Kyisha Jones v. Jeh Johnson ( 2020 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0011n.06
No. 18-2252
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
KYISHA JONES, ) Jan 09, 2020
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellant, )
) ON APPEAL FROM THE
v.
) UNITED STATES DISTRICT
JEH JOHNSON, Secretary, Department of ) COURT FOR THE EASTERN
Homeland Security, ) DISTRICT OF MICHIGAN
)
Defendant-Appellee.
)
BEFORE: ROGERS, WHITE, and READLER, Circuit Judges.
HELENE N. WHITE, Circuit Judge. Kyisha Jones appeals the district court’s grant of
summary judgment to her employer, the Department of Homeland Security (DHS), dismissing her
Title VII failure-to-promote sex-discrimination claim after permitting only limited discovery.
We VACATE and REMAND.
I.
Jones began working as an Immigration Maritime Inspector in June 2002. She was a
Customs and Border Protection Officer (CBPO) from 2003 until April 2007, when she was
awarded a position as CBP Enforcement Officer (CBPEO). The CBPEO unit is also known as the
CBPEO Enforcement Cadre. CBPOEs, unlike CBPOs, focus on complex immigration violation
work that requires knowledge of the Immigration and Nationalization Act.
Case No. 18-2252 , Jones v. Johnson
In 2011, Jones applied for promotion to Supervisory CBP Officer (SCBPO) (vacancy
382705). Roderick Blanchard, Port Director for Detroit CBP Field Operations since February
2008, recommended that four males and one female be promoted in the June 2011 round of
promotions, and one male and one female in the August 2011 round of promotions. Christopher
Perry, Blanchard’s superior, accepted Blanchard’s promotion recommendations; Jones was not
promoted. All seven of those who received promotions were promoted under vacancy 382705 and
were drawn from the same pool of applicants.
Port Director Blanchard’s unsworn declaration, submitted to the EEOC in connection with
its investigation of Jones’s sex-discrimination failure-to-promote complaint, stated that he was
Jones’s fourth-line supervisor, he had met and talked with Jones “concerning
operational/enforcement issues on numerous occasions over the past 3+ years,” and he did not
consider Jones’s gender in the recommendation-for-promotion process. R. 21 PID 389. Blanchard
stated that he conducted no interviews for the promotions and that Human Resources provided a
list of qualified candidates, their resumes, and OF 612s, Optional Applications for Federal
Employment. Blanchard’s declaration stated that he considered Jones for the SCBPO position but
did not recommend her:
Ms. Jones does not always work with her supervisors and is known to unnecessarily
challenge them. While Ms. Jones possesses excellent knowledge, skills and ability
for future nomination, her contentious nature cut against her in this nomination.
However, she had indeed improved over the past few months. I anticipate she will
develop and demonstrate leadership qualities in the future, and I will continue to
watch her development as a candidate.
....
[] Ms. Jones was suspended 5 days for failure to follow a supervisor’s order. This
was not a technical violation. Being a leader requires that a person follow direction
and contribute to an efficient operation. Ms. Jones’s actions at the time of her
suspension demonstrated that she lacked this leadership quality.
R. 21 PID 391-92.
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Blanchard’s declaration stated that Danny,1 who was promoted in August 2011, had been
suspended for three days in 2009 for failure to report outside employment. Blanchard stated that
had Danny properly reported outside employment “that would have been allowed. This was a
purely technical violation. Other than this one incident, [Danny] has consistently displayed
superior leadership qualities/traits in the preceding two years and has excellent knowledge, skills
and ability.” R. 21 PID 392. Blanchard’s declaration also stated that Danny was more qualified
than Jones in that he had served on the Anti-Terrorism Contraband Enforcement Team, unlike
Jones.
Jones filed her complaint on May 27, 2014. In lieu of answering the complaint, Defendant
DHS Secretary Johnson filed a motion to dismiss and for summary judgment, to which Jones
responded by filing an amended complaint.
As pertinent here, Jones’s twenty-four count amended complaint alleged that her gender
was a factor that made a difference in Defendant’s decision not to promote her on two occasions
in 2011, and that Defendant was predisposed to discriminate on the basis of gender and acted in
accordance with that predisposition. Jones alleged that Defendant’s actions constituted both a
violation and a continuous violation of Title VII. According to the complaint, in August 2007
Jones received her only formal discipline, which resulted in a five-day suspension, and before
being disciplined, Jones had complained about the internal rule that led to her suspension. Jones
alleged that after a white2 female in her unit lodged the same complaint in 2009, the rule was
eliminated. Thus, her rule violation was nothing more than a “technical violation.” Jones alleged
that after she was disciplined, she received cash awards for exceptional performance and
1
Blanchard’s Declaration and other exhibits on which Jones relied were redacted to omit the last names of
persons who are not parties to this case, including the five male comparators.
2
Jones’s amended complaint also alleged race discrimination.
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outstanding performance evaluations every year and was appointed Team Leader over
approximately five CBP Officers. “Appointing Plaintiff as Team Leader over upwards of five
CBP Officers demonstrates that Plaintiff’s suspension did not cause Defendant Agency to doubt
Plaintiff’s leadership abilities.” R. 15 PID 219.
Defendant filed a motion to dismiss and for summary judgment, asserting that “Plaintiff
fails to establish that the male candidate’s discipline was comparably serious to Plaintiff’s
suspension.” Without citing authority, Defendant argued that “[e]ven if the male employee was
similarly situated . . . the mere fact that a male employee, who also had a disciplinary record,
received a promotion over Plaintiff does not support an inference that Plaintiff’s gender had a role
in CBP’s decision to deny her the promotion, especially where CBP promoted both male and
female candidates.” R. 20 PID 341-42.
