                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-1300


ADESINA A. MERCER,

                Plaintiff - Appellant,

          v.

THE ARC OF PRINCE GEORGES COUNTY, INC.,

                Defendant - Appellee.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.    Deborah K. Chasanow, Chief District
Judge. (8:12-cv-00306-DKC)


Submitted:   July 1, 2013                 Decided:   July 11, 2013


Before DUNCAN, AGEE, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Kevin M. Plessner, LAW OFFICE OF KEVIN M. PLESSNER, Linthicum,
Maryland, for Appellant.     John S. Vander Woude, Eric M.
Rigatuso, ECCLESTON & WOLF, P.C., Hanover, Maryland, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Adesina A. Mercer appeals the district court’s grant of

summary       judgment    to    her    former       employer,       The    Arc    of    Prince

George’s County, Inc., (hereinafter “The Arc”), on her claims

for interference and retaliation, in violation of The Family and

Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. §§ 2601 et seq.

For the reasons set forth below, we affirm.



                                              I.

       The Arc is a private non-profit organization in Maryland

that     provides        programs       and    services        to    individuals         with

developmental disabilities.                 The Arc employed Mercer as a full-

time Finance and Benefits Coordinator in July 2004, a position

she held until The Arc terminated her employment in March 2011.

Mercer’s       job    responsibilities              included    “applying          for     and

processing       initial       applications         for   benefits        for    [The    Arc’s

clients] under the Food Stamp Program and Social Security,” as

well     as     “apply[ing]           for     and     process[ing]          renewals       and

redeterminations for benefits under these programs.”                              (J.A. 15-

16.)

       In     May    2007,      The     Arc    placed       Mercer        on     conditional

employment       status      due      to    poor     work    performance          and    time

management.          It returned her to regular status the following

month.

                                               2
       While Mercer was on medical leave in the spring of 2009,

Mercer’s       co-workers        performed       her     responsibilities               and

discovered that many of The Arc’s food-stamp-eligible clients

were   no    longer     receiving      benefits.       When    Mercer        returned    to

work, she was instructed to ensure that the necessary paperwork

was submitted to renew those clients’ benefits.

       In October 2010, The Arc performed Mercer’s annual review.

She received marks indicating “satisfactory” performance – twos

on a four-point scale – on thirteen of the fourteen categories,

and “above average” (a 3) on one category.                         (J.A. 35-36.)         In

November     and   December      2010,    The   Arc    again    learned        that   some

food-stamp-eligible           clients    were    no    longer       receiving         those

benefits.      Mercer was given a list of each of those clients and

was    instructed       to    pursue     reinstatement        of    those      benefits.

Mercer describes this correspondence as “routine communications

that are not reprimands” due to clients’ benefits frequently

lapsing for brief periods while the requisite documentation was

being compiled.        (J.A. 33.)

       In    January    2011,    Mercer    was     involved        in   an    automobile

accident that left her severely injured and unable to work.                             She

took FMLA leave from January 31 until February 22.                       While Mercer

was     on     leave,        Mercer’s     co-workers          performed        her      job

responsibilities.            In the process of doing so, they discovered

and told supervisors at The Arc that many more eligible clients

                                           3
were no longer receiving benefits due to Mercer’s failure to

submit     renewal   or       redetermination     requests   over    an     extended

period of time prior to her taking FMLA leave.

       When   Mercer      returned    to   work    on   February     22,    she    was

immediately       placed         on   administrative         leave         “due     to

unsatisfactory job performance and incomplete paperwork” while

The Arc performed further investigation into the problem.                         (J.A.

28.)       At the end of the five-day administrative leave period,

Mercer took additional FMLA leave to March 14.

       During the course of The Arc’s investigation, it determined

that Mercer “had grossly deviated from her job’s requirements by

failing to obtain and maintain Food Stamp benefits for 99 of the

160 [eligible clients of The Arc].”                 (J.A. 17.)       On March 23,

2011, The Arc notified Mercer by letter that it was terminating

her employment “due to unsatisfactory job performance” and that

she was “considered not in good standing and [was] ineligible

for rehire.” 1    (J.A. 31.)

       Mercer    filed    a    complaint   in     the   United   States     District

Court for the District of Maryland alleging that the termination


       1
       Mercer contends she received this letter while still on
FMLA leave.   The record only indicates that she requested FMLA
leave through March 14.   It is not clear whether she was still
on leave at this time or not, but for purposes of our review on
summary judgment, we will assume she was still on FMLA leave at
the time of her termination of employment.



