* Pursuant to Local 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________________________

No.96-20878

(Summary Calender)

______________________________

CARROLL H. WILKINSON,

Plaintiff-Appellant,

versus

STAR ENTERPRISES,

Defendant-Appellee.

____________________________________________

Appeal From the United States District Court

for the Southern District of Texas

(No. 96-1284)

____________________________________________

February 14, 1997

Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM: *

This is an appeal from the district court’s grant of summary

judgment in favor of Defendant-Appellee Star Enterprises (“Star”).

Plaintiff-Appellant Carroll Wilkinson asserts that the district

court’s grant of summary judgment was improper because the court

abused its discretion in denying her motion for extension of1 Star is a New York general partnership between Texaco

Refining and Marketing (East), Inc., a Texaco subsidiary, and Saudi

Refining, Inc.

2 42 U.S.C. § 2000e et seq

.

2 discovery deadlines. She contends that an extension was required

so that she could conduct necessary discovery to respond to the

motion for the summary judgment, noting that the court sua sponte

ordered Star to file that motion. For the reasons set forth below,

we vacate the district court’s summary judgment and remand the case

with instructions to the court to grant Wilkinson a reasonable time

to complete dis covery necessary to respond to Star’s motion for

summary judgment.

I

The limited summary judgment facts and scant procedural

history of this case are not in dispute. As we perceive the time

line on which this case proceeded to be significant, we recite the

dates of each procedural step in the process.

Wilkinson is a black female accounting clerk who has been

employed co ntinuously by Star or its parent, Texaco, Inc., since

1973. 1 On April 4, 1996, following her receipt of a right-to-sue

letter from the Equal Employment Opportunity Commission, Wilkinson

filed suit in the United States District Court for the Southern

District of Texas, alleging that she suffered employment

discrimination on account of her race, in violation of Title VII of

the Civil Rights Act of 1964. 2 Specifically, she alleged that she3

was (1) involuntarily reassigned and excluded from job advancements

on the basis of her race and (2) denied terms and conditions of

employment equal to those of white co-employees who were performing

essentially the same duties as she but were given higher pay

grades.

On May 23, 1996, Star filed its answer and served

interrogatories and document requests on Wilkinson, to which she

promptly responded. On July 17, 1996, pursuant to the district

court’s standing order, the parties submitted their Report of

Meeting and Joint Discovery and Case Management Plan, in which they

agreed on the deadlines for completing various stages of discovery

and other case management issues. Also, pursuant to amicable

agreement, Wilkinson’s deposition was noticed and subsequently

completed on July 23, 1993. One day earlier, on July 22nd, Star

furnished to Wilkinson its written disclosures pursuant to Rule 26

of the Federal Rules of Civil Procedure.

On July 29, 1996, both parties appeared before United States

District Judge Lynn N. Hughes for their court ordered initial pretrial and scheduling conference. At this conference, Judge Hughes

ordered that a second pre-trial conference take place one week

later, on August 5, 1996, and ordered Star to produce documents,

prior to the second pre-trial conference, concerning the employment

duties of Wilkinson’s co-workers. On August 3, 1996, two days

before the second pre-trial conference, Defendant Star delivered to

Wilkinson the documents containing information regarding her co-3 There is no indication in the record or the briefs as to

what Star was expected to hear from Wilkinson about by noon on

August 8th.

4 workers.

At the second pre-trial conference, on August 5, 1997, the

court ordered Star to file a motion for summary judgment by August

9, 1996, “[i]f Defendant did not hear from Plaintiff by noon,

A ugust 8th.” 3 The Court also ordered Wilkinson to file her

response to the summary judgment motion one week thereafter, i.e.,

by August 16, 1996, a total of eleven days after the second pretrial conference.

Star complied with the court order and filed its motion for

summary judgment on August 9th. Wilkinson complied by filing her

response on August 15th, a day early. In addition to her response,

Wilkinson filed a Motion for Extension of Time to Conduct

Discovery, in which she asserted that she had not had sufficient

t ime to depose the co-workers identified by Star in its Rule 26

disclosures furnished on July 22nd and regarding whom the court had

ordered Star to supply additional information on August 3rd.

Star responded to Wilkinson’s extension motion, contending

t hat (1) the individuals identified in Star’s initial Rule 26

disclosures are supervisors of the two groups within the

Controller’s Department involved in this case who se identities

Wilkinson had known since prior to the filing of her suit, (2)

Wilkinson had also known the identities of the co-workers to whom4 Krim v. BancTexas Group, Inc.

