Miller v. University of Houston ( 2021 )

Case: 19-20753 Document: 00515726337 Page: 1 Date Filed: 01/29/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 29, 2021
No. 19-20752 Lyle W. Cayce
Clerk
Audrey K. Miller,
Plaintiff—Appellant,
versus
Sam Houston State University; Texas State University
System,
Defendants—Appellees,
consolidated with
No. 19-20753
Audrey K. Miller,
Plaintiff—Appellant,
versus
University of Houston System; University of Houston
Downtown,
Defendants—Appellees.
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Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:15-CV-2824
USDC No. 4:15-CV-2927
Before Jolly, Southwick, and Wilson, Circuit Judges.
Cory T. Wilson, Circuit Judge:
A litigant has the fundamental right to fairness in every proceeding.
Fairness is upheld by avoiding even the appearance of partiality. See, e.g.,
Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980). When a judge’s actions
stand at odds with these basic notions, we must act or suffer the loss of public
confidence in our judicial system. “[J]ustice must satisfy the appearance of
justice.” Offutt v. United States, 348 U.S. 11, 14 (1954).
Audrey Miller sued Sam Houston State University (SHSU) and
Texas State University System (TSUS) under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000(e) et. seq., and the Equal Pay Act, 29 U.S.C. §
206(d), alleging sex discrimination, retaliation, and a hostile work
environment. A week later, Miller filed a separate action against the
University of Houston Downtown (UHD) and the University of Houston
System (UHS), also under Title VII, alleging that UHD’s denial of
employment constituted retaliation. 1
From the outset of these suits, the district judge’s actions evinced a
prejudgment of Miller’s claims. At the beginning of the Initial Case
Management Conference, the judge dismissed sua sponte Miller’s claims
against TSUS and UHS, countenancing no discussion regarding the
dismissal. Later in the same conference, the judge responded to the parties’
1
There are thirty-seven public universities in Texas; thirty-four universities belong
to one of six state university systems. SHSU is a component of TSUS, and UHD belongs
to UHS.
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opposition to consolidating Miller’s two cases by telling Miller’s counsel, “I
will get credit for closing two cases when I crush you. . . . How will that look on your
record?”
And things went downhill from there. The court summarily denied
Miller’s subsequent motion for reconsideration, denied Miller’s repeated
requests for leave to take discovery (including depositions of material
witnesses), and eventually granted summary judgment in favor of SHSU and
UHD, dismissing all claims. Miller now appeals the district court’s rulings
and asks for her cases to be reassigned on remand. Mindful of the
fundamental right to fairness in every proceeding—both in fact, and in
appearance, we REVERSE, REMAND, and direct that these cases be
REASSIGNED to a new district judge for further proceedings.
I.
A.
Miller joined SHSU as a tenure-track Assistant Professor of
Psychology in the University’s Clinical Psychology Doctoral Program
(“Clindoc Program”) in the Department of Psychology and Philosophy in
August 2007. In this position, Miller supervised students in the Clindoc
Program, taught practicum courses, and served on students’ dissertation and
thesis committees. According to SHSU, Miller was “lacking in collaborative
and attentive generosity towards her colleagues.” She complained about her
heavy workload, which she believed to be disproportionate compared to that
of her colleagues. Miller also disagreed with other members of the faculty
while serving on dissertation and thesis committees. She was removed from
one committee due to her inflexibility and voluntarily offered to step down
from another due to conflicts with other committee members. Miller
contends these disagreements were retaliatory because of her sex and the
complaints that she raised concerning her clinical workload.
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Despite these issues, Miller applied for tenure at SHSU in late 2012.
But her reviewers recommended that Miller’s tenure and promotion be
denied due to her lack of collegiality. SHSU informed Miller of its decision
to deny tenure on March 27, 2013.
