     Case: 12-60017   Document: 00512250553   Page: 1   Date Filed: 05/22/2013




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

                                                                 FILED
                                                                May 22, 2013

                              No. 12-60017                      Lyle W. Cayce
                            Summary Calendar                         Clerk



LORETTA BENNETT,

                                         Plaintiff-Appellant
v.

THE GEO GROUP, INCORPORATED, doing business as East Mississippi
Correctional Facility,

                                       Defendant-Appellee
_______________________________________

Consolidated w/ 12-60348

LORETTA BENNETT,

                                         Plaintiff-Appellee
v.

THE GEO GROUP, INCORPORATED, doing business as East Mississippi
Correctional Facility,

                                         Defendant-Appellant



                Appeals from the United States District Court
                   for the Southern District of Mississippi
                                4:10-CV-133


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
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                                       No. 12-60017

PER CURIAM:*
       Plaintiff Loretta Bennett appeals from a grant of summary judgment for
Defendant The GEO Group, Inc., as to her federal employment discrimination
claims and her state law claim for negligent infliction of emotional distress.
Bennett argues that the district court erred in striking portions of her affidavit
in opposition to summary judgment, and in striking all documentary exhibits
attached to her response to summary judgment. Bennett argues that as a result
of these evidentiary decisions, the district court erred in granting summary
judgment for The GEO Group. The GEO Group cross-appeals, arguing that we
should dismiss this appeal as untimely. Although Bennett failed to timely file
her appeal, the district court extended the deadline to do so based on its finding
that the delay was due to “excusable neglect.” We hold that the district court did
not abuse its discretion in extending the deadline to file an appeal, and that its
evidentiary decisions and the grant of summary judgment were proper.
                                   I. BACKGROUND
       Plaintiff Loretta Bennett (Bennett) was employed with The GEO Group,
Inc. (GEO) from April 2005 to July 2007. Although the parties offer differing
accounts of Bennett’s tenure at GEO in their briefs, the summary judgment
record shows that in early 2006, GEO raised concerns about her conduct and
attitude, and on September 22, 2006, it provided Bennett with a letter of
instruction because she had acted insubordinately. A month after Bennett
received this letter, she filed a charge of discrimination based on race and
disability with the Equal Employment Opportunity Commission (EEOC). On
April 4, 2007, the EEOC dismissed Bennett’s charge of discrimination, and




       *
         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.

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issued her a right-to-sue letter, which provided a ninety-day window in which
Bennett could file suit based on the charges alleged. Bennett did not sue.
      Starting in January 2007, Bennett was involved in various incidents at
work that resulted in GEO taking disciplinary action against her. On April 3,
2007, Bennett filed an employee complaint with GEO claiming that a pair of
reports alleging that she acted with racial bias towards her coworkers were
efforts by Unit Administration to harass, intimidate, and discriminate against
her. In response to the complaint, GEO sent a warden from another of its
facilities to investigate her allegations. Based on this investigation, GEO found
that Bennett’s allegations were unfounded, and that there were problems with
Bennett’s work conduct, which included verbal abuse of her coworkers, open
defiance, and efforts to disrupt unit operations. Following this investigation,
Bennett was terminated from GEO, effective July 10, 2007.
      On September 20, 2007, Bennett filed a second charge of discrimination
with the EEOC, alleging that she was terminated in retaliation for filing a
previous charge of discrimination and was subjected to unwanted sexual
advances. Following an investigation, the EEOC dismissed this charge, having
found no illegal harassment or discrimination by GEO. The EEOC sent a right-
to-sue letter and notice of dismissal to Bennett on November 26, 2008.
      On May 3, 2010, Bennett filed a complaint in state court, which was
removed to federal district court. In her complaint, Bennett asserted claims of
race-based discrimination, hostile work environment, and retaliation under 42
U.S.C. § 1981. She also asserted a claim under state law for negligent infliction
of emotional distress. Despite being represented by counsel, Bennett did not
participate in discovery, failing to answer interrogatories and respond to
document production requests within the discovery period. GEO filed a motion
for summary judgment to which Bennett did not timely respond. Two months



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later, the district court sua sponte granted Bennett an extension of time to
prepare and file a response to the motion for summary judgment.
      Bennett filed her response in opposition to the motion for summary
judgment two days after the extended deadline. She attached to her response
sixty pages of documentation that had never been disclosed in accordance with
federal and local discovery rules or in response to GEO’s written requests. GEO
moved to strike Bennett’s declaration on the basis that it was a collection of
hearsay, and conclusory and self-serving allegations, along with references to
previously undisclosed and unauthenticated documents. GEO also moved to
strike exhibits “B” through “W” because they had never been disclosed during
the discovery period. After a pre-trial conference at which the district court
entertained oral arguments from both parties, the court granted in part and
denied in part GEO’s motion to strike Bennett’s declaration, granted GEO’s
motion to strike exhibits “B” through “W”, and granted GEO’s motion for
summary judgment. The district court entered its judgment on November 22,
2011. Bennett failed to file a notice of appeal within the thirty-day period
prescribed by Federal Rule of Appellate Procedure 4(a)(1).
      On January 10, 2012, Bennett filed a notice of appeal with this court. In
her notice of appeal, Bennett asserted that her case was dismissed without her
knowledge, and claimed that she had not heard from her attorney since its
dismissal. Because Bennett filed her notice of appeal after the Rule 4(a)(1)
deadline, the district court allowed her to file a statement explaining why the
court should find excusable neglect or good cause to extend the deadline. Bennett
responded that her attorney misrepresented her and was paid off by GEO to
sabotage her case. Bennett further indicated that her attorney did not reply to
her inquiries or inform her that her case had been dismissed. Rather, Bennett
claimed that she learned of the dismissal of her case two weeks after it was
entered, and contacted the court about filing an appeal on her own.

