United States Court of Appeals

for the Fifth Circuit

No. 21-20103

Robert Moore, 

Plaintiff—Appellant,

versus

Burlington Northern Santa Fe Railway Company, 

Defendant—Appellee.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:19-CV-3062

Before Richman, Chief Judge, and Clement and Engelhardt, 

Circuit Judges.

Per Curiam:*

Robert Moore contends that Burlington Northern Santa Fe Railway 

Company (BNSF) terminated his employment as a conductor trainee 

because he was diagnosed with cancer. He sued BNSF for discrimination 

under the Americans with Disabilities Act of 1990 (ADA) and for failure to 

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

November 11, 2022

Lyle W. Cayce

Clerk

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notify him that he could continue his health insurance coverage under the 

Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA). The 

district court granted summary judgment to BNSF and denied Moore leave 

to amend his complaint. We affirm.

I

Moore worked at BNSF as a conductor trainee. On August 8th, 2018, 

he operated a train on a two-person crew with Khollyn Evans, an engineer. 

Evans sped through a restricted speed area on one section of the trip. Moore 

told Evans that he was speeding, and Moore recorded the incident in the 

train’s logbook. Moore did not otherwise report what occurred. BNSF 

received an anonymous complaint the following day stating that Moore was 

speeding and that he had boasted about it. BNSF investigated, interviewing 

witnesses through August 15th. The company ultimately terminated Moore, 

not Evans. Evans was a non-probationary employee who was unionized; 

Moore was in an at-will probationary period without union protection.

Two days before Moore’s termination, Moore told BNSF about his

cancer diagnosis. He forwarded an email from his oncologist stating that he 

would need to miss work due to surgery. Moore received his health insurance 

through BNSF, and he alleges that he never received a notification that he 

was eligible to continue his coverage under COBRA.

Moore sued BNSF for disability discrimination under the ADA as well 

for a notice violation under COBRA. The district court issued an order 

scheduling a pre-trial conference. In that order, the court stated that initial 

disclosures may not be delayed. The order also provided that “[n]o 

interrogatories, requests for admission, or depositions may be done without 

court approval,” but it did not mention document requests. BNSF answered 

Moore’s complaint, which asserted that the complaint failed to state a claim 

for relief.

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Prior to the pre-trial conference, BNSF disclosed over 1,600 pages of 

documents in its initial disclosures. At the conference itself, BNSF then 

orally moved to have Moore’s ADA and COBRA claims “dismissed.” The 

next day, the court issued an order inviting BNSF to “move for a judgment.” 

BNSF then filed a “motion for judgment,” in which it moved for a dismissal 

under Rule 12(b)(6) as well as summary judgment under Rule 56. Moore filed 

an opposition brief and a motion to amend his complaint. Moore argued that

he had shown enough to be “entitled to discovery.” In his motion to amend, 

Moore sought leave to amend his COBRA claim to allege that BNSF failed 

to notify Moore’s health plan administrator, specifically, instead of alleging 

that BNSF failed to notify Moore directly. Moore also sought to add the plan 

administrator as a defendant.

The district court denied Moore’s motion to amend, reasoning that 

Moore failed to provide evidence of a failure to notify. It then granted 

summary judgment to BNSF on the ADA and COBRA claims. Regarding

the ADA claim, the court reasoned that Evans was not similarly situated to 

Moore. Regarding the COBRA claim, the court determined that BNSF was 

not required to notify Moore directly. Moore appealed.

II

Moore raisesfour arguments. First, he contendsthat the district court 

improperly converted BNSF’s Rule 12 motion to dismiss into a Rule 56 

motion for summary judgment. Second, he argues that the district court 

should have permitted additional discovery before ruling on BNSF’s motion. 

Third, if it was proper to rule on BNSF’s motion under Rule 56 without 

further discovery, Moore contends that there is a genuine dispute of material 

fact. Fourth, he argues that the district court improperly denied him leave to 

amend his complaint.

