Moore v. Burlington No Santa Fe ( 2022 )

Case: 21-20103 Document: 00516542547 Page: 1 Date Filed: 11/11/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 11, 2022
No. 21-20103 Lyle W. Cayce
Clerk
Robert Moore,
Plaintiff—Appellant,
versus
Burlington Northern Santa Fe Railway Company,
Defendant—Appellee.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CV-3062
Before Richman, Chief Judge, and Clement and Engelhardt,
Circuit Judges.
Per Curiam:*
Robert Moore contends that Burlington Northern Santa Fe Railway
Company (BNSF) terminated his employment as a conductor trainee
because he was diagnosed with cancer. He sued BNSF for discrimination
under the Americans with Disabilities Act of 1990 (ADA) and for failure to
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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notify him that he could continue his health insurance coverage under the
Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA). The
district court granted summary judgment to BNSF and denied Moore leave
to amend his complaint. We affirm.
I
Moore worked at BNSF as a conductor trainee. On August 8th, 2018,
he operated a train on a two-person crew with Khollyn Evans, an engineer.
Evans sped through a restricted speed area on one section of the trip. Moore
told Evans that he was speeding, and Moore recorded the incident in the
train’s logbook. Moore did not otherwise report what occurred. BNSF
received an anonymous complaint the following day stating that Moore was
speeding and that he had boasted about it. BNSF investigated, interviewing
witnesses through August 15th. The company ultimately terminated Moore,
not Evans. Evans was a non-probationary employee who was unionized;
Moore was in an at-will probationary period without union protection.
Two days before Moore’s termination, Moore told BNSF about his
cancer diagnosis. He forwarded an email from his oncologist stating that he
would need to miss work due to surgery. Moore received his health insurance
through BNSF, and he alleges that he never received a notification that he
was eligible to continue his coverage under COBRA.
Moore sued BNSF for disability discrimination under the ADA as well
for a notice violation under COBRA. The district court issued an order
scheduling a pre-trial conference. In that order, the court stated that initial
disclosures may not be delayed. The order also provided that “[n]o
interrogatories, requests for admission, or depositions may be done without
court approval,” but it did not mention document requests. BNSF answered
Moore’s complaint, which asserted that the complaint failed to state a claim
for relief.
2
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Prior to the pre-trial conference, BNSF disclosed over 1,600 pages of
documents in its initial disclosures. At the conference itself, BNSF then
orally moved to have Moore’s ADA and COBRA claims “dismissed.” The
next day, the court issued an order inviting BNSF to “move for a judgment.”
BNSF then filed a “motion for judgment,” in which it moved for a dismissal
under Rule 12(b)(6) as well as summary judgment under Rule 56. Moore filed
an opposition brief and a motion to amend his complaint. Moore argued that
he had shown enough to be “entitled to discovery.” In his motion to amend,
Moore sought leave to amend his COBRA claim to allege that BNSF failed
to notify Moore’s health plan administrator, specifically, instead of alleging
that BNSF failed to notify Moore directly. Moore also sought to add the plan
administrator as a defendant.
The district court denied Moore’s motion to amend, reasoning that
Moore failed to provide evidence of a failure to notify. It then granted
summary judgment to BNSF on the ADA and COBRA claims. Regarding
the ADA claim, the court reasoned that Evans was not similarly situated to
Moore. Regarding the COBRA claim, the court determined that BNSF was
not required to notify Moore directly. Moore appealed.
II
Moore raises four arguments. First, he contends that the district court
improperly converted BNSF’s Rule 12 motion to dismiss into a Rule 56
motion for summary judgment. Second, he argues that the district court
should have permitted additional discovery before ruling on BNSF’s motion.
Third, if it was proper to rule on BNSF’s motion under Rule 56 without
further discovery, Moore contends that there is a genuine dispute of material
fact. Fourth, he argues that the district court improperly denied him leave to
amend his complaint.
3
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A
We start with Moore’s argument that the district court improperly
“converted” BNSF’s motion into a Rule 56 motion for summary judgment
without providing him proper notice. Rule 56(f) requires courts to give
parties “notice and a reasonable time to respond.” 1 Once a party is put on
“fair notice” that a court might convert a Rule 12 motion into a Rule 56
motion, “we have said that parties must have ten days to submit additional
evidence.” 2 We review for harmless error. 3
Here, the district court did not convert a Rule 12 motion into a Rule
56 motion, so the ten-day notice requirement was not triggered. The day
after the pre-trial conference, the district court invited BNSF to “move for a
judgment.” BNSF then expressly moved under Rule 56 for summary
judgment as well as under Rule 12 for a dismissal. Rule 56(f) requires “notice
and a reasonable time to respond” before a court grants summary judgment
sua sponte, not before granting summary judgment to a moving party under
Rule 56. 4 Because BNSF moved under Rule 56, Moore had proper notice
that the court might rule on summary judgment grounds.
