     Case: 12-20584       Document: 00512377950         Page: 1     Date Filed: 09/18/2013




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

                                                                            FILED
                                                                        September 18, 2013

                                       No. 12-20584                        Lyle W. Cayce
                                                                                Clerk

ROBERTO C. CASTRO

                                                  Plaintiff-Appellant
v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:12-CV-132


Before STEWART, Chief Judge, and DAVIS and WIENER, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Roberto Castro, a former corrections officer, sued his
past employer, the Texas Department of Criminal Justice (“TDCJ”), for
discriminating against him because of his race (Hispanic), sex (male), and age
(49-51 years old during the relevant period). Castro brought claims under the
Age Discrimination in Employment Act (“ADEA”), Title VII of the Civil Rights
Act of 1964, and the Texas Commission on Human Rights Act (“TCHRA”). TDCJ
moved for summary judgment of dismissal on all of the claims, which the court

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                 No. 12-20584

granted.   On appeal, we affirm the dismissal of Castro’s race and sex
discrimination claims, but we reverse as to his age discrimination claims and
remand for additional discovery and other consistent proceedings.


                      I. FACTS AND PROCEEDINGS
      Castro acknowledges a series of disciplinary infractions from 2009-2011,
but contends that he was punished more harshly than he should have been
because of his race, sex, and age. He was eventually demoted and replaced by
a 42-year old black female, and he retired a few weeks after that demotion.
      Castro sued in state court, and TDCJ removed his action to federal court
in January 2012, making its initial disclosures a month later. On April 10, 2012,
Castro requested a conference to establish a discovery plan. Two days later, the
court ordered each party to make various disclosures by April 27. TDCJ was
instructed to provide, inter alia, Castro’s performance and personnel records;
operating records describing disciplinary measures taken against him; his rank,
pay, and assignment records; the names of those who had made employment
decisions involving him, the names of their supervisors, and the names of the
human resources personnel involved; an organizational chart; resumes of
workers who replaced him; and demographic data on various TDCJ employees.
By separate order, the court set an initial conference for April 30, at which it
pledged to “decide motions, narrow issues, inquire about and resolve expected
motions, and schedule discovery.” The court advised counsel for both parties to
consult with each other in advance of that conference.
      TDCJ timely served its court-ordered disclosures on an encrypted CD and,
citing a scheduling conflict, requested that the April 30 conference be
rescheduled. The court granted that request and reset the conference for May
18. Castro’s attorney failed to attend the rescheduled conference, apparently
without first obtaining leave of court for the absence. The court nevertheless

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                                  No. 12-20584

held the conference ex parte and permitted the government to file a motion for
summary judgment on all claims by June 1, just two weeks later. Castro was
directed to respond to TDCJ’s motion by June 8. The conference produced no
discovery plan.
      In a letter filed with the court on May 23, Castro’s attorney apologized for
his unexcused absence and explained that he had been at the VA hospital
visiting his ailing father, who had in fact died two days after the conference. On
May 24, Castro filed a motion for a 30-day continuance of the summary
judgment timetable to allow for discovery. He informed the court that he had
been unable to open the encrypted disc using the password that TDCJ had
provided, that he was provided the same non-working password after informing
TDCJ of his technical difficulties, and that he had requested but not yet received
an unencrypted copy of the disclosures. The next day, the court issued the
following order: “If Robert C. Castro had appeared at the conference on May 18,
2012, the problems with the disk could have been discussed. Robert C. Castro’s
motion for continuance is denied.”
      TDCJ filed its summary judgment motion on June 1. Castro opposed the
motion on June 8 and included his initial disclosures, his court-ordered
disclosures, and an affidavit attesting to (1) multiple supervisors’ questions and
comments about his age and plans for retirement and (2) his inability to conduct
any discovery in the case. TDCJ filed a reply; Castro filed a sur-reply; one
month after the last filing, the court granted TDCJ’s motion for summary
judgment.    As Castro had failed to include allegations of race or sex
discrimination in his Equal Employment Opportunity Commission (“EEOC”)
charge, the court dismissed those claims as administratively unexhausted. It
held that Castro had failed to create an issue of material fact to support his age
discrimination claims and that he neither alleged retaliation in his complaint



