Kyisha Jones v. Jeh Johnson

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 9, 2020
• Docket: 18-2252
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 20a0011n.06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.

2 Case No. 18-2252 , Jones v. Johnson

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. 3 Case No. 18-2252 , Jones v. Johnson

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

4 Case No. 18-2252 , Jones v. Johnson

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

5 Case No. 18-2252 , Jones v. Johnson

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.

6 Case No. 18-2252 , Jones v. Johnson

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.

7 Case No. 18-2252 , Jones v. Johnson

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:

8 Case No. 18-2252 , Jones v. Johnson

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. 9 Case No. 18-2252 , Jones v. Johnson

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.

10 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. 11 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). 12 Case No. 18-2252 , Jones v. Johnson

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. 13 Case No. 18-2252 , Jones v. Johnson

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.

14 Case No. 18-2252 , Jones v. Johnson

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.

15 Case No. 18-2252 , Jones v. Johnson

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)). 16 Case No. 18-2252 , Jones v. Johnson

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

17 Case No. 18-2252 , Jones v. Johnson

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

18 Case No. 18-2252 , Jones v. Johnson

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.

19 Case No. 18-2252 , Jones v. Johnson

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

20 Case No. 18-2252 , Jones v. Johnson

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

21 Case No. 18-2252 , Jones v. Johnson

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

22 Case No. 18-2252 , Jones v. Johnson

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

23 Case No. 18-2252 , Jones v. Johnson

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

24 Case No. 18-2252 , Jones v. Johnson

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

25 Case No. 18-2252 , Jones v. Johnson

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.

26 Case No. 18-2252 , Jones v. Johnson

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.