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A

We start with Moore’s argument that the district court improperly 

“converted” BNSF’s motion into a Rule 56 motion for summary judgment

without providing him proper notice. Rule 56(f) requires courts to give 

parties “notice and a reasonable time to respond.”1

 Once a party is put on 

“fair notice” that a court might convert a Rule 12 motion into a Rule 56 

motion, “we have said that parties must have ten days to submit additional 

evidence.”2 We review for harmless error.3

Here, the district court did not convert a Rule 12 motion into a Rule 

56 motion, so the ten-day notice requirement was not triggered. The day 

after the pre-trial conference, the district court invited BNSF to “move for a 

judgment.” BNSF then expressly moved under Rule 56 for summary 

judgment as well as under Rule 12 for a dismissal. Rule 56(f) requires “notice 

and a reasonable time to respond” before a court grants summary judgment 

sua sponte, not before granting summary judgment to a moving party under 

Rule 56.4 Because BNSF moved under Rule 56, Moore had proper notice

that the court might rule on summary judgment grounds.

Moore’s arguments to the contrary are unpersuasive. He contends

that when “the record is undeveloped and the parties have not conducted 

discovery, a district court abuses its discretion by treating a Rule 12 motion 

as one for summary judgment.” But the cases he cites in support are 

1 Fed. R. Civ. P. 56(f).

2 Snider v. L-3 Commc’ns Vertex Aerospace, L.L.C., 946 F.3d 660, 667 (5th Cir. 

2019).

3 Sayles v. Advanced Recovery Sys., Inc., 865 F.3d 246, 249 (5th Cir. 2017).

4 See Fed. R. Civ. P. 56(f).

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distinguishable because they involved motions under Rule 12, not Rule 56.5 

Moore separately argues that when parties have not conducted discovery, a 

district court abuses its discretion by treating a “hybrid” Rule 12 and 56 

motion as one for summary judgment. But we have held that a “hybrid” 

motion is properly treated as a summary judgment motion when a district 

court considers materials beyond the pleadings, as the court below did here.6

B

Next, Moore argues that the district court abused its discretion by 

ignoring his request for additional discovery. “Rule 56 does not require that 

any discovery take place before summary judgment can be granted . . . .”7

 If 

a party cannot adequately defend against summary judgment, a Rule 56(d) 

motion for a continuance is his or her remedy.8 Rule 56(d) provides that “[i]f 

a nonmovant shows by affidavit or declaration that, for specified reasons, it 

cannot present facts essential to justify its opposition, the court may . . . allow 

5 See Benchmark Elecs., Inc. v. J.M. Huber Corp., 343 F.3d 719, 725-26 (5th Cir. 

2003) (emphasizing that each party was “careful” to “treat [the movant’s] motion as a 

Rule 12 motion on the pleadings,” not one for summary judgment); see also Foley v. Wells 

Fargo Bank, N.A., 772 F.3d 63, 71 (1st Cir. 2014) (“Wells Fargo moved to dismiss Foley’s 

complaint for failure to state a claim, pursuant to [Rule] 12(b)(6).”); Whiting v. Maiolini, 

921 F.2d 5, 6 (1st Cir. 1990) (“Appellees filed a Rule 12(c) motion for judgment on the 

pleadings which the district court viewed as a Rule 12(b)(6) motion to dismiss for failure to 

state a claim upon which relief may be granted and then treated as a motion for summary 

judgment under Rule 56, which it granted.”); First Chicago Int’l v. United Exch. Co., 836 

F.2d 1375, 1377 (D.C. Cir. 1988) (“[A]lthough the motions were brought under Federal 

Rules of Civil Procedure 12(b)(6) and 12(h)(2), they were considered by the court as 

motions for summary judgment.”); Gay v. Wall, 761 F.2d 175, 176 n.1 (4th Cir. 1985) (“The 

defendants’ motion was simply a motion to dismiss, not a motion to dismiss or, in the 

alternative, a motion for summary judgment.”).

