Case: 19-20752 Document: 00515726301 Page: 1 Date Filed: 01/29/2021
`
`United States Court of Appeals
`for the Fifth Circuit
`
`
`No. 19-20752
`
`
`
`United States Court of Appeals
`Fifth Circuit
`
`FILED
`January 29, 2021
`
`Lyle W. Cayce
`Clerk
`
`Audrey K. Miller,
`
`
`
`
`Plaintiff—Appellant,
`
`versus
`
`
`Sam Houston State University; Texas State University
`System,
`
`
`Defendants—Appellees,
`
`
`consolidated with
`
`
`
`No. 19-20753
`
`
`Audrey K. Miller,
`
`
`
`
`
`
`Plaintiff—Appellant,
`
`
`versus
`
`
`University of Houston System; University of Houston
`Downtown,
`
`
`Defendants—Appellees.
`
`
`
`
`
`

`

`Case: 19-20752 Document: 00515726301 Page: 2 Date Filed: 01/29/2021
`
`No. 19-20752
`c/w No. 19-20753
`
`
`
`Appeals from the United States District Court
`for the Southern District of Texas
`USDC No. 4:15-CV-2824
`USDC No. 4:15-CV-2927
`
`
`
`Before Jolly, Southwick, and Wilson, Circuit Judges.
`Cory T. Wilson, Circuit Judge:
`
`A litigant has the fundamental right to fairness in every proceeding.
`Fairness is upheld by avoiding even the appearance of partiality. See, e.g.,
`Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980). When a judge’s actions
`stand at odds with these basic notions, we must act or suffer the loss of public
`confidence in our judicial system. “[J]ustice must satisfy the appearance of
`justice.” Offutt v. United States, 348 U.S. 11, 14 (1954).
`
`Audrey Miller sued Sam Houston State University (SHSU) and
`Texas State University System (TSUS) under Title VII of the Civil Rights
`Act of 1964, 42 U.S.C. § 2000(e) et. seq., and the Equal Pay Act, 29 U.S.C. §
`206(d), alleging sex discrimination, retaliation, and a hostile work
`environment. A week later, Miller filed a separate action against the
`University of Houston Downtown (UHD) and the University of Houston
`System (UHS), also under Title VII, alleging that UHD’s denial of
`employment constituted retaliation.1
`
`From the outset of these suits, the district judge’s actions evinced a
`prejudgment of Miller’s claims. At the beginning of the Initial Case
`Management Conference, the judge dismissed sua sponte Miller’s claims
`against TSUS and UHS, countenancing no discussion regarding the
`dismissal. Later in the same conference, the judge responded to the parties’
`
`
`1 There are thirty-seven public universities in Texas; thirty-four universities belong
`to one of six state university systems. SHSU is a component of TSUS, and UHD belongs
`to UHS.
`
`2
`
`

`

`Case: 19-20752 Document: 00515726301 Page: 3 Date Filed: 01/29/2021
`
`No. 19-20752
`c/w No. 19-20753
`
`opposition to consolidating Miller’s two cases by telling Miller’s counsel, “I
`will get credit for closing two cases when I crush you. . . . How will that look on your
`record?”
`
`And things went downhill from there. The court summarily denied
`Miller’s subsequent motion for reconsideration, denied Miller’s repeated
`requests for leave to take discovery (including depositions of material
`witnesses), and eventually granted summary judgment in favor of SHSU and
`UHD, dismissing all claims. Miller now appeals the district court’s rulings
`and asks for her cases to be reassigned on remand. Mindful of the
`fundamental right to fairness in every proceeding—both in fact, and in
`appearance, we REVERSE, REMAND, and direct that these cases be
`REASSIGNED to a new district judge for further proceedings.
`
`I.
`
`A.
`
`Miller joined SHSU as a tenure-track Assistant Professor of
`
`Psychology in the University’s Clinical Psychology Doctoral Program
`(“Clindoc Program”) in the Department of Psychology and Philosophy in
`August 2007. In this position, Miller supervised students in the Clindoc
`Program, taught practicum courses, and served on students’ dissertation and
`thesis committees. According to SHSU, Miller was “lacking in collaborative
`and attentive generosity towards her colleagues.” She complained about her
`heavy workload, which she believed to be disproportionate compared to that
`of her colleagues. Miller also disagreed with other members of the faculty
`while serving on dissertation and thesis committees. She was removed from
`one committee due to her inflexibility and voluntarily offered to step down
`from another due to conflicts with other committee members. Miller
`contends these disagreements were retaliatory because of her sex and the
`complaints that she raised concerning her clinical workload.
`
`3
`
`