                                           4
of    her   employment     constituted       unlawful      interference        with    and

retaliation against the exercise of her rights under the FMLA. 2

She    sought,   inter     alia,       declaratory      and       injunctive    relief,

including     reinstatement          and   damages    for     back    pay   and       lost

benefits.

       The Arc moved to dismiss for failure to state a claim, or,

in the alternative, for summary judgment.                   The record before the

court included Mercer’s job description from when she was hired

in 2004, several documents relating to job performance including

Mercer’s     October     2010    performance         review,       documents        Mercer

submitted for purposes of taking FMLA leave, the February 2011

letter placing Mercer on administrative leave, and the March

2011 letter terminating Mercer’s employment.                         Each party also

submitted one affidavit.               The Arc’s Human Resources Director,

Audrey Weaver, described Mercer’s employment with The Arc, her

FMLA leave, The Arc’s discovery of “unopened and unprocessed

redeterminations discovered in [Mercer’s] office,” the decision

to place her on administrative leave pending an investigation,

the    conclusions       The    Arc        reached    as      a    result      of     that

investigation,       and       the      decision      to      terminate        Mercer’s

employment.      (J.A. 15-18.)             Mercer’s affidavit described her

       2
        The complaint also alleged retaliatory discharge in
violation of state public policy, but Mercer voluntarily
dismissed that claim.



                                            5
taking FMLA leave, stated that she had “always received positive

performance evaluations,” denied that she failed to perform her

job    adequately,       explained      why       she   was    not    responsible       for

“routine   .    .    .   lapse[s]       in    [clients]       receiving       Food     Stamp

benefits,”     and   stated      that    she      had   not    been    told    about    the

specific reasons why she was placed on administrative leave and

then fired until after the decisions had been made.                             (J.A. 32-

34.)

       The district court granted The Arc’s motion for summary

judgment on both FMLA claims.                     The court concluded that the

undisputed evidence showed that Mercer was entitled to take FMLA

leave    and   also       that    she        “failed     to     perform       her     duties

satisfactorily before she took that leave.”                          (J.A. 47.)       Thus,

because Mercer would not have been entitled to keep her job even

had she not taken FMLA leave, she could not show that The Arc

interfered     with       her    FMLA        rights.          Turning     to        Mercer’s

retaliation     claim,     the    district         court      concluded   that       Mercer

failed to establish that The Arc’s proffered explanation for her

termination of employment was pretext for FMLA retaliation.

       Mercer noted a timely appeal and we have jurisdiction under

28 U.S.C. § 1291.




                                              6
                                           II.

     We review the district court’s grant of summary judgment de

novo.      Summary judgment is appropriate if, viewing the facts in

the light most favorable to the non-moving party, “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. Pro.

56(a); Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en

banc). 3       Accordingly,        we    view    “all   facts     and       reasonable

inferences in the light most favorable to” Mercer, Purnell, 652

F.3d at 531, in order to determine “whether a fair-minded jury

could      return    a   verdict    for    the   plaintiff      on    the    evidence

presented.          The mere existence of a scintilla of evidence in


     3
        Throughout her opening brief, Mercer challenges the
district court’s judgment by referring to legal principles
applicable to a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6).    While The Arc moved for both dismissal
under Rule 12(b)(6) and for summary judgment, the district court
ruled on and decided this case solely on The Arc’s motion for
summary judgment.    Accordingly, the principles applicable to
Rule 12(b)(6) motions, including the “plausibility” of Mercer’s
claims applying the analysis of Ashcroft v. Iqbal, 556 U.S. 662
(2009), and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), are
irrelevant   to   determining   whether   the   district   court
appropriately granted The Arc summary judgment.    Similarly, we
apply the standards applicable to summary judgment and rely not
on the allegations in the complaint but on the materials in the
record, viewed in the light most favorable to Mercer. See Fed.
R. Civ. Pro. 56(c); Lujan v. Defenders of Wildlife, 504 U.S.
555, 561 (1992) (discussing difference between motion to dismiss
analysis and summary judgment analysis); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248-55 (1986) (discussing summary
judgment analysis).