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      On April 19, 2012, the district court concluded that Bennett had shown
excusable neglect, and therefore allowed her to proceed with her appeal. GEO
filed a notice of appeal to challenge this ruling.
                               II. DISCUSSION
A.    Excusable Neglect
      We review a ruling on a Rule 4(a)(5) motion based on a determination of
excusable neglect for an abuse of discretion. See Stotter v. Univ. of Tex. at San
Antonio, 508 F.3d 812, 820 (5th Cir. 2007). We grant more leeway to a district
court’s determination of excusable neglect when the district court grants the
motion for an extension of time. See Midwest Emp’rs Cas. Co. v. Williams, 161
F.3d 877, 879 (5th Cir. 1998). In assessing excusable neglect under Rule 4(a)(5),
we use an equitable standard, “taking account all of the relevant circumstances
surrounding the party’s omission,” including “the danger of prejudice,” “the
length of the delay and its potential impact on judicial proceedings, the reason
for the delay, including whether it was within the reasonable control of the
movant, and whether the movant acted in good faith.” Id. (quoting Pioneer Inv.
Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993)).
      Applying this standard, the district court determined that the late filing
of Bennett’s notice of appeal was due to excusable neglect. The district court
based its judgment on several findings related to the Pioneer standard, which
included: (1) Bennett called the clerk of court upon learning that her case had
been dismissed, “evinc[ing] a prompt desire to prosecute her case”; (2) Bennett
mailed her notice of appeal on the thirty-second day after she learned that her
case had been dismissed; (3) the delay was “relatively brief”; (4) there was no
evidence that Bennett acted in bad faith; and (5) there was no evidence that
GEO would suffer prejudice. The district court held that these facts, taken
together, were sufficient to find excusable neglect.



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      The district court may have erred in not attributing to Bennett the fault
of her attorney. Nevertheless, its decision to extend the filing deadline was not
an abuse of discretion. Several cases where an untimely filing resulted from
counsel’s ignorance or neglect support this conclusion. For example, in Stotter,
508 F.3d 812, the plaintiff’s counsel accidentally entered the incorrect year into
her calendar, which resulted in an untimely filing. Id. at 820. We determined
that the attorney’s error, weighed against the other relevant factors, constituted
excusable neglect. Id. In Pioneer, a bankruptcy case, the Supreme Court held
that the respondents’ counsel’s failure to comply with the bar date was due to
the unusual and ambiguous notice of that date, and therefore, all things
considered, was excusable neglect. 507 U.S. at 398-99. Stotter and Pioneer
demonstrate that where attorneys fail to file in a timely fashion because of
“inadvertence, mistake, or carelessness,” the neglect may be excusable. Id. at
388. Moreover, these cases reinforce the fact an equitable standard is used to
determine excusable neglect. See Midwest Emp’rs Cas. Co., 161 F.3d at 879. In
light of the equitable nature of the test, and given the fact that the district court
weighed the majority of the Pioneer factors in arriving at its conclusion on this
issue, we cannot say that the district court’s finding of excusable neglect was an
abuse of discretion.
B.    Evidentiary Decisions
      1.     Discovery Sanctions
      The district court struck as untimely exhibits “B” through “W” attached
to Bennett’s response in opposition to summary judgment because Bennett did
not comply with disclosure requirements during the discovery process. Federal
Rule of Civil Procedure 37 “empowers the district court to compel compliance
with Federal discovery procedures through a broad choice of remedies and
penalties.” Griffin v. Aluminum Co. of Am., 564 F.2d 1171, 1172 (5th Cir. 1977).
For example, the district court may prohibit a party that fails to provide initial