`

`Case: 19-20752 Document: 00515726301 Page: 4 Date Filed: 01/29/2021
`
`No. 19-20752
`c/w No. 19-20753
`
`Despite these issues, Miller applied for tenure at SHSU in late 2012.
`
`But her reviewers recommended that Miller’s tenure and promotion be
`denied due to her lack of collegiality. SHSU informed Miller of its decision
`to deny tenure on March 27, 2013.
`
`Thereafter, Miller filed charges of sex discrimination and retaliation
`
`with the Equal Employment Opportunity Commission (EEOC) and the
`Texas Workforce Commission. She then utilized the Texas Public
`Information Act to obtain voluminous documentation from SHSU. A few
`months later, SHSU denied Miller a merit-based salary increase for the 2013-
`2014 academic year. Miller filed a formal grievance with SHSU, based on the
`same allegations as her EEOC charge (i.e., that her tenure decision was
`adversely affected by sex discrimination and retaliation).
` Miller’s
`employment with SHSU ended on May 31, 2014.
`
`B.
`
`After learning of her tenure denial at SHSU, Miller applied for one of
`
`three open faculty positions at UHD. On March 17, 2014, she interviewed
`with the UHD search committee, as well as Department Chair Jeffery
`Jackson, Dean DoVeanna Fulton, and Provost Edward Hugetz. During the
`interview, search committee members asked Miller why SHSU denied her
`tenure. Miller responded that she “believed [she] had been denied tenure
`because [she] was a woman and because [she] had raised concerns about the
`mistreatment of women in the department at SHSU prior to applying for
`tenure.” Following the interview, the committee rated Miller as the second
`highest candidate for a position.
`
`On April 4, 2014, the UHD search chair emailed Department Chair
`
`Jackson and Dean Fulton and stated that the search committee was interested
`in extending offers to three candidates, including Miller. That same day, the
`search chair asked Miller if she would allow UHD to contact her SHSU
`
`4
`
`

`

`Case: 19-20752 Document: 00515726301 Page: 5 Date Filed: 01/29/2021
`
`No. 19-20752
`c/w No. 19-20753
`
`Department Chair, Christopher Wilson. Miller obliged but advised the
`search chair that Wilson was one of the individuals about whom she had
`complained at SHSU.
`
`On April 7, Department Chair Jackson sent an email to the search
`chair. He stated that while Dean Fulton seemed agreeable to the
`committee’s recommendations, Fulton wanted to follow up with Miller’s
`supervisors at SHSU. The search chair responded that she was “worried
`[SHSU Department Chair Wilson would] have to be very careful []
`discussing [Miller’s] tenure denial because of the legal issues we [have]
`discussed.” Later that day, Jackson called Wilson to inquire into SHSU’s
`decision to deny Miller tenure and promotion.
`
`What was said during the phone call is nowhere in the record. But
`
`after Department Chair Jackson’s call with Department Chair Wilson, UHD
`reversed course from the search committee’s previous recommendation,
`deciding not to extend Miller an offer of employment. On April 29, Miller
`emailed the UHD search chair regarding the status of her UHD application.
`The search chair responded that the position had been filled: “The final
`employment decision was complicated and involved the search committee,
`department chair, dean, and provost.”
`
`In the end, UHD filled all three open positions with candidates who
`
`scored lower on UHD’s hiring metrics than Miller. According to Dean
`Fulton, UHD’s decision not to hire Miller was “based entirely on [] concerns
`regarding [] Miller’s teaching and service due to her tenure denial at SHSU.”
`The dean further stated that she was never “made aware that [] Miller had
`filed a charge of discrimination or other complaint against SHSU with any
`federal or state authorities.” Miller later filed complaints against UHD with
`the EEOC and the Texas Workforce Commission.
`
`
`
`
`5
`
`

