United States Court of Appeals 

For the Seventh Circuit 

Chicago, Illinois 60604 

Submitted February 27, 2019*

Decided March 8, 2019 

Before 

 DIANE P. WOOD, Chief Judge 

 WILLIAM J. BAUER, Circuit Judge 

 ILANA DIAMOND ROVNER, Circuit Judge

No. 18-2258 

RHONDA COTTON, 

 Plaintiff-Appellant, 

v. 

MILWAUKEE AREA TECHNICAL 

COLLEGE DISTRICT BOARD OF 

DIRECTORS, 

 Defendant-Appellee.

 Appeal from the United States District 

Court for the Eastern District of Wisconsin. 

No. 16-CV-1202 

David E. Jones, 

Magistrate Judge.

O R D E R 

Rhonda Cotton, an African-American employee at the Milwaukee Area Technical 

College, applied for several promotions. When the College did not select her, she sued 

for race discrimination and retaliation. A magistrate judge entered summary judgment 

for the College. Cotton now asserts that he should have given her more time to develop 

the record before deciding the case. Because Cotton never asked the magistrate judge 

 

*

 We have agreed to decide this case without oral argument because the briefs 

and record adequately present the facts and legal arguments, and oral argument would 

not significantly aid the court. FED. R. APP. P. 34(a)(2)(C). 

NONPRECEDENTIAL DISPOSITION 

To be cited only in accordance with Fed. R. App. P. 32.1 
No. 18-2258 Page 2 

for more time to conduct discovery, and because she does not explain why the 

information that she sought was unavailable and necessary to establish a dispute of 

material fact, we affirm the judgment. 

The College hired Cotton as a part-time instructor in 2001. (As of 2014 she is also 

a full-time, limited-term educational assistant.) After 12 years in that role, she applied 

for full-time positions including student service specialist, educational assistant, 

instructor, and office technology instructor, but she was not selected for these jobs. 

Rather, the College hired other candidates, changed the qualifications for the positions 

for which she applied, or eliminated the positions entirely. Cotton maintains that she 

was the best candidate for the positions based on the information she gathered from 

publicly available finance, personnel, and operations records and from her familiarity 

with her coworkers, though she acknowledges that she does not know all of the other 

candidates’ qualifications. 

After exhausting her administrative remedies, Cotton sued the College for racial 

discrimination and retaliation (for filing an employment discrimination charge in 2003) 

under Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e-2(a), 2000e-3. The parties 

consented to the jurisdiction of Magistrate Judge Jones. See 28 U.S.C. § 636(c). 

During discovery, Cotton’s counsel developed a conflict of interest and 

withdrew from the case. The magistrate judge held a hearing to explain Cotton’s 

options to her, and Cotton said that she would “continue pro se.” Later in the hearing, 

she explained that she “[didn’t] have a choice” because her counsel had not 

recommended a new lawyer, and she doubted she could find one before her deposition 

“in a couple weeks.” 

 The magistrate judge also instructed Cotton on discovery deadlines. He said 

that he was “open to modifying whatever deadlines [were] on the books” to allow for 

adequate discovery and that he generally “[doesn’t] require a whole lot of writing” for 

motions about discovery disputes. He also offered to extend discovery if Cotton found 

new counsel. Finally, the magistrate judge advised Cotton that the College likely would 

file a motion for summary judgment to which she would be “expected to respond.” 

About two weeks later, on the date discovery was scheduled to close and Cotton 

was scheduled for her deposition, Cotton asked for time to obtain a lawyer, and the 

magistrate judge denied her request. He observed that the case “[had] been around for 

[a while]” (almost a year and a half at that point). Because Cotton began compiling a 

record when she was counseled and because her case was “relatively straightforward,” 
No. 18-2258 Page 3 

he reasoned, she could continue litigating on her own. The magistrate judge explained 

to Cotton that she did not have a right to a lawyer in a civil case and that he could not 

“put this case on hold” any longer. Still, he delayed the discovery deadline three more 

weeks so that the College could depose her, and he advised Cotton to continue looking 

for a lawyer in the meantime. He also set a new deadline for summary judgment 

motions and scheduled an oral argument. 

The College moved for summary judgment. It attached to its motion a copy of 

Civil Local Rules 7 and 56, which instructed Cotton on how to oppose the motion. 