6 See Isquith ex rel. Isquith v. Middle S. Utils. Inc., 847 F.2d 186, 193-95 (5th Cir. 

1988).

7 Washington v. Allstate Ins. Co., 901 F.2d 1281, 1285 (5th Cir. 1990).

8 Id.

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time to . . . take discovery.”9 There is “no stringent procedure that will bar 

litigants access to further discovery,”10 as continuances “are broadly favored 

and should be liberally granted.”11 We review for abuse of discretion.12

If a party does not file an affidavit under Rule 56(d) requesting a 

continuance, as was the case here, the party must satisfy four requirements 

for its discovery request to be the “functional equivalent” of a Rule 56(d) 

motion.13 First, the non-movant must “submit an ‘equivalent statement 

preferably in writing’ that conveys the need for additional discovery” prior 

to the court ruling on summary judgment.14 Second, the request must “put 

the trial court on notice that further discovery pertaining to the summary 

judgment motion is being sought.”15 Third, it must demonstrate to the trial 

court “specifically how the requested discovery pertains to the pending 

motion.”16 Lastly, the non-movant must “diligently pursue relevant 

discovery.”17

Moore did not file an express Rule 56(d) motion. Instead, in his

response to BNSF’s motion for judgment, he stated that he had “shown” or 

“demonstrated enough to be entitled to discovery” before summary 

9 Fed. R. Civ. P. 56(d).

10 Wichita Falls Off. Assocs. v. Banc One Corp., 978 F.2d 915, 919 (5th Cir. 1992).

11 Renfroe v. Parker, 974 F.3d 594, 600-01 (5th Cir. 2020) (quoting Am. Fam. Life 

Assurance Co. of Columbus v. Biles, 714 F.3d 887, 894 (5th Cir. 2013)).

12 Id. at 600.

13 See Wichita Falls, 978 F.2d at 918-19.

14 Id. at 919 (quoting Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir.1986)).

15 Id.

16 Id.

17 Id.

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judgment. He did not explain specifically how discovery he sought related to 

the pending motion. At the pre-trial conference, when asked if he had 

anything else to discuss, Moore did not bring up discovery. In his brief in

response to the summary judgment motion, Moore admitted that “[e]ven 

though he has not yet been allowed to conduct discovery, [he] has a plethora 

of evidence from which a reasonable person could find that BNSF was 

motivated to terminate him because of his disability.” The district court did 

not abuse its discretion in denying discovery.

C

Turning to the merits of BNSF’s motion, the district court granted 

summary judgment to BNSF on Moore’s ADA and COBRA claims. We 

review a grant of summary judgment de novo.18 Summary judgment is proper 

“if the movant shows that there is no genuine dispute as to any material fact 

and the movant is entitled to judgment as a matter of law.”19 “A genuine 

dispute of material fact exists when the evidence is such that a reasonable jury 

could return a verdict for the nonmoving party.”20 We “must ‘draw all 

reasonable inferences in favor of the nonmoving party’ and ‘refrain from 

making credibility determinations or weighing the evidence.’”21

18 E.E.O.C. v. LHC Grp., Inc., 773 F.3d 688, 694 (5th Cir. 2014).

19 Fed. R. Civ. P. 56(a).

20 LHC Grp., Inc., 773 F.3d at 694 (internal quotation marks omitted) (quoting 

Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d 396, 400 (5th Cir. 2013)).

21 Id. (quoting Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 

2007)).

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1

The ADA prohibits an employer from discriminating “against a 

qualified individual on the basis of disability.”22 The three-part McDonnell

Douglas Corp. v. Green23 framework applies when a plaintiff offers only 

circumstantial evidence.24 First, the plaintiff must establish a prima facie 

case of discrimination.25 “To establish a prima facie discrimination claim 

under the ADA, a plaintiff must prove: (1) that he had a disability; (2) that he 

was qualified for the job; [and] (3) that he was subject to an adverse 

employment decision on account of his disability.”26 Second, if the plaintiff 

establishes a prima facie case, the burden shifts to the defendant to articulate 

a legitimate, non-discriminatory reason for its adverse action.27 Third, if the 

defendant makes this showing, the burden shifts back to the plaintiff to show 

that the defendant’s stated reason was pretextual.28

At step one, Moore met his burden. BNSF does not dispute that 

cancer is a disability under the ADA nor that Moore was qualified for his 

position. As to causation, the timing of Moore’s termination is sufficient for 

purposes of his prima facie case.

