IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

FRED SMITH : CIVIL ACTION

: NO. 05-525

Plaintiff, :

:

v. :

:

UNIVERSITY OF PENNSYLVANIA :

:

Defendant. :

M E M O R A N D U M

EDUARDO C. ROBRENO, J. JUNE 21, 2006

Before the Court is plaintiff’s second motion for a

continuance under Federal Rule of Civil Procedure 56(f) to permit

further discovery (doc. no. 45).

I. BACKGROUND

Plaintiff, Fred Smith, an African American male, brings

this employment discrimination action against his former

employer, defendant, University of Pennsylvania, under Title VII

of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. 

Plaintiff alleges (1) a claim of race discrimination, and (2) a

claim of retaliation for engaging in a protected activity. 

From May 30, 1995 through September 15, 2003,

plaintiff, who had been employed by defendant since the early

nineties, was out of work due to a work-related injury. During

that time period, in July 1995 plaintiff filed an employment

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Plaintiff’s complaint does not allege discrimination under 1

the Americans with Disabilities Act, although that allegation was

included in his EEOC charge.

2

discrimination charge against defendant with the Equal Employment

Opportunity Commission (“EEOC”). This charge was settled

sometime after plaintiff brought a civil action against

defendant. Also filed during the period plaintiff was out of

work due to injury was a workers’ compensation action against

defendant, which was settled in March 2003.

On September 15, 2003, plaintiff was cleared for work

by his doctor and sought to return to work. Plaintiff worked at

the Faculty Club prior to sustaining a work-related injury on May

30, 1995. Defendant operated the Faculty Club until August 13,

1999, at which time Hilton Hotels Corporation began to operate

the facility as the Inn at Penn. When plaintiff attempted to

return to work on September 15, 2003, defendant informed

plaintiff that the Faculty Club had ceased operation in his

absence and that plaintiff could reapply for any position for

which he was qualified.

On May 20, 2004, ten months after plaintiff attempted

to resume employment with defendant, plaintiff filed a charge of

discrimination with the EEOC alleging that he was denied

reinstatement to his former position in violation of Title VII of

the Civil Rights Act and the Americans with Disabilities Act.1

The instant action followed on February 4, 2005.

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II. DISCUSSION

A. The Discovery Dispute.

Plaintiff has prolonged the adjudication of defendant’s

motion for summary judgment by filing successive motions to

compel discovery. An extensive discovery dispute underlies

defendant’s pending motion for summary judgment, and involves in

toto several motions to compel discovery filed by plaintiff, one

motion for a protective order filed by defendant and one motion

for a continuance under Rule 56(f). In brief, the Court granted

the plaintiff’s first motion to compel and motion for a

continuance pursuant to Rule 56(f), and denied plaintiff’s

remaining two motions to compel and defendant’s motion for a

protective order as moot. Plaintiff now has filed a second

motion for a continuance under Rule 56(f) to permit further

discovery. It is this motion which is now before the Court.

Plaintiff filed the instant action on February 4, 2005. 

On April 11, 2005, defendant filed a motion to dismiss or in the

alternative for summary judgment (doc. no. 3). After a hearing

on June 6, 2005, the Court denied defendant’s motion to dismiss

or in the alternative for summary judgment. Order of June 6,

2005 (doc. no. 10). The Court issued a scheduling order of the

same date, which established a November 3, 2005 deadline for

discovery and the filing of dispositive motions (doc. no. 11).

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Plaintiff filed his first motion to compel on November

2, 2005 (doc. no. 13), the day before the scheduled discovery

deadline. In his first motion to compel, plaintiff sought to

depose a designee of the University of Pennsylvania pursuant to

Rule 30(b)(6). Defendant argued that the notice of deposition

was onerous, seeking, inter alia, oral testimony as to every

discrimination lawsuit filed against defendant and the salaries

of every African-American employee at the University of

Pennsylvania. During the November 9, 2005 telephone conference

to address plaintiff’s first motion to compel, the Court agreed

that the deposition of a Rule 30(b)(6) designee was burdensome

under the circumstances and instead ordered that the notice of

deposition be treated as interrogatories and requests for

production of documents. 