`

`Case: 19-20752 Document: 00515726301 Page: 6 Date Filed: 01/29/2021
`
`No. 19-20752
`c/w No. 19-20753
`
`C.
`
`On September 28, 2015, Miller filed suit against SHSU and TSUS in
`
`the Southern District of Texas. On October 6, Miller filed a separate lawsuit
`against UHD and UHS in the same court. The district court issued an order
`to handle the suits jointly, but they were not formally consolidated.
`
`From the start, the district court effectively stifled Miller’s attempts
`
`at discovery. The day after Miller filed suit, the district court issued an Order
`of Conference in each action that limited discovery. The (identical) orders
`foreclosed the parties from propounding written discovery or noticing
`depositions “without court approval.” The district court then issued an
`Order for Disclosure that mandated the parties’ exchange of certain relevant
`documents in each case, including Miller’s performance and personnel
`records, her pay records, names of relevant parties, and organizational charts.
`On the surface, the district court’s initial discovery management orders were
`perhaps unremarkable. But the court did not stop there, as we discuss in
`greater detail below.
`
`On January 25, 2016, the parties in both cases first met at a joint Initial
`
`Case Management Conference. At the outset, and without any prior notice,
`the district judge stated:
`
`[Miller], we’ve got four parties instead of
`THE COURT:
`the two.
`
`
`
`[Miller’s counsel]: Oh. The –
`
`THE COURT:
`You sued the System[s] and the
`
`
`
`institution[s]. So, pick any two you want.
`
`
`
`I don’t care.
`[Miller’s counsel]: I am going to go with the Universities.
`THE COURT:
`Is that right?
`
`6
`
`

`

`Case: 19-20752 Document: 00515726301 Page: 7 Date Filed: 01/29/2021
`
`No. 19-20752
`c/w No. 19-20753
`
`[Opposing counsel]: Yes, Your Honor. To be clear, you know,
`
`
`
`that was an issue that we were going to
`
`
`
`hope to resolve by –
`THE COURT:
`I just did.
`[Opposing counsel]: Yes, Your Honor.
`THE COURT:
`We’ll dismiss the Systems.
`[Opposing counsel]: Thank you, Your Honor.
`THE COURT:
`Systems don’t do anything. They hire
`
`
`
`large staffs and go around and make life
`
`
`
`difficult for the actual institutions
`
`
`
`themselves. It’s in their charter; annoy
`
`
`
`their workers.
`As the conference continued, the district judge made several other off-
`
`key remarks, such as his thoughts concerning Miller’s behavior: “Now, to be
`candid with you, . . . there is nothing that [Miller] didn’t complain about.
`Anything anybody did for two and a half years, three years, was all for some
`ulterior motive.”
` The judge also lumped Miller’s claims in with
`preconceived notions from previous cases involving professors: “As near as
`I can tell, [Miller’s] only complaint here is likely she was paid less but that
`she didn’t get tenure.” He then supported this statement by revealing his
`familiarity with Title VII cases: “I have never thought about it, but I have
`had more tenure decisions than you can imagine working here. You wouldn’t
`think professors were litigious, but apparently they are.”
`
`The judge made other remarks that signaled a predisposition against
`
`Miller’s claims. When Miller requested additional discovery, including the
`opportunity to take depositions, the district judge denied her request, noting
`that it was “too argumentative” and extensive. Finally, as the initial
`conference ended, the judge asked the parties if the cases should be
`consolidated. Contrary to the judge’s apparent preference, the parties
`
`7
`
`