Thereafter, Miller filed charges of sex discrimination and retaliation
with the Equal Employment Opportunity Commission (EEOC) and the
Texas Workforce Commission. She then utilized the Texas Public
Information Act to obtain voluminous documentation from SHSU. A few
months later, SHSU denied Miller a merit-based salary increase for the 2013-
2014 academic year. Miller filed a formal grievance with SHSU, based on the
same allegations as her EEOC charge (i.e., that her tenure decision was
adversely affected by sex discrimination and retaliation). Miller’s
employment with SHSU ended on May 31, 2014.
B.
After learning of her tenure denial at SHSU, Miller applied for one of
three open faculty positions at UHD. On March 17, 2014, she interviewed
with the UHD search committee, as well as Department Chair Jeffery
Jackson, Dean DoVeanna Fulton, and Provost Edward Hugetz. During the
interview, search committee members asked Miller why SHSU denied her
tenure. Miller responded that she “believed [she] had been denied tenure
because [she] was a woman and because [she] had raised concerns about the
mistreatment of women in the department at SHSU prior to applying for
tenure.” Following the interview, the committee rated Miller as the second
highest candidate for a position.
On April 4, 2014, the UHD search chair emailed Department Chair
Jackson and Dean Fulton and stated that the search committee was interested
in extending offers to three candidates, including Miller. That same day, the
search chair asked Miller if she would allow UHD to contact her SHSU
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Department Chair, Christopher Wilson. Miller obliged but advised the
search chair that Wilson was one of the individuals about whom she had
complained at SHSU.
On April 7, Department Chair Jackson sent an email to the search
chair. He stated that while Dean Fulton seemed agreeable to the
committee’s recommendations, Fulton wanted to follow up with Miller’s
supervisors at SHSU. The search chair responded that she was “worried
[SHSU Department Chair Wilson would] have to be very careful []
discussing [Miller’s] tenure denial because of the legal issues we [have]
discussed.” Later that day, Jackson called Wilson to inquire into SHSU’s
decision to deny Miller tenure and promotion.
What was said during the phone call is nowhere in the record. But
after Department Chair Jackson’s call with Department Chair Wilson, UHD
reversed course from the search committee’s previous recommendation,
deciding not to extend Miller an offer of employment. On April 29, Miller
emailed the UHD search chair regarding the status of her UHD application.
The search chair responded that the position had been filled: “The final
employment decision was complicated and involved the search committee,
department chair, dean, and provost.”
In the end, UHD filled all three open positions with candidates who
scored lower on UHD’s hiring metrics than Miller. According to Dean
Fulton, UHD’s decision not to hire Miller was “based entirely on [] concerns
regarding [] Miller’s teaching and service due to her tenure denial at SHSU.”
The dean further stated that she was never “made aware that [] Miller had
filed a charge of discrimination or other complaint against SHSU with any
federal or state authorities.” Miller later filed complaints against UHD with
the EEOC and the Texas Workforce Commission.
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C.
On September 28, 2015, Miller filed suit against SHSU and TSUS in
the Southern District of Texas. On October 6, Miller filed a separate lawsuit
against UHD and UHS in the same court. The district court issued an order
to handle the suits jointly, but they were not formally consolidated.
From the start, the district court effectively stifled Miller’s attempts
at discovery. The day after Miller filed suit, the district court issued an Order
of Conference in each action that limited discovery. The (identical) orders
foreclosed the parties from propounding written discovery or noticing
depositions “without court approval.” The district court then issued an
Order for Disclosure that mandated the parties’ exchange of certain relevant
documents in each case, including Miller’s performance and personnel
records, her pay records, names of relevant parties, and organizational charts.
On the surface, the district court’s initial discovery management orders were
perhaps unremarkable. But the court did not stop there, as we discuss in
greater detail below.
On January 25, 2016, the parties in both cases first met at a joint Initial
Case Management Conference. At the outset, and without any prior notice,
the district judge stated:
THE COURT: [Miller], we’ve got four parties instead of
the two.
[Miller’s counsel]: Oh. The –
THE COURT: You sued the System[s] and the
institution[s]. So, pick any two you want.
