Bates v. Tandy Corporation , 186 F. App'x 288 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
6-27-2006
Bates v. Tandy Corporation
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3851
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-3851
JOHNNIE BATES; OVERSTONE CUMMINGS;
TODD PAYNE, ON THEIR OWN BEHALF AND
ALL OTHERS SIMILARLY SITUATED,
Appellants
v.
TANDY CORPORATION, d/b/a and
a/k/a Radio Shack
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 03-cv-05519)
District Judge: Honorable Robert F. Kelly
Submitted Under Third Circuit LAR 34.1(a)
June 9, 2006
Before: AMBRO, FUENTES and NYGAARD, Circuit Judges
(filed: June 27, 2006 )
OPINION
AMBRO, Circuit Judge
Overstone Cummings, Todd Payne and Johnnie Bates appeal from the District
Court’s grant of summary judgment for Tandy Corporation (“RadioShack”).1 Appellants
brought suit under Title VII of the Civil Rights Act and 42 U.S.C. § 1981, alleging that
RadioShack improperly places African-American managers in stores in less affluent
communities with lower volume sales and does not promote African-Americans to
managerial positions above the store manager level. They contend both that the District
Court abused its discretion in deciding RadioShack’s summary judgment motion without
first allowing additional discovery, and that, even without additional discovery, the facts
in the record do not justify deciding the motion in RadioShack’s favor. For the reasons
stated below, we affirm the District Court’s order.
I. Factual and Procedural History
As we write for the parties, only a brief summary of pertinent facts is necessary.
Cummings, Payne, and Bates are Philadelphia-area employees of RadioShack.
Cummings was hired as a sales associate at RadioShack’s Cherry Hill Mall store in 1986.
He quickly earned a promotion and managed several stores before returning to the Cherry
Hill Mall store (one of the largest in the district) as manager. After it was reported that
there was a $20,000 discrepancy in inventory at this store, he was terminated, then
1
In 2000, Tandy Corporation changed its name to RadioShack Corporation, and all
appellants were employed at RadioShack stores.
2
reinstated as a sales associate at another store pending an investigation. When the
investigation vindicated him, he was again promoted and managed several stores before
returning to the Cherry Hill Mall store in 1998, which has over one million dollars in
sales. He continues to manage that store.
Payne joined RadioShack in 1989 as a sales associate and, after an unsuccessful
stint as a store manager, he was once again promoted to manager in 1993 and assigned to
the Wenonah store with a sales volume around $500,000. In 1996, he was transferred to
the Plymouth Meeting Mall store, which generally averaged between $700,000 and
$800,000 in sales, but which was undergoing renovations at the time (thus affecting its
sales figures).
In 2001, Payne applied to manage the Moorestown Mall Store, which has over
$1,000,000 in sales volume. After comparing the candidates using RadioShack’s
Performance Scorecard (which ranks managers according to various quantitative criteria),
the district manager, Bruce Teufel, selected another candidate who was ranked first out of
26 in the district (Payne was ranked 18th). Payne applied for the same position again in
2002. This time, although his store’s performance had not improved, Payne was the
highest-rated applicant in his district. Due to his lack of improvement, however, Teufel
sought a candidate from an adjacent district, ultimately hiring an individual who was
ranked 168th out of 267 managers in the Philadelphia region compared to Payne’s
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ranking of 208th. By 2003, Payne’s performance data had improved significantly and he
was finally selected to manage the Moorestown Mall Store, where he remains as manager.
Bates began working as a sales associate at a RadioShack store in 1996, and
became manager of the Flourtown store (which had a sales volume of $600,000) in 1997.
His performance score was low, and he was demoted to the Horsham store, which had a
sales volume of $400,000. By 2000 his performance improved and he was promoted to
the Warminster store, which had a sales volume of $600,000. In 2001, he decided to step
down from his store manager position, taking a part-time sales associate position in the
Cherry Hill Mall store while pursuing another career.
Appellants filed suit in the District Court in October 2003, and RadioShack moved
for summary judgment in May 2005. Appellants contend that, at that time, they had not
yet conducted discovery relating to the merits of their individual claims, but had instead
limited themselves to issues of class certification. RadioShack denies there was an
understanding between the parties to conduct discovery on a bifurcated schedule, pointing
to the fact that it did not limit its discovery to the issue of certification but (among other
things) deposed appellants on the merits of their claims. The District Court conceded that
“through oversight by both the Court and the parties” no scheduling order was entered,
and noted that correspondence between the parties on this matter was inconclusive.
Ultimately, however, the Court entered summary judgment for RadioShack, describing
the proceedings as “already protracted” and concluding that “[t]he record is sufficient to
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make a determination on the [summary judgment] motion.”
II. Jurisdiction and Standard of Review
The District Court had subject matter jurisdiction under 28 U.S.C. § 1331, and we
have jurisdiction over the appeal under 28 U.S.C. § 1291.
