                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 07-1511


WILLIAM J. TSAI,

                Plaintiff - Appellant,

           v.

MARYLAND AVIATION,

                Defendant - Appellee.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     William D. Quarles, Jr., District
Judge. (1:06-cv-01937-WDQ)


Argued:   October 31, 2008                 Decided:   December 31, 2008


Before NIEMEYER and AGEE, Circuit Judges, and Liam O’GRADY,
United States District Judge for the Eastern District of
Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Shannon Micah Salb, LIPPMAN & SEMSKER, P.L.L.C.,
Bethesda, Maryland, for Appellant.     William Clinton Lindsey,
MARYLAND AVIATION ADMINISTRATION, BWI Airport, Maryland, for
Appellee.   ON BRIEF: Gwenlynn W. D’Souza, Bethesda, Maryland,
for Appellant.      Douglas F. Gansler, Attorney General of
Maryland, Baltimore, Maryland; Louisa H. Goldstein, Assistant
Attorney General, MARYLAND AVIATION ADMINISTRATION, BWI Airport,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

       William     Tsai    brought          a    Title     VII    discrimination        suit

against      his   employer,      the           Maryland     Aviation    Administration

(MAA).       Mr. Tsai, a native of Burma, alleged that MAA refused to

reclassify his administrative position into a higher pay grade

for discriminatory and retaliatory reasons in violation of Title

VII.     MAA filed a motion captioned “motion to dismiss or in the

alternative for summary judgment” and attached exhibits.                                 Mr.

Tsai   responded       with   a   memorandum          and     additional      evidentiary

material.       After reviewing these materials, the district court

granted summary judgment for MAA.                     On appeal, Mr. Tsai asserts

that he lacked notice that the court would treat MAA’s motion as

one for summary judgment, and that the court erred in granting

that motion.       Because we conclude that Mr. Tsai had sufficient

notice and that summary judgment was warranted, we affirm.



                                  I.        Background.

       The     following      facts         are      drawn       from   the    pleadings,

affidavits and exhibits, and are characterized in the light most

favorable to Mr. Tsai as the non-moving party.                                Anderson v.

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

       William Tsai has worked as an engineer and administrator

for    MAA     since   1986.           He       is   currently      classified     as     an

Administrator II, Grade 17.                 MAA is a Maryland state agency that

                                                 3
owns    and      operates    Baltimore-Washington           International             Thurgood

Marshall Airport (BWI).

       On December 20, 2000, Mr. Tsai filed a complaint against

MAA    in   the    Circuit    Court      for     Howard    County,       Maryland,      which

alleged that MAA had retaliated against him for his prior filing

of    discrimination        charges.        Previously,          Tsai    had    filed       four

discrimination complaints with the Maryland Commission on Human

Relations (MCHR) and the Equal Employment Opportunity Commission

(EEOC), as well as approximately thirty grievances with MAA and

the Maryland Department of Transportation (MDOT).

       On May 6, 2002, MAA and Mr. Tsai agreed to settle all

claims, including the December 2000 lawsuit, the state agency

and EEOC charges, and the MDOT grievances.                          MAA agreed to pay

Tsai    $10,000,     raise    his     pay      grade,     and    transfer       him    to   the

Office      of     Maintenance      as      an     Administrator          II,     Chief      of

Electrical Projects, Utilities Division.                        In return, Tsai agreed

to dismiss all grievances and charges and dismiss his Howard

County Circuit Court lawsuit with prejudice.

       On October 10, 2003, Tsai sought and obtained the approval

of his supervisors to apply for reclassification to a higher pay

grade, from Grade 17 to Grade 19.                  JA 128-29.           In February 2004,

Rod Grimes, a classification officer for the MAA, performed a

Position Appraisal Method (“PAM”) analysis to determine whether

Tsai should be reclassified.                   JA 122-27.         Grimes referred the

                                               4
results of the PAM analysis to his supervisor, Diane Walker, in

a report that described Mr. Tsai's duties and responsibilities,

evaluated       Mr.     Tsai's    performance,        and       analyzed       Mr.     Tsai's

position under the PAM method.                   JA 120-127.           Mr. Tsai's point

level was 460 on the PAM scale, which fell near the lower end of

the 450-509 point range for his current Grade 17 classification.