I don’t care.
[Miller’s counsel]: I am going to go with the Universities.
THE COURT: Is that right?
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[Opposing counsel]: Yes, Your Honor. To be clear, you know,
that was an issue that we were going to
hope to resolve by –
THE COURT: I just did.
[Opposing counsel]: Yes, Your Honor.
THE COURT: We’ll dismiss the Systems.
[Opposing counsel]: Thank you, Your Honor.
THE COURT: Systems don’t do anything. They hire
large staffs and go around and make life
difficult for the actual institutions
themselves. It’s in their charter; annoy
their workers.
As the conference continued, the district judge made several other off-
key remarks, such as his thoughts concerning Miller’s behavior: “Now, to be
candid with you, . . . there is nothing that [Miller] didn’t complain about.
Anything anybody did for two and a half years, three years, was all for some
ulterior motive.” The judge also lumped Miller’s claims in with
preconceived notions from previous cases involving professors: “As near as
I can tell, [Miller’s] only complaint here is likely she was paid less but that
she didn’t get tenure.” He then supported this statement by revealing his
familiarity with Title VII cases: “I have never thought about it, but I have
had more tenure decisions than you can imagine working here. You wouldn’t
think professors were litigious, but apparently they are.”
The judge made other remarks that signaled a predisposition against
Miller’s claims. When Miller requested additional discovery, including the
opportunity to take depositions, the district judge denied her request, noting
that it was “too argumentative” and extensive. Finally, as the initial
conference ended, the judge asked the parties if the cases should be
consolidated. Contrary to the judge’s apparent preference, the parties
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unanimously requested that the court keep the cases separate. The district
judge replied to Miller’s counsel, “All right. I will get credit for closing two
cases when I crush you.” Miller’s counsel attempted to respond, but the
judge interjected: “How will that look on your record?”
The day after the Initial Case Management Conference, the district
court formally dismissed TSUS and UHS with prejudice. The court did not
allow Miller to amend her complaints or otherwise respond prior to
dismissing TSUS and UHS. Miller moved for reconsideration, arguing that
the Systems were “responsible for managing and controlling their
Universities.” 2 The next day, before TSUS or UHS responded, the court
denied Miller’s motion, reasoning that Miller failed to supply “objective
facts” in her complaint about the Systems’ actions.
On April 13, 2016, Miller filed opposed motions for discovery. Miller
sought, inter alia, performance records concerning tenure-track and tenured
faculty members in the SHSU psychology department, pay records, and work
assignments (i.e., course loads). Miller also sought applications and related
communications from UHD regarding its employment decisions. The
district court denied Miller’s motions the following day, without response
from SHSU or UHD.
The district court held a pretrial conference on May 4, 2016. There,
the parties discussed the limited discovery that had been exchanged. The
district judge asked the Universities’ counsel if he had taken Miller’s
deposition and then permitted counsel to notice the deposition. Miller’s
counsel then asked, “May we take depositions as well?” The judge
2
Miller only filed her motion for reconsideration in her action against SHSU and
TSUS. However, the motion addressed both TSUS and UHS, and the district court ruled
in regard to both parties. For the sake of simplicity, we likewise treat the motion for
reconsideration as pertaining to Miller’s claims against both TSUS and UHS.
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responded, “No.” Afterwards, the court entered a Management Order that
stated that SHSU and UHD “may depose Miller in Judge Hughes’s Jury
Room.”
On May 12, Miller again filed opposed motions for leave to propound
discovery, renewing her “request that in the interest of efficiency and
economy, the court order the full scope of discovery that has been specifically
requested by Plaintiff.” Miller attached extensive discovery requests to the
motions and stated that she had also “submitted the attached discovery
requests . . . in document form during the last pretrial conference . . . held on
May 4, 2016.”
