USCA4 Appeal: 23-1521 Doc: 25 Filed: 08/27/2024 Pg: 1 of 8

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-1521

ANDREW L. MAINE,

Plaintiff - Appellant,

v.

XAVIER BECERRA,

Defendant - Appellee.

Appeal from the United States District Court for the District of Maryland, at Baltimore. George L. Russell, III, Chief District Judge. (1:16-cv-03788-GLR)

Submitted: June 28, 2024 Decided: August 27, 2024

Before GREGORY and RUSHING, Circuit Judges, and FLOYD, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: James L. Fuchs, LAW OFFICES OF SNIDER & ASSOCIATES, LLC, Baltimore, Maryland, for Appellant. Erek L. Barron, United States Attorney, Matthew A. Haven, Assistant United States Attorney, Matthew T. Shea, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 23-1521 Doc: 25 Filed: 08/27/2024 Pg: 2 of 8

PER CURIAM:

Andrew L. Maine appeals after a jury found for his employer, the National Institutes

of Health (“NIH”),* on his retaliation claim raised pursuant to Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17 (Title VII). Finding no

reversible error, we affirm.

Maine first challenges the district court’s grant of partial summary judgment in

favor of the NIH, primarily arguing that the court erred in granting summary judgment

before discovery and in failing to consider the NIH’s motion—a second motion filed after

Maine amended his complaint and the district court had denied an earlier motion without

prejudice—as a motion for reconsideration.

We “review[] a district court’s pre-discovery grant of summary judgment for abuse

of discretion.” Shaw v. Foreman,

, 128 (4th Cir. 2023). “Generally, summary

judgment must be refused where the nonmoving party has not had the opportunity to

discover information that is essential to his opposition.”

(internal quotation marks

omitted); see also Greater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor & City Council

of Balt.,

(4th Cir. 2013) (en banc) (emphasizing “that the parties [must]

first be afforded a reasonable opportunity for discovery” prior to converting Rule 12(b)(6)

motion into one for summary judgment (internal quotation marks omitted)). However, “a

nonmoving party cannot complain that summary judgment was granted without discovery

* The Secretary of the Department of Health and Human Services is the Appellee in this case.

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unless that party attempted to oppose the motion on the grounds that more time was needed

for discovery.” Shaw, 59 F.4th at 128 (cleaned up).

“[T]he proper course” for a party opposing conversion of a motion to dismiss is by

filing an affidavit pursuant to Fed. R. Civ. P. 56(d) “stating that it could not properly oppose

summary judgment without a chance to conduct discovery.” Greater Balt.,

(cleaned up). While the rule formally requires that the party present an “affidavit or

declaration that . . . it cannot present facts essential to justify its opposition,” Fed. R. Civ.

P. 56(d), we excuse formal compliance with the rule “if the nonmoving party has

adequately informed the district court that the motion is pre-mature and that more discovery

is necessary,” Harrods Ltd. v. Sixty Internet Domain Names,

(4th Cir. 2002). “[I]f the nonmoving party’s objections before the district court served as

the functional equivalent of an affidavit, and if the nonmoving party was not lax in pursuing

discovery, then we may consider whether the district court granted summary judgment

prematurely.”

(cleaned up).

Maine does not dispute that he did not file a Rule 56(d) affidavit, and “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 requirement of Rule 56[(d)] to set out reasons

for the need for discovery in an affidavit.” Nguyen v. CNA Corp.,

(4th Cir. 1995) (cleaned up). If the party did not file a Rule 56(d) motion, the party must

otherwise “put the district court on notice as to which specific facts are yet to be

discovered.” McCray v. Md. Dep’t of Transp.,

(4th Cir. 2014). Maine

only generally complained that he needed discovery, and the only specific fact he said he

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wished to discover was why the job posting was not advertised with a veteran’s preference.

This was insufficient to place the district court on notice.

Nor did the district court err in not treating the NIH’s second motion as a motion for

reconsideration. The court denied the first motion without prejudice. Thus, the court left

the door open for the NIH to renew its motion for summary judgment. Maine then amended

his complaint, which rendered the original complaint a legal nullity. See Fawzy v.

Wauquiez Boats SNC,

(4th Cir. 2017) (“[A] properly filed amended

complaint supersedes the original one and becomes the operative complaint in the case,

. . . render[ing] the original complaint of no effect.” (internal quotation marks omitted)).

Thus, the NIH had to file a response to the amended complaint. Fed. R. Civ. P. 15(a)(3).

The NIH chose to respond by filing a motion pursuant to Fed. R. Civ. P. 12(b)(6) that

presented matters outside the pleadings and could be converted to a motion for summary

judgment. See Fed. R. Civ. P. 12(d). Maine cites no authority to support his assertion that

this was improper.

On the merits, Maine only challenges the district court’s rejection of his

nonselection claim. See Grayson O Co. v. Agadir Int’l LLC,

(4th

Cir. 2017) (“A party waives an argument by failing to present it in its opening brief or by

failing to develop its argument—even if its brief takes a passing shot at the issue.” (cleaned

up)). We review a district court’s summary judgment ruling de novo, “applying the same

legal standards as the district court and viewing all facts and reasonable inferences in the

light most favorable to the nonmoving party.” Ballengee v. CBS Broad., Inc.,

(4th Cir. 2020). Summary judgment is warranted “if the movant shows that there

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is no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). “A genuine question of material fact exists where,

after reviewing the record as a whole, a court finds that a reasonable jury could return a

verdict for the nonmoving party.” J.D. ex rel. Doherty v. Colonial Williamsburg Found.,

(4th Cir. 2019) (internal quotation marks omitted). In conducting this

inquiry, courts may not “weigh conflicting evidence or make credibility determinations.”

