John Tuttle v. John McHugh , 457 F. App'x 234 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-2442
JOHN W. TUTTLE,
Plaintiff - Appellant,
v.
JOHN M. MCHUGH, Secretary, Department of the Army Agency,
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior
District Judge. (7:10-cv-00219-jct)
Submitted: November 15, 2011 Decided: December 9, 2011
Before NIEMEYER, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John M. Loeschen, LOESCHEN LAW FIRM, Roanoke, Virginia, for
Appellant. Sara Bugbee Winn, Assistant United States Attorney,
Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John W. Tuttle appeals the district court’s entry of
summary judgment on his claim that the Appellee retaliated
against him in violation of the Age Discrimination in Employment
Act (the “ADEA”), 29 U.S.C.A. §§ 621-34 (West 2008 & Supp.
2010). We affirm.
Tuttle first takes issue with the district court’s
decision to construe the Appellee’s motion to dismiss as a
motion for summary judgment. In this respect, the Federal Rules
of Civil Procedure provide that, if matters outside the
pleadings “are presented to and not excluded by the court” in
conjunction with a motion under Rule 12(b)(6), “the motion must
be treated as one for summary judgment under Rule 56.” Fed. R.
Civ. P. 12(d). Because the conversion of a motion to dismiss
depends upon the district court’s decision whether to exclude
from its consideration matters outside the pleadings, see Finley
Lines Joint Protective Bd. v. Norfolk Southern Corp., 109 F.3d
993, 996-97 (4th Cir. 1997), the choice to construe a motion to
dismiss as a motion for summary judgment is reviewed for abuse
of discretion. Laughlin v. Metro. Wash. Airports Auth., 149
F.3d 253, 261 (4th Cir. 1998). See also Hamm v. Rhone-Poulenc
Rorer Pharms., Inc., 187 F.3d 941, 948 (8th Cir. 1999).
A district court need not give formal notice of its
intent to treat a motion to dismiss as one made under Rule 56,
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so long as the parties have sufficient notice that the motion
could be so construed. Laughlin, 149 F.3d at 261 (“A cursory
glance at the Federal Rules of Civil Procedure, as well as
Laughlin’s own filings, make clear that the motion before the
court could be treated as a motion for summary judgment.”).
However, even if the parties have notice that the motion could
be converted by the court, they are entitled to “a reasonable
opportunity” to present material that is relevant to a converted
motion to dismiss. Fed. R. Civ. P. 12(d); Fayetteville
Investors v. Commercial Builders, Inc., 936 F.2d 1462, 1471-72
(4th Cir. 1991). Apposite to this entitlement, 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:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or
declarations or to take discovery; or
(3) issue any other appropriate order.
Fed. R. Civ. P. 56(d). Where a party possesses sufficient
notice that the motion to dismiss may be treated as a motion for
summary judgment, its failure to file a motion under Fed. R.
Civ. P. 56(d) suggests that its opportunities for obtaining
discovery were not inadequate. Laughlin, 149 F.3d at 261;
Nguyen v. CNA Corp., 44 F.3d 234, 242 (4th Cir. 1995).
In the instant case, we conclude that Tuttle had
abundant notice that the court could well construe the motion as
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one seeking summary judgment rather than dismissal. See
Laughlin, 149 F.3d at 260-61; Gay v. Wall, 761 F.2d 175, 177
(4th Cir. 1985). Nevertheless, Tuttle at no time objected to
the Appellee’s attachment of exhibits to the motion. Nor did
Tuttle file a Rule 56(d) motion. Accordingly, we conclude that
Tuttle had a reasonable opportunity to seek additional discovery
but simply failed to avail himself of it. Nguyen, 44 F.3d at
242. We therefore decline to hold that the district court erred
in construing the Appellee’s motion as a motion for summary
judgment.
Tuttle next contends that, even if the Appellee’s
motion was properly construed as a motion for summary judgment,
the district court erred in entering summary judgment against
him on his retaliation claim. This court reviews a district
court’s grant of summary judgment de novo, drawing reasonable
inferences in the light most favorable to the non-moving party.
