Tyree v. Lahood , 835 F.3d 35 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 14-2092
ELIZABETH TYREE,
Plaintiff, Appellant,
v.
ANTHONY FOXX,
SECRETARY, U.S. DEPARTMENT OF TRANSPORTATION,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Torruella, Thompson, and Kayatta,
Circuit Judges.
James A.W. Shaw, with whom Segal Roitman, LLP, was on brief,
for appellant.
Christine J. Wichers, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.
August 22, 2016
TORRUELLA, Circuit Judge. Elizabeth Tyree was a paid
graduate student intern at the John A. Volpe National
Transportation System Center 1 ("Volpe Center"). During her
internship, Tyree began conducting research for her master's
thesis. After her internship ended, she sought access to the
Volpe Center's proprietary data through a Cooperative Research and
Development Agreement ("CRADA") -- an agreement between a federal
laboratory and a nonfederal entity to share resources and conduct
research as defined in 15 U.S.C. § 3710a(d)(1)2 -- to continue her
thesis, but the CRADA was never executed. Tyree brought this
employment discrimination suit against the Secretary of
Transportation alleging that the Volpe Center did not execute the
CRADA because of her sex, race, or national origin. The district
1 The Volpe Center is part of the Research and Innovative
Technology Administration within the United States Department of
Transportation.
2 Section 3710a(d) defines a CRADA as
any agreement between one or more Federal laboratories
and one or more non-Federal parties under which the
Government, through its laboratories, provides
personnel, services, facilities, equipment,
intellectual property, or other resources with or
without reimbursement (but not funds to non-Federal
parties) and the non-Federal parties provide funds,
personnel, services, facilities, equipment,
intellectual property, or other resources toward the
conduct of specified research or development efforts
which are consistent with the missions of the
laboratory [subject to certain exceptions].
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court granted the Secretary's motion for summary judgment finding
that Tyree failed to show the challenged acts were motived by
discriminatory animus. We affirm.
I.
The facts underlying this case are largely undisputed.
"To the extent that the parties disagree about what occurred, we
adhere to the plaintiff's version in keeping with our role in
reviewing a grant of summary judgment." Ahmed v. Johnson, 752
F.3d 490, 492 (1st Cir. 2014).
During the relevant time period, Tyree, a black Hispanic
woman, was a student at Worcester Polytechnic Institute ("WPI"),
pursuing her master's degree in physics. In February 2009, Tyree
began a two-year paid internship with the Volpe Center. Before
accepting her offer and again after starting, Tyree told the Volpe
Center she hoped to conduct research for her master's thesis.
That spring, after viewing a list of research topics generated by
the Volpe Center, Tyree decided to write her thesis on the
differences between aircraft wake behavior over land and water.
While working on her research, Tyree worked closely with Dr.
Michael Geyer and Dr. Frank Wang at the Volpe Center as well as
her thesis advisor at WPI. Wang was the team lead for the aircraft
wake turbulence program and one of the people involved in Tyree's
interview process. He worked closely with her for two years.
-3-
Tyree points to no evidence that he ever manifested, or even hinted
at, any bias against her.
In January 2011, two weeks before her internship ended,
the Volpe Center told Tyree that they would not extend her
internship to full-time employment. Tyree asked Geyer if she
would lose her thesis research. Geyer told Tyree that she could
potentially continue her research (and have access to the Volpe
Center's nonpublic wake data) through a CRADA between WPI and the
Volpe Center.
The day before her internship ended, Tyree met with
Geyer, Wang, and Felicia McBride, a Volpe Center attorney, to
discuss the possibility of executing a CRADA. McBride, an
African-American woman, explained to Tyree the CRADA process,
including that Tyree needed to provide a statement of work ("SOW")
describing her research before McBride could start writing a draft
CRADA. McBride also explained that a CRADA is a mutually
beneficial arrangement between a federal laboratory and a non-
federal entity that must be approved by different departments
within the agency, and would ultimately need approval from the
Director of the Volpe Center and the administrator of the Research
Innovation Technology Administration ("RITA") of the U.S.
