                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 11-2229


SERGEI VOLOCHAYEV,

                Plaintiff – Appellant,

           v.

KATHLEEN SEBELIUS, Secretary, United States Department of
Health and Human Services,

                Defendant – Appellee.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.      Alexander Williams, Jr., District
Judge. (8:11-cv-00230-AW)


Argued:   December 5, 2012                 Decided:   March 11, 2013


Before MOTZ, KING, and DIAZ, Circuit Judges.


Affirmed by unpublished opinion. Judge Diaz wrote the opinion,
in which Judge Motz and Judge King joined.


ARGUED: Morris Eli Fischer, THE LAW OFFICE OF MORRIS E. FISCHER,
LLC, Silver Spring, Maryland, for Appellant. Larry David Adams,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney,
Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
DIAZ, Circuit Judge:

       Sergei Volochayev filed suit under Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”),

alleging his employer’s discrimination on the basis of national

origin and retaliation for engaging in protected activity.                                  He

now    appeals       from     a   district          court    order      granting     summary

judgment to his employer, Kathleen Sebelius, Secretary of the

United States Department of Health and Human Services (“HHS”).

That     decision       followed        a   ruling          by    an    Equal    Employment

Opportunity Commission (“EEOC”) Administrative Judge (“AJ”), who

similarly found that Volochayev had failed to establish a Title

VII violation.             Likewise, we conclude that Volochayev cannot

make    out    a     prima    facie     case    on     either      of     his   claims,    and

therefore affirm the judgment of the district court.



                                               I.

                                               A.

       Volochayev is a male of Russian descent who was employed as

a    Research      Nurse     in   the   Intensive       Care       Unit    (“ICU”)    of   the

National Institute of Health (“NIH”) Clinical Center from April

2006 until April 2008.             Volochayev was removed from his position

after an incident prompted ICU Nurse Manager Deborah Kolakowski

to     order    an    investigation         into       his       documentation       records,

revealing a multitude of errors.

                                               2
       The events prompting the investigation took place between

September 29 and October 1, 2007, when Volochayev was working

the night shift and caring for “Patient X,” who was under orders

to receive a continuous intravenous (“IV”) drip of Fentanyl, a

powerful controlled narcotic.                   Over the course of Volochayev’s

two consecutive night shifts, six separate IV bags containing

Patient X’s Fentanyl ran dry much more quickly than they were

supposed to.              Volochayev replaced the depleted bags with new

ones and did not promptly report the problem.                                    When he did

finally alert his charge nurse, inspections revealed no problems

with    either        the    patient     or    the     IV      pump,    and      the     pharmacy

confirmed that the bags had contained the correct dose.

        The    charge        nurse   reported        the        incident        to    the   ICU’s

Administrative Coordinator, expressing concern that Volochayev

had    delayed       to     self-report       the   matter.         ICU    Assistant         Nurse

Manager       Pamela      Horwitz    then      questioned         Volochayev           about   the

missing       Fentanyl.           When    he        could       offer      no        explanation,

Kolakowski           instructed      Horwitz         to        investigate           Volochayev’s

Controlled Substance Report forms for the month of September

2007.         The    records    revealed        over      forty    documentation            errors

relating        to     the     administration             of     controlled           substances.

According to testimony at the administrative hearing, although

some of these errors may have been commonplace among the ICU



                                                3
nursing     staff,    the     sheer      number      of     Volochayev’s         errors   was

abnormal, if not unprecedented.

       Per Kolakowski’s recommendation, Deputy Chief Nurse Officer

Tannia Cartledge issued Volochayev a Notice of Proposed Removal

based on the pervasiveness of his misconduct, his knowledge of

the    procedures     in    question,         his    previous       subpar       performance

review,     and     the    potential       risk      he     presented       to     patients.

Volochayev responded through counsel that his supervisors were

retaliating       against        him    for       complaining       about    preferential

treatment given to certain employees.                     Chief Nurse Officer Clare

Hastings     subsequently         issued      a    decision    to    remove       Volochayev

from federal service.              The decision found that Volochayev had

failed to sufficiently account for his numerous errors--raising

doubts      about    his    credibility--and              found     no    merit     to    his

allegations of preferential treatment or retaliation.

                                              B.

       Following his removal, Volochayev filed a complaint with

the    Equal      Employment       Opportunity         Office        (“EEO”),       alleging

national origin discrimination and retaliation.                             HHS responded

that     Volochayev        was    fired       due     not     to     discrimination        or

retaliation, but to his failure to meet work expectations.