                                            7
support of [Mercer’s] position will be insufficient; there must

be evidence on which the jury could reasonably find for [her].”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).



                                             III.

     Mercer     raises      three       central       arguments          in     this    appeal.

First,   that       the    district          court     erred        in        dismissing       her

interference       claim    because      a     genuine       issue       of    material       fact

exists as to whether she was entitled to reinstatement upon her

return from FMLA leave.             Second, that the district court erred

in dismissing her retaliation claim because a genuine issue of

material fact exists with respect to whether The Arc’s proffered

explanation for its decision was pretext for terminating her

employment    due    to    taking       FMLA       leave.         And,    third,       that    the

district court erred in dismissing Mercer’s complaint prior to

affording her the opportunity to conduct discovery.                                We address

each argument in turn.



                                              A.

     The FMLA allows certain employees to take “12 work weeks of

leave”   during      a    twelve-month         period       for    a     qualifying      health

condition     that       makes    the    employee           “unable       to     perform       the

functions    of”     her   job.         29   U.S.C.      §    2612(a)(1)(D).              It    is

“unlawful for any employer to interfere with, restrain, or deny

                                               8
the exercise of or the attempt to exercise, any right provided

under” the FMLA, 29 U.S.C. § 2615, and an employee has a cause

of action against her employer under § 2617 when she can prove

the employer interfered with her exercise of FMLA rights and

caused prejudice thereby.          Ragsdale v. Wolverine World Wide,

Inc., 535 U.S. 81, 89 (2002).                However, “the FMLA does not

require an employee to be restored to his prior job after FMLA

leave if he would have been discharged had he not taken leave.”

Yashenko v. Harrah’s NC Casino Co., LLC, 446 F.3d 541, 547 (4th

Cir. 2006) (citing 29 C.F.R. § 825.216(a) (“An employee has no

greater right to reinstatement . . . than if the employee had

been continuously employed during the FMLA leave period.”)).

       Mercer contends the district court erred in dismissing her

FMLA interference claim because a genuine issue of material fact

exists as to whether she would have been terminated from her

employment if she had not taken FMLA leave.                In support of her

argument, Mercer points to her favorable performance reviews up

to    and   including   in    October   2010;     she   questions   The   Arc’s

affiant Audrey Weaver’s knowledge of her employment history and

job   performance;      she   describes     her   job   responsibilities   and

asserts that she adequately performed her work; she explains why

occasional lapses in clients’ benefits were “routine,” and not

attributable to poor performance on her part; and she contends



                                        9
she did not learn the specific grounds for The Arc’s decision

until well after she was notified her employment was terminated.

      Mercer’s arguments lack support in the record.                         As noted,

being on FMLA leave does not provide an employee any greater

rights than he or she would have had without taking leave, and

an employee’s right to reinstatement is not absolute.                           Id. at

549; 29 C.F.R. § 825.216(a).                    An employer has discretion to

discipline or terminate the employment of an at-will employee

for poor performance regardless of whether the employer’s reason

for terminating the employment was discovered while the employee

is taking FMLA leave.            See e.g., Yashenko, 446 F.3d at 549-50

(holding that an employer does not interfere with the exercise

of FMLA rights where it reorganizes during an employee’s leave

and     eliminates      that     employee’s       position        as    a   result   of

legitimate     non-FMLA        leave    concerns);     Laing       v.    Fed.   Express

Corp., 703 F.3d 713, 723-24 (4th Cir. 2013) (“[T]he FMLA does

not     preclude   an    employer        from    placing     an    employee     on   an

investigatory suspension upon her return from                          [FMLA] leave if

it would have taken the same action had the employee never taken

leave in the first place.”); Kariotis v. Navistar Int’l Transp.

Corp., 131 F.3d 672, 680-81 (7th Cir. 1997) (holding that an

employer does not interfere with the exercise of FMLA rights

where    it   terminates        an     employee’s    employment         based   on   the

employer’s honest belief that the employee is not taking FMLA

                                           10
for an approved purpose); see also Throneberry v. McGehee Desha

Cnty. Hosp., 403 F.3d 972, 977 (8th Cir. 2005) (“The FMLA simply

does not force an employer to retain an employee on FMLA leave

when the employer would not have retained the employee had the

employee      not     been    on     FMLA    leave.”).              While     Mercer’s      poor

performance may not have been known to The Arc absent her FMLA

leave period, we agree with the Seventh Circuit that “[t]he fact

that the leave permitted the employer to discover the problems

[with an employee’s performance] can not logically be a bar to

the employer’s ability to fire the deficient employee.”                                    Kohls

v.   Beverly      Enters.     Wis.,       Inc.,       259    F.3d   799,      806   (7th    Cir.