Department of Transportation. To do all of this, Tyree needed to
have someone at Volpe work with her. There is no evidence that
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Wang had any duty to help her at all. Nevertheless, he agreed to
do so. After the meeting, Geyer instructed Tyree to write a first
draft of the SOW and email it to Wang. Six days later, on
February 16, Tyree emailed her draft SOW to Geyer and Wang.
The SOW, however, was never completed. In March, Wang
emailed Tyree to let her know that she had received approval for
one of the steps in setting up the CRADA but that he wanted to
speak with her about "analysis ideas" he wanted to propose. At
the beginning of April, Tyree went to the Volpe Center and Wang
elaborated that he wanted Tyree to create a synthetic dataset to
test a statistical method that would be subsequently used to
analyze the wake data. In an email sent on April 28, Wang further
explained that he believed the development of this "statistical
tool" could be written into the SOW and he was concerned that the
current SOW did not "have enough technology flowing back from WPI
to [the] Volpe [Center]." Tyree, however, viewed Wang's suggestion
as beyond the scope of her original thesis and a topic that would
have merited a separate thesis in its own right.
Little work was done on the SOW between May and July of
2011. Starting in July, Tyree sent the Volpe Center several emails
asking about the status of the SOW. Wang responded by telling
Tyree that she should incorporate his suggestions about the
statistical tool into the draft SOW in order to make the CRADA
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more beneficial to the Volpe Center. McBride echoed this concern
and stated that the SOW needed "to be 'sellable' in that it will
align with a [Department of Transportation] goal." Tyree,
however, wanted Wang to type his changes into the draft SOW himself
and found it "suspicious" that, if he viewed the statistical tool
as important, he had not proposed them when she started her
research two years earlier. On July 17, Wang sent Tyree an edited
SOW with his changes (including the statistical tool and synthetic
dataset) incorporated.
Four days after receiving the edited SOW, Tyree spoke
with her thesis advisor. Tyree's thesis advisor told her that,
in his experience, SOWs (not necessarily for CRADAs) between two
institutions took a few days to complete and up to a month if there
were complications. That conversation cemented Tyree's belief
that the Volpe Center had no intention of completing the SOW or
executing the CRADA.
On August 10, 2011, Tyree sought equal employment
opportunity ("EEO") counseling, alleging that the Volpe Center's
delays in executing the CRADA were motivated by gender
discrimination. Tyree requested $300,000 from the Volpe Center
and someone other than Wang as her point of contact for the SOW
and CRADA. The EEO counselor was unable to resolve Tyree's
complaint and Tyree subsequently filed a complaint with the
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Department of Transportation alleging sex, race, and national
origin discrimination. Upon receiving a right to sue letter,
Tyree initiated this suit in the United States District Court for
the District of Massachusetts.
In her first complaint, Tyree alleged that by failing to
execute the CRADA, the Secretary discriminated against her on the
basis of her sex, race, or national origin in violation of Title
VII, 42 U.S.C. § 2000e-16(a).3 Tyree subsequently amended her
complaint to include a claim that the Volpe Center's advice on her
thesis following her internship constituted a post-employment
training program at the Volpe Center from which she was wrongfully
terminated due to her sex, race, or national origin when the CRADA
negotiations fell through. Following discovery, the district
court granted summary judgment on the CRADA and training program
claims.4 This timely appeal followed.
3 Tyree also alleged wrongful termination and retaliation, which
the district court dismissed pursuant to Federal Rule of Civil
Procedure 12(b)(6). Because these claims involved separate legal
issues, we reject Tyree's argument that she appealed them by virtue
of their being intertwined with her CRADA claim. The district
court dismissed Tyree's wrongful termination claim for failure to
exhaust administrative remedies and her retaliation claim, which
was based on Geyer not writing her a letter of recommendation after
seeking EEO counseling, for lack of causation.
4 The district court found that the claims were susceptible to
the same analysis. Additionally, Tyree does not separately brief
these claims. We agree with the district court and our analysis
applies to both claims.
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II.
