Hussain, Mohammed v. Nicholson, R. James

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 5, 2005 Decided January 31, 2006

No. 04-5417

MOHAMMED HUSSAIN,

APPELLANT

v.

R. JAMES NICHOLSON, SECRETARY, DEPARTMENT OF

VETERAN AFFAIRS,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 03cv00367)

Dawn V. Martin argued the cause and filed the briefs for

appellant.

Charlotte A. Abel, Assistant U.S. Attorney, argued the cause

for appellee. With her on the brief were Kenneth L. Wainstein,

U.S. Attorney, Michael J. Ryan, Assistant U.S. Attorney, and

Karen A. Nappo, Counsel, U.S. Department of Veterans Affairs.

R. Craig Lawrence, Assistant U.S. Attorney, entered an

appearance.

Before: HENDERSON, ROGERS, and TATEL, Circuit Judges.

2

Opinion for the Court filed by Circuit Judge TATEL.

Concurring opinion filed by Circuit Judge ROGERS.

TATEL, Circuit Judge: After eighteen years as a doctor at a

public hospital, appellant, an Indian Muslim, applied to replace

his retiring supervisor. When the hospital denied appellant the

position, he filed an administrative complaint alleging

discrimination based on race, religion, and national origin. As

he pursued his claim, his relationship with the hospital

deteriorated—among other things, officials reported concerns

about his performance and then promoted his assistant to

supervise him. Appellant eventually took early retirement and

filed suit in federal court, charging the hospital with

discrimination and retaliation in violation of Title VII of the

Civil Rights Act of 1964. Appellant’s then-attorney, however,

neglected to conduct any discovery. Finding that appellant

failed to provide sufficient evidence to support his claims, the

district court granted summary judgment to the hospital. We

affirm.

I.

Appellant Mohammed Hussain joined the Veteran Affairs

Medical Center in 1978 as Assistant Chief of Radiation Therapy.

When his supervisor retired in 1997, Hussain became Acting

Chief of Radiation Therapy, a position which, though requiring

increased administrative responsibilities, came with no

additional pay. Although Hussain expressed interest in

becoming permanent Chief of the division, he remained Acting

Chief for the next several years.

In September 2000, hospital officials merged Hussain’s

division with another division, the Imaging Service, creating one

unified Radiology Service. Dr. Klemens Barth, Chief of

Imaging, was then appointed to the new position of Chief of

3

Radiology Service. Hussain’s title, duties, and compensation

remained unchanged, but he now reported to Barth rather than

directly to the hospital’s Chief of Staff. Two months later,

Hussain filed an Equal Employment Opportunity complaint

alleging that the hospital failed to promote him to a permanent

Chief position because of his race, religion, and national origin.

Reiterating the same claims, he also filed a complaint with the

Equal Employment Opportunity Commission (EEOC).

The following July, Barth hired an African-American

woman, Dr. JoAnn Manning, as an additional staff physician in

the Radiation Therapy division. Hussain asserts that although

the hospital purported to hire Manning to assist Hussain, Barth

excluded him from the hiring process and prevented him from

supervising Manning.

Three months later, Hussain received a performance

evaluation from the Chief of Staff, Ross Fletcher. Although

Hussain’s former supervisor had consistently given him

excellent performance reviews, Fletcher rated Hussain as just

“satisfactory,” noting that “many issues have arisen regarding

Dr. Hussain.” In a later evaluation rating Hussain as “low

satisfactory,” Barth observed that Hussain failed to “provide . . .

effective leadership for the division.” Hussain v. Principi, 344

F. Supp. 2d 86, 92 (D.D.C. 2004). In December 2002, Barth

appointed Manning as permanent Chief of Radiation Therapy

and demoted Hussain to Assistant Chief, with Manning as his

supervisor.

Shortly thereafter, Hussain filed suit in federal court,

charging the hospital with various torts and Title VII violations.

In their affidavits, Manning and Barth allege that around this

time they began encountering problems with Hussain’s

performance, particularly his failure to conduct adequate follow-

up patient care. In June 2003, they renewed Hussain’s clinical

4

privileges for only three months, rather than the normal two-year

period. They also informed Hussain that he would now have to

document patient examinations and submit records for monthly

review. At the end of July, Hussain informed the hospital that

he would be taking “extended sick leave . . . until further

notice.” Id. at 93. When Hussain failed to provide medical

documentation to support his absence, the hospital placed him

on “Absence Without Leave” status. In September, Hussain

took voluntary early retirement.