JA 125.        On the basis of the PAM analysis, Mr. Grimes concluded

that     Mr.     Tsai's       position     was     appropriately         classified        as

Administrator II/Grade 17 and did not merit reclassification to

the higher level.           JA 125.

       On February 12, 2004, Ms. Walker sent a memorandum to Mr.

Tsai’s     immediate          supervisor    Hamad        Gazy    stating        that     “the

Classification and Compensation Section has completed the study

you    requested        and    concluded    that     the    position       is        properly

classified       at   its     current    class     and    grade.”         JA    120.       On

February 17, 2004, Mr. Tsai received notice of the results of

his application for reclassification.                      JA 120.         On March 22,

2004, he met with Ms. Walker to discuss the results of the

reclassification study.

       Once     again    dissatisfied,       on    December       1,    2004,    Mr.     Tsai

filed a charge with the EEOC.                    The EEOC issued him a right to

sue letter on November 30, 2005.                  On or about February 17, 2006,

Mr. Tsai filed a complaint against MAA in the Circuit Court for

Howard County, Maryland.              This complaint alleged national-origin

                                            5
discrimination and retaliation under Title VII.                             Specifically,

the complaint alleged that MAA refused to reclassify Mr. Tsai’s

position in retaliation for the prior discrimination claims he

had filed against MAA.              He also alleged that his national origin

was a determining factor in MAA’s decision not to reclassify his

position or give him a promotion.                     On July 27, 2006, MAA removed

the case to the United States District Court for the District of

Maryland.

        On December 8, 2006, before discovery, MAA brought a motion

captioned “Motion to Dismiss, or in the Alternative, Motion for

Summary Judgment,” and attached seven exhibits.                            MAA made three

arguments: (1) Mr. Tsai's charges of discrimination were barred

by the statute of limitations as untimely filed with the EEOC;

(2) Mr. Tsai's claims were res judicata due to the prior lawsuit

and settlement agreement; (3) Mr. Tsai had failed to state a

claim    for    discrimination           or     retaliation    under       Rule   12(b)(6).

Mr.     Tsai    filed        a     responsive        brief    entitled       “Plaintiff’s

Memorandum       of     Points           and     Authorities        In     Opposition    To

Defendant’s Motion to Dismiss or For Summary Judgment,” to which

he attached the entire EEOC record for his discrimination claim.

This exhibit contained the PAM Report prepared by Mr. Grimes.

        On   April    23,        2007,    the    district     court      granted    summary

judgment       for    MAA.        The     court      found   that    MAA    had    provided

evidence of a legitimate non-discriminatory reason for denial of

                                                 6
Mr.   Tsai’s    reclassification         request,      and       that   Mr.    Tsai    had

“failed to produce affirmative evidence of pretext to survive

summary judgment.”          JA 250.     The court reasoned that the multi-

factor PAM analysis used “only non-discriminatory criteria to

conclude that reclassification was not appropriate,” that MAA

had provided the PAM report to Mr. Tsai, and that “Tsai provided

no explanation why he believes the PAM analysis was incorrectly

performed,     nor    any    other    evidence    to       support      his   conclusory

allegation     that    the    PAM     Report    was    a    pretext      for    unlawful

discrimination.”        JA 250-51.       Mr. Tsai then filed a “Motion to

Set Aside Summary Judgment and to Open Discovery” pursuant to

Fed. R. Civ. P. 60(B)(6), which the district court denied on

June 7, 2007.



                                II.    Discussion.

A.     Standard of Review.

       Summary judgment is appropriate when “there is no genuine

issue of material fact and . . . the moving party is entitled to

judgment as a matter of law.”              Fed. R. Civ. P. 56(c); Clark v.

Alexander, 85 F.3d 146, 150 (4th Cir. 1996); see also Celotex

Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).                       Mere speculation

by    the   non-moving      party     “cannot    create      a    genuine      issue    of

material fact.”        Beale v. Hardy, 769 F.2d 213, 214 (4th Cir.

1985); see also Ash v. United Parcel Serv., Inc., 800 F.2d 409,

                                          7
411-12 (4th Cir. 1986).         Entry of summary judgment is mandated

Aagainst    a   party   who   fails   to   make   a   showing   sufficient   to

establish the existence of an element essential to that party=s

case, and on which that party will bear the burden of proof at

trial.@    Celotex, 477 U.S. at 322.         We review a grant of summary

judgment de novo, Higgins v. E.I. DuPont de Nemours & Co., 863

F.2d 1162, 1167 (4th Cir. 1988), and view the facts in the light

most favorable to the non-moving party.                 Anderson v. Liberty

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



B.   Mr. Tsai Was On Notice That MAA Sought Summary Judgment and

     Had a Reasonable Opportunity to Respond.

