William J. Tsai v. Maryland Aviation

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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.

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Unpublished opinions are not binding precedent in this circuit.
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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
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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
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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
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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
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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,
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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
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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).
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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.
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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.
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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.
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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.
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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
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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,
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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
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“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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