                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-2418


JEFFREY ATKINS,

                Plaintiff – Appellant,

          v.

ERIC HOLDER, Attorney General, Federal Bureau of Prisons,

                Defendant - Appellee.



Appeal from the United States District Court for the District of
South Carolina, at Florence.      J. Michelle Childs, District
Judge. (4:10-cv-01296-JMC)


Submitted:   May 28, 2013                 Decided:   June 18, 2013


Before WILKINSON, MOTZ, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James Lewis Mann Cromer, James Paul Porter, J. LEWIS CROMER &
ASSOCIATES, LLC, Columbia, South Carolina, for Appellant.
William N. Nettles, United States Attorney, Barbara M. Bowens,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                 Jeffrey       Atkins   appeals    the     district    court’s      order

granting summary judgment to the Defendant on his claims for

disability discrimination under the Rehabilitation Act, racial

discrimination           and     retaliation       under    Title     VII,    and     age

discrimination under the Age Discrimination in Employment Act. *

Prior to his termination, Atkins was a correctional counselor

with       the        Bureau      of    Prisons.           Atkins     suffered       from

polyarthropathy of the right knee and degenerative disc disease

in   his     back.         All     of   Atkins’    doctors     imposed    significant

restrictions on his physical activity and concluded that his

restrictions were permanent.                On appeal, Atkins challenges the

district court’s disposition of his disability discrimination,

racial discrimination, and retaliation claims.                      We affirm.

                 We    review     the   district     court’s    grant    of      summary

judgment de novo, viewing the facts and drawing all reasonable

inferences in the light most favorable to the non-moving party.

PBM Prods., LLC v. Mead Johnson & Co., 639 F.3d 111, 119 (4th

Cir. 2011).           Summary judgment is properly granted “if the movant

shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.”


       *
       The district court remanded a breach of contract claim to
state court following the resolution of the federal law claims.



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Fed. R. Civ. P. 56(a).             The relevant inquiry is “whether the

evidence    presents        a    sufficient       disagreement          to   require

submission to a jury or whether it is so one-sided that one

party must prevail as a matter of law.”                      Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 251-52 (1986).

            Atkins first contends that he was terminated from his

position    because    of       his   disability,       in    violation      of   the

Rehabilitation     Act.         Section    504   of    the   Rehabilitation       Act

provides, in relevant part: “No otherwise qualified individual

with a disability . . . shall, solely by reason of her or his

disability” be subject to discrimination with regard to federal

employment.      29 U.S.C. § 794(a) (2006).            In order to establish a

violation of the Rehabilitation Act for disparate treatment, a

plaintiff must prove: “(1) that he has a disability; (2) that he

is   otherwise     qualified       for    the    employment        or   benefit    in

question; and (3) that he was excluded from the employment or

benefit    due   to   discrimination          solely   on    the    basis    of   the

disability.”     Doe v. Univ. of Md. Med. Sys. Corp., 50 F.3d 1261,

1265 (4th Cir. 1995).

            There is no dispute that Atkins was disabled at the

time of his termination.          However, we conclude that the district

court did not err when it held that Atkins was not otherwise

qualified for his position.               Only persons who are “qualified”

for the position in question may state a claim for disability

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discrimination.             Tyndall    v.   National         Educ.   Centers,    Inc.    of

California, 31 F.3d 209, 212 (4th Cir. 1994) (claim under ADA).

A “qualified individual with a disability” is “an individual

with a disability who, with or without reasonable accommodation,

can perform the essential functions of the employment position

that such individual holds or desires.”                         42 U.S.C. § 12111(8)

(2006).       See also 29 C.F.R. § 1630.2(m) (2012).                    At the time of

his termination, Atkins was under several medical restrictions

that significantly curtailed the time he was allowed to walk or

stand.       Prior to being barred from the institution, Atkins was

assisted by two metal canes with forearm braces and stated that

he     was    afraid    for      his   safety.           Because     the   correctional

counselor position was a law enforcement position that required

Atkins       to    physically       restrain       and   control     inmates,    and    no

accommodation could be made to alleviate his restrictions, we

conclude      that     Atkins    did    not      make    a   prima    facie   claim     for

disability discrimination.

