     Case: 11-10236     Document: 00511660146         Page: 1     Date Filed: 11/09/2011




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

                                                                            FILED
                                                                         November 9, 2011
                                     No. 11-10236
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

DEREK WILLIAM THOMAS,

                                                  Plaintiff-Appellant

v.

JANET NAPOLITANO, SECRETARY, DEPARTMENT OF HOMELAND
SECURITY,

                                                  Defendant-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:10-CV-265


Before DAVIS, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
        In this Title VII employment discrimination action, Derek Thomas appeals
the grant of summary judgment in favor of Janet Napolitano, the Secretary of
the Department of Homeland Security (DHS). We reverse and remand.
        Thomas is employed as a Federal Air Marshal in the Dallas Field Office
of the Transportation Safety Administration (TSA), a part of the DHS. He filed
the instant lawsuit, alleging that, when he was diagnosed as a Type I


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-10236    Document: 00511660146    Page: 2   Date Filed: 11/09/2011

                                 No. 11-10236

(insulin-dependent) diabetic, he was denied flight status and light duty and thus
required to expend all of his sick leave and annual leave or be forced to retire.
He alleged that this constituted discrimination based on disability and on
gender, because some women air marshals were given light duty. He also
alleged that the DHS retaliated against him for complaining about the
discrimination.     The district court granted summary judgment based on
Thomas’s failure to properly exhaust administrative remedies.
      We review summary judgment de novo, applying the same standard as the
district court. Jefferson Block 24 Oil & Gas, L.L.C. v. Aspen Ins. UK Ltd., 652
F.3d 584, 588 (5th Cir. 2011). Summary judgment is appropriate if the record
discloses “that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” FED . R. CIV. P. 56(a). “A
party asserting that a fact cannot be or is genuinely disputed must support the
assertion by” citing to the record or “showing that the materials cited do not
establish the absence or presence of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support the fact.” Rule 56(c)(1). “A
genuine issue of material fact exists if the evidence is such that a reasonable
jury could return a verdict for the non-moving party.” Jefferson Block, 652 F.3d
at 588 (internal quotation marks and citation omitted).        “When assessing
whether a dispute to any material fact exists, we consider all of the evidence in
the record but refrain from making credibility determinations or weighing the
evidence.” Id. (internal quotation marks and citation omitted). Where “the
moving party’s evidence is so sheer that it may not persuade the reasonable
fact-finder to return a verdict in favor of the moving party” summary judgment
can be defeated. International Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257,
1265 (5th Cir.1991). “Therefore, the court must be vigilant to draw every
reasonable inference from the evidence in the record in a light most flattering
to the nonmoving party.” Id. at 1266; see Citigroup Inc. v. Federal Ins. Co., 649
F.3d 367, 371 (5th Cir. 2011) (noting that the reviewing court must “construe all

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                                  No. 11-10236

facts and inferences in the light most favorable to the nonmoving party”).
Summary judgment is generally disfavored on issues of a party’s state of mind,
such as good faith. See International Shortstop, 939 F.2d at 1265-66 & n.8.
      We also review de novo the district court’s conclusion concerning
exhaustion. Pacheco v. Mineta, 448 F.3d 783, 788 (5th Cir. 2006). A federal
employee must exhaust his administrative remedies against his employer before
suing under Title VII. Francis v. Brown, 58 F.3d 191, 192 (5th Cir. 1995).
Administrative remedies are exhausted when the federal agency gives notice of
its final action, or when 180 days have passed since the initial formal charge was
filed with the agency. 42 U.S.C. § 2000e-16(c); Martinez v. Department of U.S.
Army, 317 F.3d 511, 513 (5th Cir. 2003); Munoz v. Aldridge, 894 F.2d 1489,
1493-94 (5th Cir. 1990).
      The “180-day rule does not create an absolute right” to sue. Martinez, 317
F.3d at 512. “‘[N]otwithstanding the passage of 180 days, plaintiffs who resort
to the administrative process but do not cooperate in the proceedings can
thereby fail to exhaust their administrative remedies.’” Martinez, 317 F.3d at
512 (quoting Munoz, 894 F.2d at 1493). Nonetheless, all that is required of the
employee is a good-faith effort “to cooperate with the agency and the EEOC and
to provide all relevant, available information.”     Munoz, 894 F.2d at 1493
(internal quotation marks, emphasis, and citation omitted).        “The test for
cooperation in the administrative process is a common sense one, geared to the
functional demands of dispute resolution, and merely abandoning an
administrative process does not constitute noncooperation.” Martinez, 317 F.3d
at 513 (internal quotation marks and citation omitted).
      Thomas was in compliance with the 180-day rule when he withdrew from
the administrative proceeding. The only issue for summary judgment was
whether he made a good-faith effort to cooperate with the agency and to provide
all relevant information. See Munoz, 894 F.2d at 1493.