2001). 4      Thus,    the        fact    that    Mercer      had    previously       received

satisfactory         performance         reviews       does    not      negate      The    Arc’s

ability      to     terminate       her    employment         upon      the    discovery     of

previously unknown poor performance.                        This is so even if The Arc

discovered the basis for terminating Mercer’s employment while

she was on FMLA leave.

      None     of    Mercer’s       contentions         create      a   genuine      issue    of

material     fact     as     to    the    reason       why    The    Arc      terminated     her

employment.         The Arc has provided evidence that it would have

      4
       We have not yet held which party bears the burden of proof
in an FMLA interference claim; however, once again we need not
resolve that issue here because, regardless of who bears the
burden, Mercer’s claim cannot succeed.    See Yashenko, 446 F.3d
at 549 (discussing circuit split on this issue).



                                                 11
terminated Mercer for poor performance regardless of her FMLA

leave, and Mercer has not presented evidence that would allow a

jury to conclude otherwise.                 See Lujan v. Nat’l Wildlife Fed’n,

497 U.S. 871, 888 (1990) (“In ruling upon a Rule 56 motion, a

District Court must resolve any factual issues of controversy in

favor of the non-moving party only in the sense that, where the

facts       specifically      averred       by    that     party   contradict       facts

specifically averred by the movant, the motion must be denied.

That    is    a    world    apart    from    assuming       that   general   averments

embrace      the    specific    facts       needed    to     sustain   the   complaint.

[Rule 56] provides that judgment shall be entered against the

nonmoving party unless affidavits or other evidence set forth

specific facts showing that there is a genuine issue for trial.

The object of [Rule 56] is not to replace conclusory allegations

of the complaint or answer with conclusory allegations of an

affidavit.”)        (internal       quotation        marks     omitted).       Mercer’s

primary basis for connecting the termination of her employment

to her FMLA leave is its timing.                     While timing is a relevant

factor, it will rarely be independently sufficient to create a

triable issue of fact.              See Simpson v. Office of the Chief Judge

of the Cir. Ct., 559 F.3d 706, 713 (7th Cir. 2009) (“Temporal

proximity between an adverse employment action and a plaintiff’s

exercise of her statutory rights will rarely be sufficient in

and    of    itself    to    create     a    triable       issue.”).       Mercer   also

                                             12
speculates    that       The    Arc’s    proffered     reason      is   not   the    real

reason it terminated her employment, offering her own view that

her performance was adequate and explaining that she was not

responsible for any lapses in clients’ benefits that occurred.

However, Mercer’s subjective view of her job performance is not

sufficient to survive summary judgment.                   As we have often held,

a

     nonmoving party cannot create a genuine issue of
     material fact through mere speculation or the building
     of one inference upon another.    Rather, a nonmoving
     party must produce some evidence (more than a
     “scintilla”) upon which a jury could properly find a
     verdict for the party producing it, upon whom the onus
     of proof is imposed.

Othentec    Ltd.    v.    Phelan,       526   F.3d    135,   140   (4th    Cir.     2008)

(internal    citation          and   quotation       marks    omitted);       see    also

Dockins v. Benchmark Commc’ns, 176 F.3d 745, 749 (4th Cir. 1999)

(“[A] plaintiff’s own assertions of discrimination in and of

themselves are insufficient to counter substantial evidence of

legitimate     nondiscriminatory                reasons      for    a     discharge.”)

(internal quotation marks omitted).                  The district court thus did

not err in granting The Arc summary judgment on Mercer’s FMLA

interference claim.



                                              B.

