     Case: 12-10523       Document: 00512164149         Page: 1     Date Filed: 03/05/2013




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

                                                                            FILED
                                                                           March 5, 2013

                                     No. 12-10523                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



BRENDA MITCHELL,

                                                  Plaintiff-Appellant
v.

SIKORSKY AIRCRAFT,

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:10-cv-889


Before JOLLY, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
       In this Title VII retaliation case, Appellant Brenda Mitchell appeals the
district court’s denial of Mitchell’s motion for continuance, grant of Appellee
Sikorsky Aircraft’s motion for summary judgment, and denial of Mitchell’s
motions for reconsideration and relief from the judgment. We affirm the district
court’s judgment.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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              FACTUAL AND PROCEDURAL BACKGROUND
      In September 2008, Mitchell was hired to work as a reliability aircraft
engineer in the Fort Worth office of Sikorsky Aircraft (“Sikorsky”). On January
29, 2010, Mitchell sent an email to John Amsden, office manager for the Fort
Worth office, in which Mitchell complained of a “disturbing and offensive” image
posted on an office bulletin board depicting President Obama as Darth Vadar.
R. 160. Mitchell suggested in the email that the image had “racist overtones”
and she urged the company to resolve the matter. Id. Copies of the email were
also sent to Mitchell’s supervisors, Phillip Hensley and Matthew Gogal. That
same day, Hensley assured Mitchell that he would discuss the matter with
Amsden and, shortly thereafter, Amsden sent an office-wide email instructing
Fort Worth employees that “[u]nder NO circumstances should photos/images
opposed to our President be displayed in the office.” R. 161.
      The following week, on February 3, 2010, Mitchell emailed Hensley and
Gogal to complain about a note on an office bulletin board allegedly criticizing
the federal government. Mitchell did not claim that the note conveyed a racial
message, but rather she described it as “political propaganda” and requested a
response. R. 162. Amsden sent an office-wide email on February 5 stating that
office bulletin boards “are not intended to provide a platform for employees to
express their opinions or to provide derogatory information about the company,
the government, etc.” Id.
      On March 8, 2010, Mitchell contacted Colin Cain in Sikorsky’s human
resources department to allege that because of Mitchell’s previous complaints,
Mike Savage, a co-worker in the Fort Worth office, had called Mitchell a
“troublemaker” and “kicked at” her. R. 5. In a March 10, 2010 letter to Cain,
Mitchell elaborated on her allegations, stating that she had “endured over a
month’s worth of orchestrated covert efforts to a) push me out, [and] b) paint me
as an out of control manipulative employee.” R. 164. On March 13, 2010,

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Mitchell sent a second letter to Cain speculating that Amsden might have
instructed the Fort Worth office building’s management company, First
Command, to delete video footage documenting the alleged incident with Savage.
Mitchell also claimed that she had been “followed and watched before work and
during [her] lunch break by the First Command security officer.” R. 165–66.
Cain investigated Mitchell’s claims by interviewing Savage and Amsden. Savage
denied Mitchell’s claims and Amsden stated that he had not instructed First
Command to take any of the actions alleged by Mitchell. Cain instructed Savage
to have no further contact with Mitchell.
       Between March and August 2010, Mitchell’s supervisors learned of
additional events that allegedly raised concerns about Mitchell’s well being and
the safety of her co-workers.1 On August 19, 2010, Amsden, Cain, and Hensley
decided to place Mitchell on temporary paid leave while Cain consulted with
Sikorsky’s medical department to plan a course of action to address Mitchell’s
behavior and to assess her fitness for duty. Cain and Carol Kagdis, Sikorsky’s
medical director, arranged for an independent psychiatric evaluation of Mitchell.
Mitchell was then instructed in an August 26, 2010 letter to return a signed
acknowledgment and release form that would either authorize Sikorsky to
contact Mitchell’s physician or permit a fitness for duty evaluation by another
physician paid for by Sikorsky. The letter, which expressed Sikorsky’s concern
for the safety of its employees in light of Mitchell’s change in behavior, indicated



       1
          Examples of such events include Mitchell’s May 26 claim that Amsden was
“attempting to harass” her by sending an office-wide email stating that employees were no
longer allowed to park in a parking lot across the street; a July 26 complaint from a Sikorsky
employee indicating that Mitchell was glaring at the employee without provocation; a Federal
Express driver’s observation that Mitchell had been filming the driver with a hand-held
camera; a police officer’s report that Mitchell had filed a complaint alleging that she was being
followed by Sikorsky employees and the officer’s suggestion that Mitchell was “suffering from
some type of paranoia;” and a former employee’s claim that Mitchell planned to acquire a
concealed handgun license. R. 166–68.