Moore’s arguments to the contrary are unpersuasive. He contends
that when “the record is undeveloped and the parties have not conducted
discovery, a district court abuses its discretion by treating a Rule 12 motion
as one for summary judgment.” But the cases he cites in support are
1
Fed. R. Civ. P. 56(f).
2
Snider v. L-3 Commc’ns Vertex Aerospace, L.L.C., 946 F.3d 660, 667 (5th Cir.
2019).
3
Sayles v. Advanced Recovery Sys., Inc., 865 F.3d 246, 249 (5th Cir. 2017).
4
See Fed. R. Civ. P. 56(f).
4
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distinguishable because they involved motions under Rule 12, not Rule 56. 5
Moore separately argues that when parties have not conducted discovery, a
district court abuses its discretion by treating a “hybrid” Rule 12 and 56
motion as one for summary judgment. But we have held that a “hybrid”
motion is properly treated as a summary judgment motion when a district
court considers materials beyond the pleadings, as the court below did here. 6
B
Next, Moore argues that the district court abused its discretion by
ignoring his request for additional discovery. “Rule 56 does not require that
any discovery take place before summary judgment can be granted . . . .” 7 If
a party cannot adequately defend against summary judgment, a Rule 56(d)
motion for a continuance is his or her remedy. 8 Rule 56(d) provides that “[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 . . . allow
5
See Benchmark Elecs., Inc. v. J.M. Huber Corp., 343 F.3d 719, 725-26 (5th Cir.
2003) (emphasizing that each party was “careful” to “treat [the movant’s] motion as a
Rule 12 motion on the pleadings,” not one for summary judgment); see also Foley v. Wells
Fargo Bank, N.A., 772 F.3d 63, 71 (1st Cir. 2014) (“Wells Fargo moved to dismiss Foley’s
complaint for failure to state a claim, pursuant to [Rule] 12(b)(6).”); Whiting v. Maiolini,
921 F.2d 5, 6 (1st Cir. 1990) (“Appellees filed a Rule 12(c) motion for judgment on the
pleadings which the district court viewed as a Rule 12(b)(6) motion to dismiss for failure to
state a claim upon which relief may be granted and then treated as a motion for summary
judgment under Rule 56, which it granted.”); First Chicago Int’l v. United Exch. Co., 836
F.2d 1375, 1377 (D.C. Cir. 1988) (“[A]lthough the motions were brought under Federal
Rules of Civil Procedure 12(b)(6) and 12(h)(2), they were considered by the court as
motions for summary judgment.”); Gay v. Wall, 761 F.2d 175, 176 n.1 (4th Cir. 1985) (“The
defendants’ motion was simply a motion to dismiss, not a motion to dismiss or, in the
alternative, a motion for summary judgment.”).
6
See Isquith ex rel. Isquith v. Middle S. Utils. Inc., 847 F.2d 186, 193-95 (5th Cir.
1988).
7
Washington v. Allstate Ins. Co., 901 F.2d 1281, 1285 (5th Cir. 1990).
8
Id.5
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time to . . . take discovery.” 9 There is “no stringent procedure that will bar
litigants access to further discovery,” 10 as continuances “are broadly favored
and should be liberally granted.” 11 We review for abuse of discretion. 12
If a party does not file an affidavit under Rule 56(d) requesting a
continuance, as was the case here, the party must satisfy four requirements
for its discovery request to be the “functional equivalent” of a Rule 56(d)
motion. 13 First, the non-movant must “submit an ‘equivalent statement
preferably in writing’ that conveys the need for additional discovery” prior
to the court ruling on summary judgment. 14 Second, the request must “put
the trial court on notice that further discovery pertaining to the summary
judgment motion is being sought.” 15 Third, it must demonstrate to the trial
court “specifically how the requested discovery pertains to the pending
motion.” 16 Lastly, the non-movant must “diligently pursue relevant
discovery.” 17
Moore did not file an express Rule 56(d) motion. Instead, in his
response to BNSF’s motion for judgment, he stated that he had “shown” or
“demonstrated enough to be entitled to discovery” before summary
9
Fed. R. Civ. P. 56(d).
10
Wichita Falls Off. Assocs. v. Banc One Corp., 978 F.2d 915, 919 (5th Cir. 1992).
11
Renfroe v. Parker, 974 F.3d 594, 600-01 (5th Cir. 2020) (quoting Am. Fam. Life
Assurance Co. of Columbus v. Biles, 714 F.3d 887, 894 (5th Cir. 2013)).
12
Id. at 600.
13
See Wichita Falls, 978 F.2d at 918-19.
14
Id. at 919 (quoting Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir.1986)).