"We review a district court's grant of summary judgment
de novo, viewing the facts in the light most favorable to the non-
moving party." Román v. Potter, 604 F.3d 34, 38 (1st Cir. 2010).
"Summary judgment is appropriate only if there is no genuine
dispute as to any material fact and the moving party is entitled
to judgment as a matter of law." Hicks v. Johnson, 755 F.3d 738,
743 (1st Cir. 2014).
When a Title VII discrimination claim rests on
circumstantial evidence, we apply the three-step burden-shifting
framework outlined by the Supreme Court in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973). Ahmed, 452 F.3d at 495. Under
step one of that framework, the plaintiff must establish a prima
facie case of discrimination. Id. at 495-96. Once the plaintiff
establishes a prima facie case, "an inference of discrimination
arises, and the burden of production shifts to the defendant to
produce evidence that the challenged employment action was taken
for a legitimate, non-discriminatory reason." Hicks, 755 F.3d at
744. "If the employer supplies such evidence, the plaintiff is
left with the burden to prove 'by a preponderance of the evidence
that the employer's proffered reason is pretextual and that the
actual reason for the adverse employment action is
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discriminatory.'" Id. (quoting Johnson v. Univ. of P.R., 714 F.3d
48, 53 (1st Cir. 2013)).
A. Prima facie case
At step one, the district court assumed that Tyree met
her burden of proving a prima facie case of discrimination in
connection with the Volpe Center's failure to execute the CRADA.
We do the same.5
B. Non-discriminatory reason
Proceeding to step two, the district court concluded
that the Secretary had articulated a legitimate non-discriminatory
reason for failing to execute the CRADA -- namely, that Volpe
Center personnel needed to make Tyree's proposed SOW more
"sellable" to the higher-level officials (in particular, the Volpe
Center director and RITA administrator) who needed to approve it.
Specifically, the district court cited an email from Wang to Tyree
stating that the "true spirit" of the CRADA was "sharing resources
and analysis efforts" and it was important for him to be able to
"'sell [the SOW]' in terms of 'what does Volpe really get out of
the CRADA?'" We note McBride echoed this concern and we agree
5 In doing so, we decline to address the Secretary's two
alternative bases for affirmance: that the CRADA and training
program were educational benefits beyond Title VII's protection
and that Tyree's theory of relief was too speculative to constitute
an adverse employment action.
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with the district court that this was a legitimate non-
discriminatory reason for why the Volpe Center never executed the
CRADA.
Tyree argues, for the first time on appeal, that the
Secretary never identified a legitimate non-discriminatory reason
in his motion for summary judgment and the district court
improperly articulated a reason on his behalf. Rather than
grappling with what constitutes "extraordinary" circumstances
allowing us to relax our "raise or waive" rule, see, e.g., Lang v.
Wal-Mart Stores E., L.P., 813 F.3d 447, 455 (1st Cir. 2016); Nat'l
Ass'n of Soc. Workers v. Hardwood, 69 F.3d 622, 628-29 (1st Cir.
1995), we reject Tyree's argument outright. The "sellable"
rationale cited by the district court is articulated in both the
Secretary's motion for summary judgment and brief on appeal. We
acknowledge that the Secretary's primary argument is that the CRADA
fell through because Tyree ended the negotiations by filing her
EEO complaint, but the Secretary also makes clear that Wang
resisted Tyree's proposed SOW and intended to make it more
"sellable to the Volpe Center" through his proposed changes.6 Our
6 Because we can affirm using the rationale understood by the
district court, we decline to analyze the merits of the Secretary's
preferred rationale for why the CRADA was never executed. In
other words, we do not decide whether Tyree needed to continue
negotiating the CRADA while she sought EEO counseling.
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analysis thus turns to whether the Volpe Center's claim that
Tyree's SOW needed to be more sellable was pretext for
discrimination.