Relying on Blanchard’s declaration, the district court dismissed Jones’s sex-discrimination
claim without permitting Jones any discovery.
A. First Appeal
Jones appealed. This court reversed the district court’s Fed. R. Civ. P. 12(b)(6) dismissal
of Jones’s sex-discrimination claim and affirmed the dismissal of the remaining counts of her
amended complaint. This court determined that Jones stated a plausible claim of failure-to-
promote sex discrimination and stated a plausible claim that she exhausted her administrative
remedies regarding two promotion rounds––June and August 2011. Jones v. Johnson, 707 F.
App’x 321, 327–29 (6th Cir. 2017).
B. Proceedings On Remand
Following this court’s remand, and before any discovery took place, see supra n.3,
Defendant filed a motion for summary judgment, asserting: 1) Jones failed to exhaust
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administrative remedies for the June 2011 promotion, and the June and August 2011 promotions
did not constitute a continuing violation, and 2) Jones was not similarly situated to Danny, the
male promoted in August 2011 who had a disciplinary suspension.
Defendant’s motion relied on documentary evidence that included: the CBP Merit
Promotion Plan, the declaration of Assistant Port Director David Beculheimer, and the CBP “Table
of Offenses and Penalties” (pertaining to discipline). Regarding Danny, the promoted male who
had been suspended in 2009, Beculheimer averred that Danny was suspended for failing to obtain
proper approval for outside work, that Blanchard proposed the suspension, and Director of Field
Operations Perry decided it.
Jones’s 2d Request for Discovery
Jones filed a brief in opposition to Defendant’s motion for summary judgment and, in a
concurrently filed application for stay, noted that Defendant had not answered her amended
complaint and no discovery had occurred. Jones requested that the district court delay ruling on
Defendant’s dispositive motion until she was allowed to conduct discovery regarding 1) whether
the promotions selection process in June and August 2011 was a unitary process, and 2) whether
Defendant discriminated against her on the basis of her gender when it failed to promote her.
Jones’s opposition brief, application for stay, and counsel’s accompanying affidavit explained how
the specific discovery sought––the personnel records and depositions of the five male comparators,
and the depositions of a Human Resources representative and Jones’s first-line supervisors, Karene
Smith and Robert Stockett, would “assist Plaintiff in establishing material triable issues of fact.”
R. 58 PID 1643.
Jones explained that the personnel records of the male comparators would assist her in
establishing that she was as or more qualified for the position, allow her to show that there is no
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difference between her suspension and Danny’s, reveal any performance deficiencies of the male
comparators that were overlooked in the promotion selection process, and reveal the comparators’
prior knowledge of immigration. Jones asserted that this information would assist her in
establishing a prima facie case and in meeting her burden of showing that Blanchard’s stated
reasons for not promoting her were a pretext for discrimination.
Defendant opposed Jones’s discovery requests, asserting that the information sought was
irrelevant, redundant, or unnecessary.
In support of her opposition to Defendant’s motion, Jones attached her affidavit, which
averred that her five-day suspension “resulted from my choosing to follow one directive over
another:”
6. Enforcement Officers were able to do the jobs of lower level officers, but these
officers could not do the jobs of Enforcement Officers.
7. Enforcement Officers were regularly required to work overtime performing the
duties of regular officers.
8. This overtime would extend our shifts.
9. The problem was that Enforcement Officers also were required to work on-call
hours before the beginning of their shift.
10. During these hours, the Enforcement Officers had to be available by telephone
to act as subject matter experts as to complex immigration matters.
11. There was confusion as to Enforcement Officers being called out (at the end of
their shift) to work overtime as regular officers.
12. Once the regular shift would end, we were often required to then work
additional hours as Enforcement Officers because there would be no officer
available with immigration knowledge.
13. We were then required to be on-call the next day before the start of our shifts
as Enforcement Officers.
14. I, and other Enforcement Officers, repeatedly asked about the schedule and
made many suggestions about how to resolve the difficulties that were caused.
15. We were told that our Enforcement Officer duties always took priority over
regular office duties.
16. During this time, I was scheduled to work 8 a.m. – 4 p.m. My on call-hours
were 4 a.m. – 6 a.m.
17. When I would be called for overtime, I would fulfill the regular officer duties
until 7 or 8 p.m.
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18. When that shift would end, I would then be required to work additional hours
as an Enforcement Officer because there was no officer with immigration
knowledge available to perform the duties.
19. This was requiring me to work a total of 16 or more hours per day, including
my before shift on-call hours.
20. On August 10, 2007, I was exhausted from being required to work this number
of hours.
21. I was called out for overtime at the end of my shift.
22. I was also scheduled to work on-call from 4 a.m. – 6 a.m. the next day, as well
as my regular 8 a.m. – 4 p.m. shift.
23. I just could not physically work the shift and then work on call in the morning.
24. I made the decision to follow the directive to put the Enforcement Officer duties
first.
25. I was suspended for failing to stay and work the called-out overtime.
26. Shortly after my suspension, the Enforcement Officer overtime procedure was
deemed unfair and changed.
27. We were no longer required to work overtime as a regular officer.
28. Sometime after my suspension, my direct supervisors Karene Smith and Robert
Stockett made me the team lead.
29. Also after my suspension, I received cash based performance based awards [in
each of the years from 2008 through 2012].
30. In 2010, I applied for the Supervisory CBP Officer position posting number
347934.
31. After the promotional assessment test and evaluation of other factors, I was
rated a score of 90 out of 100.
32. In October 2010, the posting was cancelled . . .
33. The notice of cancellation said that the position would be reannounced as
MHCMP-382705-IC.