15
Id.16
Id.17
Id.6
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judgment. He did not explain specifically how discovery he sought related to
the pending motion. At the pre-trial conference, when asked if he had
anything else to discuss, Moore did not bring up discovery. In his brief in
response to the summary judgment motion, Moore admitted that “[e]ven
though he has not yet been allowed to conduct discovery, [he] has a plethora
of evidence from which a reasonable person could find that BNSF was
motivated to terminate him because of his disability.” The district court did
not abuse its discretion in denying discovery.
C
Turning to the merits of BNSF’s motion, the district court granted
summary judgment to BNSF on Moore’s ADA and COBRA claims. We
review a grant of summary judgment de novo. 18 Summary judgment is proper
“if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” 19 “A genuine
dispute of material fact exists when the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” 20 We “must ‘draw all
reasonable inferences in favor of the nonmoving party’ and ‘refrain from
making credibility determinations or weighing the evidence.’” 21
18
E.E.O.C. v. LHC Grp., Inc., 773 F.3d 688, 694 (5th Cir. 2014).
19
Fed. R. Civ. P. 56(a).
20
LHC Grp., Inc., 773 F.3d at 694 (internal quotation marks omitted) (quoting
Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d 396, 400 (5th Cir. 2013)).
21
Id. (quoting Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir.
2007)).
7
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1
The ADA prohibits an employer from discriminating “against a
qualified individual on the basis of disability.” 22 The three-part McDonnell
Douglas Corp. v. Green 23 framework applies when a plaintiff offers only
circumstantial evidence. 24 First, the plaintiff must establish a prima facie
case of discrimination. 25 “To establish a prima facie discrimination claim
under the ADA, a plaintiff must prove: (1) that he had a disability; (2) that he
was qualified for the job; [and] (3) that he was subject to an adverse
employment decision on account of his disability.” 26 Second, if the plaintiff
establishes a prima facie case, the burden shifts to the defendant to articulate
a legitimate, non-discriminatory reason for its adverse action. 27 Third, if the
defendant makes this showing, the burden shifts back to the plaintiff to show
that the defendant’s stated reason was pretextual. 28
At step one, Moore met his burden. BNSF does not dispute that
cancer is a disability under the ADA nor that Moore was qualified for his
position. As to causation, the timing of Moore’s termination is sufficient for
purposes of his prima facie case. 29 At step two, Moore concedes that BNSF
22
42 U.S.C. § 12112(a).
23
411 U.S. 792 (1973).
24
LHC Grp., Inc., 773 F.3d at 694.
25
Id.
26
Id. at 697 (alteration in original) (quoting Zenor v. El Paso Healthcare Sys., Ltd.,
176 F.3d 847, 853 (5th Cir. 1999)).
27
Id. at 694.
28
Id.
29
Feist v. Louisiana, Dep’t of Just., Off. of the Atty. Gen., 730 F.3d 450, 454 (5th Cir.
2013) (“A plaintiff alleging retaliation may satisfy the causal connection element by
showing ‘[c]lose timing between an employee’s protected activity and an adverse action
against him.’”) (alteration in original) (quoting McCoy v. City of Shreveport, 492 F.3d 551,
8
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stated a valid, non-discriminatory reason for Moore’s termination—the rule
violation. Moore’s ADA claim, therefore, turns on whether BNSF’s stated
reason was pretextual.
Drawing all inferences in Moore’s favor, we conclude that there is no
genuine dispute of material fact on whether BNSF’s stated reason was
pretextual. As an initial matter, Moore again relies on the timing of his
termination to establish pretext. But “once the employer offers a legitimate,
nondiscriminatory reason that explains both the adverse action and the
timing, the plaintiff must offer some evidence from which the jury may infer
that retaliation was the real motive.” 30 Put another way, plaintiffs must go
beyond timing to show pretext. Each of Moore’s remaining three arguments
falls short.
First, Moore’s contention that BNSF treated other employees
differently fails because his comparators are not similarly situated. When an
employee argues that other employees were treated differently, we require
the comparator to have been “under nearly identical circumstances” to the
plaintiff.31 Employees with different jobs or supervisors, for example, are not
similarly situated. 32 Moore argues that Evans and “other probationary
employees” are suitable comparators. But Evans had a different job than
Moore, had worked at BNSF for longer, and was a member of a union.
562 (5th Cir. 2007)); see also id. (explaining that a five-month lapse is not close enough but
“up to four months” may be sufficient) (quoting Evans v. Houston, 246 F.3d 344, 354 (5th
Cir. 2001).
30
Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997).
31
Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 259-60 (5th Cir. 2009).
32
Id.9
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Likewise, Moore never established that the “other probationary employees”
had similar jobs, supervisors, or that they did not have disabilities.
