IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 01-20241

Summary Calendar ____________________

JUDY GOODWELL

Plaintiff - Appellant

v.

WAYNE SCOTT, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION

Defendant - Appellee

_________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas No. H-99-CV-4232 _________________________________________________________________ September 28, 2001

Before KING, Chief Judge, and JOLLY and DeMOSS, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Judy Goodwell appeals from the district

court’s grant of summary judgment on her race discrimination and

retaliation claims in favor of Defendant-Appellee Wayne Scott,

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Director, Texas Department of Criminal Justice. For all the

foregoing reasons, we AFFIRM the judgment of the district court.

I. FACTUAL AND PROCEDURAL HISTORY

On July 2, 1999, Plaintiff-Appellant Judy Goodwell, an

African-American female, filed a complaint against Defendant-

Appellee Wayne Scott, in his official capacity as Executive

Director of the Texas Department of Criminal Justice (the

“TDCJ”), alleging that she had been denied a promotion because of

her race and retaliated against because of her previous

complaints about the TDCJ’s discriminatory treatment of African

Americans, both in violation of Title VII of the Civil Rights Act

of 1964, 42 U.S.C. §§ 2000e to 2000e-17. On July 29, 1999, Scott

filed a motion to transfer the case from the Eastern District of

Texas to the Southern District of Texas, which was granted by the

district court on October 12, 1999. According to the Docket

Control Order issued by the district court, discovery was to be

completed by August 30, 2000, and all dispositive and non-

dispositive motions (except motions in limine) were to be filed

by October 16, 2000.

On October 16, 2000, Scott filed a motion for summary

judgment. Regarding the failure-to-promote claim, Scott offered,

a nondiscriminatory reason for having hired a white female,

Glenda Baskin, rather than Goodwell, for the contested position

of Program Administrator I. According to Scott, Claude Williams,

2 who made the promotion decision, believed Baskin to be the better

candidate. Scott also asserted that he was entitled to summary

judgment on Goodwell’s retaliation claim because she had not

suffered an adverse employment action.

On October 25, 2000, in response to Scott’s summary judgment

motion, Goodwell filed a motion for continuance pursuant to

Federal Rule of Civil Procedure 56(f)(“Rule 56(f)”). Goodwell

stated that she wished for a continuance in light of recent

information she had received from Elizabeth Mullins, a TDCJ

Multi-Regional Administrator. Goodwell alleged that according to

Mullins, Williams had been very angry over the promotion of

Goodwell’s spouse, Grover Goodwell (“Grover”), after Grover’s

successful settlement of a Title VII suit between Grover and the

TDCJ. Goodwell asserted that this information was in direct

contrast to Williams’s deposition testimony that Williams was not

angry over Grover’s promotion and never had a conversation with

Mullins expressing such anger. Additionally, Goodwell stated

that Mullins could provide testimony regarding Baskin’s lack of

qualifications for and subsequent transfer from the contested

position. Thus, Goodwell contended that Mullins’s statements

were evidence of Williams’s mendacity and would create a fact

issue as to whether Scott’s asserted reason for failing to

promote Goodwell was pretextual and whether a retaliatory motive

had been present.

3 Specifically, in Goodwell’s affidavit, attached as support

for the motion for continuance, Goodwell stated that during a

recent conversations with Mullins,

[Mullins] reiterated that Mr. Williams was upset when my husband received a promotion shortly after settling his Title VII case with TDCJ. Also as a long term employee of TDCJ IAD, Ms. Mullins has first hand knowledge of Ms. Glenda Baskin’s incompetence and lack of qualifications for the supervisory position of Program Administrator at issue in this lawsuit as well as my experience and qualifications for that position.

As to why the continuance was needed, Goodwell stated in her

affidavit that “Ms. Mullins told me that she could not

voluntarily submit an affidavit because it may conflict with

TDCJ’s procedures and she would be required to get permission

from TDCJ’s Legal Department. However, she told me she would

testify if she was either subpoened [sic] or received a

deposition notice.”