C. Discriminatory intent
"At the summary judgment stage, the plaintiff 'must
produce evidence to create a genuine issue of fact with respect to
two points: whether the employer's articulated reason for its
adverse action was a pretext and whether the real reason was . . .
discrimination.'" Quiñones v. Buick, 436 F.3d 284, 289–90 (1st
Cir. 2006) (quoting Thomas v. Eastman Kodak Co., 183 F.3d 38, 62
(1st Cir. 1999)). At this stage, "it is insufficient for a
plaintiff merely to undermine the veracity of the employer's
proffered justification." Dichner v. Liberty Travel, 141 F.3d 24,
30 (1st Cir. 1998). "[I]nstead, she must muster proof that enables
a factfinder rationally to conclude that the stated reason behind
the adverse employment decision is not only a sham, but a sham
intended to cover up the proscribed type of discrimination." Id.
Nonetheless, this court does not always require the plaintiff to
adduce direct evidence of an employer's discriminatory animus.
"When the prima facie case is very strong and disbelief of the
proffered reason provides cause to believe that the employer was
motivated by a discriminatory purpose, proof of pretext 'may' be
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sufficient." Lattimore v. Polaroid Corp., 99 F.3d 456, 466 (1st
Cir. 1996).
It is this latter scenario into which Tyree contends her
case falls. Tyree's discriminatory intent argument rests on the
Volpe Center's proffered reason being pretextual. In particular,
she argues that because the Volpe Center originally approved of
her thesis topic and Wang had not brought up his concerns about
its statistical rigor earlier, her original SOW must have contained
sufficient benefits to the Volpe Center to be worthy of a CRADA.
As a threshold matter, we do not view the Volpe Center's
actions as inconsistent. Tyree ultimately did not receive a CRADA
because she and Wang reached an impasse over what would be an
acceptable SOW. But even if we assume Wang (or other Volpe Center
personnel) was stonewalling, Tyree's prima facie case is not so
strong that she could prevail on pretext alone. At best, Tyree
has described a scenario in which she and her employer disagreed
about the scope of her research. Her description of the nature
of this disagreement would not allow a reasonable fact-finder to
conclude it stemmed from discriminatory animus. All Tyree cites
to us is her feeling that Wang and Geyer were motivated by
discriminatory animus.7 As the district court observed, subjective
7 The district court noted four anecdotes Tyree provided during
her deposition as evidence of discriminatory animus. These
anecdotes, consisting of male non-black or -Hispanic colleagues
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belief of discrimination is not sufficient to withstand summary
judgment. See Román, 604 F.3d at 40. Without further evidence,
"[s]ubmitting the issue of discriminatory intent to a jury on this
record would amount to nothing more than an invitation to
speculate." Lattimore, 99 F.3d at 467-68. We therefore conclude
that summary judgment was proper.
III.
Our colleague's dissent argues that Tyree's Title VII
claim was unable to withstand summary judgment because her
discovery was unduly cut short. Specifically, the dissent focuses
on Tyree's Interrogatory No. 3, which requested that the Volpe
Center provide a list of all of its agreements that also involved
producing a SOW and, for each agreement, the amount of time the
SOW took to complete. In response, the Volpe Center provided
Tyree with information regarding CRADA-related SOWs only, viewing
other SOWs as irrelevant.
Tyree filed a motion to compel, which the district court
denied on the grounds that Tyree's requests were overbroad and
lacked relevancy to her claims. Tyree served a second set of
receiving more favorable performance reviews and a sexist remark
made by a Volpe Center employee who had no role in the SOW or
CRADA, were rejected by the district court. We do not consider
this evidence given that Tyree did not mention it on appeal in any
of her briefs or at oral argument.
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interrogatories on the Volpe Center which reiterated her request
for information about the timelines for other SOWs. Volpe Center
objected to these interrogatories and Tyree subsequently filed a
second motion to compel which argued that the Volpe Center's
objections were untimely and that non-CRADA SOWs were relevant to
her claims. The district court denied Tyree's motion.
We review a district court's discovery orders for abuse
of discretion. Cascade Yarns, Inc. v. Knitting Fever, Inc., 755
F.3d 55, 59 (1st Cir. 2014). "Under that standard, we may reverse
a district court only upon a clear showing of manifest injustice,
that is, where the lower court's discovery order was plainly wrong
and resulted in substantial prejudice to the aggrieved party."