The Court granted in part plaintiff’s first motion to

compel and ordered defendant to produce the following: (1) the

docket/case number and the subject matter of each employment

discrimination lawsuit, EEOC complaint or Pennsylvania Human

Relations Commission (“PHRC”) complaint in which defendant was

involved in the last five years; (2) the terms and use of any

agreement between defendant and the entity that runs the Inn at

Penn, 3600 Sansom Street, Philadelphia, Pennsylvania; (3) the

name, race, address and telephone number of each person who

worked at the Faculty Club in or around 1995 who went to work for

Case 2:05-cv-00525-ER Document 48 Filed 06/21/06 Page 4 of 18
The Court’s Order of November 9, 2005 lists the numbers to 2

which responses were compelled. The language above appears in

Exhibit A of Plaintiff’s first motion to compel.

5

the Inn at Penn after the Faculty Club closed; (4) the name,

race, address and telephone number of each employee or former

employee who received worker’s compensation who requested to be

rehired and was rehired upon returning from leave within the last

three years prior to the decision not to rehire plaintiff; (5)

information about plaintiff’s prior worker’s compensation lawsuit

against defendant, which was settled; and (6) information about

plaintiff’s prior employment discrimination lawsuit in the

Eastern District of Pennsylvania, docket number 96-8210, which

was settled. Order of Nov. 9, 2005. The information to be 2

produced by defendant amounted to substantially the same

information plaintiff had sought by way of a Rule 30(b)(6)

deponent. Moreover, the Court left open the possibility of a

Rule 30(b)(6) followup deposition.

Pursuant to the Court’s Scheduling Order of June 6,

2005, defendant filed a second motion for summary judgment on

November 3, 2005 (doc. no. 14). The Court denied without

prejudice defendant’s second motion for summary judgment on

November 9, 2005, following the telephone conference addressing

the first motion to compel. Also on November 9, 2005, the Court

issued a Second Amended Scheduling Order extending the deadline

for discovery and the filing of dispositive motions to January

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16, 2006 (doc. no. 18).

On January 5, 2006, defendant moved for a protective

order to bar a proposed Rule 30(b)(6) deposition (doc. no. 22),

arguing that plaintiff served essentially the same notice of

deposition deemed burdensome pursuant to the Court’s Order of

November 9, 2005. Moreover, on January 17, 2006, defendant filed

a third motion for summary judgment (doc. no. 23), which is

currently pending before the Court. 

On January 20, 2006, plaintiff filed a second motion to

compel discovery (doc. no. 30) seeking to depose a corporate

designee on the same issues the Court had addressed in

plaintiff’s first motion to compel. Plaintiff also opposed

defendant’s motion for a protective order for its corporate

designee. The Court held a hearing on January 30, 2006 to

address defendant’s motion for a protective order and plaintiff’s

second motion to compel. The Court took the matters under

advisement. 

Additionally, on January 30, 2006 following the

hearing, plaintiff filed a third motion to compel discovery (doc.

no. 33) and his first motion for a continuance under Rule 56(f)

(doc. no. 32). In his third motion to compel, plaintiff sought

further responses to his First Requests for Production of

Documents. Consequently, plaintiff’s first Rule 56(f) motion was

based upon his need for the information sought in his third

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motion to compel. As part of his third motion to compel,

plaintiff argued that defendant made “meritless” and general

objections to his requests for production of documents and had

failed to comply with the Court’s Order of November 9, 2005. 

Defendant responded to plaintiff’s requests for production,

subject to certain objections on the basis of privilege (doc. no.

37). In support of those objections, defendant submitted a

privilege log detailing what information was withheld on the

basis of attorney client privilege and/or as attorney work

product. Def.’s Resp. to Pl.’s Third Mot. to Compel, Ex. B. The

privilege log lists counsels’ notes in plaintiff’s current and

prior actions against defendant and correspondence between

counsel and defendant.

On March 7, 2005, the Court granted plaintiff’s first

Rule 56(f) motion, and ordered defendant to: (1) identify the

docket/case action number and the court/agency of each EEOC and

PHRC complaint filed by “non-professional” employees against

defendant from January 1, 2000 to the present; (2) identify the

EEOC and PHRC complaints, identified in paragraph 1(a) above,

that resulted in court action; and (3) produce the agreement

between the Faculty Club and the Inn at Penn. See Order of Mar.

7, 2006 (doc. no. 42). In addition, all of the above information

was to be subject to a confidentiality agreement between the

parties. Plaintiff’s second and third motions to compel and

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defendant’s motion for a protective order were denied as moot

pursuant to the Court’s order granting plaintiff’s first Rule

56(f) motion. 