34. I reapplied for the reposted Supervisory CBP Officer position.
35. There was no new testing for the reposted position; and all other factors
remained the same.
36. In April 2011, some people were promoted.
37. I asked why I wasn’t promoted. I was unofficially told that it was due to my
suspension.
38. I never received any formal communication as to why I was not selected in
April.
39. I knew that once the posting was closed, I would receive an email telling me
other candidates were selected.
40. So, I had no reason to believe that I was not still under consideration.
41. On June 29, 2011, for the first time, I received an email telling me that another
applicant was selected and [sic] closing the posting.
42. On July 19, 2011, I contacted the EEO Counselor to make a gender
discrimination claim.
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43. Out of the seven positions filled, three white males and two black males were
promoted.
44. Two of the white males, Brandon [] and Neil [], were on the same team for
which I was the team lead.
45. Also, I helped train Neil [] because his experience was as a Customs Officer
and he had little to no experience with immigration.
R. 59-2 PID 1692-95.
District Court Limits Discovery to One Deposition and the Job Selection File
The district court denied Defendant’s motion for summary judgment without prejudice and
denied Jones most of the discovery she requested. The court permitted Jones to depose only Port
Director Blanchard, and limited the scope of Blanchard’s deposition to his reasons for rejecting
Jones’s application for promotion. The court precluded inquiry into Blanchard’s disciplinary
suspension of Danny, who was promoted in August 2011. Jones was permitted discovery of the
job selection file3 that Blanchard reviewed, which contained the qualified applicants’ resumes and
optional Applications for Federal Employment (OF 612s), but did not contain any information on
the applicants’ disciplinary records or performance reviews. The district court denied Jones’s
request to depose a Human Resources representative regarding the selection process, the severity
of offenses, the number of years disciplinary actions remain in personnel records, and the number
of years disciplinary actions are utilized in staffing decisions.
The district court also denied Jones’s request to depose, and for the personnel records of,
the five male comparators. The district court denied Jones’s request to depose her first-line
supervisors, Karene Smith and Robert Stockett, on the basis that Jones did “not explain[] how she
expects this testimony will help her in opposing summary judgment,”4 and on the basis that
3
The district court granted Jones’s motion to compel after Defendant failed to produce the entire job
selection file.
4
The district court was incorrect. Jones’s Second Application for Stay explained:
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Defendant did not dispute Jones’s skills, qualifications, awards, and achievements. R. 67 PID
1929.
Blanchard’s Deposition Testimony
Jones deposed Blanchard on May 23, 2018. Blanchard testified that in determining who
he recommended for promotion he did not speak to first-line supervisors; rather, his “research [into
the candidates] is basically verbal discussion with my assistant port directors [APDs].” R. 81-3
PID 2401.
Blanchard acknowledged that Jones’s only discipline was in 2007. Blanchard testified that
Jones “had difficulties working with some supervisors,” but could not identify the supervisors:
“From the feedback I got from the assistant port directors, it could be first-line or second-line
supervisors.” R. 81-3 PID 2408. He testified that the APDs “said that when [Jones] disagreed
with a supervisor’s decision, she’d become argumentative and . . . as they reported it was very
difficult because it would be an extraordinary long discussion on who was right.” Id. Blanchard
testified that the APDs reported that Jones “was often not happy and it was very apparent to
everyone on the shift when that would happen.” Id. Blanchard had no first-hand knowledge of
any such incidents. When asked how often Jones challenged supervisors, Blanchard responded,
“I don’t know how regular it was but it happened enough times that it was concerning to the
assistant port director.” Id. at 2408-09.
Ms. Jones’ first line supervisors [Smith and Stockett] will testify as to Ms. Jones’
performance on-the-job, the reasons why they designated Ms. Jones as team lead, what, if
anything, they reported to Blanchard; why they never informed Ms. Jones of any
deficiencies on her performance evaluation[s]; the reasons [Jones] received cash based
performance awards every year from 2008 through 2012; as well as the fact that since 2007,
Ms. Jones did not have a performance problem.
R. 58 PID 1642-43.
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Because the district court had limited the scope of the deposition to Blanchard’s reasons
for not recommending Jones for promotion, Jones could not question him regarding his discipline
of Danny, the comparator promoted in August 2011.
Defendant’s Renewed Motion for Summary Judgment
After Jones deposed Blanchard, Defendant again filed a motion for summary judgment,
asserting: 1) Jones failed to exhaust her administrative remedies for the June 2011 promotions and
could not identify a similarly situated male employee promoted in June 2011 who was disciplined,
and 2) Jones could not demonstrate that Defendant’s articulated nondiscriminatory reason for not
promoting her was a pretext for sex discrimination.
Jones’s response in opposition to Defendant’s motion asserted that the district court, in
contravention of this court’s opinion in the first appeal, precluded her from conducting discovery
into whether the June and August 2011 promotions were a unitary process. Jones also asserted
that the district court precluded her from discovery regarding pretext that would have permitted
her to challenge Defendant’s articulated, non-discriminatory reason for failing to promote her.
Jones argued that she established a prima facie case of sex discrimination and that material issues
of fact remained regarding pretext. Jones made clear that her argument was that she was at least
as qualified as the five males who were promoted, not simply Danny, who had a previous
disciplinary suspension. She set forth and provided documentary evidence of her qualifications
and credentials, the CBP’s two Merit Promotion Certificates of Eligibles pertaining to vacancy
382705 for the June and August 2011 rounds showing her rankings vis a vis other applicants, and
asserted that she was never counseled for any of the alleged deficiencies Blanchard claimed
motivated him not to promote her.