`

`Case: 19-20752 Document: 00515726301 Page: 8 Date Filed: 01/29/2021
`
`No. 19-20752
`c/w No. 19-20753
`
`unanimously requested that the court keep the cases separate. The district
`judge replied to Miller’s counsel, “All right. I will get credit for closing two
`cases when I crush you.” Miller’s counsel attempted to respond, but the
`judge interjected: “How will that look on your record?”
`
`The day after the Initial Case Management Conference, the district
`
`court formally dismissed TSUS and UHS with prejudice. The court did not
`allow Miller to amend her complaints or otherwise respond prior to
`dismissing TSUS and UHS. Miller moved for reconsideration, arguing that
`the Systems were “responsible for managing and controlling their
`Universities.”2 The next day, before TSUS or UHS responded, the court
`denied Miller’s motion, reasoning that Miller failed to supply “objective
`facts” in her complaint about the Systems’ actions.
`
`On April 13, 2016, Miller filed opposed motions for discovery. Miller
`
`sought, inter alia, performance records concerning tenure-track and tenured
`faculty members in the SHSU psychology department, pay records, and work
`assignments (i.e., course loads). Miller also sought applications and related
`communications from UHD regarding its employment decisions. The
`district court denied Miller’s motions the following day, without response
`from SHSU or UHD.
`
`The district court held a pretrial conference on May 4, 2016. There,
`
`the parties discussed the limited discovery that had been exchanged. The
`district judge asked the Universities’ counsel if he had taken Miller’s
`deposition and then permitted counsel to notice the deposition. Miller’s
`counsel then asked, “May we take depositions as well?” The judge
`
`
`
`2 Miller only filed her motion for reconsideration in her action against SHSU and
`TSUS. However, the motion addressed both TSUS and UHS, and the district court ruled
`in regard to both parties. For the sake of simplicity, we likewise treat the motion for
`reconsideration as pertaining to Miller’s claims against both TSUS and UHS.
`
`8
`
`

`

`Case: 19-20752 Document: 00515726301 Page: 9 Date Filed: 01/29/2021
`
`No. 19-20752
`c/w No. 19-20753
`
`responded, “No.” Afterwards, the court entered a Management Order that
`stated that SHSU and UHD “may depose Miller in Judge Hughes’s Jury
`Room.”
`
`On May 12, Miller again filed opposed motions for leave to propound
`discovery, renewing her “request that in the interest of efficiency and
`economy, the court order the full scope of discovery that has been specifically
`requested by Plaintiff.” Miller attached extensive discovery requests to the
`motions and stated that she had also “submitted the attached discovery
`requests . . . in document form during the last pretrial conference . . . held on
`May 4, 2016.”
`
`TSUS and UHD deposed Miller on May 25, while Miller’s motions
`remained pending. The district judge actually attended parts of the
`deposition and participated. At one point, the judge admonished Miller:
`
`If you’re unhappy with the rulings I’ve
`THE COURT:
`made about discovery, that’s fine. Free
`
`
`
`Country. This is not a place to discuss
`
`
`
`your feelings. It’s a place to answer
`
`
`
`[opposing counsel’s] questions. You have
`
`
`
`sued his client – their – their clients’
`
`
`
`people, and they have a right to know
`
`
`
`exactly why.
`
`
`
`Later, the judge again interjected:
`
`THE COURT:
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Ma’am, you’re not to lecture the State
`of Texas on the law. [Your counsel] and I
`will do that. It is not important to your
`case what you think about what nine old
`people on the Potomac River talk about
`something. We’re here to find out what
`you actually know . . . about the facts. So,
`please, do not burden the record with side
`trips.
`
`9
`
`