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                                        No. 12-20584

nor provided facts to support that claim.1 Castro timely filed a motion for
reconsideration in which he challenged the court’s legal conclusions and again
stressed that he had never been given an opportunity to conduct needed
discovery. The court denied the motion in a one-line order the next day.
       Castro timely filed a notice of appeal. He contends on appeal that the
district court abused its discretion in denying him any opportunity for discovery
before ruling on TDCJ’s summary judgment motion. He also challenges the
merits of the court’s dismissal of his age, race, and sex discrimination claims.


                                       II. ANALYSIS
A.     Motion for a Continuance Under FRCP 56(d)
       When we review the district court’s denial of Castro’s motion for a
continuance for abuse of discretion,2 we conclude that the court did indeed abuse
its discretion. Under Federal Rule of Civil Procedure 56(d),3 “[i]f a nonmovant
shows by affidavit or declaration that, for specified reasons, it cannot present
facts essential to justify its opposition, the court may: (1) defer considering the
motion or deny it; (2) allow time to obtain affidavits or declarations or to take
discovery; or (3) issue any other appropriate order.” A motion for a continuance
under Rule 56(d) is “broadly favored and should be liberally granted.”4 Indeed,
when “the party opposing the summary judgment informs the court that its
diligent efforts to obtain evidence from the moving party have been unsuccessful,

       1
         Castro does not challenge on appeal the district court’s conclusion that he had failed
to assert a retaliation claim.
       2
           See Fontenot v. Upjohn Co., 780 F.2d 1190, 1193 (5th Cir. 1986).
       3
          The provisions in what is now Rule 56(d) were moved, without any substantial
change, from 56(f) in 2010 when Rule 56 was rewritten. See 10B CHARLES ALAN WRIGHT &
ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2740 (3d ed. 2013) (hereinafter
WRIGHT & MILLER).
       4
           Culwell v. City of Fort Worth, 468 F.3d 868, 871 (5th Cir. 2006).

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                                        No. 12-20584

‘a continuance of a motion for summary judgment for purposes of discovery
should be granted almost as a matter of course.”’5 But “the moving party must
demonstrate how the requested discovery pertains to the summary judgment
motion and must have diligently pursued the relevant discovery.”6
       The district court did not give any reasons for denying Castro’s
continuance, noting only that if he had appeared at the conference, his technical
difficulties could have been addressed. Although a party’s failure diligently to
pursue discovery may warrant denial of a motion for a continuance,7 there is no
evidence indicating that Castro was dilatory in this instance. It was he who
requested a conference to create a discovery plan, and it was TDCJ that had
asked the court to continue the conference the first time. The purpose of the
conference was to create a discovery plan, only after which might formal
discovery begin.8 Instead, ostensibly as punishment for his counsel’s unexcused
absence, the court not only denied Castro an opportunity for additional
discovery, but also denied him an opportunity to review the limited information
that the court had already ordered produced and which had been provided by
TDCJ but only in an inaccessible format. Castro did not “occasion[] his own



       5
         Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1267 (5th Cir. 1991) (quoting
Sames v. Gable, 732 F.2d 49, 51 (5th Cir. 1984)).
       6
         Silver Dream, L.L.C. v. 3MC, Inc., 2013 U.S. App. LEXIS 5297, *10 (5th Cir. Mar. 18,
2013) (citing Wichita Falls Office Assoc. v. Banc One Corp., 978 F.2d 915, 919 (5th Cir. 1992);
see also Enplanar, Inc. v. Marsh, 11 F.3d 1284, 1292 (5th Cir. 1994) (noting that opposing
party does “not need to know the precise content of the requested discovery, but [must] give
the district court some idea of how the sought-after discovery might reasonably be supposed
to create a factual dispute”).
       7
         See Baker v. Am. Airlines, Inc., 430 F.3d 750, 756 (5th Cir. 2005); Wichita Falls Office
Assoc., 978 F.2d at 919.
       8
         See WRIGHT & MILLER § 2046.1 (noting that under FEDERAL RULE OF CIVIL
PROCEDURE 26(d), “no formal discovery may be undertaken until the parties have conferred
pursuant to Rule 26(f) and discussed a discovery plan”).