Id. (internal quotation marks omitted) (quoting In re Subpoena to
Witzel, 531 F.3d 113, 117 (1st Cir. 2008)).
We cannot say that Tyree met this standard. The theory
of relevance advanced in our colleague's dissent is that if other
SOWs were prepared more quickly, a factfinder could infer that the
longer time here evidenced discrimination. This theory of
relevance seems both a stretch, and likely to involve, if pursued,
sideshow examinations of differences between the different SOWs,
who did them, complexities, etc. In any event, the Volpe Center
agreed to produce the requested SOWs that would on their face be
most relevant: those produced in pursuit of a CRADA. Tyree offers
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no argument or evidence that examinations of those most facially
comparable SOWs provided any suppo1t for her claim. Discovery
involves drawing lines, especially when targeted at logical
inferences several times removed from the dispositive issue at
hand. In drawing the line where it did, the district court
certainly did not abuse its discretion.
As for the district court's summary decision not to deem
the Volpe Center's discovery objections waived in the face of
competing claims about when service occurred, such housekeeping
attendance to managerial time limits are routinely made day-in and
day-out in our trial courts, and we can find no precedent for
reversing such a decision in this context as somehow being an abuse
of discretion, especially where the parties' dispute about the
timing of discovery service implicated no prejudice to Tyree even
if objections were delayed.
Finally, although Tyree's pro se brief baldly asserts
error in the discovery ruling, it offers no argument at all for
why the line drawn between CRADA SOWs and non-CRADA SOWs was
unreasonable. See United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990) ("[I]ssues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are
deemed waived."). We therefore make no claim that appointed
counsel dropped a presented argument. Rather, we observe only
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that appointed counsel (likely cognizant of the trial court's wide
discretion) developed no argument even when aware that Tyree was
also not doing so. We do make allowances for pro se parties, in
this instance going so far as to secure very capable
representation. No rule or sense requires that we go further and
sign on ourselves as her counsel.
IV.
For the foregoing reasons, we affirm the district
court's grant of summary judgment.
Affirmed.
"Dissenting opinion follows"
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THOMPSON, Circuit Judge, dissenting. While it is true
that the record, as is, fails to demonstrate discriminatory animus,
Tyree cannot be expected to prove that which she was not properly
afforded an opportunity to ascertain during discovery. The
majority dismisses Tyree's claim that she was wrongly denied a
fair opportunity to discover crucial evidence (namely, information
regarding how quickly the Volpe Center responded to other SOWs).
Because I agree with Tyree that the district court erred in denying
her pro se discovery requests, and therefore incorrectly denied
her the opportunity to discover the very evidence she needed to
survive the Volpe Center's motion for summary judgment, I
respectfully dissent.
I. A Recap
During discovery, Tyree filed two sets of
interrogatories, both of which requested information regarding
other SOWs approved by the Volpe Center. Tyree specifically
sought information regarding the customer type or collaborators
involved in the creation of each SOW and the amount of time it
took to complete the SOWs and enter into the resulting agreements.8
8 Tyree's First Set of Interrogatories specifically sought:
. . . a list, describ[ing] with great detail and
specificity all of the agreements the Volpe Center
has accepted and approved from January 1st, 2007 to
July 1st, 2013, that either contained a statement of
work or required a reference to a statement of work
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In response to Tyree's discovery requests, the Volpe Center
provided information regarding CRADA-related SOWs only, which it
argued were the only type of SOWs relevant to Tyree's case.
Thwarted in her attempts to uncover this and other
information, Tyree filed a motion to compel the First Set of
Interrogatories, requesting, among other things, that the district
court require the Volpe Center to provide the requested information
regarding all SOWs. The district court denied this first motion,
finding the interrogatories sought irrelevant.
