                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 14-1229


LISA L. HARTMAN,

                Plaintiff – Appellant,

          v.

UNIVERSITY OF MARYLAND AT BALTIMORE,

                Defendant - Appellee.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     J. Frederick Motz, Senior District
Judge. (1:10-cv-02041-JFM)


Submitted:   October 31, 2014             Decided:   December 11, 2014


Before KEENAN, DIAZ, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


John H. Morris, Jr., Baltimore, Maryland, for Appellant.
Douglas F. Gansler, Attorney General of Maryland, Paul D.
Raschke, Assistant Attorney General, Baltimore, Maryland, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Lisa     L.     Hartman     appeals          from    the   district        court’s

grant of summary judgment exercising supplemental jurisdiction

and denying Hartman’s state-law-based age discrimination claim

and   other      claims,       including           a      separate        claim      of      age

discrimination under the Age Discrimination and Employment Act

(ADEA).      Hartman      argues      that     the       district      court    abused       its

discretion      in   exercising       supplemental              jurisdiction       over      her

state law age discrimination claim, made under the Maryland Fair

Employment      Practices     Act,      Md.       Code    Ann.,     State      Gov’t    §    20-

606(a)(1)(i) (FEPA).          She contends also that in considering her

claim,    the   district      court      did       not    ascertain       the     applicable

Maryland state law and apply it to her claim.                                   She further

asserts that she presented sufficient evidence for her state

claim to survive summary judgment.                   Finding no error, we affirm.

            We review a district court’s grant of summary judgment

de novo, viewing the facts and drawing reasonable inferences in

the light most favorable to the nonmoving party.                                 Halpern v.

Wake Forest Univ. Health Scis., 669 F.3d 454, 460 (4th Cir.

2012).     Summary        judgment      is    appropriate          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).    “At the summary judgment stage, facts must be viewed in

the light most favorable to the nonmoving party only if there is

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a genuine dispute as to those facts.”                    Scott v. Harris, 550 U.S.

372, 380 (2007) (internal quotation marks omitted).                           A district

court should grant summary judgment unless a reasonable jury

could return a verdict for the nonmoving party on the evidence

presented.        Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 249

(1986).      “Conclusory or speculative allegations do not suffice,

nor   does    a     mere    scintilla       of    evidence      in   support     of    [the

nonmoving party’s] case.”             Thompson v. Potomac Elec. Power Co.,

312   F.3d    645,    649    (4th    Cir.    2002)      (internal      quotation      marks

omitted).

              The    district       court    properly      exercised         jurisdiction

over the state law claim pursuant to 28 U.S.C. § 1367 (2012),

which provides that district courts may exercise supplemental

jurisdiction        over    state    law    claims      that    “are    so    related    to

claims in the action within such original jurisdiction that they

form part of the same case or controversy under Article III of

the United States Constitution.”                    28 U.S.C. § 1367(a).                The

state and federal claims “must derive from a common nucleus of

operative fact. . . . [I]f the plaintiff’s claims are such that

he would ordinarily be expected to try them all in one judicial

proceeding, then . . . there is power in federal courts to hear

the whole.”          Axel Johnson, Inc. v. Carroll Carolina Oil Co.,

Inc.,   145    F.3d    660,    662    (4th       Cir.   1998)    (internal      quotation

marks omitted).        Hartman contends that the district court abused

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its discretion in exercising jurisdiction over the FEPA claim

because the standard of what is required to support a claim for

age-related discrimination under FEPA is not the same as under

the ADEA, and the district court treated the claims as the same.

Hartman    contends       that      under     Maryland       law,    the     court   could

theoretically decide to apply the mixed-motive approach, which a

federal court is not permitted to consider in an ADEA claim.

See Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 173-74 (2009).

              The   district        court’s       exercise    of     discretion      as    to

whether to remand a case to state court involves consideration

of “principles of economy, fairness, convenience and comity.”