Cotton responded with a “Motion to Request a Jury Trial,” in which she contended that 

she could produce witnesses and documents at trial that would support her claims. The 

magistrate judge held a hearing, at which he advised Cotton that her filing “didn’t have 

the detail and specificity ... for [him] to conclude that a reasonable juror could find 

discrimination.” “[T]hat’s why ... I am requesting a lawyer,” Cotton responded, and she 

again asserted that discrimination was behind the College’s failure to promote her. The 

magistrate judge expressed his sympathy with Cotton, adding that he understood why 

she would think that it is “not a fair system,” given that she was unrepresented during 

a “critical phase” of this suit. Nevertheless, he concluded, Cotton needed admissible 

evidence to survive summary judgment, and the record did not contain evidence that 

the College discriminated or retaliated against her. Accordingly, he granted the 

College’s motion. 

Cotton, with counsel on appeal, argues narrowly that the entry of summary 

judgment was premature because the parties had not yet completed discovery. She 

asserts that the record lacked the finance, personnel, and operations records and more 

than 600 pages of other documents from her EEOC filings that she previously had 

shared with the College. Her motion for a jury trial, she adds, notified the magistrate 

judge that she needed more time for discovery, even if it did not formally comply with 

the affidavit requirement in Federal Rule of Civil procedure 56(d). The College argues 

that Cotton never requested more time for discovery, never submitted an affidavit 

explaining why she needed more discovery, and even now has never suggested how 

she was prejudiced. 

We agree with the College and affirm the entry of summary judgment for two 

reasons. First, Cotton never asked for more time to conduct discovery. We review a 

decision to deny additional discovery for an abuse of discretion. See Helping Hand 

Caregivers, Ltd. v. Darden Restaurants, Inc., 900 F.3d 884, 890 (7th Cir. 2018). A district 

court does not abuse its discretion by ruling on a motion for summary judgment at the 
No. 18-2258 Page 4 

close of discovery when the nonmovant does not say that she needs more time. Stevo v. 

Frasor, 662 F.3d 880, 886 (7th Cir. 2011). At most, Cotton asserted in her “motion for jury 

trial” that she could produce evidence at trial and that she wanted time to find new 

counsel. But even reading the record in her favor, she never asked for more time for 

discovery or, importantly, identified what discovery she needed. The magistrate judge 

did not abuse his discretion in denying a request that was never made. 

The parties dispute whether Cotton needed to file an affidavit in support of a 

request for more time under Federal Rule of Civil Procedure 56(d). That rule states: “If a 

nonmovant shows by affidavit or declaration that ... it cannot present facts essential to 

justify its opposition [to summary judgment], the court may ... allow time ... to take 

discovery.” Here, the magistrate judge expressed that he was willing to entertain 

informal discovery motions and adjust the deadlines. We might consider whether the 

judge waived the affidavit requirement. See Woods v. City of Chicago, 234 F.3d 979, 990 

(7th Cir. 2000). But because Cotton did not ask to delay summary judgment for further 

discovery in the first place, the issue of her technical compliance with Rule 56(d) is 

beside the point. 

Second, we affirm the judgment because Cotton has not shown that she was 

prejudiced. Before vacating an entry of summary judgment due to an undeveloped 

record, we require “a clear showing of actual and substantial prejudice.” Stevo, 662 F.3d 

at 886. To succeed on her underlying claims, Cotton needed to put forth admissible 

evidence that, taken as a whole, would enable a reasonable juror to conclude that (1) she 

is a member of a protected class or filed a charge against the employer; (2) she was 

qualified for the position; (3) the employer did not promote her; and (4) the employer 

promoted someone who was outside of the protected class or had not filed a charge and 

who was not more qualified. Terry v. Gary Cmty. Sch. Corp., 910 F.3d 1000, 1006 (7th Cir. 

2018); Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 764–66 (7th Cir. 2016). Cotton was 

not entitled to speculative discovery amounting to a “fishing expedition.” See Helping 

Hand Caregivers, 900 F.3d at 890. She has not explained what “facts essential to justify 

[her] opposition” to summary judgment she hoped to find in the College’s finance, 

personnel, and operations records and her EEOC file, both of which, she says, she did 

not have. See FED. R. CIV. P. 56(d). Moreover, Cotton has not explained why they are 

now unavailable when she acknowledges that she previously had access to them. See id. 

Last, the magistrate judge gave the parties a final three-week extension to complete 

discovery, and Cotton did not attempt to take any discovery during that time, so it is 

unclear whether Cotton would have tried to make use of even more time. 

AFFIRMED