        Mr. Tsai’s principal contention is procedural.              He argues

that the district court violated Rule 12(b) of the Federal Rules

of Civil Procedure by failing to give him proper notice that it

would treat MAA’s motion as a motion for summary judgment.                   At

the time the court considered this motion, 1 Rule 12(b) provided

that:




     1
          Pursuant to the “stylistic” amendments to the Rules
made effective December 1, 2007, this provision has been
restated and relocated to subsection 12(d).    Rule 12(d) now
provides:

          If on a motion under 12(b)(6) or 12(c), matters
     outside of the pleadings are presented to and not
     excluded by the court, the motion must be treated as
     one for summary judgment under Rule 56.  All parties
                                       8
      If, on a motion asserting the defense numbered (6) to
      dismiss for failure of the pleading to state a claim
      upon which relief can be granted, matters outside the
      pleading are presented to and not excluded by the
      court, the motion shall be treated as one for summary
      judgment and disposed of as provided in Rule 56, and
      all parties shall be given reasonable opportunity to
      present all material made pertinent to such a motion .
      . . .

Fed. R. Civ. P. 12(b) (emphasis added).                Mr. Tsai claims that if

he had been aware that the court would treat MAA’s motion as a

motion for summary judgment, he would have presented additional

evidence in his opposition and/or requested additional discovery

pursuant to Rule 56(f).         See JA 265.         We hold that he had ample

notice and a reasonable opportunity to respond.

      This   Court      confronted    a    nearly     identical     situation   in

Laughlin v. Metropolitan Washington Airports Authority, 149 F.3d

253 (4th Cir. 1998).           The plaintiff Laughlin argued that the

district     court    abused    its       discretion    when   it     “converted”

defendant’s motion to dismiss into a Rule 56 motion for summary

judgment.     Id. at 260.      The defendant in Laughlin captioned its

pleading as a “Motion to Dismiss, or, in the alternative, Motion

for   Summary    Judgment,”     and       submitted     affidavits    and   other

materials    with    its   motion.        Plaintiff     Laughlin    submitted   an

opposition      brief      entitled       “Memorandum     in      Opposition    to


      must be given a reasonable opportunity to present all
      the material that is pertinent to the motion.

Fed. R. Civ. P. 12(d) (2008).

                                          9
Defendants’       Motion      to     Dismiss,       or    in    the    alternative,        for

Summary Judgment,” to which she attached supporting materials as

well.      We reasoned that “[o]n the basis of [Laughlin’s] own

actions-captioning           her     memorandum          and     filing      affidavits-it

appears that Laughlin had actual notice that the motion could be

disposed of as one for summary judgment.”                       Id. at 261.

       Likewise here, MAA captioned its motion as a “Motion to

Dismiss, or in the Alternative, Motion for Summary Judgment,”

and attached seven exhibits.                   Mr. Tsai captioned his opposition

“Plaintiff’s Memorandum of Points and Authorities In Opposition

To   Defendant’s          Motion    to    Dismiss        or    For    Summary      Judgment,”

(emphasis added), and attached the EEOC record as an exhibit to

his memorandum.           He cannot plausibly argue that he lacked notice

that     MAA   was    moving        for    summary        judgment,        given    that   he

acknowledged as much in the title of his responsive pleading and

even    put    additional          evidence     before        the    court    of    his    own

volition.      Nor can Mr. Tsai successfully argue that the district

court had an obligation to formally notify him that the motion

would be treated as one for summary judgment.                                “The district

court,    while      it    clearly       has   an   obligation        to   notify    parties

regarding       any        court-instituted           changes         in     the      pending

proceedings, does not have an obligation to notify parties of

the obvious.”        Laughlin, 149 F.3d at 261.