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Case No. 18-2252 , Jones v. Johnson
Jones presented evidence that Danny, a CBPO like Jones, had a three-day disciplinary
suspension on his record from 2009, and had not held a temporary supervisory position or been a
member of a specialty team. Jones had a five-day disciplinary suspension from 2007, but thereafter
received stellar performance reviews and annual bonuses, and was made team lead of the CBPOE
cadre, which placed her over two of the males promoted in June 2011, Brandon and Neil. Jones
was ranked higher than Neil and Brandon on the pertinent Certificate of Eligibles.5 Further,
because of her immigration experience, Jones trained Neil; his CBP experience was as a Customs
Officer and he had little to no immigration experience. Neither Neil or Brandon had held a
temporary supervisory position; Brandon had been a member of a specialty team for one year.
Jones had not held a temporary supervisory position and had not been a member of a specialty
team.
Jones’s Third Application for Stay
More than one month before the scheduled hearing on Defendant’s motion for summary
judgment was to occur, Jones again sought discovery in a third application for stay. Jones renewed
her requests for the personnel records of, and to depose, the five male comparators; to depose her
first-line supervisors, Smith and Stockett; to depose a Human Resources representative regarding
the severity of offenses, the number of years disciplines remain in personnel records and are
utilized in staffing decisions, and regarding whether the June and August 2011 rounds of
promotions were a unitary process; and sought all policies and procedures regarding suspensions.
Jones also sought to depose APDs Beculheimer and Nowack, on whom Blanchard relied in
determining not to recommend Jones for promotion.
5
Jones ranked 6th, Danny 7th, Neil 18th, and Brandon 31st on the first Certificate of Eligibles. On the 2d
Certificate of Eligibles for VacancyID 382705, Certif. # LN-11-KWe-30806S0, Danny was ranked 5th, and
Jones 6th.
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Case No. 18-2252 , Jones v. Johnson
On October 5, 2018, the district court canceled the October 10, 2018 motion hearing and
stated that it would decide Defendant’s dispositive motion on the briefs.
Before ruling on Jones’s third request for discovery, the district court granted Defendant
summary judgment by opinion dated October 11, 2018, concluding that Jones failed to establish
that Blanchard’s reasons for not promoting her were a pretext for gender discrimination. The
district court denied Jones all the discovery she requested.
Jones appeals for the second time.
II.
Jones asserts that the district court abused its discretion by limiting and denying her
discovery. At issue is the district court’s February 13, 2018 opinion denying most of the discovery
Jones sought in her second application for stay, which requested, pursuant to Fed. R. Civ. Pro.
56(d),6 an opportunity to conduct discovery before the district court ruled on Defendant’s
dispositive motion.
Standard of Review
We review the district court’s summary judgment determination de novo. Arban v. West
Publ’g Corp., 345 F.3d 390, 400 (6th Cir. 2003). Summary judgment is appropriate if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits,
if any, show that there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).
6
Rule 56(d), titled “When Facts Are Unavailable to the Nonmovant,” provides:
If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot
present facts essential to justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any appropriate order.
Fed. R. Civ. P. 56(d).
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Review of the district court’s determinations to deny and limit discovery is for an abuse of
discretion. Siggers v. Campbell, 652 F.3d 681, 695–96 (6th Cir. 2011). An abuse of discretion
occurs when the reviewing court is left with a definite and firm conviction that the district court
committed a clear error of judgment. Pittman v. Experian Info. Solutions, Inc., 901 F.3d 619, 642
(6th Cir. 2018). Fed. R. Civ. P. 26 provides in pertinent part:
(b) Discovery Scope and Limits.
(1) Scope in General. Unless otherwise limited by court order, the scope of
discovery is as follows: Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense and
proportional to the needs of the case, considering the importance of the
issues at stake in the action, the amount in controversy, the parties’
relative access to relevant information, the parties’ resources, the
importance of the discovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs its likely
benefit. Information within this scope of discovery need not be
admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1).7
In order to establish a prima facie case of failure-to-promote sex discrimination, Jones must
show that 1) she is a member of the protected class, 2) she applied for and was qualified for a
promotion, 3) she was considered for and was denied the promotion, and 4) other employees with
similar qualifications who were not members of the protected class received promotions at the
time Jones’s request for promotion was denied. Provenzano v. LCI Holdings, Inc., 663 F.3d 806,
812–13 (6th Cir. 2011). Defendant disputed only the fourth prima facie element. Jones’s burden
at the prima facie stage is not onerous. Id. at 813 (internal citation omitted).
As this court explained in Provenzano:
In a failure to promote claim, the emphasis in the fourth [prima facie] element is on
the relative qualifications of the plaintiff and the employee who actually received
the promotion. The prima facie burden is not intended to be onerous, and
Provenzano is not required to establish that she and Babcock had the exact same
7
Defendant did not invoke this rule before the district court.
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qualifications. Requiring a plaintiff to show identical qualifications to another
individual is not realistic from a human standpoint. We recognized this practical
reality in Ercegovich, rejecting an exact matching requirement for “similarly-
situated” comparators in an ADEA claim. 154 F.3d at 352–53. Instead, what is
required in a failure to promote case is for the plaintiff to show she possesses
“similar qualifications” to the employee who received the promotion.
A comparison of Provenzano and Babcock reveals that Provenzano presented
sufficient evidence to permit a reasonable trier of fact to conclude that she and
Babcock were similarly qualified for the position of assistant manager. Provenzano
had more experience and education than Babcock; she had been a supervisor longer,
had helped in other stores, and held a high school diploma and associate’s degree.
