Adesina Mercer v. The Arc of Prince Georges Coun

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:12-cv-00306-DKC. Copies to all parties and the district court/agency. [999147617]. [13-1300]

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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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

developmental disabilities.

services

to

individuals

with

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

processing

responsibilities

initial

included

applications

for

“applying

benefits

for

for
[The

and
Arc’s

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

as

“apply[ing]

for

and

process[ing]

renewals

redeterminations for benefits under these programs.”

and

(J.A. 15-

16.)
In

May

employment
management.

2007,

status

The
due

Arc
to

placed

poor

work

Mercer

on

performance

conditional
and

time

It returned her to regular status the following

month.
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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.)

November

learned

and

December

food-stamp-eligible
benefits.
was

2010,

clients

The

Arc

were

no

again
longer

that

receiving

In
some

those

Mercer was given a list of each of those clients and

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.
In

January

(J.A. 33.)
2011,

Mercer

was

involved

in

an

automobile

accident that left her severely injured and unable to work.
took FMLA leave from January 31 until February 22.
was

on

leave,

responsibilities.

Mercer’s

co-workers

She

While Mercer

performed

her

job

In the process of doing so, they discovered

and told supervisors at The Arc that many more eligible clients
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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

immediately

returned

placed

on

to

work

on

February

administrative

22,

leave

she
“due

was
to

unsatisfactory job performance and incomplete paperwork” while
The Arc performed further investigation into the problem.
28.)

(J.A.

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
Mercer

(J.A. 31.)
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.

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of

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her

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employment

constituted

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unlawful

interference

with

and

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

sought,

including

inter

alia,

reinstatement

declaratory

and

damages

and
for

injunctive
back

pay

relief,

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.
submitted one affidavit.

Each party also

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

investigation,
employment.

The
and

Arc
the

(J.A. 15-18.)

reached

as

decision

to

a

result

terminate

of

that

Mercer’s

Mercer’s affidavit described her

2

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

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taking FMLA leave, stated that she had “always received positive
performance evaluations,” denied that she failed to perform her
job

adequately,

“routine

.

benefits,”

.
and

explained

.

lapse[s]

stated

why
in

that

she

was

[clients]

she

had

not

not

responsible

receiving
been

Food

told

for
Stamp

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

satisfactorily before she took that leave.”

her

duties

(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

retaliation

claim,

her
the

FMLA

rights.

district

court

Turning
concluded

to

Mercer’s

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.

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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

entitled to judgment as a matter of law.”

the

movant

is

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

presented.

a

verdict

for

the

plaintiff

on

the

evidence

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).

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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
First,

raises

that

interference

three

central

the

district

claim

because

arguments

court
a

erred

genuine

in

in

issue

this

appeal.

dismissing

her

material

fact

of

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

condition

that

functions

of”

a

twelve-month
makes

her

job.

the

period

employee
29

U.S.C.

for

a

“unable
§

qualifying
to

health

perform

2612(a)(1)(D).

It

the
is

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

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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.
549; 29 C.F.R. § 825.216(a).

Id. at

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

legitimate

that

non-FMLA

employee’s
leave

position

concerns);

as

Laing

a

v.

result

Fed.

of

Express

Corp., 703 F.3d 713, 723-24 (4th Cir. 2013) (“[T]he FMLA does
not

preclude

an

employer

from

placing

an

employee

investigatory suspension upon her return from

on

an

[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
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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.”
v.

Beverly

2001). 4

Enters.

Thus,

satisfactory
ability

to

Wis.,

the

fact

Inc.,

performance

that

terminate

259
Mercer

reviews

her

F.3d

does

employment

previously unknown poor performance.

799,

had

806

(7th

previously

not

negate

upon

the

Kohls
Cir.

received

The

Arc’s

discovery

of

This is so even if The Arc

discovered the basis for terminating Mercer’s employment while
she was on FMLA leave.
None
material

of
fact

employment.

Mercer’s
as

to

contentions
the

reason

create
why

The

a

genuine

Arc

issue

terminated

of
her

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).

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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

embrace

a
the

world

apart

specific

from

facts

assuming
needed

that

to

general

sustain

the

averments
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
12

issue.”).

Mercer

also

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speculates

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that

The

Arc’s

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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.

(internal

v.

Phelan,

citation

and

526

F.3d

quotation

135,
marks

140

(4th

Cir.

omitted);

see

2008)
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

(internal quotation marks omitted).

for

a

discharge.”)

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
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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

protected activity.”
294,

301

showing,

(4th
then

discriminatory

causally

connected

to

[her]

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

Cir.
The

was

1998).

Arc

If

bears

explanation

she

the

for

makes

burden
its

this

of

prima

offering

decision

to

facie
a

non-

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

connection between the two events.
551

(“While

conclusively

evidence

as

establishes

to

the

the

requisite

causal

See Yashenko, 447 F.3d at

closeness
requisite

in
causal

time

‘far

from

connection,

it

certainly satisfies the less onerous burden of making a prima
facie case of causality.’”).
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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.”

omitted).)

(J.A.

Mercer

48

challenges

(internal
that

quotation

conclusion

on

marks
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

performance.

The

Arc’s

allegations

(Appellant’s Opening Br. 38.)

point Mercer is simply incorrect.

as

to

her

poor

On this factual

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,
concluding

Mercer
she

contends
had

not

that

the

district

demonstrated

court

pretext

erred

because

in
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

(Appellant’s Opening Br. 53.)

FMLA

.

.

.

retaliation.”

As support, she points to the
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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

holding that she had not demonstrated pretext.

court

erred

in

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

Similarly,

of

the

fact.

fact

See

that

Simpson,

Mercer

559

F.3d

received

at

713.

satisfactory

performance reviews prior to her FMLA leave is not sufficient to
create a genuine issue of material fact in this case.
points

to

evidence

performance

review

it
as

learned

the

after

Mercer’s

performance-related

decision to terminate her employment.

The Arc

most

reason

recent
for

its

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.
employer’s

giving

different

This Court has recognized that an
justifications
16

at

different

times

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was probative of pretext, particularly where those reasons were
“arguably

inconsistent

explanations”

“developed

over

counter the evidence suggesting discrimination.”

time

to

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.”
terminating

Mercer’s

performance.”
director

(J.A.

provided

an

(J.A. 28.)

The March 23, 2011 letter

employment

cited

31.)

The

And

affidavit

“unsatisfactory
Arc’s

accompanying

human
the

job

resources
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.”
does

not

support

Mercer’s

(J.A. 17.)

contention

that

an

This record
inference

of

pretext can be drawn in this case.
Lastly,
performance,

Mercer
what

points
The

to

Arc’s

her

own

legitimate

assessment

17

of

her

job

expectations

of

her

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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.
reviewing
Court’s

whether
task

is

an

employer’s

not

“to

termination

of

employment]

ultimately,

so

long

decision].”
omitted).

as

decision

decide
was

it

whether

wise,

truly

is
the

fair,

was

the

or

In

unlawful,

the

reason

[for

even

reason

correct,
for

[the

Laing, 703 F.3d at 722 (internal quotation marks
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
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the veracity of [the witness’s] statements and to investigate
all of the facts of this case.”
Mercer

is

correct

that

(Appellant’s Opening Br. 55.)
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.”

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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.
dispense

with

contentions

are

oral

argument

adequately

because

presented

in

the
the

facts

We

and

legal

materials

before

this court and argument would not aid the decisional process.

AFFIRMED

20