Hussain then amended his complaint (the second amended

complaint) dropping several claims and retaining only those

based on Title VII: failure to promote based on race, religion,

and national origin; retaliation; hostile work environment; and

constructive discharge. Although Hussain’s then-attorney, Tony

Shaw, took several depositions in connection with proceedings

before the EEOC, he took no discovery at all during the six-

month period allotted by the district court. After discovery

closed, the hospital moved for summary judgment, at which

point Hussain, represented by new counsel, Dawn Martin,

moved to reopen discovery. The district court denied Hussain’s

motion and granted summary judgment to the hospital on all

claims. See id. at 93-94, 107.

Hussain now appeals, arguing that the district court erred in

(1) denying his motion to reopen discovery, (2) finding no

genuine issue of material fact with regard to his employment

discrimination and retaliation claims, and (3) finding that he

failed to state hostile work environment or constructive

discharge claims.

II.

We begin with the discovery issue. In July 2004, after

discovery closed, Hussain notified the district court that Martin

had replaced Shaw as his attorney. Upon learning that Shaw had

5

failed to conduct any discovery during the allotted time frame,

Martin moved to reopen discovery under Rule 16(b). See Fed.

R. Civ. P. 16(b) (permitting courts to modify their schedules if

the requesting party shows “good cause”). Critical to the issue

before us, this request came over three months after discovery

closed and several weeks after the hospital filed its motion for

summary judgment. Martin argued that because the hospital had

only just filed its answer to Hussain’s second amended

complaint, the district court had good cause to grant a 90-day

extension for discovery: “A defendant should not be permitted

to obtain repeated extensions from the Court to respond to a

Complaint, such that it delays the plaintiff [an] Answer to

his/her Complaint throughout the entire discovery period, and

then denies the Plaintiff the right to discovery.” Pl.’s Mot. to

Reopen Disc. 2. Martin also argued that without an opportunity

for additional discovery, Hussain would be unable to establish

that hospital officials had acted with discriminatory intent.

At a hearing on the motion to reopen discovery—a hearing

attended by both Shaw and Martin—Shaw acknowledged “some

lack of diligence” on his part, Mot. Hr’g Tr. 4, July 22, 2004,

but pointed out that the hospital also operated with “unclean

hands” by repeatedly requesting extensions for its filings, id. at

6. The district court, observing that Hussain had a “great

malpractice action” against Shaw, id., stated: “You can’t cite me

a case . . . that says that I’m supposed to extend [discovery]

because of your incompetence, can you? That is not good

cause,” id. at 8. The court also explained that although the

hospital had asked for several extensions, it had always filed its

motions in a timely manner. In its written ruling denying

Hussain’s motion, the court noted that since Hussain had taken

several depositions during the administrative proceedings, he

had not been “completely deprived of discovery.” Hussain, 344

F. Supp. 2d at 93.

6

We review discovery rulings for abuse of discretion. See

Military Audit Project v. Casey, 656 F.2d 724, 750 (D.C. Cir.

1981). We are especially reluctant to interfere with district court

decisions regarding their own day-to-day operations. See, e.g.,

United States v. Microsoft Corp., 253 F.3d 34, 100 (D.C. Cir.

2001) (“[A]n appellate court will not interfere with the trial

court’s exercise of its discretion to control its docket and

dispatch its business . . . except upon the clearest showing that

the procedures have resulted in actual and substantial prejudice

to the complaining litigant.”) (quoting Eli Lilly & Co., Inc. v.

Generix Drug Sales, Inc., 460 F.2d 1096, 1105 (5th Cir. 1972)).

In particular, district courts have “broad discretion in structuring

discovery.” Edmond v. U.S. Postal Serv. Gen. Counsel, 949

F.2d 415, 425 (D.C. Cir. 1991); see also In re Multi-Piece Rim

Prods. Liab. Litig., 653 F.2d 671, 679 (D.C. Cir. 1981) (“A

district court has broad discretion in its resolution of discovery

problems that arise in cases pending before it.”). Given this

highly deferential standard, we see no basis for questioning the

district court’s denial of an enlargement of time for additional

discovery.