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that Mitchell’s failure to comply with the letter’s instructions could lead to
termination of her employment.
      After Mitchell failed to respond to the August 26 letter, the company sent
a second letter on September 7, 2010 stating that failure to comply with the
instructions in the August 26 letter would result in termination for reason of job
abandonment. Mitchell responded on September 9, 2010 in a letter stating that
she would only allow her physician to release general information contained in
a summary report prepared by her physician on June 29, 2010. Because of
Mitchell’s failure to comply with the August 26 and September 7 letters,
Sikorsky terminated Mitchell’s employment on September 14, 2010.
      On November 23, 2010, Mitchell brought suit against Sikorsky pursuant
to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and 42 U.S.C. §
1981, alleging that Sikorsky terminated her employment in retaliation for her
complaints of racial discrimination. Sikorsky filed a motion for summary
judgment on January 18, 2012, which was the deadline to file pursuant to the
district court’s scheduling order. Under Local Rule 7.1(e) of the Northern
District of Texas, Mitchell’s response to Sikorsky’s motion for summary
judgment was due on or before February 8, 2012. On February 2, 2012, Mitchell
filed a motion to abate her response to Sikorsky’s motion for summary judgment
in order to secure more time to conduct discovery. Treating Mitchell’s motion to
abate as one for continuance pursuant to Rule 56(d) of the Federal Rules of Civil
Procedure, the district court denied the motion on February 3, 2012. Mitchell
failed to respond to Sikorsky’s motion for summary judgment before the
February 8 deadline and, on March 14, 2012, the district court granted
Sikorsky’s unopposed motion. On April 11, 2012, Mitchell filed motions for
reconsideration and relief from the judgment pursuant to Rules 59(e) and 60(b)
of the Federal Rules of Civil Procedure, which the district court denied on April
12, 2012. This timely appeal followed.

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                           STANDARD OF REVIEW
      We review a district court’s grant of summary judgment de novo and apply
the same standards as the district court. Wiltz v. Bayer CropScience, Ltd. P’ship,
645 F.3d 690, 694 (5th Cir. 2011). We review a district court’s denial of a motion
for continuance for abuse of discretion. United States v. Lewis, 476 F.3d 369, 387
(5th Cir. 2007). The same abuse of discretion review applies to a district court’s
denial of a Rule 59(e) motion for reconsideration, Johnson v. Diversicare Afton
Oaks LLC, 597 F.3d 673, 677 (5th Cir. 2010), and a denial of a Rule 60(b) motion
for relief from a judgment, Frazar v. Ladd, 457 F.3d 432, 435 (5th Cir. 2006).
                                   ANALYSIS
I.    Motions for Continuance, Reconsideration, and Relief from the Judgment
      Mitchell did not meet the February 8, 2012 deadline to respond to
Sikorsky’s motion for summary judgment and, instead, filed an untimely
response on April 11, 2012, along with her motions for reconsideration and relief
from the judgment. On appeal, Mitchell argues that the district court erred in
denying her motion for continuance because she did not have enough time to
conduct discovery before the response deadline. Specifically, Mitchell argues
that the district court should have granted her request to extend the response
deadline beyond the March 12, 2012 discovery deadline specified in the district
court’s scheduling order. Mitchell’s appeal from the district court’s denial of her
motions for reconsideration and relief from the judgment is premised on the
same argument, namely, that Mitchell’s untimely response presented a material
issue of fact and the court thus erred in failing to consider Mitchell’s response
in its summary judgment ruling.
      Rule 56(d) (former Rule 56(f)) provides a “much needed tool to keep open
the doors of discovery in order to adequately combat a summary judgment
motion.” Six Flags Inc. v. Westchester Surplus Lines Ins. Co., 565 F.3d 948, 963
(5th Cir. 2009) (internal quotation marks omitted). At the same time, although

