                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 12-2116


DAVID BRANDFORD,

                Plaintiff - Appellant,

          v.

SHANNON-BAUM SIGNS, INC.,

                Defendant - Appellee.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Richard D. Bennett, District Judge.
(1:11-cv-00836-RDB)


Submitted:   February 14, 2013             Decided:   April 4, 2013


Before DAVIS, WYNN, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Charles G. Byrd, Jr., ALSTON & BYRD, Baltimore, Maryland, for
Appellant.    Julie Glass Martin-Korb, Rockville, Maryland;
Patricia L. Payne, PAYNE & ASSOCIATES, LTD, Washington, D.C.,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            David   Brandford         appeals        the    district       court’s   order

dismissing     without        prejudice        his     employment          discrimination

complaint against his former employer, Shannon-Baum Signs, Inc.,

(“Defendant”).           On      appeal,       Brandford          contends       that     he

established a prima facie case that Defendant discriminated and

retaliated     against     him    in    violation          of    the   Americans        with

Disabilities     Act     of    1990    (“ADA”),        as       amended,    42   U.S.C.A.

§§ 12101-12213 (West 2005 & Supp. 2012), the Age Discrimination

in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621-634 (2006),

and Title VII of the Civil Rights Act of 1964 (“Title VII”), as

amended, 42 U.S.C.A. §§ 2000e to 2000e-17 (West 2003 & Supp.

2012).     For the reasons below, we affirm the district court’s

order. 1

            We review de novo a district court’s grant of summary

judgment, “viewing the facts and the reasonable inferences drawn

therefore in the light most favorable to the nonmoving party.” 2


     1
       We conclude that, despite the district court’s dismissal
without prejudice, the order was final and we have jurisdiction
over Brandford’s appeal. See Chao v. Rivendell Woods, Inc., 415
F.3d 342, 345 (4th Cir. 2005) (finding that order dismissing
entire action without prejudice is generally final).
     2
       Although the district court repeatedly referred to Fed. R.
Civ. P. 12(b)(6) in dismissing Brandford’s complaint, we
conclude that the court “effectively, if not formally, treated”
Defendant’s motion as one for summary judgment. George v. Kay,
632 F.2d 1103, 1106 (4th Cir. 1980).    We further conclude that
(Continued)
                                           2
Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008); see also

Anderson      v.   Liberty     Lobby,     Inc.,     477    U.S.    242,   255   (1986).

Summary judgment is proper “if the movant shows that 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).      If the moving party sufficiently supports its motion for

summary      judgment,      the    nonmoving      party   must     demonstrate    “that

there are genuine issues of material fact.”                       Emmett, 532 F.3d at

297.       “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).

              Where,     as    here,      there    is     no   direct     evidence     of

discrimination,        “a     plaintiff    may     proceed     under    the   McDonnell

Douglas[ 3] ‘pretext’ framework, under which the employee, after




the district court did not err in doing so. See Fed. R. Civ. P.
61; Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 261
(4th Cir. 1998) (finding that, under circumstances, district
court did not err in treating defendant’s motion as one for
summary judgment without notifying parties of its intent);
Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 961 (4th
Cir. 1996) (“[T]he nonmoving party cannot complain that summary
judgment was granted without discovery unless that party had
made an attempt to oppose the motion on the grounds that more
time was needed for discovery or moved for a continuance to
permit discovery before the district court ruled.”).
       3
           McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).



                                            3
establishing a prima facie case of discrimination, demonstrates

that the employer’s proffered permissible reason for taking an

adverse     employment        action        is    actually        a     pretext        for

discrimination.”         Diamond v. Colonial Life & Accident Ins. Co.,

416 F.3d 310, 318 (4th Cir. 2005) (internal quotation marks and

brackets omitted). It is well established that, even under the

McDonnell Douglas burden-shifting scheme, the ultimate burden of

persuasion remains on the plaintiff at all times.                      Tex. Dep’t of

Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).

            First, we conclude that Brandford failed to exhaust

his administrative remedies with respect to his ADEA claims.

“Before a plaintiff may file suit under . . . the ADEA, he is

required   to    file    a   charge    of    discrimination       with    the    [Equal

Employment Opportunity Commission (“EEOC”)].”                     Jones v. Calvert

Group, Ltd., 551 F.3d 297, 300 (4th Cir. 2009).                       “[A] failure by

the plaintiff to exhaust administrative remedies concerning [an

ADEA]    claim     deprives    the    federal      courts    of       subject    matter

jurisdiction over the claim.”               Id.   “[E]ntitlement to[] a right-

to-sue    letter    is   a   jurisdictional        prerequisite        that     must   be

alleged in a plaintiff’s complaint.”                  Davis v. N.C. Dep’t of

Corr., 48 F.3d 134, 140 (4th Cir. 1995).

            Here, although Brandford alleged that the EEOC issued

him a right-to-sue letter, he admitted that the EEOC considered

and made a determination only on his disability discrimination

                                            4
claims and not his age discrimination claims.                      Thus, we conclude

that Brandford’s failure to demonstrate that he was entitled to

a right-to-sue letter on his ADEA claims deprived the district

court of jurisdiction over those claims.

               Turning      to    Brandford’s         claims      of     discriminatory

discharge       under     the     ADA   and       hostile   work       environment,      we

conclude that he failed to demonstrate the requisite prima facie

case of discrimination.              See Haulbrook v. Michelin N. Am., 252

F.3d 696, 702 (4th Cir. 2001) (providing elements of prima facie

case of discriminatory discharge under ADA); Pueschel v. Peters,

577 F.3d 558, 565 (4th Cir. 2009) (providing elements of prima

facie    case     of    hostile    work   environment);         Harris     v.    Forklift

Sys., Inc., 510 U.S. 17, 21-23 (1993) (explaining that courts

must    look     to    totality    of   circumstances        to    determine      whether

conduct     is        subjectively      and       objectively     hostile).         Thus,

Defendant was entitled to summary judgment on these claims.

               Likewise,     we    conclude        that   Brandford     has     failed   to

demonstrate a prima facie case of retaliation under either the

ADA or Title VII.           See A Soc’y Without A Name v. Virginia, 655

F.3d 342, 350 (4th Cir. 2011) (providing elements of prima facie

case of retaliation under ADA); Coleman v. Md. Court of Appeals,

626 F.3d 187, 190 (4th Cir. 2011) (providing elements of prima

facie case of retaliation under Title VII), cert. denied, 132 S.

Ct. 1960 (2012); see also Kubicko v. Ogden Logistics Servs., 181

                                              5
F.3d   544,   551   (4th   Cir.    1999)   (explaining      activities    that

qualify as opposition and participation activities).

           Accordingly,     we    affirm   the   district    court’s     order

dismissing    Brandford’s    complaint.          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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