29 At step two, Moore concedes that BNSF 

22 42 U.S.C. § 12112(a).

23 411 U.S. 792 (1973).

24 LHC Grp., Inc., 773 F.3d at 694.

25 Id.

26 Id. at 697 (alteration in original) (quoting Zenor v. El Paso Healthcare Sys., Ltd., 

176 F.3d 847, 853 (5th Cir. 1999)).

27 Id. at 694.

28 Id.

29 Feist v. Louisiana, Dep’t of Just., Off. of the Atty. Gen., 730 F.3d 450, 454 (5th Cir. 

2013) (“A plaintiff alleging retaliation may satisfy the causal connection element by 

showing ‘[c]lose timing between an employee’s protected activity and an adverse action 

against him.’”) (alteration in original) (quoting McCoy v. City of Shreveport, 492 F.3d 551, 

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stated a valid, non-discriminatory reason for Moore’s termination—the rule 

violation. Moore’s ADA claim, therefore, turns on whether BNSF’s stated 

reason was pretextual.

Drawing all inferences in Moore’s favor, we conclude that there is no 

genuine dispute of material fact on whether BNSF’s stated reason was 

pretextual. As an initial matter, Moore again relies on the timing of his 

termination to establish pretext. But “once the employer offers a legitimate, 

nondiscriminatory reason that explains both the adverse action and the 

timing, the plaintiff must offer some evidence from which the jury may infer 

that retaliation was the real motive.”30 Put another way, plaintiffs must go 

beyond timing to show pretext. Each of Moore’s remaining three arguments 

falls short.

First, Moore’s contention that BNSF treated other employees 

differently fails because his comparators are not similarly situated. When an 

employee argues that other employees were treated differently, we require 

the comparator to have been “under nearly identical circumstances” to the

plaintiff.31 Employees with different jobs or supervisors, for example, are not 

similarly situated.32 Moore argues that Evans and “other probationary 

employees” are suitable comparators. But Evans had a different job than 

Moore, had worked at BNSF for longer, and was a member of a union. 

562 (5th Cir. 2007)); see also id. (explaining that a five-month lapse is not close enough but 

“up to four months” may be sufficient) (quoting Evans v. Houston, 246 F.3d 344, 354 (5th 

Cir. 2001).

30 Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997).

31 Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 259-60 (5th Cir. 2009).

32 Id.

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Likewise, Moore never established that the “other probationary employees” 

had similar jobs, supervisors, or that they did not have disabilities.

Second, Moore raises a handful of new arguments on appeal. He 

asserts that he was never interviewed during the company’s investigation of 

his rule violation, which we have held may undermine the credibility of an 

employer’s non-discriminatory reason.33 He also argues that BNSF has been 

inconsistent in its reliance on its stated reason for terminating Moore. 

Because Moore did not raise either argument in the district court, they are 

forfeited on appeal.34

Lastly, Moore asserts that he did not violate BNSF’s operating rules 

and that BNSF deviated from its policy when it terminated his employment. 

He offers evidence to suggest that speeding alone is not a terminable offense 

the first time that it occurs. But BNSF also claims to have fired Moore 

because he boasted about the incident. Moore contends that the anonymous 

complaint that accused him of boasting is unreliable because it did not 

mention the engineer. Even drawing that omission in Moore’s favor and 

recognizing that courts may not assess credibility on summary judgment 

motions,35 the only evidence Moore offers in his favor is his own assertion 

that he never discussed the speeding incident. By itself, an “assertion of 

innocence” is not sufficient to create a genuine dispute of material fact.36 

The issue is not whether Moore boasted but whether, in the course of its 

investigation, BNSF had reason to think that he did. Summary judgment to

BNSF on the ADA claim was proper.