The District Court’s decision to refuse additional discovery before granting
summary judgment is reviewed for abuse of discretion. Bradley v. United States, 299
F.3d 197, 206 (3d Cir. 2002). Whether the District Court erred in granting summary
judgment is subject to plenary review. Doe v. County of Centre, 242 F.3d 437, 446 (3d
Cir. 2001). In considering this question, we apply the same standard as the District Court,
asking whether there are any genuine issues of material fact such that a reasonable jury
could find for the plaintiffs. Id. (citing Fed. R. Civ. P. 56(c)).
III. Analysis
A. Discovery
Appellants contend that the District Court abused its discretion when it decided
RadioShack’s motion for summary judgment before allowing for additional discovery.
See Fed. R. Civ. P. 56(f) (“Should it appear from the affidavits of a party opposing the
motion that the party cannot for reasons stated present by affidavit facts essential to
justify the party’s opposition, the court may refuse the application for judgment or may
order a continuance to permit . . . discovery to be had . . . .”).
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Appellants, however, never formally filed a Rule 56(f) motion. “This circuit
generally requires that a party file a Rule 56(f) affidavit in order to preserve the issue for
appeal.” Radich v. Goode, 866 F.2d 1391, 1393 (3d Cir. 1989); see Bradley, 299 F.3d at
206-07 (same). Appellants urge that their brief in opposition to RadioShack’s motion for
summary judgment, which included a discussion of the purported inadequacy of the
discovery process, be taken as the functional equivalent of a Rule 56(f) motion. Our
Court, however, employs a “strong presumption against a finding of constructive
compliance with Rule 56(f).” Bradley, 299 F.3d at 207.2
Ultimately, however, we do not need to decide the issue of constructive
compliance. Even if the appellants submitted the equivalent of a Rule 56(f) motion, there
is no basis for concluding that the District Court abused its discretion in implicitly
denying it. First, our Court generally denies relief under Rule 56(f) if the purported
inadequacy of the record is attributable to the movant’s own failure to take advantage of
the discovery period, rather than the other party’s lack of cooperation. See Lunderstadt v.
Colafella, 885 F.2d 66, 71-72 (3d Cir. 1989). Here, almost a year and a half passed
between the opening of the discovery period and RadioShack’s motion for summary
2
In Miller v. Beneficial Management Corp., we did rule that the District Court had
prematurely granted the defendant summary judgment despite the fact that a Rule 56(f)
affidavit was never filed by the plaintiff. 977 F.2d 834, 846 (3d Cir. 1992). The basis for
making an exception in that case, however, was that the plaintiffs relied detrimentally on
the Magistrate Judge’s order waiving the Rule 56(f) affidavit requirement. Id. See
Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 511 n.4 (3d Cir. 1994) (limiting the
applicability of Miller to those facts). Nothing like that occurred here.
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judgment. Moreover, appellants’ main outstanding request is for an opportunity to
depose Bruce Teufel (the district manager), someone with whom they twice scheduled
and cancelled depositions.
Second, appellants cannot establish that the information they seek would, if
uncovered, preclude summary judgment, as they must do to prevail on a Rule 56(f)
motion. Horvath v. Keystone Health Plan East, Inc., 333 F.3d 450, 458 (3d Cir. 2003).
As discussed below, the District Court correctly based its grant of summary judgment on
two undisputed facts: (1) RadioShack’s decisions to transfer appellants were dictated by
objective performance scorecards; and (2) appellants never applied for the promotions
that form the basis of their failure to promote claim. Nothing that might emerge from
further discovery could cast doubt on either of these facts.
Thus, in light of appellants’ own culpability for failing to complete discovery, and
their inability to establish that the discovery they seek would be material to the issues
raised in the summary judgment motion, the District Court properly refused to delay
consideration of RadioShack’s motion.
B. Employment Discrimination
Under Title VII, an aggrieved employee must file a charge of discrimination with
the Equal Employment Opportunity Commission within 180 days of the adverse
employment action. 42 U.S.C. § 2000e-5(e)(1). Under 42 U.S.C. § 1981, an action for
race discrimination must be brought within four years of the treatment alleged to be
7
discriminatory. Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382 (2004) (citing 28
U.S.C. § 1658(a)). Thus, appellants are barred from bringing employment discrimination
claims stemming from events prior to October 1999. That leaves only the claims relating
to: (1) Payne’s inability to obtain a transfer to the more successful Moorestown Mall store
in 2001 and 2002; (2) Bates’ transfer to the less successful Horsham store in 1999; and
(3) Cummings’ and Payne’s respective failures to be promoted to the position of district
manager during the four-year statutory period.3
The same elements of proof are necessary to establish employment discrimination
under Title VII and § 1981. Schurr v. Resorts Int’l Hotel, Inc., 196 F.3d 486, 499 (3d Cir.