In contrast, Babcock had a stronger performance record, without any written or
verbal warnings in comparison to Provenzano’s multiple counselings. Although
their strengths and weaknesses were in different areas, Provenzano’s experience
and education made her similarly qualified to Babcock. This is the extent of the
inquiry at the prima facie stage and Provenzano satisfied it.
663 F.3d at 814 (6th Cir. 2011) (emphasis added). We perform a “more searching evaluation of
the relative qualifications of the two candidates” when examining pretext. Id. at 816; see also
Louzon v. Ford Motor Co., 718 F.3d 556, 563 (6th Cir. 2013) (determining that the district court
erred by requiring, at the prima facie stage, that comparators must have dealt with the same
supervisor).
A. Discovery Regarding Whether Jones’s Gender Motivated Defendant’s Failure to
Promote
In the first appeal, this court concluded regarding the August 2011 round of promotions,
Because Jones did not receive the promotion and a male candidate who also had
a suspension on his record did receive the promotion, it is facially plausible that
Jones’s sex was a factor in CBP’s decision not to promote her. Indeed, Jones
has provided a somewhat detailed explanation for why sex discrimination is a
plausible explanation for CBP’s failure to promote her––noting that the
promoted employee’s suspension was more recent than her suspension, alleging
that their violations were of comparable severity, and also pointing out her
otherwise “stellar annual performance evaluations.” R. 15 (Amended Compl.
at ¶ 21, 45-56) (Page ID #218, 221).
Jones v. Johnson, 707 F. App’x at 328.
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Despite this court’s reference to Jones’s allegations that buttressed her failure-to-promote
claim, the district court denied her discovery to support her assertions. Noting that Blanchard’s
declaration in the EEOC investigation set forth a legitimate, nondiscriminatory reason for not
promoting Jones the district court invited Jones “to bring forth evidence to discredit Blanchard’s
affidavit,” R. 67 PID 1919, but its discovery ruling made that impossible: Jones was denied the
male comparators’ personnel records and depositions; she was precluded from questioning
Blanchard regarding the male comparators’ disciplinary records, including Blanchard’s own
discipline of Danny; was denied the deposition of a Human Resources representative whom she
would have questioned regarding the selection process, the severity of Jones’s and Danny’s
offenses, how long disciplinary actions remain in personnel records and affect staffing decisions,
and whether the June and August 2011 promotion rounds were a unitary process; and was denied
the opportunity to depose the APDs whose input Blanchard asserted influenced his promotion
decisions.
B. Discovery Regarding Whether the June and August Selection Processes were
Unitary
This court instructed in the first appeal that resolution of the question whether the June and
August 2011 promotions were a unitary process depended “on the specific facts about the
promotion process(es), including whether CBP treated them as two separate promotion processes
or one process that it carried out in two stages.” 707 F. App'x at 329. The district court denied
Jones discovery, side-stepping the issue:
[T]he Sixth Circuit held that the June 2011 hiring and the August 2011 hiring
possibly could be a single unified process such that if Plaintiff had established a
prima facie case of discrimination as to one and more importantly, had exhausted
her administrative remedies as to one, then she had done so for both, i.e., for the
entire unified process. See Jones, [] at *4-*5.
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This determination makes little practical difference unless the facts of the
June 2011 hiring further Plaintiff’s claim for sexual discrimination. Presently,
Plaintiff has not identified any facts related to the June 2011 hiring that establish
the fourth prong of a prima facie case of sexual discrimination. She has not
identified a male employee of similar qualification who was promoted in June 2011.
In contrast, Defendant has provided evidence that each of the candidates promoted
in June 2011 possessed qualifications and records of superior quality.
R. 67 PID 1924.
In sum, by precluding Jones from discovery regarding the five males she asserted were
comparators, the district court precluded her from gathering information that could establish that
she was as or more qualified for promotion than the males promoted in June 2011. The district
court then concluded that it made no difference whether the June and August promotions were a
unitary process because Jones provided no evidence of a male comparator promoted in June 2011.
Analysis
The district court’s rulings, in effect, accepted as unassailable Blanchard’s determination
that Danny was the only proper male comparator. But an employer may not unilaterally determine
who is similarly situated to a plaintiff alleging employment discrimination. Bobo v. United Parcel
Service, Inc., 665 F.3d 741, 749 (6th Cir. 2012) (holding that the district court “improperly
restricted the scope of discovery when it allowed UPS to determine unilaterally that the only
Caucasian, non-military supervisor who was similarly situated to Bobo was Ronnie Wallace.”).8
Bobo, a UPS supervisor, alleged race discrimination under Title VII and § 1981, and
discrimination under the Uniformed Services Employment and Reemployment Rights Act
(USERRA) for being in the military reserve. Id. at 744. In response to written discovery requests,
UPS identified one comparator, Wallace, whom UPS considered to be similarly situated to Bobo.
8
Bobo was abrogated on other grounds by University of Texas Southwest Medical Center v. Nassar, 570
U.S. 338, 360 (2013) (holding that Title VII retaliation claims must be proved according to traditional
principles of but-for causation, not the lessened causation standard applicable to status-based Title VII
discrimination claims set forth in 42 U.S.C. § 2000e-2(m)).
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Id. at 749. UPS provided discovery about Wallace but declined to provide discovery about other
potential comparators, asserting that such discovery was not relevant. Id. The magistrate judge
denied Bobo’s discovery motions, concluding that UPS had complied with discovery requests by
providing information about the one employee who qualified as a comparator.
This court reversed the grant of summary judgment to UPS and remanded, concluding that
the discovery order was contrary to law, and instructed the district court “to grant Bobo’s motion
to compel UPS to provide appropriate discovery in response to Bobo’s written discovery requests
for information on proposed comparators other than [Wallace].” Id. at 753.