`

`Case: 19-20752 Document: 00515726301 Page: 10 Date Filed: 01/29/2021
`
`No. 19-20752
`c/w No. 19-20753
`
`After the deposition, the district court held another hearing. Within
`the first minute of that hearing, the district judge queried TSUS and UHD’s
`counsel: “So are you going to move for summary judgment?”—clearly
`implying that they should. And later, as Miller’s counsel sought to explain
`why he believed that certain data provided by SHSU was inaccurate, the
`judge responded, “I think you’re making that up.”
`
`Both SHSU and UHD moved for summary judgment in June 2016.
`By then, the court had yet to allow Miller to take any depositions. In response
`to the summary
`judgment motions, Miller requested a Rule 56(d)
`continuance, asking the court to grant discovery beyond the “general
`information provided by the Defendant[s]” under the court’s original
`disclosure order. Miller also moved to strike certain declarations in each
`case. The court denied both Miller’s Rule 56(d) discovery requests and her
`May 12 motions for leave to propound discovery.
`
`On March 29, 2017, the district court held oral argument on the
`Universities’ summary judgment motions. After the hearing (and after
`summary judgment briefing was complete), the court entered a Management
`Order that allowed Miller to depose Dean Fulton, but only “for two hours,
`at most.”
`
`Following Dean Fulton’s deposition, Miller again moved for leave to
`
`conduct additional depositions in the UHD action. She requested permission
`to depose Department Chair Jackson and the UHD search chair and several
`search committee members. In support of her motion, Miller asserted that
`
`it [wa]s increasingly clear that Defendants have avoided
`testimony about the contents of the telephone reference from
`Wilson of SHSU, not only because of its obvious relevance in
`this case but also in an attempt to protect SHSU from liability
`for its own retaliatory actions. [Miller] should have an
`opportunity to depose Wilson of SHSU in this case.
`
`10
`
`

`

`Case: 19-20752 Document: 00515726301 Page: 11 Date Filed: 01/29/2021
`
`No. 19-20752
`c/w No. 19-20753
`
`(emphasis in original). The district court again denied Miller’s request, and
`on September 30, 2019, the court granted TSUS’s and UHD’s motions for
`summary judgment. Miller filed notices of appeal in both cases on October
`30, 2019.
`
`II.
`
`On appeal, Miller raises the following issues: (A) whether the district
`
`court erred by dismissing sua sponte her claims against TSUS and UHS; (B)
`whether the district court erred by denying her motion for reconsideration of
`that ruling; (C) whether the district court abused its discretion by denying
`her repeated discovery requests; and (D) whether the cases should be
`reassigned on remand. We address each issue in turn.
`
`A.
`
`Miller first asserts that the district court erred by dismissing sua sponte
`
`her claims against TSUS and UHS. She contends that the court failed to
`provide her notice, an opportunity to respond, or the opportunity to allege
`her best case before dismissing the claims with prejudice. TSUS and UHS
`counter that the dismissal was fair. We review de novo. Carroll v. Fort James
`Corp., 470 F.3d 1171, 1173 (5th Cir. 2006).
`
`A district court may dismiss a complaint for failure to state a claim on
`
`its own motion “as long as the procedure is fair.” Davoodi v. Austin Indep.
`Sch. Dist., 755 F.3d 307, 310 (5th Cir. 2014) (internal quotation marks and
`citation omitted). While there is no bright-line rule, generally “fairness in
`this context requires both notice of the court’s intention and an opportunity
`to respond.” Id. (citing Lozano v. Ocwen Fed. Bank, FSB, 489 F.3d 636, 643
`(5th Cir. 2007)); see also Gaffney v. State Farm Fire & Cas. Co., 294 F. App’x
`975, 977 (5th Cir. 2008). But “[w]e do not always require notice prior to sua
`sponte dismissal for failure to state a claim, as long as the plaintiff has alleged
`[her] best case.” Lozano, 489 F.3d at 643 (internal quotation marks and
`
`11
`
`