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disclosures from “us[ing] that information or witness to supply evidence on a
motion, at a hearing, or at a trial, unless the failure was substantially justified
or is harmless.” Fed. R. Civ. P. 37(c)(1).
       The district court is given broad discretion in formulating sanctions for
a violation of its scheduling or pre-trial orders. See Barrett v. Atl. Richfield Co.,
95 F.3d 375, 380 (5th Cir. 1996); Geiserman v. MacDonald, 893 F.2d 787, 790-91
(5th Cir. 1990). We have given the following guidance to district courts regarding
sanctions for discovery violations:
      In exercising its discretion in considering the imposition of sanctions
      for discovery violations, a district court should consider the
      following factors: (1) the reasons why the disclosure was not made;
      (2) the amount of prejudice to the opposing party; (3) the feasibility
      of curing such prejudice with a continuance of the trial; and (4) any
      other relevant circumstances.
United States v. Garza, 448 F.3d 294, 299-300 (5th Cir. 2006). We review the
district court’s imposition of a discovery sanction for abuse of discretion. See
Rubinstein v. Adm’rs of Tulane Educ. Fund, 218 F.3d 392, 397-98 (5th Cir.
2000). We will only reverse a discovery ruling in “unusual and exceptional
cases.” Sierra Club, Lone Star Chapter v. Cedar Point Oil Co., 73 F.3d 546, 569
(5th Cir. 1996). This case is neither unusual nor exceptional, and we therefore
allow the district court’s discovery ruling to stand.
      The record shows Bennett’s total failure to comply with court orders at
various stages of the litigation. During the discovery period, Bennett did not
serve any of the initial disclosures required by Federal Rule of Civil Procedure
26, and did not respond to any of GEO’s discovery requests. Bennett did not
timely reply when GEO moved for summary judgment. Although the district
court ordered Bennett to reply to the motion for summary judgment by a certain
date, she replied two days after that date. When GEO moved to strike exhibits
attached to Bennett’s initially untimely response to summary judgment, Bennett


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did not timely respond to GEO’s motion. The district court sua sponte granted
Bennett additional time, after the pre-trial conference, in which to respond to
GEO’s motion, yet Bennett still did not respond or request a continuance. Only
after giving Bennett extra time to respond did the district court strike exhibits
“B” through “W.” We find Bennett’s arguments as to why a lesser sanction
should have been imposed, which rely on nonbinding and inapposite caselaw
concerning dismissal of an action, unavailing. Accordingly, we find that the
district court did not abuse its discretion in striking these exhibits.
      2.     Summary Judgment Evidence
      The district court also struck certain portions of Bennett’s affidavit, which
was attached as an exhibit to her response in opposition to summary judgment.
Specifically, the district court struck certain portions of Bennett’s declaration
that were conclusory, were hearsay, were based only on Bennett’s subjective
belief, contained legal arguments, or otherwise lacked a sufficient factual basis.
The district court’s decision to strike these portions was rooted in the basic
summary judgment principle that “[c]onclusional allegations and denials,
speculation, improbable inferences, unsubstantiated assertions, and legalistic
argumentation do not adequately substitute for specific facts showing a genuine
issue for trial.” Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002). In addition, the
district court struck statements based solely upon exhibits “B” through “W,”
reasoning that there would be no point in allowing evidence previously stricken
by a discovery sanction to be revived by an affidavit. The district court “has
broad discretion in its decisions to admit evidence. We will not disturb these
rulings unless we find an abuse of discretion.” United States v. Torres, 114 F.3d
520, 525-26 (5th Cir. 1997).
      Bennett has failed to argue that the district court’s decision to strike
various statements in her affidavit was an abuse of discretion. We note that
Bennett has not pointed to any error in the district court’s decision to strike

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portions of her declaration that contained hearsay or legal conclusions. She
appears to take issue only with the striking of portions that make assertions
based on evidence introduced in exhibits “B” through “W,” which the district
court previously struck with a discovery sanction. Based on our review of the
record, we do not find that the district court abused its discretion in striking
statements that it found conclusory, to be hearsay, or to contain legal
statements. Nor do we find that the district court abused its discretion in
striking statements based solely upon exhibits “B” through “W,” since it had
previously struck those exhibits. Because the district court did not abuse its
discretion in striking Bennett’s evidence, we view the record upon which the
district court granted summary judgment as complete.
C.    Summary Judgment
      We review the grant of summary judgment de novo. Reed v. Neopost USA,
Inc., 701 F.3d 434, 438 (5th Cir. 2012). Summary judgment is proper when 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); Reed, 701 F.3d at 438. We
may “affirm summary judgment on any ground supported by the record, even if
it is different from that relied on by the district court.” Reed, 701 F.3d at 438
(citation and internal quotation marks omitted).
      The district court granted summary judgment for GEO based principally
on its finding that there was insufficient record evidence to create a genuine
issue of material fact with respect to all of Bennett’s claims. We agree. In
addition, we find Bennett’s arguments on appeal unavailing. Bennett argues
that the district court erred in granting summary judgment for GEO because
there were “contradictions of material facts [sic].” Bennett also alleges that the
district court’s understanding of the facts of the case is “contradicted by the
record,” and that the district court made improper “credibility choices” as to the
evidence. In sum, Bennett appears to argue that summary judgment was

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inappropriate because the evidence the district court struck from the record
conflicts with the record evidence upon which the district court properly relied
in its judgment. As we have determined that the district court’s evidentiary
decisions were proper, and because Bennett does not appear to challenge the
grant of summary judgment on grounds other than the propriety of these
evidentiary decisions, we find that the district court did not err in granting
summary judgment for GEO.
                             III. CONCLUSION
      For the reasons provided, we AFFIRM the district court’s judgment.




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