United States v. Bergbauer, 602 F.3d 569, 574 (4th Cir.), cert.
denied, 131 S. Ct. 297 (2010). Summary judgment may be granted
only when “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
The relevant inquiry on summary judgment is “whether
the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one
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party must prevail as a matter of law.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251-52 (1986). An otherwise
“properly supported motion for summary judgment” will not be
defeated by the existence of merely any factual dispute, no
matter how minor; rather, “[o]nly disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.” Id. at 247-
48. To withstand a summary judgment motion, the non-moving
party must produce competent evidence sufficient to reveal the
existence of a genuine issue of material fact for trial. See
Fed. R. Civ. P. 56(c)(1); Thompson v. Potomac Elec. Power Co.,
312 F.3d 645, 649 (4th Cir. 2002). Neither conclusory
allegations, speculative scaffolding of one inference upon
another, nor the production of a “mere scintilla of evidence” in
support of a nonmovant’s case suffices to forestall summary
judgment. Id.; Beale v. Hardy, 769 F.2d 213, 214 (4th Cir.
1985). Instead, this court will uphold the district court’s
grant of summary judgment unless it finds that a reasonable jury
could return a verdict for the nonmoving party on the evidence
presented. See EEOC v. Cent. Wholesalers, Inc., 573 F.3d 167,
174-75 (4th Cir. 2009).
To establish a prima facie case of unlawful
retaliation under the ADEA, a plaintiff is required to show
that: (1) he engaged in protected activity; (2) an adverse
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employment action was taken against him by the defendant; and
(3) there was a causal connection between the protected activity
and the adverse action. Laber v. Harvey, 438 F.3d 404, 432 (4th
Cir. 2006) (en banc); Causey v. Balog, 162 F.3d 795, 803 (4th
Cir. 1998). Protected activity under the statute includes
making a charge of discrimination to the Equal Employment
Opportunity Commission. See 29 U.S.C.A. § 623(d); Laughlin, 149
F.3d at 259. The plaintiff’s failure to establish a prima facie
case of retaliation warrants the issuance of summary judgment in
the defendant’s favor. See Henson v. Liggett Group, Inc.,
61 F.3d 270, 274-75 (4th Cir. 1995).
Once the plaintiff has established his prima facie
case, the burden shifts to the defendant to put forth a
legitimate, nondiscriminatory reason for the action taken. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973);
Lettieri v. Equant Inc., 478 F.3d 640, 651 (4th Cir. 2007). If
the defendant makes this showing, the plaintiff must then show
by a preponderance of the evidence that the proffered reason is
only a pretext for retaliation. See Price v. Thompson, 380 F.3d
209, 212 (4th Cir. 2004). The plaintiff’s burden to establish
pretext merges with his ultimate burden of persuasion, which
remains with the plaintiff throughout the McDonnell Douglas
framework. Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343,
2348 (2009); Lettieri, 478 F.3d at 646-47.
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In this case, Tuttle, an Information Technology
Specialist employed by the United States Army, filed an age
discrimination complaint with the EEOC in 2008, and later
applied for and was not selected as a Supervisory Information
Technician Specialist (the “supervisory position”). Tuttle now
contends that the Appellee retaliated against him on the basis
of his first EEOC complaint by using only the Army’s automated
recruitment system, RESUMIX, to fill the supervisory position
instead of relying on other recruiting methods that would have
been more favorable to Tuttle.
Although Tuttle asserts that the record contains
sufficient evidence to generate a genuine issue of material fact
on his retaliation claim, our review of the record convinces us
otherwise. Certainly, the record reflects that RESUMIX need not
be used in every instance. But the record also contains
evidence — entirely uncontroverted by Tuttle — that the
alternative recruitment methods identified by Tuttle could not
have been used to fill the supervisory position that Tuttle
desired. Moreover, the record is absolutely bereft of evidence
tending to show that RESUMIX was used in this instance for the
purpose of eliminating Tuttle from contention.
In sum, Tuttle has propounded no evidence suggesting
either that non-RESUMIX recruitment methods were available to
fill the supervisory position or that the Appellee’s use of the
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concededly-age-neutral RESUMIX system was somehow linked to
antagonism stemming from his first EEOC complaint. Price, 380
F.3d at 212. Accordingly, we affirm the judgment of the
district court. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
material before the court and argument will not aid the
decisional process.
AFFIRMED
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