33 Laxton v. Gap Inc., 333 F.3d 572, 581 (5th Cir. 2003).

34 Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 377 (5th Cir. 2010).

35 E.E.O.C. v. LHC Grp., Inc., 773 F.3d 688, 694 (5th Cir. 2014).

36 See Jackson, 602 F.3d at 379 (5th Cir. 2010).

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2

Turning to Moore’s COBRA claim, the statute instructs that “[t]he 

plan sponsor of each group health plan shall provide . . . that each qualified 

beneficiary who would lose coverage under the plan as a result of a qualifying 

event is entitled . . . to elect . . . continuation coverage under the plan.”37 

“[T]he employer of an employee under a plan must notify the administrator 

of a qualifying event . . . within 30 days . . . .”38 The “administrator” must 

then “notify” the beneficiary of the plan’s termination within fourteen

days.39 An “administrator” is defined as the “person specifically so 

designated by the terms of the instrument under which the plan is 

operated.”40

Moore did not adequately plead a COBRA notice violation. He

alleged that BNSF failed to provide him notice. But Moore’s health 

insurance plan designated an outside entity as its administrator. Under 

§ 1166(a)(4), the administrator was required to notify Moore—not BNSF.41 

Moore’s alternative argument that his complaint encompasses an action 

against BNSF for failing to notify the administrator also fails. The complaint 

is clear that Moore alleged that BNSF failed to notify Moore, specifically, not 

the plan administrator. Summary judgment to BNSF on the COBRA claim 

was appropriate.

37 29 U.S.C. § 1161(a).

38 29 U.S.C. § 1166(a)(2).

39 § 1166(a)(4), (c).

40 29 U.S.C. § 1002(16)(A).

41 See § 1166(a)(4).

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D

Finally, Moore argues that the district court abused its discretion by 

denying him leave to amend his COBRA claim. We review the denial of leave 

to amend for abuse of discretion.42 “In light of the presumption in favor of 

allowing pleading amendments, courts of appeals routinely hold that a 

district court’s failure to provide an adequate explanation to support its 

denial of leave to amend justifies reversal.”43 “But when the justification for 

the denial is ‘readily apparent,’ a judge’s failure to explain ‘is unfortunate 

but not fatal to affirmance if the record reflects ample and obvious grounds 

for denying leave to amend.’”44 “Futility is one such basis, and we review a 

proposed amendment under ‘the same standard of legal sufficiency as applies 

under Rule 12(b)(6).’”45

Although the district court’s reasoning was sparse, we conclude that 

Moore’s attempt to amend was futile. Moore admitted below that he 

“cannot know whether him not receiving the notice resulted from BNSF 

failing to notify the plan administrator of his termination or the plan 

administrator failing to notify him of his eligibility.” Pleadings require more 

than “mere conclusory statements,” and due to that admission, it is clear 

that Moore’s amended allegation would be conclusory.46 Moore could have 

submitted document requests during the period allowed by the pre-trial order 

to obtain evidence as to whether BNSF notified the plan administrator of 

42 Hammer v. Equifax Info. Servs., L.L.C., 974 F.3d 564, 569 (5th Cir. 2020).

43 Id. (quoting Mayeaux v. La. Health Serv. & Indem. Co., 376 F.3d 420, 426 (5th 

Cir. 2004)).

44 Id. at 569-70 (quoting Mayeaux, 376 F.3d at 426).

45 Id. at 570 (quoting Marucci Sports, L.L.C. v. Nat’l Collegiate Athletic Ass’n, 751 

F.3d 368, 378 (5th Cir. 2014)).

46 See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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Moore’s termination. He did not do so. The district court did not abuse its 

discretion by denying Moore leave to amend.

* * *

The district court’s judgment is AFFIRMED.

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