The magistrate judge denied the motion for continuance,

holding that Goodwell had made an insufficient showing that a

continuance was needed to depose Mullins prior to the deadline

for responding to the summary judgment motion. The magistrate

judge stated:

While Plaintiff claims that she has just discovered information from ‘Elizabeth Mullins’, a Multi Regional Administrator, which is probative of the ‘pretext’ issue, Plaintiff has not shown that she is unable to file a response to Defendant’s Motion for Summary Judgment without further discovery, including a deposition of Ms. Mullins. Similarly, Plaintiff has made no showing that Ms. Mullins would not attest to the information she provided Plaintiff on the pretext issue in an affidavit, which could be attached to

4 Plaintiff’s response to Defendant’s Motion for Summary Judgment.

Goodwell appealed the magistrate judge’s denial of the motion for

continuance on December 11, 2000.

On January 5, 2001, the district court affirmed the findings

of the magistrate judge with regard to the denial of the motion

for continuance, holding that the magistrate judge’s findings

were not clearly erroneous or contrary to law. The district

court also granted summary judgment in favor of Scott on

Goodwell’s retaliation claim, agreeing with Scott that Goodwell

had not presented any evidence that her employer had taken an

adverse employment action against her. However, the district

court denied summary judgment on the failure-to-promote claim.

The district court noted that Scott’s only legal argument on that

claim was that Goodwell had failed to establish a prima facie

case of race discrimination because she had not shown she was

clearly better qualified than the hired applicant. The district

court found that summary judgment was inappropriate because,

under established precedent, Goodwell was not required to show

that she was clearly better qualified for the position to

establish a prima facie case.

Both Goodwell and Scott filed requests for reconsideration

of the district court’s order. Goodwell filed a request for

reconsideration of the district court’s grant of summary judgment

on the retaliation claim, arguing that she had been retaliated

5 against by having her job duties stripped away. By contrast,

Scott filed a request for reconsideration of the denial of

summary judgment on the failure-to-promote claim, arguing that he

was entitled to summary judgment because Goodwell had presented

no evidence to refute his asserted nondiscriminatory reason for

failing to promote her.2

On January 29, 2001, the district court granted summary

judgment to Scott on Goodwell’s failure-to-promote claim. The

district court reviewed the evidence and held that there was no

basis in the record from which a reasonable factfinder could

conclude that the proffered nondiscriminatory reason was false.

Goodwell timely appeals the denial of her motion for

continuance and the district court’s grant of summary judgment in

favor of Scott.

II. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN DENYING

GOODWELL’S MOTION FOR CONTINUANCE

2 In its denial of the motion for summary judgment, the district court stated that Scott had implicitly disclaimed that he was defending his action on race-neutral grounds because, in his response to Goodwell’s motion for a continuance, he asserted that the continuance for discovery related to pretext was unnecessary until the defendant offered a race-neutral reason for the promotion decision. In his motion for reconsideration, Scott stated that in the response to Goodwell’s motion for continuance his counsel had inadvertently confused the issue of a plaintiff’s prima facie case and a plaintiff’s ultimate burden, but that he had not intended to disclaim the argument that he had a race- neutral reason for the promotion decision.

6 Goodwell argues that because she explained why she was

unable to present evidence creating a genuine issue for trial and

because she explained how a continuance would enable her to

present such evidence, she met both requirements of Federal Rule

of Civil Procedure 56(f), and that the district court abused its

discretion in denying her motion for continuance. Specifically,

Goodwell asserts that she was unable to present this evidence

because she did not learn of Mullins’s knowledge of the relevant

facts until September 15, 2000. Further, Goodwell contends that

this evidence of Williams’s false testimony creates an issue of

material fact because it casts doubt upon the entire content of

his deposition testimony, including the alleged nondiscriminatory

reason for failing to promote her. Finally, Goodwell insists

that the district court’s confirmation of the magistrate judge’s

order denying a continuance is an abuse of discretion because the

magistrate judge’s asserted rationale——that Goodwell had made no

showing that she was unable to include either Mullins’s

deposition or affidavit with the response to the summary judgment

motion——was in direct conflict with Goodwell’s affidavit (which

stated that Mullins would not voluntarily submit an affidavit,

but would testify only if subpoenaed or deposed).