B. Plaintiff’s Second Motion for a Continuance Under Rule 

56(f). 

Plaintiff filed a second motion for a continuance under

Rule 56(f) on April 6, 2006 (doc. no. 44). It is this matter

which is before the Court. In his second motion for a

continuance, plaintiff makes the same arguments advanced in

support of his first motion for a continuance, namely that

defendant has not produced the discovery requested and ordered by

the Court. Plaintiff alleges that defendant still has not

appeared for a Rule 30(b)(6) deposition and has failed to provide

responses to plaintiff’s First Requests for Production of

Documents numbers 2, 4-7 and 9-14. 

Under Rule 56(f), 

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.

The Third Circuit determined that whether a Rule 56(f) motion

should be granted “depends, in part, on ‘what particular

information is sought; how, if uncovered, it would preclude

Case 2:05-cv-00525-ER Document 48 Filed 06/21/06 Page 8 of 18
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summary judgment; and why it has not been previously obtained.’” 

San Filippo v. Bongiovanni, 30 F.3d 424, 432 (3d Cir. 1994). 

Although the district court has discretion to deny the motion, it

“should grant a Rule 56(f) motion as a matter of course unless

the information is otherwise available to the non-movant.” Id.

at 432-33. The information sought should be examined in light of

the strictures of Rule 26(b) and viewed in the context of the

case.

Plaintiff relies on Simpson v. Kay Jewelers, 142 F.3d

639, 644-45 (3d Cir. 1998), to support his claim that he is

entitled to further discovery. Plaintiff argues that the

following language allows the broad range of discovery relating

to other claims of discrimination against defendant:

To show that discrimination was more likely

than not a cause for the employer’s action,

the plaintiff must point to evidence with

sufficient probative force that a factfinder

could conclude by a preponderance of the

evidence that age was a motivating or

determinative factor in the employment

decision. Keller v. Orix Credit Alliance,

Inc., 130 F.3d 1101, 1111 (3d Cir. 1997). For

example, the plaintiff may show that the

employer has previously discriminated against

her, that the employer has discriminated

against other persons within the plaintiff’s

protected class or within another protected

class, or that the employer has treated more

favorably similarly situated persons not

within the protected class. Fuentes, 32 F.3d

at 765. 

Id. at 644-45; see also Pl.’s Mem. in Support of Rule 56(f) Mot.

Case 2:05-cv-00525-ER Document 48 Filed 06/21/06 Page 9 of 18
Plaintiff’s second motion for a continuance under Rule 3

56(f) incorporates by reference his first motion for a

continuance under Rule 56(f), his second and third motions to

compel and his reply memorandum in further support of his Rule

56(f) motion. Pl’s Mem. in Support of Second Mot. for a

Continuance (doc. no 44). 

10

at 5-6. The Court rejected plaintiff’s argument that Simpson 3

compels the unlimited discovery of past acts of discrimination

sought by plaintiff. Indeed, the court permitted plaintiff to

discover past acts of discrimination, but only those involving

non-professional employees. See Hr’g Tr. 7-13, Nov. 9, 2005. 

The Court found that, under the circumstances of this case and 

on balance, discovery of past acts of discrimination involving

professional employees who were not similarly situated to

plaintiff was not likely to lead to the discovery of admissible

evidence.

In summary, plaintiff has received the following

information: (1) plaintiff’s personnel file, worker’s

compensation file and litigation file in defendant’s possession;

(2) a list, including the race, address and telephone number, of

employees who worked at the Faculty Club and who now work at the

Inn at Penn; (3) the identity of one employee who worked at the

Faculty Club, filed a worker’s compensation claim and is now

employed by the Inn at Penn; (4) a list of employees who filed

worker’s compensation claims during the last five years; (5) a

list of current employees of defendant; (6) a verification that

Case 2:05-cv-00525-ER Document 48 Filed 06/21/06 Page 10 of 18
On May 12, 2006, the Court ordered defendant to certify 4

delivery of the materials listed in the Court’s Order of March 7,

2006 granting the first Rule 56(f) motion (doc. no. 47). The

defendant did so via letters to the Court dated May 25, 2006 and

May 26, 2006.