Undeterred, Tyree filed a second motion to compel,
seeking solely information regarding other SOWs approved by the
or required a reference to a statement of work (sow)
in the agreement. For each agreement include the
following in the description:
a) the agreement type,
b) the customer type or vendor type,
c) the RVT number(s) associated with the agreement,
d) the frequency of contact between the Volpe Center's
Point of Contact (POC) or a representative and the
customer/vendor (POC) or any of their
representatives,
e) the duration of time it took each agreement to be
turnaround/approved form initial contact concerning
the agreement to the date it was finalized and signed,
f) the date of initial contact concerning the
agreement,
g) the date the agreement was finalized and signed.
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Volpe Center. In this second motion, she argued that the Volpe
Center's usual treatment of SOWs, whether CRADA-related or
otherwise, was directly relevant to her claim that the Volpe Center
had improperly delayed her SOW for discriminatory reasons. She
also argued that the Volpe Center had waived its objections to her
Second Set of Interrogatories because its responses had been
untimely. The district court denied Tyree's second motion to
compel with a one-line docket entry sans explanation. Tyree
appealed both denials, along with the court's later summary
judgment ruling.
II. Merits
As stated by the majority, we review discovery orders
for abuse of discretion and may reverse upon a showing that the
lower court's discovery order was plainly wrong and resulted in
substantial prejudice to the aggrieved party. See In re Subpoena
to Witzel, 531 F.3d 113, 117 (1st Cir. 2008) (quoting Saldaña-
Sánchez v. López-Gerena, 256 F.3d 1, 8 (1st Cir. 2001)). Contrary
to my colleagues, I think Tyree has met that standard here.
Although a district court typically has broad discretion
in resolving discovery objections, "[s]ummary judgment should not
be granted until the party opposing the motion has had an adequate
opportunity for discovery." Dean v. Barber, 951 F.2d 1210, 1213
(11th Cir. 1992) (quoting Snook v. Trust Co. of Ga., 859 F.2d 865,
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870 (11th Cir. 1988)). Tyree, who was pro se at the time she
sought the discovery at issue, did not have an adequate opportunity
for discovery in this case.
In her First and Second Interrogatory Requests, Tyree
sought a list of all SOWs accepted and approved for any agreements
entered into by the Volpe Center. 9 Tyree specifically sought
information regarding the "duration of time it took each Statement
of Work to be completed," including "the date the Statement of
Work was initiated" and "the customer type or vendor type or
collaborators" involved in the creation of the SOWs.
Despite the district court's ruling to the contrary,
these requests were clearly relevant to Tyree's claim that the
Volpe Center delayed the process of creating her SOW in particular,
and could have supported her claim that the Volpe Center
discriminated against her in ultimately failing to enter the
proposed CRADA. In other words, if Tyree could have shown that
in other similar agreements, the Volpe Center took significantly
less time to produce SOWs and then swiftly entered into the
resulting agreements, this could have served as circumstantial
9 Tyree's First and Second Interrogatory Requests contain requests
that are substantively similar, with her First Interrogatory
seeking information including all of the "agreements" entered into
by the Volpe Center which contained SOWs, and her Second
Interrogatory seeking information regarding all "SOWs within
agreements" entered into by the Volpe Center.
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evidence that the delays in Tyree's case were unusual, and thus
perhaps due to discriminatory animus. How the Volpe Center
handled other SOWs therefore could have answered whether Tyree was
treated disparately and, by extension, may have created a genuine
issue of fact with respect to whether the Volpe Center's
articulated reason for failing to enter into the CRADA with Tyree
was a pretext for discrimination.
But because the district court denied Tyree's motions to
compel, we have no idea what other SOWs were entered into by the
Volpe Center, what their usual procedure was in creating the SOWs,
the time that it took to create those SOWs and eventually enter
into the resulting agreements, or with whom those SOWs were created
-- all information that very well could have demonstrated disparate
treatment potentially driven by discriminatory animus in Tyree's
case.