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                                         No. 12-20584

predicament through sloth[,]”9 and the court’s indignation following the missed
conference is not sufficient cause for blindsiding Castro with such an aggressive
timetable for responding to a dispositive motion.
       Finally, a party seeking a continuance under Rule 56(d) typically must
explain how the desired discovery could give rise to a genuine issue of material
fact; such party “may not simply rely on vague assertions that additional
discovery will produce needed, but unspecified, facts in opposition to summary
judgment.”10         With his timely opposition to summary judgment, Castro
submitted an affidavit in which he stressed that he had received no discovery
other than preliminary disclosures.11 In his earlier motion for a continuance,
Castro had explained that, although he had received TDCJ’s court-ordered
disclosures on April 23, he had been unable to inspect the contents of the
encrypted disc, despite his follow-up attempts to obtain a working password from
TDCJ. Castro needed this encrypted information to rebut TDCJ’s assertions of
non-discriminatory reasons for his demotion. The court had to have recognized
this need; otherwise it would not have ordered the disclosures in the first place.
Thus, although Castro did not explain in his affidavit exactly what he hoped to
obtain from this discovery to help him demonstrate the presence of a fact issue
and thus defeat summary judgment, we will not rigidly interpret this
requirement, inasmuch as Castro had received no discovery in an accessible
format as of the time of the court’s order.
       Our deference to the district court’s decision to deny Castro’s motion for
a continuance “is limited by our presumption that such motions should be


       9
            Wichita Falls Office Assoc., 978 F.2d at 919.
       10
            Access Telecomm., Inc. v. MCI Telecomms. Corp., 197 F.3d 694, 720 (5th Cir. 1999).
       11
           Cf. Ashton-Tate Corp. v. Ross, 916 F.2d 516, 520 (9th Cir. 1990) (noting that
“implication and logic require that a [motion for a continuance] be made prior to the summary
judgment hearing.”); WRIGHT & MILLER § 2719.

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                                        No. 12-20584

liberally granted.”12 And here, the court’s abject refusal to permit Castro any
time for discovery, or even to explain its reasons for denying the requested
continuance, convinces us that the court abused its discretion.


B.     Which Claims Survive?
       Despite the court’s error in denying the requested continuance, we will not
reverse and remand with respect to those claims for which additional discovery
would be fruitless.13


       1.       Race and Sex Discrimination Claims
       A plaintiff alleging workplace discrimination must exhaust his
administrative remedies before he may sue under the ADEA, Title VII, or the
TCHRA.14 We will “not condone lawsuits that exceed the scope of EEOC
exhaustion, because doing so would thwart the administrative process and
peremptorily substitute litigation for conciliation.”15 Instead, we “construe an
EEOC complaint broadly but in terms of the administrative EEOC investigation
that ‘can reasonably be expected to grow out of the charge of discrimination.’”16
       Castro’s EEOC claims in this case did not in any way signal that he might
have been a victim of race or sex discrimination. Although the form contained
boxes to check for discrimination based on “race,” “color,” “sex,” “religion,”


       12
            Culwell, 468 F.3d at 872.
       13
            See id. at 874.
       14
          See Jefferson v. Christus St. Joseph Hosp., 374 F. App’x 485, 489 (5th Cir. 2010)
(citing Foster v. Nat'l Bank of Bossier City, 857 F.2d 1058, 1060 (5th Cir. 1988)) (ADEA);
McClain v. Lufkin Indus., 519 F.3d 264, 273 (5th Cir. 2008) (Title VII); Schroeder v. Tex. Iron
Works, Inc., 813 S.W.2d 483, 485-86 (Tex. 1991) (TCHRA).
       15
            McClain, 519 F.3d at 273.
       16
            Id. (quoting Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970)).