Although Hussain now points to Rule 56(f) in support of his

request to reopen discovery, see Fed. R. Civ. P. 56(f) (allowing

courts to order additional discovery prior to ruling on a summary

judgment motion), his district court motion relied solely on Rule

16(b). We will therefore consider only his arguments relating to

Rule 16(b). See District of Columbia v. Air Fla., Inc., 750 F.2d

1077, 1084 (D.C. Cir. 1984) (“It is well settled that issues and

legal theories not asserted at the District Court level ordinarily

will not be heard on appeal.”). In that regard, Hussain argues

that the district court’s “no good cause” finding rests on three

factual errors and thus amounts to an abuse of discretion.

First, Hussain asserts that the court erred in finding that he

had an opportunity to obtain adequate discovery at the

7

administrative level, given that the hospital refused to comply

with several administrative law judge (ALJ) orders to produce

documents and witnesses for deposition, and that the ALJ took

an indefinite leave of absence prior to completing the

proceedings. The district court made no such error.

Acknowledging that Hussain “may not have had a full

administrative hearing,” the court found only that he “did have

an opportunity to obtain discovery at the administrative level

regarding many of the same claims he pursues here.” Hussain,

344 F. Supp. 2d at 93-94. This is accurate—Hussain took

lengthy depositions of several key witnesses during the EEOC

proceedings, including both Fletcher and Barth.

Hussain next claims that the district court incorrectly

believed that the hospital filed all its motions on time, when in

fact both its summary judgment motion and its answer to the

second amended complaint were late. But even if this is true,

we see no reason to think the court would have held differently

had it realized these filings were untimely. The court explained

that “[b]ecause . . . there was no legitimate reason why

discovery had not yet been conducted, [it] had ample reason to

reject plaintiff’s motion.” Id. at 93. Accordingly, the alleged

error—if error at all—was harmless. See, e.g., Barth v. Gelb, 2

F.3d 1180, 1188-89 (D.C. Cir. 1993) (explaining that errors

which have no effect on the outcome of a case are not grounds

for reversal or remand).

Finally, Hussain argues that the district court’s refusal to

reopen discovery represents an overly harsh penalty for Shaw’s

negligence, given that the lawyer’s “future misconduct was . . .

more than sufficiently deterred” when his client fired him and

the judge then “berated [him] in open court.” Appellant’s Br. 54.

Hussain misunderstands the district court’s holding. The court

denied Hussain’s motion not because it determined that Shaw

deserved punishment, but because Hussain failed to establish

8

good cause for modifying the discovery schedule. See Hussain,

344 F. Supp. 2d at 93-94.

We sympathize with Hussain, the victim of Shaw’s

negligence, and with Martin, who has tried hard to salvage her

client’s case. But as the Supreme Court has held, a party who

voluntarily chooses his attorney “cannot . . . avoid the

consequences of the acts or omissions of this freely selected

agent.” Link v. Wabash R.R. Co., 370 U.S. 626, 633-34 (1962).

Accordingly, because the primary reason for reopening

discovery would have been to mitigate the damage Shaw

inflicted on Hussain’s case, the district court did not abuse its

discretion in denying Hussain’s motion.

III.

We turn to Hussain’s discrimination and retaliation claims.

We review de novo the district court’s order granting summary

judgment to the hospital, viewing the evidence in the light most

favorable to Hussain. See Tao v. Freeh, 27 F.3d 635, 638 (D.C.

Cir. 1994).

Hussain’s first claim is that the hospital unlawfully

discriminated against him when it created the new Radiology

Service and named Barth as its Chief. Because Hussain alleges

discrimination via disparate treatment, the McDonnell Douglas

three-step “shifting burdens” test applies. See McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). We have

described the McDonnell Douglas framework as follows:

[T]he complainant must first establish a prima facie case

of prohibited discrimination. Once he has done so, the

burden then shifts to the employer to articulate

legitimate, nondiscriminatory reasons for the challenged

employment decision. Should the employer succeed in

presenting such reasons, the burden shifts back to the

9

complainant, who then has an opportunity to discredit

the employer’s explanation. . . . [T]he plaintiff at all

times retains the ultimate burden of persuasion.

Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1288-89 (D.C. Cir.

1998) (en banc) (internal citations omitted). The district court

found that although Hussain established a prima facie case, he

failed to rebut the legitimate reason offered by the hospital for

putting Barth in the new Chief position, i.e., that Barth was

better qualified than Hussain.