Scott contends that the district court did not abuse its

discretion in denying Goodwell’s motion for continuance. First,

Scott argues that Goodwell had ample time to depose Mullins, who

had been listed as a potential witness on Goodwell’s initial

7 disclosure list since October 26, 1999, prior to the time of the

filing of the summary judgment motion. Second, Scott argues that

Mullins’s testimony would not have raised a material issue of

fact on either the failure-to-promote or retaliation claims.

Rule 56(f) provides:

Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party’s 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.

FED. R. CIV. P. 56(f) (emphasis added). The decision to grant a

continuance under Rule 56(f) is in the sound discretion of the

district court. See Saavedra v. Murphy Oil U.S.A., Inc.,

(5th Cir. 1991).

The district court’s discretion to deny the requested extension is not entirely unfettered. . . . Where the party opposing the summary judgment informs the court that its diligent efforts to obtain evidence from the moving party have been unsuccessful, a continuance of a motion for summary judgment for purposes of discovery should be granted almost as a matter of course. If, however, the nonmoving party has not diligently pursued discovery of that evidence, the court need not accommodate the nonmoving party’s belated request.

Int’l Shortstop, Inc. v. Rally’s, Inc.,

(5th

Cir. 1991) (internal quotations and citations omitted).

A district court should examine the totality of the

circumstances in determining whether to grant a continuance,

“including the amount of time available for preparation, the

defendant’s role in shortening the time needed, the complexity of

8 the case, the availability of discovery from the prosecution, the

adequacy of the defense actually provided at trial, and the

likelihood of prejudice from the denial.” United States v.

Davis,

(5th Cir. 1995). We review the denial of

a continuance for additional discovery for abuse of discretion

and will affirm the denial unless it is arbitrary or clearly

unreasonable. See Transamerica Ins. Co. v. Avenell,

(5th Cir. 1995).

We do not find that the district court abused its discretion

in denying Goodwell’s motion for continuance. Goodwell argued in

her motion for continuance that the continuance was necessary

because Goodwell had only recently learned that Mullins possessed

this information and that Mullins would not voluntarily submit an

affidavit attesting to Mullins’s knowledge. However, this case

was filed on July 2, 1999, and Goodwell, in her own Rule 26

disclosures served upon Scott on October 26, 1999, Goodwell

informed Scott that Mullins was a potential witness, who might

have knowledge of TDCJ’s hiring practices and the adverse

employment decision at issue. The district court set August 30,

2000, a date both parties agreed to, as the discovery deadline

for this case. Yet, knowing that Mullins might have knowledge of

relevant evidence and fully informed of the discovery deadlines,

Goodwell does not appear to have made any attempt to depose

Mullins. Goodwell’s own affidavit states that although Mullins

9 would not voluntary submit an affidavit, she would testify if

either subpoenaed or deposed.

Additionally, we believe that Goodwell has failed to show

that she was severely prejudiced from the denial of the

continuance. See United States v. Brown,

(5th

Cir. 1983) (“To establish that such an abuse of discretion has

occurred, Brown must show that the denial of a continuance

seriously prejudiced him.”). According to Goodwell, Mullins

would have testified that Williams was angry that Grover had been

promoted after having settled his Title VII lawsuit. Goodwell

alleges that this is contrary to Williams’s deposition testimony

and that it casts doubt on the entirety of his deposition

testimony. However, this alleged discrepancy, even if true, is

simply not sufficient on its own to create an issue of material

fact to survive summary judgment on the unrelated issue of

whether Williams’s nondiscriminatory reason for failing to

promote Goodwell was pretextual. Similarly, Mullins’s testimony

as to Baskin’s qualifications for the positions and subsequent

transfer from the position, based on Baskin’s on-the-job

performance, does not create an issue of material fact as to

Williams’s belief that, at the time of the selection process,

Baskin was the better candidate.

We find that the district court did not abuse its discretion

in denying Goodwell’s motion for continuance.

10 III. THE DISTRICT COURT DID NOT ERR IN GRANTING SUMMARY JUDGMENT

IN FAVOR OF SCOTT

Goodwell argues that the district court granted summary

judgment prematurely, without allowing her the opportunity to

raise a genuine fact issue.3 Scott argues that by failing to

file a response to the summary judgment motion, Goodwell waived

her opportunity to raise an issue of material fact.

