Marable v. Department of Commerce

Case: 21-10218 Document: 00516001485 Page: 1 Date Filed: 09/02/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
No. 21-10218 September 2, 2021
Summary Calendar
Lyle W. Cayce
Clerk
John O. Marable, Jr.,
Plaintiff—Appellant,
versus
Department of Commerce,
Defendant—Appellee.
Appeal from the United States District Court
for the Northern District of Texas
No. 3:18-CV-3291
Before Southwick, Oldham, and Wilson, Circuit Judges.
Per Curiam:*
John Marable was an employee of the United States Patent and
Trademark Office (USPTO) in its satellite office in Dallas, Texas. After nine
months, he received a letter of termination and opted to resign. Marable
subsequently brought suit against the Department of Commerce (the
*
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opinion should not be published and is not precedent except under the limited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.
Case: 21-10218 Document: 00516001485 Page: 2 Date Filed: 09/02/2021
No. 21-10218
Department), then-Secretary of Commerce Wilbur Ross, then-Director of
the USPTO Joseph Matel, and Timothy Callahan, who was the director of
the USPTO office where Marable worked as a patent examiner. Marable
alleged race and age discrimination, retaliation, and a hostile work
environment in violation of Title VII of the Civil Rights Act, see 42 U.S.C.
§ 2000e, and the Age Discrimination in Employment Act (ADEA), see 29
U.S.C. § 621. Marable also asserted a right to unpaid overtime under the Fair
Labor Standards Act (FLSA), see 29 U.S.C. § 201.
Before any of the defendants responded to his complaint, Marable
filed a notice of nonsuit and dismissed his claims against Ross, Matel, and
Callahan, leaving only the Department as a defendant. The Department then
filed an answer and affirmative defenses to Marable’s complaint, noting in
that answer, inter alia, that under 35 U.S.C. § 1(a) the USPTO, not the
Department, was the proper defendant in an employment case. The
Department further stated that the director of the USPTO was the proper
defendant for claims made under Title VII and the ADEA.
After the parties engaged in discovery, the Department moved for
summary judgment, asserting that it was not a proper defendant and that
regardless, Marable’s claims failed as a matter of law. The magistrate judge
concluded that Marable’s claims failed because the Department was not a
proper defendant; Marable had failed to exhaust administrative remedies as
to his Title VII and ADEA claims, and he failed to establish prima facie claims
on the merits; and, as an exempt employee, Marable’s FLSA overtime claim
failed as a matter of law. 1 Adopting the magistrate judge’s report and
1
Because we conclude that the first basis relied upon by the district court for
summary judgment, i.e., that the Department was not a proper defendant, is dispositive,
we need not address the other grounds relied upon by the district court for dismissal of
Marable’s Title VII and ADEA claims.
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No. 21-10218
recommendation, the district court granted summary judgment and
dismissed Marable’s Title VII and ADEA claims. The court further granted
summary judgment to the Department on Marable’s overtime claim and
awarded fees to the Department. Marable appeals all three determinations.
As an initial matter, Marable failed to object to the award of fees in the
district court. His objection is therefore forfeited on appeal. Prince v. Poulos,
876 F.2d 30, 34 (5th Cir. 1989).
“This court reviews a grant of summary judgment de novo, applying
the same standard as the district court.” Renfroe v. Parker, 974 F.3d 594, 599
(5th Cir. 2020). A “court shall grant summary judgment 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.” Fed. R. Civ. P. 56(a).
Marable contends that he sued the proper defendant or, alternatively,
that the district court abused its discretion in not allowing him to amend his
complaint to restore the Director of the USPTO as a defendant.
First, a federal employee’s claim of age or racial discrimination in the
workplace must be brought against the “head of the department, agency, or
unit[.]” Honeycutt v. Long, 861 F.2d 1346, 1349 (5th Cir. 1988) (citing
Lehman v. Nakshian, 453 U.S. 156, 168 n.15 (1981)). Marable, an employee
of the USPTO, should have sued the USPTO Director. But Marable argues
that the USPTO’s decisions regarding employment are subject to the
Department’s oversight. This argument ignores the plain text of federal law,
35 U.S.C. § 1(a), and it also fails to address Marable’s failure to bring suit
against a department head rather than an entire department. The district
court did not err by determining the Department was not the proper
defendant; thus its grant of summary judgment on this basis was not in error.
Second, the district court did not abuse its discretion by denying
Marable’s request to amend his complaint. See Smith v. EMC Corp., 393 F.3d
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590, 595 (5th Cir. 2004). In accord with Federal Rule of Civil Procedure
16(b)(3)(A), the district court issued a scheduling order that limited the time
to join other parties and amend the pleadings. Once issued, such an order
can only be modified with the judge’s consent and for good cause. Fed. R.
Civ. P. 16(b)(4). Good cause generally requires a demonstration that
“deadlines cannot reasonably be met despite the diligence of the party
needing the extension.” S&W Enters., L.L.C. v. SouthTrust Bank of Ala.,
NA, 315 F.3d 533, 535 (5th Cir. 2003). Marable waited until fifteen months
after the scheduling order deadline to attempt to amend his complaint. He
offers nothing on appeal to demonstrate good cause beyond an assertion that
he has been diligently prosecuting his case. With nothing more, we cannot
conclude that the district court abused its discretion in denying Marable’s
request to amend his complaint.
Finally, Marable concedes that he was an employee exempt from
overtime rules under 29 U.S.C. § 213(a)(1) of the FLSA. This concession
forecloses his other arguments related to the FLSA’s overtime provisions
because, as a result of his exemption, they do not apply.
AFFIRMED.
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