TSUS and UHD deposed Miller on May 25, while Miller’s motions
remained pending. The district judge actually attended parts of the
deposition and participated. At one point, the judge admonished Miller:
THE COURT: If you’re unhappy with the rulings I’ve
made about discovery, that’s fine. Free
Country. This is not a place to discuss
your feelings. It’s a place to answer
[opposing counsel’s] questions. You have
sued his client – their – their clients’
people, and they have a right to know
exactly why.
Later, the judge again interjected:
THE COURT: Ma’am, you’re not to lecture the State
of Texas on the law. [Your counsel] and I
will do that. It is not important to your
case what you think about what nine old
people on the Potomac River talk about
something. We’re here to find out what
you actually know . . . about the facts. So,
please, do not burden the record with side
trips.
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After the deposition, the district court held another hearing. Within
the first minute of that hearing, the district judge queried TSUS and UHD’s
counsel: “So are you going to move for summary judgment?”—clearly
implying that they should. And later, as Miller’s counsel sought to explain
why he believed that certain data provided by SHSU was inaccurate, the
judge responded, “I think you’re making that up.”
Both SHSU and UHD moved for summary judgment in June 2016.
By then, the court had yet to allow Miller to take any depositions. In response
to the summary judgment motions, Miller requested a Rule 56(d)
continuance, asking the court to grant discovery beyond the “general
information provided by the Defendant[s]” under the court’s original
disclosure order. Miller also moved to strike certain declarations in each
case. The court denied both Miller’s Rule 56(d) discovery requests and her
May 12 motions for leave to propound discovery.
On March 29, 2017, the district court held oral argument on the
Universities’ summary judgment motions. After the hearing (and after
summary judgment briefing was complete), the court entered a Management
Order that allowed Miller to depose Dean Fulton, but only “for two hours,
at most.”
Following Dean Fulton’s deposition, Miller again moved for leave to
conduct additional depositions in the UHD action. She requested permission
to depose Department Chair Jackson and the UHD search chair and several
search committee members. In support of her motion, Miller asserted that
it [wa]s increasingly clear that Defendants have avoided
testimony about the contents of the telephone reference from
Wilson of SHSU, not only because of its obvious relevance in
this case but also in an attempt to protect SHSU from liability
for its own retaliatory actions. [Miller] should have an
opportunity to depose Wilson of SHSU in this case.
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(emphasis in original). The district court again denied Miller’s request, and
on September 30, 2019, the court granted TSUS’s and UHD’s motions for
summary judgment. Miller filed notices of appeal in both cases on October
30, 2019.
II.
On appeal, Miller raises the following issues: (A) whether the district
court erred by dismissing sua sponte her claims against TSUS and UHS; (B)
whether the district court erred by denying her motion for reconsideration of
that ruling; (C) whether the district court abused its discretion by denying
her repeated discovery requests; and (D) whether the cases should be
reassigned on remand. We address each issue in turn.
A.
Miller first asserts that the district court erred by dismissing sua sponte
her claims against TSUS and UHS. She contends that the court failed to
provide her notice, an opportunity to respond, or the opportunity to allege
her best case before dismissing the claims with prejudice. TSUS and UHS
counter that the dismissal was fair. We review de novo. Carroll v. Fort James
Corp., 470 F.3d 1171, 1173 (5th Cir. 2006).
A district court may dismiss a complaint for failure to state a claim on
its own motion “as long as the procedure is fair.” Davoodi v. Austin Indep.
Sch. Dist., 755 F.3d 307, 310 (5th Cir. 2014) (internal quotation marks and
citation omitted). While there is no bright-line rule, generally “fairness in
this context requires both notice of the court’s intention and an opportunity
to respond.” Id. (citing Lozano v. Ocwen Fed. Bank, FSB, 489 F.3d 636, 643
(5th Cir. 2007)); see also Gaffney v. State Farm Fire & Cas. Co., 294 F. App’x
975, 977 (5th Cir. 2008). But “[w]e do not always require notice prior to sua
sponte dismissal for failure to state a claim, as long as the plaintiff has alleged
[her] best case.” Lozano, 489 F.3d at 643 (internal quotation marks and
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citation omitted). We have reasoned that “[a]t some point a court must
decide that a plaintiff has had fair opportunity to make [her] case[, and] if,
after that time, a cause of action has not been established, the court should
finally dismiss the suit.” Jacquez v. Procunier, 801 F.2d 789, 792 (5th Cir.