                                               10
       Moreover,       if     Mr.     Tsai’s     attorney        thought    he     needed

additional         discovery,    he     could    have    moved    under    Rule    56(f),

which permits the court to order additional discovery where a

party      lacks    sufficient      facts   to    oppose    a     motion   for    summary

judgment.         See Fed. R. Civ. P. 56(f).             He failed to make such a

motion, and in doing so has waived any argument for additional

discovery.          See Laughlin, 149 F.3d at 261 (citing Nguyen v. CNA

Corp., 44 F.3d 234, 242 (4th Cir. 1995)). 2

       Mr. Tsai’s case is distinguishable from Finley Lines Joint

Protective Board v. Norfolk Southern Corp., 109 F.3d 993 (4th

Cir.       1997).     In    Finley,     defendant       Norfolk    Southern      filed   a

motion       to     dismiss     under     Rule    12(b)(6)        and     attached   two

affidavits to its memorandum in support of the motion.                            Id. at

994.       Unlike here and Laughlin, Norfolk Southern did not caption

its motion as a motion for summary judgment in the alternative.

Id.     Thus, the district court in that case had to choose whether

to exclude the affidavits or to “convert” Norfolk Southern’s


       2
        Mr. Tsai sought in his pleadings to limit the district
court’s consideration of the evidentiary material on the grounds
that it pertained only to the statute of limitations and res
judicata arguments.    But parties cannot so limit the court’s
inquiry.    On summary judgment the court must review the record
“taken as a whole.”      Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 150 (2000). It is of no legal significance
that a party intended the evidence to pertain to discrete
issues.    Furthermore, Mr. Tsai himself submitted the evidence
upon which the district court primarily relied in granting
summary judgment by attaching the PAM Report to his opposition.

                                            11
motion to dismiss into a motion for summary judgment.                           Nor did

the   plaintiff         Finley       attach        additional      evidence     to     its

opposition brief.            Id.     Because the district court converted a

straightforward motion to dismiss into one for summary judgment

without giving plaintiff the “reasonable opportunity to present

all material made pertinent to such a motion by Rule 56,” we

reversed.         Id. at 996 (quoting Fed. R. Civ. P. 12(b)(6)).

      The     facts     of    this    case,     however,         are   in   accord    with

Laughlin.          Defendant MAA brought a motion to dismiss or for

summary     judgment     in    the    alternative          and    attached    supporting

material.         Plaintiff responded and attached additional material,

thereby demonstrating his awareness that the disposition of the

motion would involve material outside of the complaint.                              Unlike

Finley, the district court here did not need to “convert” the

motion into one for summary judgment because defendant already

had made such a motion and plaintiff had responded by attaching

the complete EEOC record.

      In sum, because Mr. Tsai received ample notice that MAA was

moving      for     summary    judgment       we    must    reject      his   procedural

challenge.




                                          12
C.     The    District     Court    Properly       Granted     MAA’s    Motion      For

       Summary Judgment.

       Turning to the merits, the district court assumed (without

finding) that Mr. Tsai had presented a prima facie case and held

that    MAA    had   a     legitimate,        non-pretextual       reason     for   not

promoting or reclassifying him.                 The court relied upon the non-

discriminatory nature of the eight-factor PAM analysis, which

Mr.    Tsai   had    provided      to   the     court   as    an    exhibit    to   his

opposition memorandum.           JA 251.        Mr. Tsai argued to the district

court that he was qualified for the higher pay grade, that his

reclassification was recommended by four of his superiors, and

that MAA incorrectly performed the PAM analysis.                       JA 251.      The

district court, however, noted that Mr. Tsai relied upon only a

single memorandum by his immediate supervisor Mr. Gazy, which

contained a description of Mr. Tsai’s work duties but did not

compare Mr. Tsai’s present job duties as an Administrator II to

those    required     of    an     Administrator        IV.        Furthermore,     the

memorandum’s description of his job duties was incorporated into

the PAM analysis and used as a basis for rating Mr. Tsai’s

current position.          JA 252.      Finally, the district court noted

that Mr. Tsai had no evidence or credible argument for why MAA

incorrectly performed the PAM analysis.                  Accordingly, the court

concluded that Mr. Tsai had failed to raise a triable issue and

granted summary judgment for MAA.                Id.