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“national origin,” retaliation,” “age,” “disability,” genetic information,” and
“other,” Castro checked only the retaliation and age boxes. In the form’s section
asking for the “particulars” of his claim, he explained only the basis for his age
discrimination charge, making reference to neither his race or sex, nor to
incidents of discrimination based on those characteristics. He concluded: “I
believe that I have been discriminated against because of my age, and retaliated
against, in violation of the [ADEA].”
       We cannot see how an investigation into race or sex discrimination “[could]
be expected to grow out of” this charge.17 Castro sheds no light, only declaring
that his race and sex discrimination claims are “inextricably entwined” with his
age discrimination claim because TDCJ replaced him with a younger, black
female. But he did not even allege the race and sex of his replacement in his
administrative charge or provide any other evidence of discrimination based on
these characteristics. Our case law requires more from a plaintiff than Castro
provided. As Castro never even presented claims based on race or sex to the
EEOC, he could not have exhausted them.18


       2.         Age Discrimination Claims
       By contrast, Castro properly exhausted his state and federal age
discrimination claims, and, having alleged facts that raise the specter of age
discrimination, he should have been granted some discovery to defend against
TDCJ’s motion. In its order and reasons granting summary judgment, the
district court either ignored Castro’s state law age discrimination claim entirely
or implicitly addressed it alongside his ADEA claim. The court did not, however,


       17
            Id.
       18
          See Jefferson, 374 F. App’x at 490 (concluding that plaintiffs who neither checked
boxes nor included facts on their EEOC charges to identify discrimination based on certain
characteristics had failed to exhaust those claims).

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                                        No. 12-20584

address TDCJ’s specific contention that Texas’s procedure for election of
remedies precluded Castro from advancing both state and federal theories in the
same action.
       The Texas Labor Code’s ‘Election of Remedies” provision states: “A person
who has initiated an action in a court of competent jurisdiction . . . based on an
act that would be an unlawful employment practice under this chapter may not
file a complaint under this subchapter for the same grievance.”19 The section
“limits the ability to pursue multiple grievances in multiple forums over the
same alleged conduct.”20 Thus, “[i]n the realm of employment discrimination
litigation—where federal, state, and local governments individually declare their
opposition to unlawful discrimination—Section 21.211 merely means a plaintiff
cannot file an administrative complaint [under the TCHRA] after having already
(1) filed a lawsuit under a federal or local anti-discrimination measure covering
the same conduct or (2) begun administrative proceedings with the EEOC or
local enforcement entities based on the same conduct.”21 But, as the TCHRA is
not “the exclusive word on work-related discrimination and retaliation in
Texas,”22 “claimants are free to seek relief under parallel federal or local laws,”23
and Section 21.211 “does not preclude a plaintiff from arguing in the alternative”
as permitted by Federal Rule of Civil Procedure 8.24 TDCJ’s interpretation of the
exclusive remedies provision has no merit. We reverse and remand for the


       19
            TEX. LAB. CODE ANN. § 21.211.
       20
            City of Waco v. Lopez, 259 S.W.3d 147, 155 (Tex. 2008).
       21
            Id.
       22
            Id.
       23
            Id.
       24
            Sauceda v. Bank of Tex., N.A., 2005 U.S. Dist. LEXIS 3769, *12 (N.D. Tex. March
9, 2005).

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                                  No. 12-20584

district court to allow Castro to conduct discovery relevant to both his state and
federal claims of age discrimination.


                             III. CONCLUSION
      We affirm the district court’s judgment dismissing Castro’s race and sex
discrimination claims.    We reverse the court’s dismissal of Castro’s age
discrimination claims, however, vacating that facet of the judgment and
remanding for further consistent proceedings. On remand, the district court is
instructed to provide Castro a sufficient discovery period before resolving
dispositive motions.




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