1986).
We have not ruled on a case with facts squarely aligned to the ones
here, but we glean insight from our prior decisions. In Carroll, the defendant
moved to dismiss a fraud claim under Rule 12(b)(6). Carroll, 470 F.3d at 1173.
Although there were additional tort claims beyond the scope of the
defendant’s motion, the district court dismissed the case in its entirety
without providing any specific reference to the remaining claims. Id. On
appeal, this court found that the district court failed to provide notice or an
opportunity to respond as to the tort claims pled in the plaintiff’s complaint,
and thus, the district court’s dismissal “did not provide adequate fairness”
to the plaintiff. Id. at 1177.
Gaffney, though nonprecedential, is likewise analogous. There, the
plaintiffs sought damages against their insurer for failing to tender coverage
payments. Gaffney, 294 F. App’x at 976. The plaintiffs later moved to
transfer venue, continue the trial, and consolidate their case with a related
case. Id. But after considering the motion, the court dismissed sua sponte the
plaintiffs’ claims, finding the plaintiffs had no cause of action. Id. As in
Carroll, we held on appeal that the district court denied the plaintiffs both
notice “that it might sua sponte dismiss their case and an opportunity to
respond.” Id. at 977. We also noted that “[t]here [wa]s no evidence in the
record to suggest that the district court notified any party that it was
considering dismissal, neither party briefed the issue, and [p]laintiffs were
not given an opportunity to amend their complaint to cure any deficiencies
that the district court thought warranted dismissal.” Id.
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Finally, in Davoodi, the plaintiff filed suit in state court against his
former employer, asserting claims of discrimination, retaliation, and
intentional infliction of emotional distress. Davoodi, 755 F.3d at 308.
Following removal to federal court, the defendant filed a partial motion to
dismiss, seeking to dismiss all claims but one. Id. at 309. The district court
granted the defendant’s partial motion to dismiss and then dismissed sua
sponte the plaintiff’s remaining claim. Id. We reversed the district court’s
dismissal because the plaintiff “had no notice or opportunity to be heard
before the district court issued its order of dismissal.” Id. at 310.
Whether Miller received proper notice under the circumstances here
is debatable. Similar to Carroll and Davoodi, nothing in the record suggests
the district court notified the parties that it was considering dismissal of
Miller’s claims against TSUS or UHS before the court raised the issue at the
beginning of the Initial Case Management Conference. To the contrary, as
the conference began, the district judge simply demanded that Miller “pick
any two [of the four parties] you want. I don’t care.” Once she did so, the
court ruled on the spot: “We’ll dismiss the Systems.”
Even assuming that exchange constituted notice to Miller prior to the
Systems’ dismissal, the district court failed to give Miller an adequate
opportunity to respond to the court’s intention to dismiss her claims. The
district court dismissed Miller’s claims at the Initial Case Management
Conference and memorialized the dismissal in an order entered a day later.
The record provides no indication that any party briefed the issue until Miller
moved for reconsideration. It is also notable that the district court dismissed
TSUS and UHS with prejudice, so Miller was likewise not given any
opportunity to amend her complaint to cure the deficiencies that ostensibly
warranted dismissal of the Systems. “Dismissing an action after giving the
plaintiff only one opportunity to state [her] case is ordinarily unjustified.”
Jacquez, 801 F.2d at 792; see also Gaffney, 294 F. App’x at 977.
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Taking all of this into consideration, the district court failed to give
Miller an adequate opportunity to respond before it dismissed her claims
against TSUS and UHS with prejudice; accordingly, the court erred in its sua
sponte dismissal of TSUS and UHS. 3
B.