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a Rule 56(d) motion should be “liberally granted,” Culwell v. City of Fort Worth,
468 F.3d 868, 871 (5th Cir. 2006), it should not be automatically granted. A
party seeking additional discovery pursuant to Rule 56(d) must show 1) “how
that discovery will create a genuine issue of material fact,” Six Flags Inc., 565
F.3d at 963 (internal quotation marks omitted), and 2) that the movant
“exercised due diligence in discovery,” Baker v. Am. Airlines, Inc., 430 F.3d 750,
756 (5th Cir. 2005).
       We agree with the district court that Mitchell neither explained how the
discovery she sought would create a genuine issue of material fact, nor did she
show due diligence in conducting discovery.2 First, in her February 2, 2012
motion, Mitchell listed thirteen individuals whom she wanted to depose, but she
failed to describe what she hoped those depositions might uncover. Second,
Mitchell had over seven months between the entry of the district court’s June 16,
2011 scheduling order and her February 2, 2012 motion for continuance to
schedule and conduct depositions.           Mitchell’s assertions that the holidays
complicated scheduling, her counsel had other trials, and the witnesses were in
three different states fall short of explaining why she waited until December 27,
2011—three weeks before motions for summary judgment were due pursuant to
the scheduling order—to begin coordinating the depositions with Sikorsky.
Accordingly, we conclude that the district court did not abuse its discretion in
denying Mitchell’s motion for continuance.
       Because we find that Mitchell’s motion for continuance was properly
denied, we also hold that the district court did not err in denying Mitchell’s
motions for reconsideration under Rule 59(e) and relief from the judgment under


       2
         To the extent that Mitchell argues that the district court should have granted a
continuance merely because the discovery period remained open after her response was due,
Fifth Circuit precedent disposes of this argument. See Baker, 430 F.3d at 756 (“[I]n a motion
to extend the time to respond to a motion for summary judgment, the simple claim that
discovery has not closed is insufficient.”).

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Rule 60(b)(1), as those motions challenged the court’s summary judgment ruling
on the basis of the court’s alleged error in denying Mitchell’s motion for
continuance.3 Mitchell’s invocation of Rule 59(e) is improper because it is an
attempt to revisit the question of whether the district court erred in denying her
motion for continuance. See Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5
(2008) (“Rule 59(e) permits a court to alter or amend a judgment, but it ‘may not
be used to relitigate old matters, or to raise arguments or present evidence that
could have been raised prior to the entry of judgment.’” (quoting 11 C. WRIGHT
& A. MILLER, FEDERAL PRACTICE           AND   PROCEDURE § 2810.1, at 127–28 (2d ed.
1995)); Templet v. Hydrochem Inc., 367 F.3d 473, 479 (5th Cir. 2004) (“[A Rule
59(e)] motion is not the proper vehicle for rehashing evidence, legal theories, or
arguments that could have been offered or raised before the entry of
judgment.”).4 The same holds true for Mitchell’s Rule 60(b) motion. See Gen.
Universal Sys. v. Lee, 379 F.3d 131, 157 (5th Cir. 2004) (holding that a party
“may not use a Rule 60(b) motion as an occasion to relitigate its case”).
       Furthermore, Mitchell’s reliance on Rule 60(b)(1),which provides that a
court may relieve a party from a final judgment for “mistake, inadvertence,
surprise, or excusable neglect,” FED. R. CIV. P. 60(b)(1), is misplaced because
Mitchell’s failure to respond to Sikorsky’s motion for summary judgment was not



       3
        As in her motion for continuance, Mitchell argued in her motions for reconsideration
and relief that additional discovery “was necessary to provide an adequate and proper
response to Defendant’s summary judgment [motion].” R. 217.
       4
         To prevail on a Rule 59(e) motion, a movant “must clearly establish either a manifest
error of law or fact or must present newly discovered evidence.” Rosenzweig v. Azurix Corp.,
332 F.3d 854, 863 (5th Cir. 2003) (internal quotation marks omitted). Even if we were to
construe Mitchell’s Rule 59(e) motion as alleging that newly discovered evidence was
uncovered through the depositions conducted by Mitchell after the response deadline, but
before the close of discovery, Mitchell has failed to demonstrate that this evidence was not
available before the district court’s grant of summary judgment. See Templet, 367 F.3d at 479
(“[A]n unexcused failure to present evidence available at the time of summary judgment
provides a valid basis for denying a subsequent motion for reconsideration.”).