The discovery order effectively blocked Bobo from obtaining relevant and
potentially admissible evidence on a critical element of his case––evidence
necessary to convince a jury that there were supervisors besides Wallace who were
similarly situated to Bobo in all relevant respects and yet received better treatment
than Bobo because they did not take time off for military service or were of a
different race.
Id. at 752. This court further noted that whether the other supervisors Bobo identified are similarly
situated is a jury question. Id. at 757 (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133 (2000)).
Defendant’s Counter-Arguments
Defendant maintains that much of the discovery Jones sought is not relevant, pointing to
the fact that Jones was provided the entire job selection file, which was what Blanchard reviewed.
But Blanchard’s deposition testimony is clear that his decision not to recommend Jones for
promotion was based on asserted statements of the APDs, not just the contents of the job selection
file. The district court should have permitted Jones to depose APDs Nowack and Beculheimer,
whose statements Blanchard relied on in not promoting Jones.
Defendant further asserts regarding the June 2011 round of promotions that none of the
men promoted at that time had disciplinary records and thus further discovery into those
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candidates’ records would not have aided Jones in identifying a suitable comparator. But, as Bobo
held, an employer may not unilaterally determine who is similarly situated to a plaintiff alleging
employment discrimination. 665 F.3d at 749 (concluding that “the district court improperly
restricted the scope of discovery when it allowed UPS to determine unilaterally that the only
Caucasian, non-military supervisor who was similarly situated to Bobo was Ronnie Wallace,” and
that the district court “unduly delayed its ruling on Bobo’s discovery motions until after the court
had already granted summary judgment for UPS. The discovery errors alone convince us that the
summary judgment in favor of UPS cannot stand.”).
Defendant also asserts that the district court did not abuse its discretion in denying Jones
the personnel file, disciplinary records, and deposition of Danny, the male promoted in August
2011 who had a prior suspension. Defendant claims that Blanchard did not have that information
in making his decision, ignoring that Blanchard himself determined to suspend Danny and that the
district court precluded Jones from questioning Blanchard at deposition regarding that suspension.
On this record and at this time, there does not seem to be a reason to depose Danny and the
others who were promoted, but the district court abused its discretion in denying access to the
disciplinary and evaluative material in the personnel files. The district court should have permitted
access to those materials and should have permitted Jones to submit written discovery requests
regarding their employment records, including their performance reviews and disciplinary records.
Once that discovery is produced, Jones may need further discovery, e.g., to depose Blanchard
regarding the newly discovered evidence.
Defendant asserts that the district court correctly denied Jones’s request to depose a Human
Resources representative because Jones already possessed the Merit Promotion Plan, thus such
deposition testimony would have been duplicative. Defendant is incorrect; the Merit Promotion
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Plan does not address the length of time disciplinary actions remain in personnel records and the
use of disciplinary actions in staffing decisions. In addition, Defendant at no time addressed
Jones’s affidavit asserting that the rule under which she was suspended in 2007, two years earlier
than Danny was suspended in 2009, had been changed or eliminated and thus no longer resulted
in disciplinary action. A Human Resources representative can shed light on that issue as well. In
addition, a Human Resources representative can shed light on whether the two promotion rounds
were a unitary process, and how the candidates’ ratings and rankings were arrived at. The district
court should have permitted Jones to depose a Human Resources representative.
Defendant further asserts that the district court correctly denied Jones the depositions of
her supervisors, Smith and Stockett, because Defendant did not dispute Jones’s “achievements,
awards, education, knowledge, skills, and other qualifications” and this information would not
have created issues of fact to overcome summary judgment. According to Defendant, the district
court properly determined that Jones failed to explain how these depositions would have helped
her respond to Defendant’s motion. However, Jones’s Second Application for Stay explained:
Ms. Jones’ first line supervisors [Smith and Stockett] will testify as to Ms. Jones’
performance on-the-job, the reasons why they designated Ms. Jones as team lead,
what, if anything, they reported to Blanchard; why they never informed Ms. Jones
of any deficiencies on her performance evaluation[s]; the reasons [Jones] received
cash based performance awards every year from 2008 through 2012; as well as the
fact that since 2007, Ms. Jones did not have a performance problem.
R. 58 PID 1642-43. The district court should have permitted Jones to depose Smith and Stockett.
III.
We VACATE the grant of summary judgment to DHS on the basis of the district court’s
unduly restrictive discovery rulings, and REMAND for proceedings consistent with this opinion.
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CHAD A. READLER, Circuit Judge, concurring in part and dissenting in part.
More often than not, discovery proves to be a divisive aspect of trial proceedings. The
sides are well worn. The plaintiff seeks broad discovery; the defendant resists. The plaintiff seeks
to collect as many of the defendant’s records as possible, inquiries sometimes grounded in fact or
fair suspicion, sometimes in sheer speculation. The defendant refuses such intrusions, given their
breadth and asserted lack of materiality as well as their expense and disruption. Then, following
document-based discovery, the parties often dispute who should sit for deposition, a potentially
informative exercise for the plaintiff, and typically a demanding and resource-intensive one for the
defendant. By the same token, the reciprocal requests made by the defendant of the plaintiff almost
always pale in comparison, at least by volume, making discovery a one-way ratchet. It is thus not
hard to see why parties often reach impasse over its scope.