It follows that the district court likewise erred when it denied Miller’s
motion for reconsideration. So we need not tarry long on this issue, except
to underscore a couple points. The first, succinctly, is that it was not a “fair
procedure,” as required for a sua sponte dismissal, for the court to force Miller
to resort to a motion to reconsider—as a proxy for arguments she might have
made before dismissal—as her only avenue to oppose the dismissal of her
claims. See Carroll, 470 F.3d at 1177; see also Gaffney, 294 F. App’x at 977.
The second, less succinctly, is that the points raised in Miller’s
motion for reconsideration illuminate why dismissal of the Systems was
premature under the fact-specific inquiry used to evaluate employment
relationships, at least given the scant record before us. In her motion, Miller
alleged that the Systems were her “employers” because they were
“responsible for the control and management of their Universities,”
including personnel decisions and the granting of tenure. This court applies
a two-step process for determining whether a defendant is an “employer”
under Title VII. E.g., Deal v. State Farm Cnty. Mut. Ins. Co., 5 F.3d 117, 118
n.2 (5th Cir. 1993). 4 Relevant here, one component of this test is “[t]he right
to control [the] employee’s conduct.” Id. at 119. And when examining the
3
We also reject SHSU’s and UHD’s argument that Miller alleged her “best case”
because she was not given a chance to amend her complaint. Jacquez, 801 F.2d at 792.
4
Miller’s claim against UHS (and UHD) is premised on “retaliation, in violation
of Section 704(a) of Title VII, 42 U.S.C. § 2000e-3(a),” as a prospective employer; however,
the relevant test for determining whether a defendant is an “employer” is the same.
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control component, we have focused on whether the alleged employer has
the right to hire, fire, supervise, and set the work schedule of the employee.
Id. Another component focuses on the “economic realities” of the
relationship, including “whether the alleged employer paid the employee’s
salary, withheld taxes, provided benefits, and set the terms and conditions of
employment.” Id.
This test is “necessarily a fact-specific inquiry and is therefore
typically applied in a summary judgment context, in which a court is
permitted to go beyond the pleadings and examine the state law and the
evidence relevant to the employment relationship.” Muhammad v. Dallas
Cnty. Cmty. Supervision & Corrs. Dept., 479 F.3d 377, 382 (5th Cir. 2007); cf.
Weeks v. Tex. A&M Univ. Sys. – at Galveston, 762 F. App’x 203, 204–05 (5th
Cir. 2019) (finding, at summary judgment stage, that plaintiff was not
employed by the University System because “[i]t lacked the right to hire, fire,
supervise, and set [his] work schedule; [and] it therefore could not be said to
have the right to control [the plaintiff’s] conduct”).
By contrast, here, the district court’s initial dismissal of TSUS and
UHS apparently rested only on the district judge’s own expressed view that
“Systems don’t do anything.” The court’s denial of Miller’s motion for
reconsideration, the day after she filed it, squelched any further development
of Miller’s allegations and arguments to the contrary (and any opposition to
Miller’s motion the Systems might have interposed). While there are cases
in which a Rule 12(b)(6) dismissal may be appropriate, the district court’s
premature ruling here was “based on an erroneous view of the law or a clearly
erroneous assessment of the evidence,” Austin v. Kroger Tex., L.P., 864 F.3d
326, 329 (5th Cir. 2017), such that it was an abuse of discretion.
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C.
After its dismissal of TSUS and UHS and its denial of Miller’s motion
for reconsideration, the district court repeatedly denied Miller’s requests for
discovery, including her requests to depose witnesses with knowledge
material to her claims. Miller asserts the district court abused its discretion
in doing so. Based on our review of the record, we agree.