`

`Case: 19-20752 Document: 00515726301 Page: 12 Date Filed: 01/29/2021
`
`No. 19-20752
`c/w No. 19-20753
`
`citation omitted). We have reasoned that “[a]t some point a court must
`decide that a plaintiff has had fair opportunity to make [her] case[, and] if,
`after that time, a cause of action has not been established, the court should
`finally dismiss the suit.” Jacquez v. Procunier, 801 F.2d 789, 792 (5th Cir.
`1986).
`
`We have not ruled on a case with facts squarely aligned to the ones
`
`here, but we glean insight from our prior decisions. In Carroll, the defendant
`moved to dismiss a fraud claim under Rule 12(b)(6). Carroll, 470 F.3d at 1173.
`Although there were additional tort claims beyond the scope of the
`defendant’s motion, the district court dismissed the case in its entirety
`without providing any specific reference to the remaining claims. Id. On
`appeal, this court found that the district court failed to provide notice or an
`opportunity to respond as to the tort claims pled in the plaintiff’s complaint,
`and thus, the district court’s dismissal “did not provide adequate fairness”
`to the plaintiff. Id. at 1177.
`
`Gaffney, though nonprecedential, is likewise analogous. There, the
`plaintiffs sought damages against their insurer for failing to tender coverage
`payments. Gaffney, 294 F. App’x at 976. The plaintiffs later moved to
`transfer venue, continue the trial, and consolidate their case with a related
`case. Id. But after considering the motion, the court dismissed sua sponte the
`plaintiffs’ claims, finding the plaintiffs had no cause of action. Id. As in
`Carroll, we held on appeal that the district court denied the plaintiffs both
`notice “that it might sua sponte dismiss their case and an opportunity to
`respond.” Id. at 977. We also noted that “[t]here [wa]s no evidence in the
`record to suggest that the district court notified any party that it was
`considering dismissal, neither party briefed the issue, and [p]laintiffs were
`not given an opportunity to amend their complaint to cure any deficiencies
`that the district court thought warranted dismissal.” Id.
`
`12
`
`

`

`Case: 19-20752 Document: 00515726301 Page: 13 Date Filed: 01/29/2021
`
`No. 19-20752
`c/w No. 19-20753
`
`Finally, in Davoodi, the plaintiff filed suit in state court against his
`former employer, asserting claims of discrimination, retaliation, and
`intentional infliction of emotional distress. Davoodi, 755 F.3d at 308.
`Following removal to federal court, the defendant filed a partial motion to
`dismiss, seeking to dismiss all claims but one. Id. at 309. The district court
`granted the defendant’s partial motion to dismiss and then dismissed sua
`sponte the plaintiff’s remaining claim. Id. We reversed the district court’s
`dismissal because the plaintiff “had no notice or opportunity to be heard
`before the district court issued its order of dismissal.” Id. at 310.
`
`Whether Miller received proper notice under the circumstances here
`
`is debatable. Similar to Carroll and Davoodi, nothing in the record suggests
`the district court notified the parties that it was considering dismissal of
`Miller’s claims against TSUS or UHS before the court raised the issue at the
`beginning of the Initial Case Management Conference. To the contrary, as
`the conference began, the district judge simply demanded that Miller “pick
`any two [of the four parties] you want. I don’t care.” Once she did so, the
`court ruled on the spot: “We’ll dismiss the Systems.”
`
`Even assuming that exchange constituted notice to Miller prior to the
`
`Systems’ dismissal, the district court failed to give Miller an adequate
`opportunity to respond to the court’s intention to dismiss her claims. The
`district court dismissed Miller’s claims at the Initial Case Management
`Conference and memorialized the dismissal in an order entered a day later.
`The record provides no indication that any party briefed the issue until Miller
`moved for reconsideration. It is also notable that the district court dismissed
`TSUS and UHS with prejudice, so Miller was likewise not given any
`opportunity to amend her complaint to cure the deficiencies that ostensibly
`warranted dismissal of the Systems. “Dismissing an action after giving the
`plaintiff only one opportunity to state [her] case is ordinarily unjustified.”
`Jacquez, 801 F.2d at 792; see also Gaffney, 294 F. App’x at 977.
`
`13
`
`