Plaintiff’s First Requests for Production of Documents is 5

separate from his notice of deposition which the Court deemed

interrogatories or requests for production in the Order of

November 9, 2005. However, plaintiff’s First Requests for

Production seek much of the same information that was before the

Court pursuant to plaintiff’s first motion to compel. Moreover,

the information sought was also the subject of plaintiff’s third

motion to compel. 

11

all employees of the Faculty Club were terminated as of August

13, 1999 and that none of those employees were hired by

defendant; (7) the docket/case action number of each EEOC and

PHRA complaint filed by non-professional employees against

defendant from January 1, 2000 to the present; (8) the identity

of the EEOC and PHRC complaints that resulted in court action;

(9) the agreement between the University of Pennsylvania and the

Hilton Hotels Corporation, which now operates the Faculty Club;

and (10) the agreement between the Faculty Club and the Inn at

Penn.4

As part of his second Rule 56(f) motion, plaintiff is

still seeking answers to numbers 2, 4-7 and 9-14 of his First

Requests for Production of Documents served upon defendant. 

Pl.’s Mot. for Leave, Ex. D (doc. no. 40). Although plaintiff 5

has not received every piece of information he would like,

plaintiff is not entitled to a second continuance under Rule

Case 2:05-cv-00525-ER Document 48 Filed 06/21/06 Page 11 of 18
12

56(f). The reason is twofold. One, plaintiff already has

received much of the information he requests. Two, plaintiff has

not requested any new information that, if uncovered, would

preclude defendant’s motion for summary judgment.

Below is each request for production to which plaintiff

seeks a further response in his second Rule 56(f) motion, and why

plaintiff is not entitled to any further responses.

1. Requests number 2, 4 and 5

• Request number 2: “Any and all statements

concerning this action or its subject

matter previously made by plaintiff.”

• Request number 4: “Any and all documents

(including but not limited to letters and

memoranda) that contain or relate to any

correspondence between plaintiff and

Defendant that took place during the time

period from January 1, 1995 to the

present.”

• Request number 5: “Each and every

document (including but not limited to

letters and memoranda) created by

Defendant that mentions plaintiff by name

or makes any other reference to plaintiff

that was created during the time period

from January 1, 1995 to the present.”

Plaintiff has received sufficient information in

response to these requests. Defendant produced plaintiff’s

personnel file, the file related to plaintiff’s prior lawsuit

against defendant and the file related to plaintiff’s worker’s

compensation claim against defendant. Any relevant

correspondence or documents is contained within those files. No

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further response by defendant is needed.

2. Requests number 6 and 7

• Request number 6: “Each and every

complaint or charge of discrimination in

which Defendant was named as a respondent

that was filed with the EEOC or the

Pennsylvania Human Relations Commission

during the time period from January 1,

2000 to the present.”

• Request number 7: “Each and every

Complaint and Answer in any civil lawsuit

that any current or former employee of

the Defendant brought against Defendant

during the time period from January 1,

2000 to the present.”

Plaintiff has received the docket/case action number of

each EEOC and PHRA complaint filed by non-professional employees

against defendant from January 1, 2000 to the present and the

identity of the EEOC and PHRC complaints that resulted in court

action. Plaintiff is not entitled to a copy of every complaint

and/or answer for each action. Defendant has no burden to do

plaintiff’s ministerial tasks for him. As the Court noted during

the November 9, 2005 telephone conference addressing plaintiff’s

first motion to compel, plaintiff is entitled to the “docket or

case action number” and “where it was brought,” and then

plaintiff “can go and find out as much as [he] can from that

basis.” Hr’g Tr. 10, Nov. 9, 2005. Plaintiff is not entitled to

a further response to requests number 6 and 7 and can “do [his]

own research” from the information provided. Id. 

3. Request number 9

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14

• Request number 9: “Each and every

document that refers or relates to any

person or persons who worked at the

Faculty Club in or around 1995 and who,

after the Faculty Club closed, went to

work for the company or other type of

entity that runs the Hilton Inn at Penn.”

Plaintiff has received a list, including the race,

address and telephone number of employees who worked at the

Faculty Club and now work at the Inn at Penn. The balance of the

information sought constitutes a veritable fishing expedition on

dry land. Plaintiff is not entitled to a further response to

request number 9.

4. Request number 10

• Request number 10: “Each and every

document that contains information about

any employee or former employee of

Defendant who received worker’s

compensation at some time during the time

period from January 1, 1995 to the

present, including but not limited to

each and every document containing

information about whether the employee or

former employee received medical

clearance to return to work and to [sic]

each and every document containing

information about whether the employee or

former employee returned to work as an

employee of the Defendant.”