We review a district court’s discovery rulings for an abuse of
discretion. Vantage Deepwater Co. v. Petrobras Am., Inc., 966 F.3d 361, 373
(5th Cir. 2020). Generally, broad discretion is afforded to the district court
when deciding discovery matters. Crosby v. La. Health Serv. & Indem. Co.,
647 F.3d 258, 261 (5th Cir. 2011). We reverse “only if [the decision] affected
a party’s substantial rights.” N. Cypress Med. Ctr. Operating Co. v. Aetna Life
Ins. Co., 898 F.3d 461, 476 (5th Cir. 2018). Substantial rights are affected if
the district court’s decision was “arbitrary or clearly unreasonable.” Fielding
v. Hubert Burda Media, Inc., 415 F.3d 419, 428 (5th Cir. 2005) (citation
omitted).
Under Federal Rule of Civil Procedure 26(b), “[p]arties may obtain
discovery regarding any nonprivileged matter that is relevant to any party’s
claim or defense or proportional to the needs of the case . . . [.]” This
standard is broad, especially when viewed in the context of Title VII. See
Trevino v. Celanese Corp., 701 F.2d 397, 405 (5th Cir. 1983) (“The imposition
of unnecessary limitations on discovery is especially frowned upon in Title
VII cases.”).
In support of her position, Miller refers us to McCoy v. Energy XXI
GOM, LLC, 695 F. App’x 750 (5th Cir. 2017). In that case, the same district
judge imposed substantially similar discovery restrictions to those imposed
here. Id. at 753. Specifically, the district judge denied almost all requests for
discovery and “permitted only the deposition of [the plaintiff]” and “the
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disclosure by the defendants of certain documents pertaining to the specific
[object] at issue,” certain photographs, and a video. Id. On appeal, we
reversed and remanded the case on summary judgment grounds, finding
genuine issues of material fact existed, even with the limited discovery that
had been permitted. Id. at 758. But we also noted that “[t]he district court
abused its discretion in refusing to allow [the plaintiff] to conduct sufficient
discovery . . . to support the allegations he ha[d] fairly raised[.]” Id. at 759.
We have a sense of déjá vu. The district court’s discovery restrictions
in the instant cases are strikingly similar to those in McCoy. And “[a]lthough
the district court is customarily accorded wide discretion in handling
discovery matters, we will not uphold a ruling which has failed to adhere to
the liberal spirit of the Rules.” Coughlin v. Lee, 946 F.2d 1152, 1159 (5th Cir.
1991). As in McCoy, the district judge here permitted only Miller’s
deposition to be taken before summary judgment briefing and argument—
and then actually participated in the deposition. By contrast, the court
repeatedly denied Miller the opportunity to depose any witnesses, relenting
only after summary judgment briefing was complete to allow Miller one
deposition, of UHD’s Dean Fulton. And that deposition was limited to “two
hours, at most.”
To put it simply, the court’s discovery restrictions suffocated any
chance for Miller fairly to present her claims. While the Universities offer
that Miller was not prejudiced because she had already received voluminous
documentation from a pre-suit Texas Public Information Act request, we are
not persuaded given the district court’s inflexible denials of both her written
discovery requests and her requests to take depositions. Miller requested
discovery on multiple occasions and was denied, almost instantly, at every
turn: January 25, 2016 (denied same day); April 13, 2016 (denied April 14,
2016); May 4, 2016 (denied same day); May 12, 2016 (denied June 30, 2016);
and June 2, 2017 (denied via summary judgment September 30, 2019). Even
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given the deference afforded to district courts when deciding discovery
matters, the restrictions here “failed to adhere to the liberal spirit of the
Rules,” Coughlin, 946 F.2d at 1159, to the extent that they were “arbitrary or
clearly unreasonable.” Fielding, 415 F.3d at 428 (citation omitted). Although
we are never quick to second-guess a district court’s management of
discovery, we must do so here.
A final example demonstrates why. In her respective actions, Miller
sought to depose SHSU’s Department Chair Wilson and UHD’s
Department Chair Jackson, two witnesses who fairly likely have knowledge
of facts highly relevant to Miller’s claims in both cases. Among other
interactions during UHD’s hiring process, Jackson telephoned Wilson about
Miller and purportedly discussed the reasons SHSU denied Miller tenure.