`

`Case: 19-20752 Document: 00515726301 Page: 14 Date Filed: 01/29/2021
`
`No. 19-20752
`c/w No. 19-20753
`
`Taking all of this into consideration, the district court failed to give
`Miller an adequate opportunity to respond before it dismissed her claims
`against TSUS and UHS with prejudice; accordingly, the court erred in its sua
`sponte dismissal of TSUS and UHS.3
`
`B.
`
`It follows that the district court likewise erred when it denied Miller’s
`
`motion for reconsideration. So we need not tarry long on this issue, except
`to underscore a couple points. The first, succinctly, is that it was not a “fair
`procedure,” as required for a sua sponte dismissal, for the court to force Miller
`to resort to a motion to reconsider—as a proxy for arguments she might have
`made before dismissal—as her only avenue to oppose the dismissal of her
`claims. See Carroll, 470 F.3d at 1177; see also Gaffney, 294 F. App’x at 977.
`
`The second, less succinctly, is that the points raised in Miller’s
`motion for reconsideration illuminate why dismissal of the Systems was
`premature under the fact-specific inquiry used to evaluate employment
`relationships, at least given the scant record before us. In her motion, Miller
`alleged that the Systems were her “employers” because they were
`“responsible for the control and management of their Universities,”
`including personnel decisions and the granting of tenure. This court applies
`a two-step process for determining whether a defendant is an “employer”
`under Title VII. E.g., Deal v. State Farm Cnty. Mut. Ins. Co., 5 F.3d 117, 118
`n.2 (5th Cir. 1993).4 Relevant here, one component of this test is “[t]he right
`to control [the] employee’s conduct.” Id. at 119. And when examining the
`
`
`
`3 We also reject SHSU’s and UHD’s argument that Miller alleged her “best case”
`because she was not given a chance to amend her complaint. Jacquez, 801 F.2d at 792.
`4 Miller’s claim against UHS (and UHD) is premised on “retaliation, in violation
`of Section 704(a) of Title VII, 42 U.S.C. § 2000e-3(a),” as a prospective employer; however,
`the relevant test for determining whether a defendant is an “employer” is the same.
`
`14
`
`

`

`Case: 19-20752 Document: 00515726301 Page: 15 Date Filed: 01/29/2021
`
`No. 19-20752
`c/w No. 19-20753
`
`control component, we have focused on whether the alleged employer has
`the right to hire, fire, supervise, and set the work schedule of the employee.
`Id. Another component focuses on the “economic realities” of the
`relationship, including “whether the alleged employer paid the employee’s
`salary, withheld taxes, provided benefits, and set the terms and conditions of
`employment.” Id.
`
`This test is “necessarily a fact-specific inquiry and is therefore
`typically applied in a summary judgment context, in which a court is
`permitted to go beyond the pleadings and examine the state law and the
`evidence relevant to the employment relationship.” Muhammad v. Dallas
`Cnty. Cmty. Supervision & Corrs. Dept., 479 F.3d 377, 382 (5th Cir. 2007); cf.
`Weeks v. Tex. A&M Univ. Sys. – at Galveston, 762 F. App’x 203, 204–05 (5th
`Cir. 2019) (finding, at summary judgment stage, that plaintiff was not
`employed by the University System because “[i]t lacked the right to hire, fire,
`supervise, and set [his] work schedule; [and] it therefore could not be said to
`have the right to control [the plaintiff’s] conduct”).
`
`By contrast, here, the district court’s initial dismissal of TSUS and
`UHS apparently rested only on the district judge’s own expressed view that
`“Systems don’t do anything.” The court’s denial of Miller’s motion for
`reconsideration, the day after she filed it, squelched any further development
`of Miller’s allegations and arguments to the contrary (and any opposition to
`Miller’s motion the Systems might have interposed). While there are cases
`in which a Rule 12(b)(6) dismissal may be appropriate, the district court’s
`premature ruling here was “based on an erroneous view of the law or a clearly
`erroneous assessment of the evidence,” Austin v. Kroger Tex., L.P., 864 F.3d
`326, 329 (5th Cir. 2017), such that it was an abuse of discretion.
`
`
`
`
`15
`
`

