentes, 32 F.2d at 764. Miller’s evidence, consisting

almost entirely of his own uncorroborated allegations of disparate treatment, simply does

make the requisite showing.

       We will affirm the October 2, 2002 order of the Magistrate Judge granting the

motion for summary judgment and dismissing the complaint. 4




   4
     We note that the Magistrate Judge also properly dismissed Miller’s discrimination
claim under 42 U.S.C. § 1981 as preempted by Title VII, see Brown v. General Servs.
Admin., 425 U.S. 820, 835 (1976), and his breach of contract claim for lack of
jurisdiction. In any event, Miller has waived these claims by failing to challenge them on
appeal.

                                              15
TO THE CLERK OF THE COURT:

    Kindly file the foregoing Opinion.




                                         /s/ Maryanne Trump Barry
                                         Circuit Judge