Hussain contends that the district court erroneously

discounted evidence of his own qualifications, including his

special skill in implementing brachytherapy, his involvement in

charitable work and professional committees, and his faculty

position at Georgetown University. He also points to various

documents which contradict the hospital’s claim that he failed

to hire necessary staff, correct personnel problems, and request

important equipment. But even viewed in the light most

favorable to Hussain, this evidence merely shows that Hussain

was a better candidate than the hospital admits, not that he was

more qualified than Barth. Under Aka, comparing qualifications

is insufficient to establish discriminatory intent unless the

plaintiff is “significantly better qualified” than the person who

obtained the position. 156 F.3d at 1294. Given Barth’s

numerous publications, several university affiliations, and

success in running the significantly larger Imaging Service, we

agree with the district court that Hussain failed to discredit the

hospital officials’ claim that they believed Barth to be better

suited for the promotion. Hussain argues that the district court

failed to consider whether evidence of “religious alliances and

animosity” revealed hospital officials’ discriminatory intent,

Appellant’s Br. 41, but the district court correctly found that

Hussain’s evidence of religious animus consisted merely of

conclusory allegations in his own affidavit. See Dist. Intown

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Props. Ltd. P’ship v. District of Columbia, 198 F.3d 874, 878

(D.C. Cir. 1999) (“In deciding whether there is a genuine issue

of material fact, the court must assume the truth of all statements

proffered by the non-movant except for conclusory allegations

lacking any factual basis in the record.” (emphasis added)).

Accordingly, the district court properly granted summary

judgment to the hospital on this claim.

Hussain next claims that hospital officials discriminated

against him when they declined to appoint him permanent Chief

of Radiation Therapy and instead promoted Manning to the

position. Following McDonnell Douglas, the district court again

found that Hussain failed to rebut the hospital officials’ claim

that they gave the job to the most qualified candidate. Although

Hussain had worked at the hospital much longer than Manning,

Manning had fifteen years of radiation therapy experience,

numerous publications, and an affiliation with Georgetown

Hospital. Given this evidence, we agree with the district court

that because Hussain failed to demonstrate pretext, summary

judgment on this claim was proper.

For his third claim, Hussain argues that the hospital

unlawfully retaliated against him for pursuing his discrimination

complaint. In particular, he cites twelve alleged acts of

retaliation: (1) Manning’s appointment as permanent Chief of

Radiation Therapy, (2) a report to the hospital’s Peer Review

Panel regarding Hussain’s possible involvement in a malpractice

suit, (3) denial of special pay, (4) denial of clinical privileges,

(5) heightened monitoring by supervisors, (6) poor performance

evaluations, (7) denial of medical leave, (8) delay in forwarding

retirement application forms, (9) denial of counsel during a

discussion about retirement and failure to provide a written copy

of retirement options, (10) denial of access to his personnel file,

(11) termination threats, and (12) failure to address

insubordination by other employees.

11

Under Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999),

plaintiffs alleging retaliation must demonstrate that (1) they

engaged in statutorily protected activity, (2) the employer took

an adverse employment action against them, and (3) a causal

connection existed between the two. The district court found

that although Hussain’s discrimination complaint satisfied the

first requirement, each of his twelve claims failed either because

the alleged act fell short of an actionable adverse action or

because Hussain provided insufficient evidence of a causal

connection. The court then dismissed Hussain’s hostile work

environment and constructive discharge claims, explaining that

Hussain failed to show that “any allegedly disparaging conduct

by the defendant was based on plaintiff’s race, religion, or

national origin.” Hussain, 344 F. Supp. 2d at 107.

Rather than responding to these findings directly, Hussain

argues that the district court overlooked his claim that the twelve

alleged retaliatory acts, when combined, created a hostile work

environment and constituted constructive discharge.

“Retaliation,” Hussain argues, “may take the form [of] one or

more separate, discreet acts, or may be so frequent, severe,

pervasive and harassing, that, together, the individual acts create

a retaliatory hostile work environment under Title VII.”

Appellant’s Br. 42.

As a matter of law, Hussain makes an excellent point. In

this circuit, a hostile work environment can amount to retaliation

under Title VII. See Singletary v. District of Columbia, 351

F.3d 519, 526 (D.C. Cir. 2003). To prevail on such a claim,

however, Hussain must show that the hospital subjected him to

“discriminatory intimidation, ridicule, and insult” of such

“sever[ity] or pervasive[ness] [as] to alter the conditions of [his]

employment and create an abusive working environment.”

Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993) (quoting

12

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986)). But

Hussain has failed to make such a showing. As the district court

explained, Hussain exaggerates several of his claims: The record

clearly shows that the hospital never reported him for

malpractice, revoked his clinical privileges, or denied him

special pay or medical leave. See Hussain, 344 F. Supp. 2d at

104 n.25. Although the work environment described by Hussain

was hardly ideal, we think no reasonable jury could find it

“abusive” under the standard set forth in Harris. Cf. Singletary,

351 F.3d at 528-29 (declining to grant summary judgment

against an employee claiming hostile work environment where,

for over a year and a half, the employee was forced to work in

a poorly lit, unheated, and unventilated storage room full of

brooms and boxes of debris). Nor do we believe that a

reasonable jury could find in Hussain’s favor with regard to his

constructive discharge claim: Even when considered

collectively, his allegations fail to establish a “working

environment . . . so intolerable that [his] resignation qualified as

a fitting response.” Pa. State Police v. Suders, 542 U.S. 129,

134 (2004).

IV.

Concluding that the district court neither abused its

discretion in refusing to reopen discovery nor erred in finding

that Hussain failed to present any triable Title VII claims, we

affirm the grant of summary judgment to the hospital on all

counts.

So ordered.

ROGERS, J., concurring: As the court observes, our review

of discovery rulings for abuse of discretion reflects a

“reluctan[ce] to interfere with district court decisions regarding

their own day-to-day operations.” Op. at 6. However, the

court’s reluctance is tempered where there is “the clearest

showing that the procedures have resulted in actual and

substantial prejudice to the complaining litigant.” Id. (quoting

United States v. Microsoft Corp., 253 F.3d 34, 100 (D.C. Cir.

2001)). In my view, our conclusion that the district court did not

abuse its discretion in denying Hussain’s motion to reopen

discovery follows from a slightly different analysis than is

adopted by the court of Hussain’s contention that the refusal to

grant his motion was an overly harsh penalty for his attorney’s

negligence. See Op. at 7-8.

Federal Rule of Civil Procedure 16(b) provides that a

scheduling order “shall not be modified except upon a showing

of good cause . . . .” The advisory committee notes on the Rule

explain that there is good cause “if [the schedule] cannot

reasonably be met despite the diligence of the party seeking the

extension.” FED. R. CIV. P. 16(b) advisory committee’s notes

(1983 amendments). Several circuit courts of appeal have held

that “Rule 16(b)’s ‘good cause’ standard primarily considers the

diligence of the party seeking the [modification]. . . . If that

party was not diligent, the inquiry should end.” Johnson v.

Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992);

see also O’Connell v. Hyatt Hotels of Puerto Rico, 357 F.3d

152, 155 (1st Cir. 2004); Inge v. Rock Fin. Corp., 281 F.3d 613,

625 (6th Cir. 2002); Bradford v. DANA Corp., Inc., 249 F.3d

807, 809 (8th Cir. 2001); Parker v. Columbia Pictures Indus.,

204 F.3d 326, 340 (2d Cir. 2000). Some courts secondarily

consider the “possible prejudice to the party opposing the

modification.” Inge, 281 F.3d at 625; see also Reliance Ins. Co.

v. Louisiana Land & Exploration, 110 F.3d 253, 257 (5th Cir.

1997).

2

Under those precedents, the primary consideration in

determining whether the district court abused its discretion by

refusing to reopen discovery is whether Dr. Hussain was diligent

in conducting discovery within the schedule set by the district

court. Hussain’s attorney conducted no discovery within that

period, and his motion to reopen discovery came three and a half

months after the discovery period had ended. The only asserted

reason for this lack of diligence was attorney neglect. Yet

“carelessness is not compatible with a finding of diligence and

offers no reason for a grant of relief.” Johnson, 975 F.2d at 609.

The question remains whether Hussain can be deemed

diligent in complying with the scheduling order although his

attorney was not. The general rule is that a client is held

accountable for his attorney’s conduct. See, e.g., Link v.