Carnegie-Mellon v. Cohill, 484 U.S. 343, 357 (1988).                           Here, the

federal and state claims were the subject of the same summary

judgment motion filed by the UMB, and they were decided at the

same   time    in   the      same   opinion       by   the   district      court.         The

district      court     correctly       concluded        that       considerations         of

judicial      economy     outweighed        any     concerns       about     comity,      and

proceeded to decide the state claim, which was properly before

it.    Given the posture of the case, and the issues to be decided

by the court, its retention of jurisdiction over Hartman’s claim

based on FEPA did not constitute an abuse of discretion.

              Hartman contends that the district court should have

remanded the state law claim because Maryland courts are not

“legally      bound     to     following          federal     case     law     construing

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application      of     the    ADEA,      including         relevant    Supreme      Court

authority.”          She argues that the district court’s failure “to

ascertain the extent to which Maryland law, construing § 20-606

in the context of age discrimination, embraced the federal case

law applying the ADEA” requires reversal.                      However, she fails to

demonstrate that the district court’s approach in this case was

inconsistent with Maryland law interpreting FEPA or that this

case presented any novel issues under FEPA.                           Hartman contends

that    the    court    should    have    applied       a   mixed-motive      theory    to

prove her case and that the court did not do so because it is

prohibited      by     federal    law.      See       Gross,    557    U.S.   at   175-78

(holding that ADEA does not permit mixed-motive discrimination

claims; rather, the plaintiff must prove that the employer would

not have taken the adverse action but for the protected ground).

However, a mixed-motive analysis only applies where there is

first some evidence that age discrimination played a role in

Hartman’s termination.

               The ADEA forbids an employer from taking an adverse

employment       action       against      an       employee     “because      of”      the

employee’s      age.      29     U.S.C.    §       623(a)(1).     Similarly,       it    is

unlawful under Maryland law for an employer to “fail or refuse

to     hire,    discharge,       or    otherwise       discriminate       against       any

individual with respect to the individual’s compensation, terms,

conditions, or privileges of employment because of . . . age.”

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Md. Code Ann., State Gov’t § 20-606(a)(1); see also Md. Code

Ann., State Gov’t § 20-601(d)(2) (defining “employer” to include

the State).             A plaintiff bringing a disparate-treatment suit

pursuant    to     the     ADEA     must      prove       that     age   was    not    merely   a

motivating factor of the challenged adverse employment action

but was in fact its “but-for” cause.                              Gross, 557 U.S. at 180;

see Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2523

(2013) (reaffirming Gross).                   To do so, the plaintiff may either

present     direct         evidence           of       the       employer’s     impermissible

motivation         or     proceed        under         the       familiar      burden-shifting

framework established in McDonnell Douglas Corp. v. Green, 411

U.S.   792,    802-07          (1973).          See      Reeves v.       Sanderson      Plumbing

Prods., Inc., 530 U.S. 133, 142 (2000) (assuming that McDonnell

Douglas    burden-shifting               framework           applies     to    ADEA     claims);

Mereish v. Walker, 359 F.3d 330, 334 (4th Cir. 2004) (applying

McDonnell Douglas framework to ADEA claims).                              In the absence of

direct     evidence            of   discrimination,               “Maryland      Courts    have

traditionally           held    that     in   employment          discrimination        actions,

parties    must         engage      in    the      . .       .   burden-shifting       paradigm

described by the . . . Supreme Court in McDonnell Douglas.”

Dobkin v. Univ. of Baltimore Sch. of Law, 63 A.3d 692, 699-700

(Md. Ct. Spec. App. 2013) (citing cases).

              To        prevail      under         the       burden-shifting          framework,

Hartman must show that: (1) she is “a member of a protected

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class”—that is, forty years or older; (2) she “suffered adverse

employment action;” (3) she “was performing her job duties at a

level that met her employer’s legitimate expectations at the

time   of    the    adverse   employment       action;   and     (4)    the    position

remained open” or she was replaced by a substantially younger

person.      Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d

277, 285 (4th Cir. 2004).

             With these standards in mind and after reviewing the

record,     we     conclude   that   the   district      court    did    not    err   in

granting summary judgment on Hartman’s FEPA age discrimination

claim.      We therefore affirm the judgment.             We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before this Court and argument would

not aid the decisional process.

                                                                               AFFIRMED




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