     Turning       to    Mercer’s        FMLA      retaliation     claim,     we    have

previously recognized that because such claims are analogous to

                                              13
Title VII retaliation claims, they can be analyzed under the

burden-shifting framework of McDonnell Douglas Corp. v. Green,

411 U.S. 792, 800-06 (1973).                     Nichols v. Ashland Hosp. Corp.,

251 F.3d 496, 502 (4th Cir. 1998).                       Mercer bears the burden of

making a prima facie showing “that [s]he engaged in protected

activity, that [Mercer] took adverse action against [her], and

that    the     adverse         action     was       causally      connected        to       [her]

protected activity.”              Cline v. Wal-Mart Stores, Inc., 144 F.3d

294,   301     (4th      Cir.    1998).        If      she   makes      this    prima        facie

showing,      then       The   Arc    bears      the    burden     of    offering        a    non-

discriminatory           explanation          for      its    decision         to    terminate

Mercer’s employment, and thereafter the burden would return to

Mercer to show that The Arc’s “proffered explanation is pretext

for FMLA retaliation.”               Nichols, 251 F.3d at 502.

       Here, Mercer made a prima facie showing because she took

FMLA   leave        (a    protected       activity),         The   Arc    terminated           her

employment (the adverse action), and – given the less onerous

burden of making the prima facie case – the closeness in time

between       the    two       events     demonstrates          the     requisite          causal

connection between the two events.                       See Yashenko, 447 F.3d at

551    (“While       evidence        as   to        closeness      in    time       ‘far      from

conclusively         establishes        the    requisite        causal    connection,           it

certainly satisfies the less onerous burden of making a prima

facie case of causality.’”).

                                               14
       The district court held that The Arc “presented undisputed

evidence     that       it    fired    [Mercer]        for    her    unsatisfactory         work

performance,” and that Mercer had “not satisfied her burden to

establish that [The Arc’s] proffered explanation is pretext for

FMLA    retaliation.”                 (J.A.       48     (internal       quotation          marks

omitted).)           Mercer        challenges          that    conclusion        on    several

grounds.

       At   the    outset,         Mercer     contends        that   the     district       court

erred by “not consider[ing] or even mention[ing] any of” her

evidence    contradicting             The   Arc’s       allegations        as   to    her    poor

performance.         (Appellant’s Opening Br. 38.)                         On this factual

point Mercer is simply incorrect.                       The district court’s opinion

delineates the proper standard of review for summary judgment,

recites the largely uncontested facts in Mercer’s favor, and it

expressly quotes and cites Mercer’s affidavit as part of its

analysis.         (E.g., J.A. 43, 45.)                   There is no basis on this

record to believe the district court ignored Mercer’s evidence

in deciding the case.

       Next,    Mercer        contends      that       the    district       court    erred   in

concluding        she        had    not     demonstrated           pretext      because       she

“presented evidence that raised beyond a level of speculation

the likelihood that [The Arc’s] stated reasons for terminating

[Mercer]       was      a     pretext       for        FMLA    .     .   .      retaliation.”

(Appellant’s Opening Br. 53.)                      As support, she points to the

                                               15
timing of her leave and the termination of her employment, her

prior satisfactory performance reviews, purported shifts in The

Arc’s explanation for why it was terminating her employment, and

her own assessment that she adequately performed her job and was

not responsible for any lapses in clients’ benefits.

      Mercer    has    failed      to   show        the   district     court    erred   in

holding that she had not demonstrated pretext.                         As discussed in

the context of Mercer’s interference claim, while timing is a

factor   in    assessing        whether        an     employer’s       explanation      is

pretextual, it is not usually independently sufficient to create

a   triable    issue     of    fact.      See        Simpson,    559    F.3d     at    713.

Similarly,      the      fact      that        Mercer       received      satisfactory

performance reviews prior to her FMLA leave is not sufficient to

create a genuine issue of material fact in this case.                            The Arc

points   to    evidence       it    learned         after    Mercer’s     most     recent

performance     review    as    the     performance-related            reason    for    its

decision to terminate her employment.                       The Arc’s assessment of

her performance prior to it learning this new information does

not   call     into     question        the        legitimacy    of     its     proffered

explanation.

      Nor can Mercer demonstrate the inference of pretext arising

from “shifting justifications” given for The Arc’s decision to

terminate her employment.               This Court has recognized that an

employer’s     giving    different       justifications         at     different      times

                                              16
was probative of pretext, particularly where those reasons were

“arguably     inconsistent      explanations”          “developed       over    time    to

counter the evidence suggesting discrimination.”                          E.E.O.C. v.