Wabash R.R. Co., 370 U.S. 626, 633-34 (1962); Camps v. C &

P Tel. Co., 692 F.2d 120, 123-24 (D.C. Cir. 1981). The First

Circuit has confronted two cases under Rule 16(b) in which

parties blamed their lack of diligence on attorney error, and in

both cases the court replied, “Attorneys represent clients, and,

as a general rule, an attorney’s blunder binds her client.”

O’Connell, 357 F.3d at 155; Rosario-Diaz v. Gonzalez, 140 F.3d

312, 315 (1st Cir. 1998). Were this court to follow the

interpretation of Rule 16(b) adopted by other circuits and hold

Hussain accountable for his counsel’s behavior, “the inquiry

should end” because Hussain “was not diligent.” Johnson, 975

F.2d at 609.

This court, however, has not viewed the attorney-blunder

rule to be without exception. The court has recognized in the

context of the dismissal of a complaint that a party should not

bear the consequences of attorney misdeeds when the lawyer

“misled the client by reassuring him that the litigation was

continuing smoothly when in fact it was suffering severely from

lack of attention.” Jackson v. Washington Monthly Co., 569

3

F.2d 119, 122 (D.C. Cir. 1977). And on appeal, as noted, the

court will determine whether there is “the clearest showing [of]

actual and substantial prejudice.” Microsoft, 253 F.3d at 100.

Although Hussain does not assert that he was misled by his

attorney as in Jackson, he did argue to the district court that he

was being unfairly punished for his former attorney’s negligence

by being forced to oppose the hospital’s motion for summary

judgment without discovery. In my view, the district court’s

evaluation of the nature of the discovery that Hussain obtained

during the EEOC proceedings precludes a finding that Hussain

has made the clear showing of “actual and substantial prejudice”

required for the court to conclude that the district court abused

its discretion in denying his motion to reopen discovery. Thus,

were this court to interpret “good cause” under Rule 16 to

embrace consideration of prejudice, Hussain’s contention that

the lack of evidence with which to respond to the hospital’s

motion constituted good cause to reopen discovery would fail.

The district court expressly addressed whether Hussain

would be unfairly prejudiced in his ability to oppose summary

judgment if he were not permitted to reopen discovery. See

Hussain v. Principi, 344 F. Supp. 2d 86, 93-94 (D.D.C. 2004) .

In denying Hussain’s motion to reopen discovery, the district

court relied partially on the ground that he was not “completely

deprived of discovery” because his attorney had taken “lengthy

depositions” of Dr. Barth, Dr. Fletcher and Mr. Garfunkel

during the EEOC proceedings. Id. The district court noted that

“[t]hese depositions covered the merger of the Radiation

Therapy and Imaging Services, Dr. Barth's appointment as Chief

of Radiology, the Peer Review Panel, the hiring of Dr. Manning,

the administration’s reaction to [Hussain's] EEO complaints, and

many other topics.” Id. at 94. The district court thus found that

Hussain “did have an opportunity to obtain discovery at the

administrative level regarding many of the same claims he

pursues here.” Id. at 93-94.

4

Because a litigant seeking discovery may be unable to

identify the nature of the information sought, it would be

inappropriate to place such a burden on the moving party. But

Hussain is in a somewhat different position as a result of the

administrative discovery he had obtained. In the district court,

Hussain suggested a number of inquiries he would pursue were

discovery reopened, for the most part involving new lines of

questioning with the individuals he had previously deposed, but

also involving his desire to depose Dr. Manning and Dr. Patel,

both of whom he was unable to depose in the administrative

proceeding. Assuming further depositions could reveal helpful

information, Hussain nonetheless fails, in light of the evidence

he could rely upon in opposing the hospital’s motion for

summary judgment, to make “the clearest showing [of] actual

and substantial prejudice.” Microsoft, 253 F.3d at 100. He

could rely upon the depositions of Dr. Barth, Dr. Fletcher, and

Mr. Garfunkel; the EEO investigative file; his own deposition

and affidavit; the 109 exhibits from his personal files; and any

affidavits he could collect from current and former hospital

employees. Deposing Drs. Manning and Patel would appear to

be of questionable worth as neither was a central figure in

Hussain’s discrimination or retaliation claims; he sought their

depositions only to show that Dr. Manning’s view of his poor

performance was inspired by her self-interest and that Dr.

Patel’s view of his poor performance was inspired by anti-

Muslim bias.

Accordingly, I concur.