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      There is no precise definition of good-faith participation, but our decisions
suggest that a finding of a lack of good requires some sort of obstruction by the
plaintiff or a specific and affirmative refusal to cooperate. For example, in
Barnes v. Levitt, 118 F.3d 404, 409 (5th Cir. 1997), the plaintiff “repeatedly
refused to answer questions, provide details, make a statement, give a deposition
or even sign her complaint” thus depriving the EEOC of “the information it
needed to pursue and resolve” her dispute. There were also “inconsistencies
between her formal and informal complaints.” Id. In Francis v. Brown, 58 F.3d
191, 193 (5th Cir. 1995), the plaintiff was held not to have cooperated by refusing
a settlement that provided full relief. In Merriman v. Potter, 251 F. App’x 960,
964 (5th Cir. 2007), the plaintiff refused to provide requested back-pay forms
that were necessary to quantify her claim. Further, in Boswell v. Department
of Treasury, Office of Comptroller of Currency, 979 F.Supp. 458, 462-64 (N.D.
Tex. 1997), a decision cited by the DHS in the district court, the plaintiff refused
to comply with discovery requests and defied an order to present documents for
in camera inspection. By contrast, in Munoz, there was no lack of good faith
where the plaintiffs “spent far longer in the administrative phase than the 180
days required by the statute,” and where the administrative record did not show
“that the lack of progress in the administrative proceedings was . . . attributable
to [the plaintiffs].” Munoz, 894 F.2d at 1492.
      The district court found that Thomas had not cooperated in good faith
based solely the fact that his withdrawal occurred about a week after the DHS
sought his deposition and informed him that he would bear the cost of deposing
a TSA witness. The district court accepted the DHS’s assertion that Thomas
withdrew “apparently to extricate himself from discovery.” (Emphasis added.)
Yet the court rejected as conclusory Thomas’s assertion that the record showed
he “acted in good faith at all times and did not fail to cooperate” and that “he did
everything he reasonably could do” as a pro se claimant.



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      The DHS’s only evidence of bad faith was Thomas’s decision to take the
case to federal court after his deposition was noticed and he was informed, to his
evident surprise, that he would have to pay the costs of deposing a TSA witness.
While the timing of the withdrawal might imply a desire to avoid administrative
discovery, the district court improperly made this critical inference in favor of
the DHS as the moving party rather than in favor of Thomas as the nonmovant.
See International Shortstop, 939 F.2d at 1266 (noting that “every reasonable
inference” must be made in favor of the nonmoving party). Other reasonable
inferences were possible, including that the timing of the withdrawal was a mere
coincidence having nothing to do with avoiding discovery. Indeed, nothing
suggests that administrative discovery was anticipated to be especially onerous
or contentious, where the DHS evidently had not filed any interrogatories but
had merely noticed Thomas’s deposition. Further, Thomas does not appear to
have benefitted greatly from “avoiding” his deposition where he also gave up his
opportunity depose a TSA witness. Moreover, filing a federal lawsuit is hardly
an effective ploy to avoid discovery, given the breadth of federal discovery
practice. Cf. FED. R. CIV. P. 26 (general discovery provisions).
      Even if the court’s inference in favor of the DHS were correct, avoiding
administrative discovery is not itself a sign of bad faith. We first note as a
general matter, that administrative discovery is “avoided” by coincidence in
every case where a plaintiff withdraws under the 180-day rule, unless discovery
has already been completed or none is expected. Moreover, Munoz shows that
ongoing discovery at the time of withdrawal does not establish a lack of
cooperation. See Munoz, 894 F.2d at 1493 (indicating that the administrative
proceeding was “mired” in discovery although there had been no action for 180
days). Munoz also rejected the contention that bad faith is shown by merely
hoping for “a better deal” in federal court. Id. at 1493.
      In addition, the DHS failed to show that Thomas ever withheld or failed
to provide any specific information or type of information so as to deprive the

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EEOC of what it needed to resolve his claims. Rather, the record shows that
Thomas set forth ample facts and information concerning his contentions and
that the DHS was well able to acknowledge and summarize those contentions.
The record also shows that Thomas consulted the administrative law judge
before making his decision.
        The chronological evidence provided by the DHS as to Thomas’s state of
mind is “sheer” and wholly dependent upon an improper inference in favor of the
DHS rather than Thomas. See International Shortstop, 939 F.2d at 1265. The
DHS’s contention is therefore reduced in essence to an assertion that withdrawal
is per se an act of bad faith because it might have the coincidental effect of
curtailing administrative discovery. We rejected a similar a premise in Munoz.
See Munoz, 894 F.2d at 1493; see also Martinez, 317 F.3d at 513-14.
        In addition, Thomas’s assertions in opposing summary judgment, which
the district court rejected as conclusory, were assertions about his own state of
mind. State of mind, including good faith, is factual issue, difficult to resolve
without testimony, and this case demonstrates why summary judgment is
disfavored for state-of-mind questions. See International Shortstop, 939 F.2d at
1266.
        The DHS failed to carry either its legal or factual burden of showing that
it was entitled to judgment as a matter of law because there was no genuine
dispute as to Thomas’s lack of good-faith cooperation. See Martinez, 317 F.3d at
513-14; Munoz, 894 F.2d at 1493; see also International Shortstop, 939 F.2d at
1265-66. Accordingly, the grant of summary judgment is REVERSED and the
case is REMANDED for further proceedings consistent with this opinion.




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