The majority finds the link between non-CRADA and CRADA
related SOWs to be so attenuated as to render non-CRADA SOWs
irrelevant to Tyree's claims, maintaining that even if pursued
such discovery would result in "sideshow examinations of
differences between the different SOWs, who did them,
complexities, etc." However, relevancy is not contingent on the
avoidance of complexity or the parsing out of similarities and/or
differences. To the contrary, "[i]n discovery, the parties are
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given broad range to explore 'any matter, not privileged, which is
relevant to the subject matter involved in the pending action' so
that they may narrow and clarify the issues and obtain evidence or
information leading to the discovery of evidence for future use in
the trial." See Anderson v. Cryovac, Inc., 805 F.2d 1, 12 (1st
Cir. 1986) (quoting Fed. R. Civ. P. 26(b)(1)). Discovery demands
the very examination derided by the majority.
The information Tyree requested was thus clearly
relevant, and the district judge's ruling as to both motions to
compel was plainly wrong. This also resulted in substantial
prejudice, as Tyree was foreclosed from discovering the very
information essential to withstand the Volpe Center's motion for
summary judgment.
Moreover, the district judge's denial of Tyree's second
motion to compel, without so much as a cursory explanation of her
rationale was, in itself, an abuse of discretion. See Howland v.
Kilquist, 833 F.2d 639, 646 (7th Cir. 1987) (quoting Darden v.
Illinois Bell Tel. Co., 797 F.2d 497, 502 (7th Cir. 1986)) ("[A]
decision made in the absence of a basis is an abuse of
discretion"). The majority's contention that the district court
did not abuse its discretion in rejecting Tyree's argument that
the Volpe Center waived its discovery objections ignores the issue
at hand. The issue is not the district court's rejection of
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Tyree's waiver argument -- the issue is that the district court
proffers no explanation of its rationale or the basis of its
finding. That, I believe, was an abuse of discretion.
The majority lastly notes that Tyree's pro se briefs
"baldly assert[] error in the discovery ruling" without offering
any arguments for why non-CRADA related SOWs were necessary. My
colleagues seek to dismiss Tyree's discovery claims because of
their inartful development in her pro se briefs. But I disagree
that we can so hastily dispose of her pro se arguments. While the
majority is correct that "issues adverted to in a perfunctory
manner, unaccompanied by some effort at developed argumentation
are [typically] deemed waived," United States v. Zannino, 895 F.2d
1, 17 (1st Cir. 1990), that simply is not the case here, where a
pro se plaintiff clearly asserted her complaints to the best of
her abilities and, as made apparent by the quality of her pro se
briefs, did her best to develop arguments in support of her
discovery claims.
Generously construing her arguments, as we are required
to do for pro se litigants, see Wedeen v. Green River Power Sports,
14 F. App'x 6, 6-7 (1st Cir. 2001) (noting that "our judicial
system zealously guards the attempts of pro se litigants on their
own behalf") (citing Ahmed v. Rosenblatt, 118 F.3d 886, 889 (1st
Cir. 1997)), I think it is clear that Tyree sufficiently raised
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her discovery claims and accompanied her claims with some effort
at developed argumentation. Her briefing cannot be held to the
same standards of trained counsel. See United States v. Dunbar,
553 F.3d 48, 63 n.4 (1st Cir. 2009) (holding that, although an
argument was not stated "artfully," it was not waived where the
brief identified the relevant facts and law).
Because I think the judge abused her discretion in
denying Tyree access to relevant information during discovery, I
respectfully dissent from the majority opinion. Plaintiffs
"rarely possess 'smoking gun' evidence to prove their employers'
discriminatory motivations," Vélez v. Thermo King de Puerto Rico,
Inc., 585 F.3d 441, 446 (1st Cir. 2009) (quoting Arroyo-Audifred
v. Verizon Wireless, Inc., 527 F.3d 215, 218-19 (1st Cir. 2008)),
and the reality remains that outright admissions of impermissible
discriminatory animus are infrequent and hard to come by. See
Hunt v. Cromartie, 526 U.S. 541, 553 (1999). Against this
backdrop, the importance of adequate discovery is all the more
vital, particularly for pro se plaintiffs. Thus, I think the
proper course here would be to reverse both the judge's discovery
rulings and her grant of summary judgment in favor of the Volpe
Center, so that Tyree might properly conduct discovery.
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