                                           13
      Upon review, we find that the district court’s grant of

summary    judgment      was      warranted        because       Mr.    Tsai     failed     to

identify evidence that could lead a reasonable juror to find

that MAA discriminated against him.                      See Holland v. Washington

Homes,     Inc., 487       F.3d     208,      217 (4th        Cir.       2007)      (quoting

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986) (“Where the record taken as a whole could not lead a

rational trier of fact to find for the nonmoving party, there is

no ‘genuine issue for trial.’”); see also Bombard v. Fort Wayne

Newspapers,     Inc., 92       F.3d    560,       562 (7th       Cir.    1996)    (“If    the

nonmoving party fails to establish the existence of an element

essential to his case, one on which he would bear the burden of

proof at trial, summary judgment must be granted to the moving

party”).     Under the law of this Circuit, conclusory allegations

or statements are not sufficient to establish discrimination.

Causey     v.     Balog,    162       F.3d        795,     801      (4th     Cir.     1998).

Furthermore,      to    demonstrate     pretext,         a    plaintiff        either     must

show that the employer’s explanation for the employment action

is   “unworthy     of    credence,”        or      offer     evidence        probative      of

intentional discrimination.                Mereish v. Walker, 359 F.3d 330,

336 (4th Cir. 2004).

     MAA’s basis for refusing to promote Mr. Tsai was the PAM

analysis    and    report,      which      concluded         that      his   position     was

correctly classified.          The PAM analysis considered eight neutral

                                             14
factors in determining whether Mr. Tsai’s position was properly

classified:          (1)           required          knowledge;              (2)        supervision

exercised/scope          of    responsibility;                 (3)    scope     and      effect      of

decisions and actions; (4) problem-solving and complexity; (5)

application         of   authority;            (6)       purpose       and     nature      of       work

contacts; (7) work environment and hazards; (8) dexterity and

physical requirements.                   JA 123-125.             The PAM method assigned

point      scores    for      each       of    the       eight       factors       based       on   the

particular characteristics of his job duties.                                The analysis also

relied on Gazy’s memorandum, which was favorable to Mr. Tsai,

for a description of his work duties.                                Nonetheless, the total

point score for Mr. Tsai’s position (460) was at the bottom end

of the range (450-509) for his present Administrator II, Grade

17 classification.

      An     employer’s        reliance         on       objective       evaluation            factors

defeats      a   discrimination            claim         unless       the    plaintiff          offers

specific     evidence         of    pretext.             See    Anderson       v.       Westinghouse

Savannah River Co., 406 F.3d 248, 267-268 (4th Cir. 2005).                                          Here

the   PAM    Report      did       not    evaluate         the       quality       of    Mr.    Tsai’s

specific     job     performance,             but    instead         focused       on    the    duties

generally entailed in Mr. Tsai’s position.                                  Thus, there was no

subjective       evaluation          of       his        performance         that       could       have

reflected discriminatory bias.                       It is difficult to see how such

a neutral evaluation method possibly could be discriminatory,

                                                    15
and   Mr.    Tsai   offered   no     evidence      from   which    to   conclude

otherwise.     In sum, the PAM Report affirms the district court’s

conclusion that MAA did not upgrade Mr. Tsai’s position because

it was correctly classified at Administrator II Grade 17, not

because of any discriminatory motive.

      Mr.   Tsai    also   alleges    that   Ms.    Walker   and    Mr.   Grimes

discriminated against him by lying about policies regarding the

PAM analysis and deviated from normal procedure by improperly

withholding Mr. Tsai’s application from review by the Maryland

Department of Transportation Human Resources Office.                    Mr. Tsai

has not, however, identified an evidentiary link between these

alleged deviations from protocol and any discriminatory motive

on the part of Walker or Grimes.             He does not dispute that Ms.

Walker made the ultimate decision not to reclassify Mr. Tsai’s

position based upon the PAM Report, and Mr. Tsai has not shown

any way in which the PAM analysis could be discriminatory given

that it evaluated objective aspects of his position rather than

his specific performance in that position.                Similarly, Mr. Tsai

alleged in his affidavit that after he filed an EEOC charge, Ms.

Walker threatened that he would never get reclassified.                      But

even taking this allegation as true, Walker did not conduct the

PAM analysis of Mr. Tsai’s classification, and Mr. Tsai fails to

give any reason that her alleged threat made the PAM analysis



                                      16
“unworthy of credence” in any manner.      Causey, 162 F.3d at 801.

As such, he has not shown pretext.   Id.



                        III. Conclusion.

     Because we conclude that summary judgment on Mr. Tsai’s

Title VII claims was appropriate, and that the district court

did not abuse its discretion when it treated MAA’s motion as one

for summary judgment, we affirm.

                                                           AFFIRMED




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