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only inexcusable, but also intentional.       As evidenced by her motion for
continuance, Mitchell was fully aware of the February 8 deadline to respond and
knowingly failed to meet that deadline, presumably because she had not yet
conducted sufficient discovery. As noted above, we conclude that Mitchell’s
underlying failure to conduct sufficient discovery before the response deadline
resulted from her own lack of due diligence. Thus, knowing that she faced a
February 8 deadline, and failing to exercise due diligence in conducting
discovery before that deadline, Mitchell’s failure to file a timely response cannot
constitute “excusable neglect” under Rule 60(b)(1). Cf. Lowndes v. Global
Marine Drilling Co., 909 F.2d 818, 819 (5th Cir. 1990) (affirming denial of Rule
60(b)(1) motion because “the motion provided no excuse why the deposition in
support of the opposition to the motion for summary judgment had not been
timely taken and filed,” and distinguishing case where movant unintentionally
missed filing deadline).
      Moreover, even if the untimeliness of Mitchell’s response could be
characterized as “neglect” rather than intentional noncompliance, the four-factor
test for “excusable neglect” outlined by the Supreme Court and followed by the
Fifth Circuit would lead this court to the same result. See Silvercreek Mgmt. v.
Banc of Am. Secs. LLC, 534 F.3d 469, 472 (5th Cir. 2008) (“Under Pioneer
Investment Services Co. v. Brunswick Associates L.P., 507 U.S. 380, 395 (1993),
the court is to consider prejudice to the opposing party, length of the delay, and
reason for the delay in determining whether the claimant’s neglect was
excusable and the delay was made in good faith.”). Having failed to exercise due
diligence in conducting discovery before the response deadline, Mitchell can offer
no good reason for her failure to meet the deadline that would support a finding
of excusable neglect. See McKenzie v. Principi, 83 F. App’x 642, 644 (5th Cir.
2003) (affirming denial of 60(b)(1) motion because movant offered “no reason to
excuse” late filing of response to summary judgment motion other than conflicts

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in scheduling); Bynum v. Ussin, 410 F. App’x 808, 811 (5th Cir. 2011) (finding
no satisfactory reason for 60(b)(1) movant’s failure to respond to summary
judgment motion).
II.    Summary Judgment
       Affirming the district court’s denial of Mitchell’s motions for continuance,
reconsideration, and relief from the judgment, we are still left to decide whether
the district court erred in granting summary judgment in favor of Sikorsky. In
doing so, we may review only the record before the district court at the time
summary judgment was granted, Moore v. Miss. Valley State Univ., 871 F.2d
545, 549 (5th Cir. 1989), thus barring us from considering the evidence contained
in Mitchell’s untimely response to Sikorsky’s motion for summary judgment.
       We analyze Mitchell’s Title VII retaliation claim under the burden-shifting
framework established by the Supreme Court in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). See LeMaire v. Louisiana, 480 F.3d 383, 388 (5th
Cir. 2007). Under this framework, the plaintiff must first establish a prima facie
case of retaliation by showing that “(1) he engaged in an activity that Title VII
protects; (2) he was subjected to an adverse employment action; and (3) a causal
connection exists between the protected activity and the adverse employment
action.” Id. If the plaintiff can establish a prima facie case, the burden shifts to
the defendant to demonstrate a legitimate, non-retaliatory purpose for the
employment action. Id. The plaintiff must then show that the defendant’s
stated reason for the employment action is a pretext for retaliation, which the
plaintiff accomplishes by showing that the adverse employment action would not
have occurred “but for” the defendant’s retaliatory reason for the action. See
Septimus v. Univ. of Houston, 399 F.3d 601, 608 (5th Cir. 2005). To establish
“but for” causation, the plaintiff must show “a conflict in substantial evidence,”
an evidentiary burden which is met when “reasonable and fair-minded men in
the exercise of impartial judgment might reach different conclusions.” Long v.

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Eastfield College, 88 F.3d 300, 308 (5th Cir. 1996) (internal quotation marks
omitted).
       The district court found that Mitchell failed to offer any evidence that
Sikorsky’s non-retaliatory reason for terminating her employment, namely, that
she failed to comply with Sikorsky’s requests for medical information, was
pretextual. We agree with the district court. Based on our review of the record
before the district court, we find that even assuming arguendo that Mitchell
adequately established a prima facie case of retaliation, she failed to show that,
but for Mitchell’s protected conduct, Sikorsky would not have terminated her
employment. Specifically, nothing in the record shows that Mitchell would not
have been fired solely because of her failure to comply with Sikorsky’s request
for medical information,5 and irrespective of whether she had raised complaints
of racial discrimination. The only potential evidence of pretext in the record is
the temporal proximity of Mitchell’s complaint to her termination, but this falls
short of establishing but for causation. See McCoy v. City of Shreveport, 492
F.3d 551, 562 (5th Cir. 2007) (noting that temporal proximity may establish
prima facie case, but does not establish pretext without additional evidence).
Accordingly, we hold that the district court did not err in granting summary
judgment in favor of Sikorsky.
                                      CONCLUSION
       For the above reasons, we AFFIRM the district court’s judgment.
                                                                                 AFFIRMED.




       5
        Mitchell does not dispute that “[t]he failure of a subordinate to follow the direct order
of a supervisor is a legitimate nondiscriminatory reason for discharging that employee.”
Chaney v. New Orleans Pub. Facility Mgmt., Inc., 179 F.3d 164, 167–68 (5th Cir. 1999).

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