We review de novo a district court’s grant of summary

judgment. See Evans v. City of Bishop,

, 588 (5th

Cir. 2000). Summary judgment is appropriate when the record

shows “‘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.’” Allen v. Rapides Parish Sch. Bd.,

(5th

Cir. 2000) (quoting Taylor v. Principal Fin. Group, Inc.,

, 161 (5th Cir. 1996)). “‘If the moving party meets the

initial burden of showing there is no genuine issue of material

fact, the burden shifts to the nonmoving party to produce

evidence or designate specific facts showing the existence of a

genuine issue for trial.’” Id. (quoting Taylor, 93 F.3d at 161).

“Conclusory allegations unsupported by specific facts . . . will

not prevent an award of summary judgment; the plaintiff [can]not

3 Goodwell’s argument is that summary judgment was inappropriate because she did not have a full opportunity to conduct discovery. A review of the record, as discussed supra in Part II, indicates that Goodwell did indeed have the opportunity to conduct discovery, but simply did not take advantage of it.

11 rest on his allegations . . . to get to a jury without any

significant probative evidence tending to support the complaint.”

Giles v. Gen. Elec. Co.,

(5th Cir. 2001)

(alteration in original) (internal quotations omitted) (quoting

Nat’l Ass’n of Gov’t Employees v. City Pub. Serv. Bd.,

(5th Cir. 1994)). “Instead, Rule 56(e) . . . requires

the nonmoving party to go beyond the pleadings and by her own

affidavits, or by the depositions, answers to interrogatories,

and admissions on file, designate specific facts showing that

there is a genuine issue for trial.”

(internal quotations

omitted) (quoting Celotex Corp. v. Catrett,

(1986)). “[W]e must view all facts in the light most favorable

to the nonmovant.” Cardinal Towing & Auto Repair, Inc. v. City

of Bedford, Tex.,

(5th Cir. 1999).

Claims of racial discrimination supported by circumstantial

evidence are analyzed under the framework set out in McDonnell

Douglas Corp. v. Green,

(1973). “First, the

plaintiff must establish a prima facie case of discrimination.”

See Reeves v. Sanderson Plumbing Prods., Inc.,

(2000). Once the plaintiff satisfies this prima facie burden,

the burden shifts to the employer to produce a “legitimate,

nondiscriminatory reason for its decision.” Russell v. McKinney

Hosp. Venture,

(5th Cir. 2000). “If the

defendant can articulate a reason that, if believed, would

support a finding that the action was nondiscriminatory, ‘the

12 mandatory inference of discrimination created by the plaintiff’s

prima facie case drops out of the picture and the factfinder must

decide the ultimate question: whether [the] plaintiff has proved

[intentional discrimination].’” Evans v. City of Houston,

(5th Cir. 2001) (quoting Russell,

)

(alterations in original) (some internal quotations omitted).

“In the context of a claim of discrimination, a plaintiff must

adduce evidence that the justification was a pretext for racial

and age discrimination.”

. “In making this showing,

the plaintiff can rely on evidence that the employer’s reasons

were a pretext for unlawful discrimination.” Russell,

. “However, as the Court stated in Hicks, a showing of

pretext does not automatically entitle an employee to a judgment

as a matter of law.”

. While a showing of pretext

will more likely than not lead to an inference of discrimination,

see

a showing of pretext by the plaintiff will not always be

sufficient to infer discrimination. For example, “if the record

conclusively revealed some other, nondiscriminatory reason for

the employer’s decision, or if the plaintiff created only a weak

issue of fact as to whether the employer’s reason was untrue and

there was abundant and uncontroverted independent evidence that

no discrimination had occurred,” the employer would still be

entitled to summary judgment. See Reeves,

.

a. Goodwell’s Discriminatory Failure-to-Promote Claim

13 We first analyze Goodwell’s discriminatory failure-to-

promote claim. To establish a prima facie case of discriminatory

failure to promote, “a plaintiff must demonstrate that (1) she is

a member of a protected class; (2) she sought and was qualified

for an available employment position; (3) she was rejected for

that position; and (4) the employer continued to seek applicants

with the plaintiff’s qualifications.” Scales v. Slater,

(5th Cir. 1999). For purposes of this appeal, we will

assume without deciding that Goodwell has established a prima

facie case of employment discrimination.

