John Tuttle v. John McHugh, No. 10-2442 (4th Cir. 2011)
Annotate this CaseCourt Description: Unpublished opinion after submission on briefs: Affirmed
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-2442 JOHN W. TUTTLE, Plaintiff - Appellant, v. JOHN M. MCHUGH, Secretary, Department of the Army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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 2010). ADEA ), 29 U.S.C.A. (West 2008 & Supp. We affirm. Tuttle decision to first construe takes the Civil Procedure issue with Appellee s motion for summary judgment. of §§ 621-34 the motion district to court s dismiss as a In this respect, the Federal Rules 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. Civ. P. 12(d). Fed. R. 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, 2 so long as the parties have sufficient notice that the motion could be so construed. glance at the Laughlin, 149 F.3d at 261 ( A cursory 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. discovery 56(d) were suggests not that its inadequate. opportunities Laughlin, 149 for F.3d obtaining 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 3 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. Tuttle file a Rule 56(d) motion. Nor did Accordingly, we conclude that Tuttle had a reasonable opportunity to seek additional discovery but simply failed to avail himself of it. 242. in Nguyen, 44 F.3d at We therefore decline to hold that the district court erred 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 4 party must prevail as a matter of law. Lobby, Inc., 477 U.S. 242, 251-52 Anderson v. Liberty (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 Id. at 247- properly preclude the entry of summary judgment. 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, allegations, 649 (4th speculative Cir. 2002). scaffolding of Neither one conclusory inference upon another, nor the production of a mere scintilla of evidence in support of judgment. 1985). a nonmovant s case suffices to forestall summary Id.; Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 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 See EEOC v. Cent. Wholesalers, Inc., 573 F.3d 167, presented. 174-75 (4th Cir. 2009). To establish retaliation under that: he (1) the engaged a ADEA, prima in a facie plaintiff protected 5 case is of required activity; (2) an unlawful to show adverse 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). making a Protected charge of under discrimination Opportunity Commission. F.3d at 259. activity to the statute the Equal includes Employment See 29 U.S.C.A. § 623(d); Laughlin, 149 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., prima facie 61 F.3d 270, 274-75 (4th Cir. 1995). Once case, the the burden plaintiff shifts has to the established defendant his to put forth legitimate, nondiscriminatory reason for the action taken. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 a See (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 See Price v. Thompson, 380 F.3d only a pretext for retaliation. 209, 212 (4th Cir. 2004). The plaintiff s burden to establish pretext merges with his ultimate burden of persuasion, which remains with framework. the plaintiff throughout the McDonnell Douglas Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2348 (2009); Lettieri, 478 F.3d at 646-47. 6 In Specialist this employed discrimination case, by Tuttle, the complaint United with an Information States the EEOC Army, in Technology filed 2008, an and age 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. be Certainly, the record reflects that RESUMIX need not used in every instance. evidence entirely But uncontroverted the by record also Tuttle contains that the alternative recruitment methods identified by Tuttle could not have been desired. used to fill the supervisory position that Tuttle 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 7 concededly-age-neutral RESUMIX system was somehow antagonism stemming from his first EEOC complaint. F.3d at district facts 212. court. and material Accordingly, legal before We we dispense affirm with the oral are adequately the and argument court of the because the presented will to Price, 380 judgment argument contentions linked not in the aid the decisional process. AFFIRMED 8
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