1999). Because appellants have not introduced any direct evidence of discrimination, we
evaluate their claims under the familiar burden-shifting framework established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Appellants first bear the
burden of establishing a prima facie case of racial discrimination. Once they have done
so, the burden shifts to the employer to present a legitimate, non-discriminatory reason for
its decision. If that burden has been met, appellants must demonstrate that the proffered
business reason is pretextual. Id. at 802-04.
1. Transfer
RadioShack concedes that Payne and Bates have made out their prima facie case
of employment discrimination with respect to their store assignments. In response, it
3
Bates was not eligible for a district manager position during this period.
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offers the same business reason for each decision: the employee’s score on its
performance scorecard system. Payne was not promoted to manager of the Moorestown
Mall store in 2001 and 2002 because of his relatively low score, and Bates was demoted
to the Horsham store in 1999 because of his similarly low ranking. The District Court
granted summary judgment on this issue based on its finding that Payne and Bates could
not demonstrate that RadioShack’s reliance on its performance scorecards was a pretext
for discrimination.
Payne and Bates argue that the District Court erred in not evaluating
RadioShack’s use of its scorecards in light of the company’s overall environment of racial
animus and the low numbers of African-Americans occupying upper management
positions. They contend that, taking this broader context into account, a factfinder could
reasonably conclude that RadioShack uses its seemingly objective scoring system in a
discriminatory fashion, either by manipulating the candidate pool so as to avoid a
situation in which an African-American candidate has the highest score or by
systematically placing African-American managers in underperforming stores in order to
keep their scores artificially low.
We find this argument unpersuasive. That Payne and Bates each received
favorable employment decisions as soon as their scores improved blocks any reasonable
inference that their scores were not the real reason behind prior adverse decisions, or that
the scoring system was used in a manipulative fashion to deny them promotions because
9
of their race. “[T]o avoid summary judgment, the plaintiff’s evidence rebutting the
employer’s proffered legitimate reasons must allow a factfinder reasonably to infer that
. . . the employer’s proffered non-discriminatory reason[ ] . . . was either a post hoc
fabrication or otherwise did not actually motivate the employment action.” Fuentes v.
Perskie, 32 F.3d 759, 764 (3d Cir. 1994). Payne and Bates cannot meet this burden.
Thus, the District Court acted correctly in granting summary judgment to RadioShack on
this issue.
2. Failure to Promote
To make their prima facie failure to promote case, Cummings and Payne must
establish that: (1) they belong to a protected category; (2) they applied for and were
qualified for a job in an available position; (3) they were rejected; and (4) after they were
rejected, the position stayed open and the employer continued to seek applications from
similarly qualified individuals. Bray v. Marriot Hotels, 110 F.3d 986, 990 (3d Cir. 1997).
The District Court concluded that Cummings and Payne failed the second and third
prongs of the test, because neither applied for a district manager position. In fact, both
declined invitations to attend annual open houses for the district manager training
program, which is the first step in the application process.
Cummings and Payne argue that the District Court erred in treating as dispositive
their failure to apply for promotions. First, they contend they were not required to apply
for the promotions because doing so would have been futile, given the company’s history
10
of discriminatory hiring. See Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 365-
66 (1977) (“When a person’s desire for a job is not translated into a formal application
solely because of his unwillingness to engage in a futile gesture he is as much a victim of
discrimination as he who goes through the motions of submitting an application.”) We
believe International Brotherhood is clearly distinguishable. There, it was already
established that employees who had applied for promotions were denied because of their
race. The question was simply whether those who had been discouraged from applying
for promotions because of that history would be allowed to piggyback on the employment
discrimination claims of those who did apply. Id. at 363-64. Here, Cummings and Payne
have no comparable basis for establishing that they would not have received the
promotions had they applied for them. Thus, they cannot be relieved of the precondition
that they apply for a position before bringing a claim based on not receiving it.
Second, Cummings and Payne contend that their failure to apply for district
manager positions is irrelevant because RadioShack does not, in fact, fill district manager
vacancies through a formal application process; rather, candidates must receive a
recommendation from their district manager in order to obtain the promotion. A review
of the record, however, undercuts this assertion. Cummings and Payne were clearly
eligible, even without a recommendation from their district manager, to apply for
manager training school, which is the first step in the process of becoming a district
manager. It is true that, at that point, the company would have solicited the opinion of the
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district manager. But receiving such a recommendation is not a prerequisite for attending
manager training school. Therefore, since they never reached the recommendation stage
of the application process, there is no need for additional factfinding to discover why they
were never recommended for district manager positions.
The District Court, then, was correct in finding that Cummings and Payne cannot
state a prima facie case of failure to promote.
* * * * *
For the reasons stated above, we affirm the District Court’s grant of summary
judgment to RadioShack.
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