Sears Roebuck & Co., 243 F.3d 846, 853 (4th Cir. 2001).                         But the

record does not support such an inference in this case.                           While

the words used have varied and the examples given have become

more   specific    than    Mercer’s         initial      temporary      administrative

leave letter, the reason The Arc has provided from that point to

her termination of employment letter through litigation has been

consistent.       On February 22, 2011, The Arc placed Mercer on

administrative leave “due to unsatisfactory job performance and

incomplete paperwork.”           (J.A. 28.)           The March 23, 2011 letter

terminating      Mercer’s       employment         cited     “unsatisfactory           job

performance.”        (J.A.      31.)        And    The     Arc’s    human      resources

director      provided    an    affidavit        accompanying       the   motion       for

summary judgment alleging in greater detail the basis for its

investigation into Mercer’s job performance and its conclusion

that she “had grossly deviated from her job’s requirements by

failing to obtain and maintain Food Stamp benefits for 99 of the

160 [clients] in [The Arc’s] program.”                    (J.A. 17.)      This record

does    not    support    Mercer’s      contention         that    an   inference       of

pretext can be drawn in this case.

       Lastly,   Mercer    points      to    her   own     assessment     of    her    job

performance,      what    The   Arc’s       legitimate       expectations       of     her

                                            17
should have been, and the nature of renewing client benefits as

reasons why the Court should view The Arc’s proffered rationale

for its decision to terminate her employment as pretext.                                 In

reviewing     whether    an     employer’s        decision         is    unlawful,      the

Court’s     task    is   not    “to      decide     whether        the    reason       [for

termination    of    employment]         was    wise,   fair,      or    even    correct,

ultimately,    so    long      as   it    truly     was      the    reason      for    [the

decision].”        Laing, 703 F.3d at 722 (internal quotation marks

omitted).     On this point, Mercer’s affidavit does no more than

demonstrate “the unexceptional fact that she disagrees with the

outcome of [The Arc’s] investigation.”                    Id.      It does not prove

that The Arc’s investigation or proffered reason for deciding to

terminate her employment was not the real reason for its action.

See   id.     Consequently,         Mercer’s     evidence       does     not    create    a

genuine issue of material fact as to whether The Arc’s proffered

explanation for terminating her employment was merely pretext

for retaliation.



                                           C.

      The   final    issue     Mercer      raises       on   appeal       is    that   the

district court erred in dismissing her claims before she had the

opportunity to conduct discovery.                 She asserts that because she

“alleged sufficient facts to support her claims [she] should be

allowed the opportunity to conduct discovery in order to test

                                           18
the veracity of [the witness’s] statements and to investigate

all of the facts of this case.”        (Appellant’s Opening Br. 55.)

     Mercer   is   correct    that     summary     judgment   is   generally

“appropriate only after adequate time for discovery.”              Evans v.

Technologies Applications & Serv. Co., 80 F.3d 954, 961 (4th

Cir. 1996).    We have previously indicated that we “place great

weight on the [Federal Rule of Civil Procedure] Rule [56(d)]

affidavit, believing that a party may not simply assert in its

brief that discovery was necessary and thereby overturn summary

judgment when it failed to comply with the requirements of Rule

[56(d)] to set out reasons for the need for discovery in an

affidavit.”    Id. at 961 (internal quotations marks omitted). 5

The district court record shows that Mercer failed to file an

affidavit   pursuant   to   Federal    Rule   of   Civil   Procedure   56(d)

providing specific reasons why discovery was necessary in order

to adequately oppose The Arc’s motion for summary judgment.             And

while Mercer’s memorandum opposing summary judgment devoted the

equivalent of one page asserting that more discovery was needed


     5
       Former Federal Rule of Civil Procedure 56(f) is now
located at Federal Rule of Civil Procedure 56(d). The provision
states 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.”



                                      19
prior to the Court deciding the case, it failed to identify any

information that she believed would be adduced at discovery.

Far   from   providing      any   “specific    reasons”      why   discovery    was

necessary, the memorandum simply sought to “investigate all of

the facts of this case” before the district court ruled on The

Arc’s motions.       (Dist. Ct. Docket No. 4, p. 20.)                 As in Evans,

this minimal “effort is insufficient to compel denial of [The

Arc’s] summary judgment motion.”              80 F.3d at 961.         The district

court thus did not err in ruling on the summary judgment motion

prior to discovery.



                                        IV.

      For the aforementioned reasons, we affirm the judgment of

the district court granting summary judgment to The Arc.                         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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