, 989 F.2d 1435, 1441 (5th Cir.

1993); Solo Serve Corp. v. Westowne Assoc.

, 929 F.2d 160, 167 (5th

Cir. 1991).

5 her job responsibilities were transferred since August 1996 when

she trained them, and (3) Wilkinson had had adequate time to depose

all of these individuals and, moreover, had originally indicated an

interest in deposing a Star corporate representative prior to the

initial pre-trial conferen c e but that Wilkinson’s counsel had

changed his mind.

On August 29, 1996, without ruling on or addressing in any way

Wilkinson’s Motion for an Extension of Time to Conduct Discovery

,

the district court, in a six sentence opinion, granted Star’s

motion for summary judgment. It concluded that Wilkinson could not

show that she suffered an adverse employment action, one of the

essential elements to a claim of racial discrimination under Title

VII.

Wilkinson filed a timely Notice of Appeal. In challenging the

grant of summary judgme nt, Wilkinson argues that the court’s

sub silentio denial of her Motion for Extension of Time to Conduct

Discovery deprived her of adequate time to conduct discovery

necessary to respond to Star’s motion for summary judgment.

II

As both parties acknowledge, we review a district court’s

decisio n to preclude further discovery prior to granting summary

judgm ent for an abuse of discretion. 4 In determining whether the5 C f

. Faircloth v. Lamb-Grays Harbor Co., Inc.

, 467 F.2d 685,

697 (5th C ir. 1972) (observing that district court’s exercise of

discretion on motion for new trial is “not ordinarily reviewable on

appeal, though a failure to exercise discretion, or an abuse of it,

may be corrected”)(quoting Marsh v. Illinois Central Railroad Co.

, 175 F.2d 498, 500 (5th Cir. 1949).

6 Mills v . Damson Oil Corp. , 931 F.2d 346, 350-51 (5th Cir.

1991) (citing Paul Kadair v. Sony Corp. of America

, 694 f.2d 1017,

1030-31 (5th Cir. 1983)).

6 district court abused its discretion in this circumstance, we must

also scrutinize the propriety of the motion for an extension of

time to conduct discovery filed by the party responding to the

motion for summary judgment. Implicit in this standard of review,

however, is the requirement that the district court in fact

exercise its discretion. 5 Here there is nothing in the record to

reflect an exercise of discretion.

We have previously held that such a request for additional

discovery should be denied under the following circumstances only:

(1) The record shows that the requested discovery is unlikely to

produce the facts n eeded to withstand the motion for summary

judgment; (2) the record shows that the denial is necessary to

protect the defendant from harassment and “fishing expeditions;” or

(3) the discovery is dilatorily, which can be determined by

examining eight specific factors. 6 Absent anything on point from

the district court, we are left to inferences from the scant

summary judgment record in this case for purposes of applying this

test.

Wilkinson’s motion for extension of time is not facially7

improper or dilatorily sought, especially in light of the sudden,

unusually rapid acceleration of the discovery and pleading

deadlines imposed by the court

—— apparently with little or no

prior warning

—— at its August 5 pre-trial conference. Furthermore,

there is no indication that denial of t he motion is necessary to

protect the defendant from harassment or a fishing expedition. To

the contrary, it appears that counsel for both parties were

proceeding with discovery in an amicable, professional, and timely

manner.

Finally, there is no way, given the limited scope of the

record at the time of summary judgment, for this court to determine

whether the requested discovery was likely to produce any

additional facts needed to withstand the motion for summary

j udgment. But by far the most important factor requiring us to

vacate the summary judgment in this case is the total absence of

any explanation on the part of the district court of its reasons

for denying

—— more accurately, for ignoring

—— Wilkinson’s Motion

for Extension of Time to Conduct Discovery.

Although a district court is, as we indicated above, entitled

to exer cise reasonable discretion in managing discovery, when a

distric t court provides absolutely no explanation for its purely

implicit denial of what facially appears to be a reasonable request

for additi onal discovery time, we must assume that the district

court either failed to exercise its discretion or abused it. This

is particularly so when, as here, there is no indication that

discovery was proceeding other than at a normal and reasonable8

pace.

Given the total failure of the district court to address or

explain its implicit denial of the motion of Plaintiff to extend

the time for completing discovery, that court has left us no choice

but to vacate its grant of summary judgment and final judgment in

favor of Star, and to remand this c ase with instructions to the

district court to grant Wilkinson reasonable time within which to

conduct further discovery as required to respond to Star’s courtordered motion for summary judgment.

VACATED and REMANDED WITH INSTRUCTIONS