                              UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

                                         4
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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