When they do, the district court is called upon as umpire. And as the umpiring process
involves many judgment calls, district courts appropriately are afforded some manner of discretion
in calling discovery’s “balls and strikes.” See Pittman v. Experian Info. Sols., Inc., 901 F.3d 619,
642 (6th Cir. 2018) (“District courts have broad discretion over docket control and the discovery
process.”) (citation omitted). Our standard of review reflects as much—we will find error in a
district court’s discovery decision only where it amounts to an “abuse of discretion.” Robertson
v. Lucas, 753 F.3d 606, 623 (6th Cir. 2014) (citation omitted). That is, the district court’s decision
will go untouched unless we are left “with a definite and firm conviction that the trial court
committed a clear error of judgment.” Bisig v. Time Warner Cable, Inc., 940 F.3d 205, 218 (6th
Cir. 2019) (internal quotation marks and citation omitted).
Add to that level of deference the wide discretion afforded to the district court by the
Federal Rules of Civil Procedure in setting the discovery rules of engagement. Whether a party
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seeks discovery from the outset, or, as here, seeks discovery in response to the opposing party’s
summary judgment motion, the district court has wholesale control over what discovery, if any,
will take place. Rule 26(b), recently amended, emphasizes that the “scope of discovery” is subject
to “limit[ation] by court order.” Fed. R. Civ. P. 26(b)(1); see also Fed. R. Civ. P. 26 advisory
committee’s note to 2015 amendment (noting that a district court “must limit the frequency or
extent of proposed discovery, on motion or on its own, if it is outside the scope permitted by Rule
26(b)(1)”). Likewise, a district court, when asked by a non-moving party to order discovery in
response to the moving party’s motion for summary judgment, may “issue any . . . appropriate
order,” including allowing or denying such discovery. Fed. R. Civ. P. 56(d).
To the extent a district court permits discovery at some point in the proceeding, the scope
of that discovery may cover only the items that, in the judgment of the district court, are “relevant
to any party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1).
That standard was changed from the previous “reasonably calculated to lead to the discovery of
admissible evidence” standard, cementing the need for district courts to consider relevance and
proportionality (rather than reasonable calculations regarding admissibility) as the touchstones in
setting the scope of discovery.
In view of these many layers of discretionary judgment calls, it is perhaps no surprise that
different jurists can give different answers to the same discovery questions. So too here, when one
compares the view of the majority with that of the district court. One could even reach a third
conclusion. That is, employing these discovery measuring sticks, I agree with my friends in the
majority in some respects, and with the district court in others.
Danny’s Personnel File. One area of agreement with the majority is that Jones has a
reasonably compelling argument to discover “Danny’s” personnel file and records (but not to
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depose him). Danny is the lone comparator Jones has pointed to as similarly situated. He is the
one she cited to this Court as the basis for our subsequent reversal of the dismissal of her case;
Jones noted that Danny and Jones are the two candidates with prior disciplinary violations. Jones
v. Johnson, 707 F. App’x 321, 328 (6th Cir. 2017). As Jones has demonstrated why Danny (unlike
other male employees who were also promoted) is arguably similarly qualified, further
documentary discovery as to Danny appears appropriately relevant and proportional, consistent
with the requirements in Rule 26(b). This is particularly true since Blanchard himself disciplined
Danny, the details of which presumably are recorded in Danny’s personnel file.
Deposing Assistant Port Directors. Jones also has a colorable basis for deposing the
assistant port directors who spoke with Blanchard regarding the promotion process. In making his
hiring decisions, Blanchard, as it is largely his right to do, relied upon a somewhat limited range
of information. Those items primarily included the job selection files provided to Blanchard. But,
as the majority correctly notes, he did not rely upon those files alone. In reaching his promotion
decision, Blanchard also had conversations with his assistant port directors. If, as Blanchard
appears to concede, he relied upon those conversations in deciding against promoting Jones, the
information revealed in those conversations would seem directly to inform the underlying merits
question: Was the decision not to promote Jones driven by discriminatory motives? Deposing
those central figures thus seems high on the proportionality scale. See Fed. R. Civ. P. 26(b)(1).
The fly in this request’s ointment, however, is that Jones waited until her third application
to stay—filed right before the district court ruled on Defendants’ summary judgment motion—to
ask to depose the assistant port directors. That late-in-the-day request undermines its necessity.
So too does the fact that Jones only asked to depose the assistant port directors under a rationale
that they, not Blanchard, were the real discriminators, what has come to be known as the “cat’s
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paw” theory. But that last-minute change to Jones’s theory of the case was rightly rejected below.
Limiting discovery in this way was thus not an abuse of discretion.
Personnel Files. Other areas of discovery ordered today, to my mind, fall even lower on
the proportionality scale. Take, for instance, the personnel files of those employees (other than
Danny) who received promotions. In assessing a Title VII claim, the district court should employ
the “honest belief” rule in assessing the employer’s purported reasons for taking an employment
action. Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106, 1117 (6th Cir. 2001) (citation
omitted). Following that rule, where an employer’s proffered reason for taking an adverse
employment action was based upon the employer’s honest, non-discriminatory belief drawn from
the facts before it, “the employee cannot establish pretext even if the employer’s reason is
ultimately found to be mistaken, foolish, trivial, or baseless.” Seeger v. Cincinnati Bell Tel. Co.,
LLC, 681 F.3d 274, 285–86 (6th Cir. 2012) (quoting Smith v. Chrysler Corp., 155 F.3d 799, 806
(6th Cir. 1998)); see also Majewski, 274 F.3d at 1117. With this in mind, it is difficult to see how
the court below abused its discretion. All seem to agree that the personnel files were not relied
upon by Blanchard. For that reason, the information contained therein has no bearing on
Blanchard’s motives or his assessment of the relative qualifications of the candidates. After all,
even if something were found in those files that shows another candidate also had a disciplinary
violation, as Blanchard did not rely on that information, it would not establish that Blanchard’s
purported reasons for not promoting Jones were pretextual.