Second, Moore raises a handful of new arguments on appeal. He
asserts that he was never interviewed during the company’s investigation of
his rule violation, which we have held may undermine the credibility of an
employer’s non-discriminatory reason. 33 He also argues that BNSF has been
inconsistent in its reliance on its stated reason for terminating Moore.
Because Moore did not raise either argument in the district court, they are
forfeited on appeal. 34
Lastly, Moore asserts that he did not violate BNSF’s operating rules
and that BNSF deviated from its policy when it terminated his employment.
He offers evidence to suggest that speeding alone is not a terminable offense
the first time that it occurs. But BNSF also claims to have fired Moore
because he boasted about the incident. Moore contends that the anonymous
complaint that accused him of boasting is unreliable because it did not
mention the engineer. Even drawing that omission in Moore’s favor and
recognizing that courts may not assess credibility on summary judgment
motions, 35 the only evidence Moore offers in his favor is his own assertion
that he never discussed the speeding incident. By itself, an “assertion of
innocence” is not sufficient to create a genuine dispute of material fact.36
The issue is not whether Moore boasted but whether, in the course of its
investigation, BNSF had reason to think that he did. Summary judgment to
BNSF on the ADA claim was proper.
33
Laxton v. Gap Inc., 333 F.3d 572, 581 (5th Cir. 2003).
34
Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 377 (5th Cir. 2010).
35
E.E.O.C. v. LHC Grp., Inc., 773 F.3d 688, 694 (5th Cir. 2014).
36
See Jackson, 602 F.3d at 379 (5th Cir. 2010).
10
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2
Turning to Moore’s COBRA claim, the statute instructs that “[t]he
plan sponsor of each group health plan shall provide . . . that each qualified
beneficiary who would lose coverage under the plan as a result of a qualifying
event is entitled . . . to elect . . . continuation coverage under the plan.” 37
“[T]he employer of an employee under a plan must notify the administrator
of a qualifying event . . . within 30 days . . . .” 38 The “administrator” must
then “notify” the beneficiary of the plan’s termination within fourteen
days. 39 An “administrator” is defined as the “person specifically so
designated by the terms of the instrument under which the plan is
operated.” 40
Moore did not adequately plead a COBRA notice violation. He
alleged that BNSF failed to provide him notice. But Moore’s health
insurance plan designated an outside entity as its administrator. Under
§ 1166(a)(4), the administrator was required to notify Moore—not BNSF. 41
Moore’s alternative argument that his complaint encompasses an action
against BNSF for failing to notify the administrator also fails. The complaint
is clear that Moore alleged that BNSF failed to notify Moore, specifically, not
the plan administrator. Summary judgment to BNSF on the COBRA claim
was appropriate.
37
29 U.S.C. § 1161(a).
38
29 U.S.C. § 1166(a)(2).
39
§ 1166(a)(4), (c).
40
29 U.S.C. § 1002(16)(A).
41
See § 1166(a)(4).
11
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D
Finally, Moore argues that the district court abused its discretion by
denying him leave to amend his COBRA claim. We review the denial of leave
to amend for abuse of discretion. 42 “In light of the presumption in favor of
allowing pleading amendments, courts of appeals routinely hold that a
district court’s failure to provide an adequate explanation to support its
denial of leave to amend justifies reversal.” 43 “But when the justification for
the denial is ‘readily apparent,’ a judge’s failure to explain ‘is unfortunate
but not fatal to affirmance if the record reflects ample and obvious grounds
for denying leave to amend.’” 44 “Futility is one such basis, and we review a
proposed amendment under ‘the same standard of legal sufficiency as applies
under Rule 12(b)(6).’” 45
Although the district court’s reasoning was sparse, we conclude that
Moore’s attempt to amend was futile. Moore admitted below that he
“cannot know whether him not receiving the notice resulted from BNSF
failing to notify the plan administrator of his termination or the plan
administrator failing to notify him of his eligibility.” Pleadings require more
than “mere conclusory statements,” and due to that admission, it is clear
that Moore’s amended allegation would be conclusory. 46 Moore could have
submitted document requests during the period allowed by the pre-trial order
to obtain evidence as to whether BNSF notified the plan administrator of
42
Hammer v. Equifax Info. Servs., L.L.C., 974 F.3d 564, 569 (5th Cir. 2020).
43
Id. (quoting Mayeaux v. La. Health Serv. & Indem. Co., 376 F.3d 420, 426 (5th
Cir. 2004)).
44
Id. at 569-70 (quoting Mayeaux, 376 F.3d at 426).
45
Id. at 570 (quoting Marucci Sports, L.L.C. v. Nat’l Collegiate Athletic Ass’n, 751
F.3d 368, 378 (5th Cir. 2014)).
46
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
12
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Moore’s termination. He did not do so. The district court did not abuse its
discretion by denying Moore leave to amend.
* * *
The district court’s judgment is AFFIRMED.
13