`

`Case: 19-20752 Document: 00515726301 Page: 16 Date Filed: 01/29/2021
`
`No. 19-20752
`c/w No. 19-20753
`
`C.
`
`After its dismissal of TSUS and UHS and its denial of Miller’s motion
`
`for reconsideration, the district court repeatedly denied Miller’s requests for
`discovery, including her requests to depose witnesses with knowledge
`material to her claims. Miller asserts the district court abused its discretion
`in doing so. Based on our review of the record, we agree.
`
`We review a district court’s discovery rulings for an abuse of
`
`discretion. Vantage Deepwater Co. v. Petrobras Am., Inc., 966 F.3d 361, 373
`(5th Cir. 2020). Generally, broad discretion is afforded to the district court
`when deciding discovery matters. Crosby v. La. Health Serv. & Indem. Co.,
`647 F.3d 258, 261 (5th Cir. 2011). We reverse “only if [the decision] affected
`a party’s substantial rights.” N. Cypress Med. Ctr. Operating Co. v. Aetna Life
`Ins. Co., 898 F.3d 461, 476 (5th Cir. 2018). Substantial rights are affected if
`the district court’s decision was “arbitrary or clearly unreasonable.” Fielding
`v. Hubert Burda Media, Inc., 415 F.3d 419, 428 (5th Cir. 2005) (citation
`omitted).
`
`Under Federal Rule of Civil Procedure 26(b), “[p]arties may obtain
`
`discovery regarding any nonprivileged matter that is relevant to any party’s
`claim or defense or proportional to the needs of the case . . . [.]” This
`standard is broad, especially when viewed in the context of Title VII. See
`Trevino v. Celanese Corp., 701 F.2d 397, 405 (5th Cir. 1983) (“The imposition
`of unnecessary limitations on discovery is especially frowned upon in Title
`VII cases.”).
`
`In support of her position, Miller refers us to McCoy v. Energy XXI
`GOM, LLC, 695 F. App’x 750 (5th Cir. 2017). In that case, the same district
`judge imposed substantially similar discovery restrictions to those imposed
`here. Id. at 753. Specifically, the district judge denied almost all requests for
`discovery and “permitted only the deposition of [the plaintiff]” and “the
`
`16
`
`

`

`Case: 19-20752 Document: 00515726301 Page: 17 Date Filed: 01/29/2021
`
`No. 19-20752
`c/w No. 19-20753
`
`disclosure by the defendants of certain documents pertaining to the specific
`[object] at issue,” certain photographs, and a video. Id. On appeal, we
`reversed and remanded the case on summary judgment grounds, finding
`genuine issues of material fact existed, even with the limited discovery that
`had been permitted. Id. at 758. But we also noted that “[t]he district court
`abused its discretion in refusing to allow [the plaintiff] to conduct sufficient
`discovery . . . to support the allegations he ha[d] fairly raised[.]” Id. at 759.
`
`We have a sense of déjá vu. The district court’s discovery restrictions
`in the instant cases are strikingly similar to those in McCoy. And “[a]lthough
`the district court is customarily accorded wide discretion in handling
`discovery matters, we will not uphold a ruling which has failed to adhere to
`the liberal spirit of the Rules.” Coughlin v. Lee, 946 F.2d 1152, 1159 (5th Cir.
`1991). As in McCoy, the district judge here permitted only Miller’s
`deposition to be taken before summary judgment briefing and argument—
`and then actually participated in the deposition. By contrast, the court
`repeatedly denied Miller the opportunity to depose any witnesses, relenting
`only after summary judgment briefing was complete to allow Miller one
`deposition, of UHD’s Dean Fulton. And that deposition was limited to “two
`hours, at most.”
`
`To put it simply, the court’s discovery restrictions suffocated any
`chance for Miller fairly to present her claims. While the Universities offer
`that Miller was not prejudiced because she had already received voluminous
`documentation from a pre-suit Texas Public Information Act request, we are
`not persuaded given the district court’s inflexible denials of both her written
`discovery requests and her requests to take depositions. Miller requested
`d