Jones has no compelling response. Today, she says that she might use information in these
files to ask the assistant port directors whether they told Blanchard about any hypothetical
incidents in the files. But again, before the district court, Jones did not request depositions of the
assistant port directors for this purpose. Likewise, any claim by Jones that the files might reveal
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relevant information related to the individuals in question is highly speculative, and thus unlikely
to lead to information squarely “relevant to any party’s claim or defense.” Indeed, Defendant has
sworn that there are no other disciplinary items regarding the other candidates. In emphasizing
relevance and proportionality, Rule 26(b) instructs that some line-drawing is required by the
district court in regulating discovery. I see no abuse of discretion in drawing the line where the
district court did here.
Deposition of Human Resources Representative. For many of these same reasons, the
district court did not abuse its discretion by denying Jones’s request to depose a Human Resources
representative regarding the promotion selection process, the severity of offenses, and the number
of years disciplinary violations remain in personnel records. Jones already has the Merit
Promotion Plan, which describes in some detail the process for evaluating applicants. The Plan
makes clear that the selecting official “may choose any applicant referred on the best qualified
list,” regardless of their ranking. The record likewise includes the declarations of Marianne Snow,
the Assistant Director for Mission Support, who was also responsible for human resources
management. In her declaration, Snow described the referral practice and scoring system used in
the hiring process. The selection process was also addressed by Blanchard in his deposition. There
is thus no need, much less a need significant enough to warrant reversal, to ask an HR
representative one level removed from the decision-making process about topics for which there
is already sworn testimony. It is even more difficult to see how the district court abused its
discretion in not allowing depositions regarding how long disciplinary offenses remain on
personnel records, when Blanchard did not rely upon those records in his decision not to promote
Jones.
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Disciplinary Policies. Likewise, as to Defendants’ disciplinary policies, discovery into
this area similarly would not resolve any contested issues. Jones does not contest she was
reprimanded in 2007. And regardless whether Jones’s reprimand is still in her personnel file, a
supervisor could fairly consider that historic conduct as a reason not to promote Jones, especially
where that disobedience is consistent with other perceptions about Jones’s ability to work with
colleagues at the agency, a large aspect of the position she sought, which would require her to lead
up to 25 employees. Even if the disciplinary violation Jones committed might no longer be
considered a disciplinary violation under current policy, that says nothing about whether Jones
broke the rules as they applied at the relevant time. By analogy, if one drives her car at 65 miles
per hour, in violation of a 55 mile-per-hour speed limit, she has failed to honor traffic laws,
regardless whether the speed limit might be changed to 70 miles per hour in the future.
Deposing Jones’s Supervisors. The district court was also well within its discretion to find
that depositions of Jones’s supervisors was not proportional to the needs of the case. The record
reflects that Blanchard relied only upon the job selection files and conversations with the assistant
port directors, not Jones’s supervisors, to make his decision. Jones says that her supervisors would
praise her performance. But Defendants do not dispute that Jones performs well in her current
role. Accolades from her current supervisors would thus do little to move the Title VII needle.
This is especially true when one considers that the Merit Promotion Plan provides that accolades
and performance assessments are not a significant factor in the selection process. The Plan
specifies that: “Mere possession of a specific number of awards or a specific [performance]
appraisal level will not, in and of themselves, be factors in the evaluation process.” To the extent
information obtained from Jones’s supervisors was passed on to the assistant port directors and
then to Blanchard, a more proportional route to obtain this information would have been to ask the
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port directors themselves what they told Blanchard. But Jones only sought that information below
at the last minute, and did so to support a new, unsubstantiated theory, a fair point for the district
court to consider in utilizing its discretion to manage the case. See Pittman, 901 F.3d at 642
(“District courts have broad discretion over docket control and the discovery process.”) (citation
omitted).
In my view, there also was no abuse of discretion in denying Jones discovery on the issue
of whether the June and August 2011 hiring segments were one unitary process. While we did
previously remand this case for discovery on this issue, the district court did not commit an abuse
of discretion by later denying this request, for two reasons. One, as the district court found, Jones
failed to identify any comparators in the June round of hiring, making it irrelevant whether it was
part of the August round. Two, as the failure to exhaust her remedies was not a basis for the grant
of summary judgment to Defendants, Jones was not harmed in being denied further discovery
related to exhaustion.
* * * * *
In assessing Jones’s discovery requests, it is worth turning back to Rule 26(b)’s relevance
and proportionality standards. Measuring what is relevant and proportional here requires keeping
in mind the many narrowing features of this case. It is a single plaintiff case, not a class action,
the latter of which might justify broader discovery into generalized workplace hiring and
promotion practices. The EEOC previously determined no discrimination had taken place against
Jones, and Jones has access to that record, which provides much of the discoverable information
needed to address her claims. See Jones, 707 F. App’x at 325. Jones now asserts just one type of
discrimination—sex discrimination. Her race discrimination claims were previously rejected by
this Court when we affirmed the dismissal of all twenty-three of the other counts in her complaint.
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Id. at 323–24. And as to her sex discrimination claim, the fact remains that both women and men
were promoted to the position she seeks, and she has pointed to only one man who seems to be
“similarly situated,” in that he also had a disciplinary issue in his work history (albeit one with a
less severe punishment). Indeed, it was on the basis of that single comparator that we previously
remanded this case back to the district court, overriding the district court’s earlier dismissal under
Rule 12(b)(6). Id. at 328. Given the somewhat confined nature of this case, then, discovery should
be similarly confined.
The district court, with a front-row seat to the proceedings, is obligated to tailor discovery
based upon issues the case has actually raised, as opposed to ungrounded theories about what wide-
ranging discovery might possibly reveal. As to assessing those judgment calls here, I would hue
more closely to the decision below.
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