The Court limited plaintiff to discovery of worker’s

compensation claims filed during “the past three years prior to

the decision not to rehire [plaintiff, which occurred in 2003].” 

Hr’g Tr. 25, Nov. 9, 2005. Plaintiff has received the names of

all employees of defendant who filed worker’s compensation claims

Case 2:05-cv-00525-ER Document 48 Filed 06/21/06 Page 14 of 18
15

during the last five years and the identity of one Faculty Club

employee who filed a worker’s compensation claim and is now

employed by the Inn at Penn. Plaintiff is not entitled to a

further response to request number 10. 

5. Request number 11

• Request number 11: “Any and all

performance evaluations or other

documents that contain information about

plaintiff’s performance in his job as an

employee of Defendant.”

Plaintiff has received his personnel file, the contents

of which include any performance evaluations. Hr’g Tr. 29, Nov.

9, 2005. Plaintiff has had this information since before the

November 9, 2005 telephone conference. Id. Therefore, no

further response to request number 11 is needed.

6. Request number 12 

• Request number 12: “Any and all documents

received by Defendant pursuant to any

third-party subpoena served in this case,

including all such documents already

received by Defendant as well as all such

documents received by Defendant at some

future date.”

Plaintiff is entitled to this information pursuant to

the Rule 34 and 26(b). 

7. Requests number 13 and 14

• Request number 13: “Each and every

document that relates or refers to the

worker’s compensation claim that

plaintiff pursued against Defendant,

including but not limited to the

settlement agreement regarding that claim

Case 2:05-cv-00525-ER Document 48 Filed 06/21/06 Page 15 of 18
16

that was reached between plaintiff and

Defendant.”

• Request number 14: “Each and every

document that relates or refers to the

employment discrimination lawsuit that

plaintiff and two others pursued against

Defendant in or around 1995, including

but not limited to the settlement

agreement regarding that suit that was

reached between the plaintiffs in that

lawsuit and Defendant.” 

Plaintiff has received full responses to requests

number 13 and 14. Defendant produced the contents of plaintiff’s

worker’s compensation and litigation files maintained by

defendant, subject to the information listed in defendant’s

privilege log. Moreover, plaintiff’s current counsel represented

plaintiff’s in his prior discrimination suit against defendant

and is fully aware of the circumstances of the prior case. 

Plaintiff is not entitled to any further responses to requests

number 13 and 14. 

As demonstrated above, plaintiff has received more than

adequate discovery to respond to defendant’s motion for summary

judgment. The Court has given due consideration to plaintiff’s

successive discovery motions, granting in part plaintiff’s first

motion to compel and his first motion for a continuance under

Rule 56(f) and ordering defendant to certify delivery of certain

discovery materials. Defendant’s obligations under Rule 26(b)(1)

have been satisfied. Plaintiff is not entitled to further

responses to his First Requests for Production of Documents as a

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basis for a Rule 56(f) continuance.

Second, plaintiff is not entitled to a Rule 56(f)

continuance because plaintiff has not demonstrated what specific

additional information, if uncovered, would preclude defendant’s

motion for summary judgment. Fed. R. Civ. Pro. 56(f). Plaintiff

is merely speculating that by chance he may uncover some

information helpful to his case, or get the Rule 30(b)(6)

deponent to admit wrongdoing at deposition. Therefore, plaintiff

is not entitled to a further continuance under Rule 56(f). 

III. CONCLUSION 

For the foregoing reasons, plaintiff’s second motion

for a continuance under Rule 56(f) will be denied.

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

FRED SMITH : CIVIL ACTION

: NO. 05-525

Plaintiff, :

:

v. :

:

UNIVERSITY OF PENNSYLVANIA :

:

Defendant. :

ORDER

AND NOW, this 21st day of June, 2006, it is hereby

ORDERED that Plaintiff’s Second Motion for a Continuance Under

Rule 56(f) (doc. no. 45) is DENIED. 

IT IS FURTHER ORDERED that plaintiff shall file a

response to defendant’s motion for summary judgment by July 7,

2006. 

AND IT IS SO ORDERED.

 S/Eduardo C. Robreno 

EDUARDO C. ROBRENO, J.

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