To satisfy its burden of producing a “legitimate,

nondiscriminatory reason for its decision,” Russell,

, Scott argues that Williams believed Baskin to be more

qualified for the position. Because Scott has met his burden of

producing a legitimate nondiscriminatory reason for failing to

promote Goodwell, the mandatory inference of discrimination

disappears and the question becomes whether Goodwell has provided

sufficient summary judgment evidence to create a material

question of fact as to whether Scott discriminated against her on

the basis of race. See Evans,

. We find that

Goodwell has failed to present sufficient evidence to create a

jury issue that Scott’s asserted reason for failing to promote

her to the Process Specialist position was pretextual.

To establish pretext, Goodwell argues that she was clearly

better qualified for the position than Baskin. Although

14 discrimination can be inferred from disparities in

qualifications, to establish pretext Goodwin must show that

“disparities in qualifications [are] of such weight and

significance that no reasonable person, in the exercise of

impartial judgment, could have chosen the candidate selected over

the plaintiff for the job in question.” Deines v. Tex. Dept. of

Protective & Regulatory Servs.,

, 280-81 (5th Cir.

1999). The posted job requirements for the position of Program

Administrator I stated that the minimum requirements were a

college degree,4 four years full-time experience in public

administration or criminal justice, and one year full time

experience in the supervision of employees. Baskin had a college

degree; Goodwell relied on her years of work experience to

satisfy this requirement. Baskin had significantly more work

experience supervising employees than did Goodwell. Although

Baskin did not have as much experience within the department as

Goodwell did, Goodwell does not introduce sufficient evidence to

establish an issue of material fact regarding whether no

reasonable person could have chosen Baskin for the position over

Goodwell.

Because Goodwell has presented no evidence to rebut Scott’s

asserted nondiscriminatory reason for the failure to promote

4 If the applicant had no college degree, he or she could substitute each year over the four years experience in public administration or criminal justice for thirty semester hours from college.

15 Goodwell, Scott was entitled to summary judgment on the claim of

discriminatory failure to promote.

a. Goodwell’s Retaliation Claim

We next turn to Goodwell’s retaliation claim. “To state a

claim for retaliation, a plaintiff must establish that: (1) he

engaged in protected activity, as described in Title VII; (2) he

suffered an adverse employment action; and (3) a causal nexus

exists between the protected activity and the adverse employment

action.” Mota v. Univ. of Tex. Houston Health Science Ctr., No.

00-20009,

(5th Cir. Aug. 9, 2001).

“‘Adverse employment actions’ include only ‘ultimate employment

decisions . . . such as hiring, granting leave, discharging,

promoting, and compensating.’ An employer’s action does not rise

to the level of an ‘adverse employment action’ when it fails to

have more than ‘mere tangential effect on a possible future

ultimate employment decision.’”

(citations and some internal

quotations omitted).

In her deposition testimony, Goodwell stated that the only

thing that had changed in her position was the fact that she no

longer trains case managers. She has not received a change in

title, a pay cut, or any disciplinary action. With the exception

of the loss of this one job responsibility, her position is

unchanged. That change simply does not rise to the level of an

adverse employment action.

16 It is unclear from the record whether Goodwell intended to

argue that the “adverse employment action” she suffered was

Scott’s failure to promote her. Even if we were to assume that

Goodwell intended to argue that Scott had a retaliatory motive in

failing to promote her, which would qualify as an adverse

employment action, summary judgment remains appropriate for the

reasons stated supra in Part II. Scott has asserted a

nondiscriminatory reason for failing to promote Goodwell, and

Goodwell has not presented sufficient evidence to create a

material issue of fact as to whether that reason is pretext for

discrimination.

We find that Scott was entitled to summary judgment on

Goodwell’s failure to promote and retaliation claims.

17 IV. CONCLUSION

For all the foregoing reasons, we AFFIRM the judgment of the

district court.

18