               Next, Atkins argues that the district court erred by

granting summary judgment on his Title VII racial discrimination

claim.        A plaintiff pursuing a Title VII discrimination claim

may either offer direct evidence of discrimination or, using

indirect      evidence,       may    rely   on     the   burden-shifting        framework

that    was       adopted   by   the   Supreme       Court     in    McDonnell   Douglas

Corp. v. Green, 411 U.S. 792, 802 (1973).                            Under the latter

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standard, the plaintiff bears the initial burden of establishing

a prima facie case.        See, e.g., Tex. Dep’t of Cmty. Affairs v.

Burdine, 450 U.S. 248, 252-53 (1981).                Because Atkins offered no

direct evidence of discrimination, his claim is appropriately

analyzed under the McDonnell Douglas burden-shifting framework.

To establish a prima facie case of discrimination under Title

VII, a     plaintiff    must   show     that:   (1)    he   was    a   member         of    a

protected group; (2) he suffered an adverse employment action;

(3) he was performing his job satisfactorily at the time of the

adverse employment action; and (4) similarly situated employees

outside    his    protected      class       were    treated      more        favorably.

McDonnell Douglas, 411 U.S. at 802; White v. BFI Waste Servs.,

LLC, 375 F.3d 288, 295 (4th Cir. 2004).                Where a plaintiff makes

a showing sufficient to support a prima facie case, the burden

shifts     to     the    defendant       to     articulate         a      legitimate,

nondiscriminatory       reason    for    the    adverse     employment           action.

McDonnell Douglas, 411 U.S. at 802.                 If the employer produces a

legitimate reason for the action, the burden once again shifts

to the plaintiff to show that the employer’s rationale is a

pretext for discrimination.             Id. at 804-05.         The plaintiff can

prove pretext by showing that the defendant’s “explanation is

unworthy     of    credence      or      by     offering       other          forms        of

circumstantial      evidence      sufficiently        probative          of     .     .     .



                                         5
discrimination.”        Mereish v. Walker, 359 F.3d 330, 336 (4th Cir.

2004) (internal quotation marks omitted).

              The district court determined that Atkins had failed

to establish a prima facie case because he could not show that

similarly situated employees were treated more favorably than

he.      We   conclude       that      the   district     court    should    not    have

restricted      the    scope      of   potential       comparators   to     only   those

individuals      who       shared      Atkins’     immediate      supervisor       while

ignoring the fact that the warden of the institution made the

final    decision     to    terminate        Atkins.      See    Mitchell    v.    Toledo

Hosp.,    964   F.2d       577,   583    (6th     Cir.   1992)    (holding    that    to

establish a prima facie case, an employee generally must show

that his comparator was subject to action by the same supervisor

or decision-maker).            Because we also recognize that a dispute

exists in the record as to whether Atkins’ proffered comparators

had permanent disabilities, we proceed to assess Atkins’ claim

that the Defendant’s legitimate reason for terminating him was

pretextual.      The Defendant contends that Atkins was terminated

because he was unable to perform his duties as a result of his

medical condition.           For the reasons stated above, we hold that

Atkins has not provided sufficient evidence to label this belief

as mere pretext for racial discrimination.

              Lastly, Atkins alleges that the Defendant terminated

him in retaliation for filing an EEO complaint.                      A plaintiff may

                                              6
establish a prima facie case of retaliation by demonstrating

that: (1) he engaged in a protected activity; (2) the defendant

took an adverse action against him; and (3) there was a causal

connection between the first two elements.                 Price v. Thompson,

380 F.3d 209, 212 (4th Cir. 2004).                If a prima facie case is

established, the burden shifts to the defendant to provide a

legitimate, non-retaliatory basis for the action.                     Id.     Once

this burden is met, the plaintiff must show by a preponderance

of the evidence that the proffered reasons are pretextual.                  Id.

             Atkins satisfies the first two prongs of the prima

facie case.     However, he did not establish a causal connection

between his EEO complaint and his termination.                  Atkins did not

receive notice that he would be terminated until four months

after   he   filed    his   EEO   complaint.       Therefore,       because   his

termination    was    not   temporally     very    close   to   his    protected

activity, Atkins must show other relevant evidence to support

causation.     See Lettieri v. Equant Inc., 478 F.3d 640, 650 (4th

Cir. 2007).     We conclude that Atkins has not made this showing,

and therefore the district court did not err when it held that

Atkins failed to state a prima facie case for retaliation.

             Accordingly, we affirm the district court’s order.                We

dispense     with    oral   argument     because    the     facts     and   legal




                                       7
contentions are adequately presented in the material before this

court and argument will not aid the decisional process.



                                                          AFFIRMED




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