But “the nonmoving party must rely on more than conclusory allegations, mere

speculation, the building of one inference upon another, or the mere existence of a scintilla

of evidence.” Humphreys & Partners Architects, L.P. v. Lessard Design, Inc.,

(4th Cir. 2015) (internal quotation marks omitted).

Maine proceeded under the familiar burden-shifting framework of McDonnell

Douglas Corp. v. Green,

(1973). To establish a prima facie failure-

to-hire claim under McDonnell Douglas, a plaintiff must show that “(1) []he is a member

of a protected group, (2) there was a specific position for which []he applied, (3) []he was

qualified for that position, and (4) [his] employer rejected [his] application under

circumstances that give rise to an inference of liability.” Walton v. Harker,

(4th Cir. 2022) (cleaned up). To establish a prima facie case of retaliation, a plaintiff

is required to “show (1) that []he engaged in protected activity; (2) that h[is] employer

took an adverse action against h[im]; and (3) that a causal connection existed between the

adverse activity and the protected action.” Jacobs v. N.C. Admin. Off. of the Cts.,

(4th Cir. 2015) (cleaned up). If the plaintiff makes these showings, his employer

then must proffer a legitimate, nondiscriminatory and nonretaliatory reason for his

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nonselection. Id.; Worden v. SunTrust Banks, Inc.,

(4th Cir. 2008).

Finally, Maine had the burden to show that the NIH’s legitimate reason was, in fact, a

pretext for intentional discrimination or retaliation. Jacobs,

; Worden,

.

Assuming Maine established a prima facie case of discrimination or retaliation, the

district court correctly concluded that Maine could not establish that the NIH’s legitimate,

nondiscriminatory reason was pretextual. Maine’s most helpful evidence—that the

decisionmaker may have misrepresented the recommendations of the initial interview

panel—would be most relevant if the decisionmaker had not selected a candidate. Instead,

he chose a different candidate. Maine does not meaningfully contest on appeal that the

chosen candidate had superior qualifications, and a review of the two resumes shows that

she had more extensive experience than Maine did, including recent supervisory

experience. Moreover, as the district court noted, the agency’s failure to apply the veteran’s

preference was in keeping with its lawful authority to rely on merit promotion procedures

for direct hire positions. Thus, the lack of a veteran’s preference does not show that the

failure to select Maine was pretextual. We therefore affirm the district court’s summary

judgment ruling.

Maine next challenges the district court’s order granting the NIH’s motion in limine

precluding Maine from introducing evidence of dismissed claims at trial. “We . . . review

a district court’s grant of a motion in limine for an abuse of discretion.” Projects Mgmt.

Co. v. Dyncorp Int’l LLC,

(4th Cir. 2013). Rule 402, Fed. R. Evid.,

prohibits the admission of “[i]rrelevant evidence.” Additionally, a district “court may

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exclude relevant evidence if its probative value is substantially outweighed by a danger of

. . . confusing the issues.” Fed. R. Evid. 403.

The district court did not abuse its discretion in granting the motion in limine. There

was only one discrete issue at trial—whether Maine’s transfer was retaliatory. Evidence of

other claims would have been irrelevant.

As for the conduct of the trial, Maine first contends that the district court erred in

allowing the NIH to ask leading questions. We review for abuse of discretion a district

court’s rulings on the use of leading questions. United States v. Durham,

(4th Cir. 1963). “The evil to be avoided is that of supplying a false memory for the

witness.”

But district judges have “broad latitude in monitoring the manner in which

testimony is extracted from witnesses, and reversal is warranted on the basis of leading

questions only if the judge’s actions cause the denial of a fair trial.” Winant v. Bostic,

(4th Cir. 1993).

We discern no abuse of discretion. The NIH proposed a method of hybrid direct

and cross-examination at the final pretrial conference, to which Maine did not object at that

time. Maine points to only a few places in the record where he objected at trial. These

isolated instances do not demonstrate that he was denied a fair trial.

Maine next contends that the district court erred in criticizing him in front of the

jury regarding the lack of available witnesses near the end of a trial day. But Maine cites

no legal authority in his brief in support of this argument and has thus waived review of it.

See Grayson O Co.,

.

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Finally, Maine argues that the jury’s verdict is not supported by sufficient evidence.

But this argument also is not preserved. “After the presentation of evidence, but before the

case is submitted to the jury, [Fed. R. Civ. P.] 50(a) authorizes either party to move for

judgment as a matter of law.” Dupree v. Younger,

(2023). “After the

verdict, Rule 50(b) permits a disappointed party to file a renewed motion for judgment as a

matter of law.”

. “Absent such a motion, an appellate court is powerless to review

the sufficiency of the evidence after trial.”

(internal quotation marks omitted). In

other words, the failure to make a Rule 50(b) motion forecloses a party’s ability to challenge

on appeal the sufficiency of the evidence supporting the jury’s verdict. Belk, Inc. v. Meyer

Corp., U.S.,

(4th Cir. 2012); see also Bristol Steel & Iron Works v.

Bethlehem Steel Corp.,

(4th Cir. 1994) (“[A] party’s complete failure to

move for judgment as a matter of law, barring plain error, generally forecloses appellate

review of the sufficiency of the evidence.”). The record shows that Maine did not move for

judgment as a matter of law under Rule 50, and he is thus precluded from arguing on appeal

that the jury’s verdict is against the weight of the evidence.

Accordingly, we affirm the district court’s judgment. 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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