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Hicks v. Johnson

United States Court of Appeals, First Circuit

June 20, 2014

SANDRA L. HICKS, Plaintiff, Appellant,
v.
JEH CHARLES JOHNSON, [*] SECRETARY, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Defendant, Appellee

Page 739

[Copyrighted Material Omitted]

Page 740

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. Richard G. Stearns, U.S. District Judge.

Richard B. Reiling for appellant.

Christine J. Wichers, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

Before Lynch, Chief Judge, Stahl and Lipez, Circuit Judges.

OPINION

Page 741

LIPEZ, Circuit Judge.

Sandra Hicks brought this employment discrimination action against the Secretary of Homeland Security, claiming that the Secretary failed to promote her to the position of Housing Manager in the United States Coast Guard Housing Office at Air Station Cape Cod on account of her race and gender. The district court granted the Secretary's motion for summary judgment, finding that Hicks failed to generate a genuine issue of material fact on the Secretary's non-discriminatory reason for choosing another candidate. Prior to granting summary judgment, the court also denied Hicks's motion to reopen discovery.

In response to Hicks's appeal, we conclude that the district court did not abuse its discretion in denying Hicks's motion to reopen discovery. We also agree that Hicks failed to generate a genuine issue of material fact on the issue of pretext. We therefore affirm.

I.

Hicks, an African-American woman, has been a civil service government employee for over twenty years. A majority of her service has been in the United States Coast Guard Housing Office at Air Station Cape Cod, located on the Otis Air Force Base. The Housing Office staff consists of one Housing Manager and approximately six subordinates. Before the events at issue here took place in 2009, Hicks had served nine years in the Housing Office in two roles--six years as Housing Management Assistant and three as Off-Base Housing Management Specialist. The General Schedule (" GS" ) levels of those positions were GS-07 and GS-09 respectively.[1]

In late 2009, Hicks's supervisor, Evelyn Norton, announced her retirement from the Housing Manager position. The official job posting for Norton's replacement listed, among others, the following required qualification: " one year of specialized experience equivalent to at least the GS-09 level or Ph.D or equivalent doctoral degree or 3 full years of progressively higher level graduate education leading to such a degree." A list was compiled of the candidates eligible for merit promotion to the position. The top two candidates were Hicks and Terry Krout, a white man who was serving in the same office as a " housing inspector." Krout was a retired Chief Warrant Officer in the United States Coast Guard who had entered civil service in 2002. When the Housing Manager position became available in 2009, Krout had been serving as a GS-09 Housing Specialist for approximately one-and-a-half years. His primary responsibility in that position was inspecting 330 on-base housing units.

Page 742

A panel consisting of Coast Guard Commander Paul Rendon, Area Housing Officer Kevin Sullivan, and Director of Morale, Wellbeing, and Recreation Bruce Blackman was charged with making a recommendation to Commander John Newby,[2] who would ultimately make the promotion decision.[3] The panel interviewed the top two candidates--Hicks and Krout. During the interviews, the candidates were asked the same twenty questions,[4] and the interviewers independently scored the interviewees' answers to each question on a 1-3 scale (with 3 being the highest).[5] The scores for all of the questions were then added up to produce total interview scores for each candidate. The result was a split decision. Commander Rendon scored the interview for Krout by a margin of 54-48. Sullivan scored the interview for Hicks by a margin of 50-49. Blackman scored the interview for Krout by a margin of 45-44. Tallying all these scores, Krout had 148 and Hicks 142. On that basis the panel recommended Krout for promotion. Commander Newby adopted that recommendation.

Commander Rendon met with Hicks in person to communicate the promotion decision and discuss the reasoning behind it. Hicks was understandably disappointed, and she was offended by Commander Rendon's suggestion that she should have practiced her interview skills beforehand. After exhausting her administrative remedies, Hicks commenced this action on August 25, 2011, alleging that she was discriminated against on the basis of race and gender.

After proceeding pro se through the discovery period, Hicks retained Attorney Richard Reiling, who entered an appearance on January 31, 2013, on the eve of the deadline for responding to the Secretary's motion for summary judgment. Hicks also moved on that same date to reopen discovery pursuant to Rule 56(d) or, in the alternative, to extend the summary judgment opposition deadline by 21 days. On February 5, having heard oral argument from the parties, the district court issued the following order: " The court will not reopen discovery but, in order to give plaintiff's counsel sufficient time to familiarize himself with the case and prepare a response, will extend by 21 days the deadline to oppose defendant's motion for summary judgment."

After obtaining an additional extension, Hicks filed her opposition to summary judgment on March 1. The district court granted ...


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