After that call, UHD decided not to hire Miller, though she had been
recommended for employment before the call. Because the district court
denied Miller’s repeated requests to depose these witnesses, the record is
silent about this telephone call. Yet it is plain that Miller’s claims may well
hinge on what was said during the call.
“When a party is not given a full and fair opportunity to discover
information essential to its opposition to summary judgment, the limitation
on discovery is reversible error.” McCoy, 695 F. App’x at 759 (quoting Brown
v. Miss. Valley State Univ., 311 F.3d 328, 333 (5th Cir. 2002)). Miller has
demonstrated that the district court’s almost blanket denials of her discovery
requests affected her substantial rights, including her ability to respond to the
Universities’ motions for summary judgment. Because the district court
abused its discretion in this regard, we reverse the district court’s summary
judgments and remand these cases to allow Miller the opportunity to obtain
discovery “relevant to any party’s claim or defense or proportional to the
needs of the case.” Fed. R. Civ. P. 26(b).
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D.
Lastly, Miller asks this court to reassign her cases. We find her
request warranted.
The power to reassign “is an extraordinary one” and “is rarely
invoked.” Johnson v. Sawyer, 120 F.3d 1307, 1333 (5th Cir. 1997) (internal
quotation marks and citation omitted). “[R]eassignments should be made
infrequently and with great reluctance.” United States v. Winters, 174 F.3d
478, 487 (5th Cir. 1999) (internal quotation marks and citation omitted).
In determining whether reassignment is proper, this court has applied
two tests—one more lenient than the other. The more stringent test
considers the following:
(1) whether the original judge would reasonably be expected
upon remand to have substantial difficulty in putting out of his
mind or her mind previously-expressed views or findings
determined to be erroneous or based on evidence that must be
rejected, (2) whether reassignment is advisable to preserve the
appearance of justice, and (3) whether reassignment would
entail waste and duplication out of proportion to any gain in
preserving the appearance of fairness.
In re DaimlerChrysler Corp., 294 F.3d 697, 700–01 (5th Cir. 2002) (citations
omitted). The more lenient test looks at whether the judge’s role “might
reasonably cause an objective observer to question [the judge’s]
impartiality.” Id. at 701 (alteration in original) (quoting United States v.
Microsoft Corp., 56 F.3d 1448, 1463 (D.C. Cir. 1995)). Reassignment of
Miller’s cases is appropriate under either test.
Here, the district judge’s conduct from the outset of Miller’s cases
“might[, at the least,] reasonably cause an objective observer to question [the
judge’s] impartiality.” Id. Moreover, the cumulative weight of both
prejudicial comments and peremptory rulings by the district judge leads us
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to conclude that “the original judge would reasonably be expected upon
remand to have substantial difficulty in putting out of his mind . . .
previously-expressed views . . . [and that] reassignment is advisable to
preserve the appearance of justice[.]” Id. at 700–01. Finally, we do not
believe reassignment would disrupt judicial efficiency, particularly because
full discovery has not yet occurred in either of Miller’s actions. See, e.g.,
Johnson, 120 F.3d at 1333 (reassigning case on remand after the completion
of a jury trial).
III.
Miller, like every litigant, is entitled to a full and fair opportunity to
make her case in a fair and impartial forum. See United States v. Jordan, 49
F.3d 153, 155 (5th Cir. 1995). Beyond that, “fundamental to the judiciary is
the public’s confidence in the impartiality of our judges and the proceedings
over which they preside.” Id. “[J]ustice must satisfy the appearance of
justice.” Offutt, 348 U.S. at 14.
We REVERSE the district court’s judgments, including its sua sponte
Rule 12(b)(6) dismissal of TSUS and UHS and summary judgment in favor
of SHSU and UHD, and REMAND for further proceedings. On remand,
we further direct the Chief Judge of the Southern District of Texas to
REASSIGN these cases.
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