Abbey v. Sverdrup Corp.

692 So. 2d 830, 1996 Ala. Civ. App. LEXIS 239, 1996 WL 162900
CourtCourt of Civil Appeals of Alabama
DecidedApril 5, 1996
Docket2941150
StatusPublished
Cited by1 cases

This text of 692 So. 2d 830 (Abbey v. Sverdrup Corp.) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Abbey v. Sverdrup Corp., 692 So. 2d 830, 1996 Ala. Civ. App. LEXIS 239, 1996 WL 162900 (Ala. Ct. App. 1996).

Opinion

SAM A. BEATTY, Retired Justice.

The plaintiff, Kathleen M. Abbey, appeals from a partial summary judgment entered in favor of Sverdrup Corporation and Sverdrup Technology, Inc. (collectively referred to as “Sverdrup”). Our supreme court transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975. We reverse and remand.

In January 1988, Abbey interviewed with Sverdrup for an engineering position. In September 1988, Sverdrup offered Abbey employment as a senior engineer, contingent upon Sverdrup’s obtaining a NASA contract for engineering services at the Marshall Space Flight Center in Huntsville. Abbey accepted the offer. In February 1989, [831]*831Sverdrup notified Abbey that it had been selected for final consideration for the.NASA contract, and in May 1989, it notified her that it had received the NASA contract and would soon be in a position to advise her about the status of her application for employment. By the fall of 1989, however, Sverdrup still had not hired Abbey. Sverdrup eventually offered her a position junior to that for which she had been interviewed, but never followed through on its offer of the senior engineer position she had accepted.

Abbey contacted the Equal Employment Opportunity Commission (“EEOC”) in December 1989 to complain about Sverdrup’s failure to hire her. On her intake questionnaire, she informed the EEOC that she thought Sverdrup had discriminated against her on the basis of her sex and age and because Sverdrup learned she had filed an EEOC complaint against a previous employer. Abbey then signed and filed a charge of discrimination with the EEOC against Sverdrup, alleging only that Sverdrup had discriminated against her on the basis of her sex. She says that an EEOC staff member told her she could not file a charge of discrimination on multiple grounds, even though she had provided information to the EEOC regarding her retaliation claim. On November 30,1990, the EEOC issued its determination that Sverdrup had not discriminated against Abbey because of her sex. Abbey requested an EEOC review of that decision.

In February 1991, Abbey sued Sverdrup, alleging breach of contract (express and implied), promissory estoppel, unjust enrichment, misrepresentation, and concealment. Aso in February 1991, the EEOC affirmed the results of its initial investigation and issued Abbey a “Notice of Right to Sue.” She then amended her complaint to add a cause of action alleging discrimination in violation of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”).

In 1991, the parties propounded discovery requests to each other. During the summer of 1991, Abbey says, she responded to Sverdrup’s discovery requests, but she says that her attorneys were unsuccessful in obtaining complete discovery from Sverdrup. In May 1992, Sverdrup moved for a partial summary judgment as to Count VII of Abbey’s amended complaint, on the ground that Abbey had failed to exhaust her administrative remedy under Title VII by failing to file a timely charge of discrimination with the EEOC. Sverdrup argued that Abbey’s complaint alleged a retaliatory failure to hire, not discrimination on the basis of her sex, and that her EEOC charge did not include her retaliation claims. Shortly thereafter, Abbey’s attorneys moved to compel the full production of requested documents and complete answers to interrogatories from Sverdrup. ' Abbey’s counsel also filed an opposition to Sverdrup’s summary judgment motion with a supporting memorandum. At that time, much of the discovery requested by Abbey apparently remained outstanding. In his memorandum, Abbey’s counsel specifically discussed his client’s inability to complete discovery:

“The Supreme Court has noted that requiring the nonmovant to present evidence of a genuine issue ‘is qualified by Rule 56(f)’s provision that summary judgment be refused where the nonmoving party has not had the opportunity to discover information that is essential to his opposition.’ Anderson v. Liberty Lobby, 477 U.S. 242 [249-51 n. 5], 106 S.Ct. 2505, 2511 n. 5 [91 L.Ed.2d 202] (1986). As the Court knows, discovery in this case has halted due to disagreements regarding document production by Defendants. Pending Plaintiffs motion to compel (which the Court has deferred while Defendants re-evaluate their position, as the Court requested), Plaintiffs have not yet deposed Defendants or other key 'witnesses. Therefore, Plaintiff is deprived at this time of a fair opportunity to rebut the Defendants’ factual arguments.”

The record also contains a letter from one of Abbey’s lawyers to another that discusses a status conference held by the trial court in May 1992 during which pending discovery issues and Sverdrup’s motion for partial summary judgment were discussed. On July 21, 1992, the trial court entered a partial summary judgment for Sverdrup on Abbey’s Title VII claims. At that time, the court had not yet ruled on Abbey’s motion to compel. [832]*832The ease proceeded to trial before a jury in June 1993, but the jury was unable to reach a verdict.

In November 1994, Abbey, who was by then representing herself, filed a motion asking the trial court to set aside the partial summary judgment entered in 1992 and asking that she be allowed to amend her Title VII claim to conform to facts contained in her EEOC file and pretrial depositions. The trial court denied her motion. In March 1995, Abbey filed another motion requesting relief from the partial summary judgment. Sverdrup opposed hér motion, and requested that, instead of ruling on the motion, the trial court make the partial summary judgment a final, appealable order pursuant to Rule 54(b), Ala.R.Civ.P. The trial court complied and entered a Rule 54(b) certification. Abbey appeals from that partial summary judgment, made final pursuant to Rule 54(b) three years after its entry.

The mere pendency of discovery does not bar the entry of a summary judgment. Nevertheless, if a trial court from the evidence before it, or an appellate court from the record, can determine that the discovery sought was crucial to the nonmoving party’s ease, then it is error for the trial court to enter a summary judgment before the discovery is provided. Reeves v. Porter, 521 So.2d 963 (Ala.1988). Rule 56(f), Ala.R.Civ. P., protects a party opposing a motion for summary judgment if that opposing party states reasons why he or she cannot present essential facts. Starks v. Commercial Union Ins. Co., 501 So.2d 1214 (Ala.1987). The opposing party has the burden of complying with Rule 56(f) and of proving that the discovery items sought are or may be crucial to his or her case. Reeves, 521 So.2d at 965.

Rule 56(f) provides:

“Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.”

Strict compliance with Rule 56(f) is not required, however. A pending motion to compel has been held to be sufficient compliance. Reeves, 521 So.2d at 965. See also Parrish v. Board of Commissioners of Alabama State Bar, 533 F.2d 942 (5th Cir.1976); Noble v. McManus, 504 So.2d 248 (Ala.1987).

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Related

Abbey v. Sverdrup Corp.
692 So. 2d 833 (Supreme Court of Alabama, 1996)

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692 So. 2d 830, 1996 Ala. Civ. App. LEXIS 239, 1996 WL 162900, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abbey-v-sverdrup-corp-alacivapp-1996.