                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        SEP 5 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

CHRISTIAN HEAD, M.D.,                           No.    17-55942

                Plaintiff-Appellant,            D.C. No.
                                                2:14-cv-01563-SVW-PLA
 v.

ROBERT WILKIE, Secretary of                     MEMORANDUM*
Department of Veterans Affairs; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                       for the Central District of California
                   Stephen V. Wilson, District Judge, Presiding

                       Argued and Submitted April 9, 2019
                              Pasadena, California

Before: TASHIMA and PAEZ, Circuit Judges, and KATZMANN,** Judge.

      Christian Head, M.D., appeals the district court’s orders granting summary

judgment to defendants in his employment discrimination lawsuit. We have

jurisdiction pursuant to 28 U.S.C. § 1291. We reverse the district court’s grant of



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Gary S. Katzmann, Judge for the United States Court
of International Trade, sitting by designation.
summary judgment on Head’s race-based claims for failure to exhaust and its

denial of discovery under Federal Rule of Civil Procedure 56(d).1 Because the

district court erred in denying discovery, we vacate the remaining summary

judgment orders and remand for further proceedings. The facts and the procedural

background are discussed in the concurrently filed opinion. We do not repeat that

information here.

1.    Applying de novo review, see B.K.B. v. Maui Police Dep’t, 276 F.3d 1091,

1099 (9th Cir. 2002), we first reverse the district court’s grant of summary

judgment on Head’s race-based Title VII claims because the district court

erroneously held that these claims were not administratively exhausted. We have

jurisdiction “over all allegations of discrimination that either ‘fell within the scope

of the [Equal Employment Opportunity (“EEO”)]’s actual investigation or an

[EEO] investigation which can reasonably be expected to grow out of the charge

of discrimination.’” Id. at 1100 (citing EEOC v. Farmer Bros. Co., 31 F.3d 891,

899 (9th Cir. 1994)). Although the 2011 EEO counselor report did not explicitly

mention race, other aspects of Head’s charge could have reasonably led an

investigator to investigate possible racial discrimination. Head referred to his prior

EEO complaints, the 2008 Department of Veteran Affairs (“VA”) internal



1
  In a concurrently filed opinion, we reverse the district court’s grant of summary
judgment on Head’s conspiracy claim under 42 U.S.C. § 1985(2).

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investigation, as well as his testimony in a colleague’s EEO case (“the Bowers

case”). The underlying factual allegations in those documents and investigations

involved claims of disparate treatment and harassment based on race.

      Notably, the 2008 internal investigation issued a report finding that Head

was not treated similarly to others in his department in terms of his assignment and

protected time for research. The report was unable to conclude definitively

whether there was racial discrimination, but it discussed that allegation and would

have reasonably put an EEO investigator on notice. Head also pointed the EEO

investigator to his testimony in the Bowers case, in which he discussed the general

culture of racial discrimination at the VA as well as specific instances of race-

based discrimination. Although Head may not have “checked the box” for race-

based discrimination, an EEO investigator looking at the information provided

could reasonably see that the factual allegations underlying Head’s claims of

retaliation were rooted in his complaints about being treated differently from

others, allegedly on the basis of race. See Vasquez v. Cty. of Los Angeles, 349 F.3d

634, 645–47 (9th Cir. 2003).

      We must construe Head’s EEO charge “liberally” because such

administrative complaints “are made by those unschooled in the technicalities of

formal pleading.” Sosa v. Hiraoka, 920 F.2d 1451, 1456, 1458 (9th Cir. 1990)

(internal quotation marks and citation omitted). In his complaint, Head claimed


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that he endured a pattern of harassment and disparate treatment from former

supervisors, and that he was retaliated against by later VA supervisors for reporting

those prior actions. Thus, Head’s race-based claims are “reasonably related to

allegations in the charge to the extent that those claims are consistent with the

plaintiff’s original theory of the case.” B.K.B., 276 F.3d at 1100. We therefore

reverse the district court’s grant of summary judgment on these claims to the extent

that they were dismissed for failure to exhaust.

2.    We also conclude that the district court’s denial of Head’s Rule 56(d)

motion for discovery constituted an abuse of discretion. See Burlington N. Santa

Fe R. Co. v. Assiniboine & Sioux Tribes of Ft. Peck Reservation, 323 F.3d 767,

773 (9th Cir. 2003). We have stressed that “district courts should grant any Rule

56[(d)] motion fairly freely” where “a summary judgment motion is filed so early

in the litigation, before a party has had any realistic opportunity to pursue

discovery relating to [his] theory of the case.” Id. Here, there was no opportunity

for the parties to engage in discovery because the district court ordered briefing on

summary judgment immediately upon denying the third motion to dismiss. The

parties never exchanged initial disclosures or held a Rule 26(f) conference.

      In his opposition to the summary judgment motion, Head’s attorney timely

filed an affidavit identifying relevant information and his basis for believing that

the information sought existed and why it was necessary. See Family Home & Fin.


                                           4
Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525 F.3d 822, 827 (9th Cir. 2008).

Defendants argue that the affidavit was not sufficiently detailed, but that specificity

requirement is premised on some discovery having taken place. See id. (holding

that the moving party “was not entitled to additional discovery because it failed to

file timely motions to compel and extend discovery” (emphasis added)); see also

Tatum v. City & Cty. of San Francisco, 441 F.3d 1090, 1100–01 (9th Cir. 2006).

      In a case involving allegations of employment discrimination—a fact-

intensive inquiry—the complete denial of discovery placed Head at a disadvantage

in responding to “a premature motion for summary judgment.” Celotex Corp. v.

Catrett, 477 U.S. 317, 326 (1986); see also Jacobson v. U.S. Dep’t of Homeland

Sec., 882 F.3d 878, 882–84 (9th Cir. 2018); Diaz v. Am. Tel. & Tel., 752 F.2d

1356, 1362–63 (9th Cir. 1985). It makes no difference that Head did not renew his

Rule 56(d) request or seek reconsideration because the district court made clear

that it did not think Head met his burden to pursue discovery. Because Head “had

no fair opportunity to develop the record” to support his discrimination claims, we

conclude that the district court abused its discretion in denying the Rule 56(d)

request. Assiniboine & Sioux Tribes, 323 F.3d at 774.

3.    Finally, where “summary judgment was ordered but the non-moving party

was improperly denied discovery, we are not in a position to view all the necessary

evidence in the light most favorable to that party.” Diaz, 752 F.2d at 1362. We


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therefore vacate the grant of summary judgment on Head’s Title VII claims and

remand to allow Head an opportunity to pursue discovery. Id. at 1364.

      For the foregoing reasons, we reverse the district court’s ruling that Head

failed to administratively exhaust his race-based claims and the denial of discovery

under Rule 56(d), vacate the order granting summary judgment on Head’s Title VII

claims, and remand for further proceedings.

      Head shall recover his costs on appeal.

      REVERSED in part, VACATED in part, and REMANDED.




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