       As    evidence       of         national      origin        animus        among    his

supervisors,         Volochayev          claimed      that         they     made     various

disparaging         remarks       about       Russians,        calling       them        rude,

                                              4
insubordinate, and overly fond of vodka.                             Volochayev also urged

that anti-Russian prejudice could be inferred from HHS’s more

lenient treatment of two of his colleagues, Mark Pavlick and

Carol Wingfield, whose own documentation errors did not prompt

investigation or removal.                  In support of his retaliation claim,

Volochayev    pointed       to       a    series       of    February         2007    emails   and

conversations       with       his       supervisors          that      he    claims    was    the

protected activity that triggered his firing.

       Over   an     eight-month             administrative              discovery       period,

Volochayev    served       a     number          of    interrogatories           and    document

requests and deposed Kolakowski, Cartledge, and Hastings.                                   After

a five-day EEO hearing, the AJ ruled in favor of HHS.

       Volochayev then brought the instant Title VII action in the

United    States    District             Court    for       the    District      of    Maryland.

Pursuant to Federal Rule of Civil Procedure 56(d), Volochayev

moved for additional discovery.                       In an affidavit, he explained

that     he   hoped        to     obtain,             among       other        materials,      the

documentation records of other nurses in the ICU, information

about the experience levels of other nurses, and information

regarding     the    national            origin       of     his     replacement.           After

reviewing     the      administrative                  record,          the     court     denied

Volochayev’s Rule 56(d) motion, concluding that he had had a

full   opportunity     to       conduct          discovery         at    the    administrative



                                                  5
level.    The district court then granted summary judgment to HHS

on both Title VII claims.         This appeal followed.



                                      II.

      The issues before us are (1) whether the district court

abused its discretion by denying Volochayev’s Rule 56(d) request

for   additional     discovery,    and        (2)    whether   entry     of   summary

judgment in favor of HHS was proper.

                                      A.

      We first consider Volochayev’s contention that the district

court erred in denying his request for additional discovery.                       We

review a district court’s denial of a Rule 56(d) request for

abuse of discretion.        See Harrods Ltd. v. Sixty Internet Domain

Names, 302 F.3d 214, 244 (4th Cir. 2002) (discussing earlier

version of the rule).

      Volochayev claims that the administrative discovery process

was   insufficient     to   support      the        district   court’s    entry    of

summary   judgment    and   that    his       request    for   further    discovery

should therefore have been granted.                  As an indication that the

administrative process was lacking, Volochayev notes that he was

limited to one set of interrogatories.                   He also complains that

he was denied the opportunity to conduct discovery on issues

that arose during the hearing before the AJ.



                                          6
      Federal Rule of Civil Procedure 56(d) provides that a court

“may” allow a party faced with a motion for summary judgment to

conduct       additional   discovery        “if    [the]      nonmovant      shows    by

affidavit or declaration that, for specified reasons, it cannot

present facts essential to justify its opposition.”                         The denial

of additional discovery is appropriate when the materials sought

by the requesting party could have been discovered earlier.                          See

CBRE Realty Fin. TRS, LLC v. McCormick, 414 F. App’x 547, 551

(4th Cir. 2011) (unpublished) (citing Ayala–Gerena v. Bristol

Myers–Squibb Co., 95 F.3d 86, 92 (1st Cir. 1996)).

      We   find    no   abuse   of   discretion        in   the    district    court’s

refusal to allow additional discovery.                 Contrary to Volochayev’s

belief, the record produced by the eight-month administrative

discovery period and five-day hearing was more than sufficient

for     the     district    court      to       make    its       summary     judgment

determination.          Despite      the    procedural        limitations      of    the

administrative discovery process, that process gave Volochayev

ample opportunity to discover the information he later sought

through his Rule 56(d) motion.                  And nothing that arose during

the administrative hearing, in our view, required the court to

grant Volochayev’s motion.

                                           B.

      We next consider Volochayev’s contention that the district

court    erred    in    granting     summary      judgment     on   his     Title    VII

                                            7
discrimination and retaliation claims.                         We review a district

court’s decision to grant summary judgment de novo, viewing all

facts   and    reasonable      inferences        therefrom       in   the    light      most

favorable to the nonmoving party--here, Volochayev.                         Pueschel v.

Peters, 577 F.3d 558, 563 (4th Cir. 2009).                       Summary judgment is

only    appropriate      if    “there     is     no    genuine     issue     as    to    any

material fact and the movant is entitled to judgment as a matter

of law.”      Fed. R. Civ. P. 56(a).

                                           1.

       An aggrieved employee can prove a Title VII discrimination

claim in either of two ways.                “First, an employee may utilize

ordinary      principles      of   proof       using     any    direct      or    indirect

evidence relevant to and sufficiently probative of the issue.”

Brinkley v. Harbour Recreation Club, 180 F.3d 598, 607 (4th Cir.

1999) (internal quotations omitted), abrogated on other grounds

by Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003).                                    This

evidence must not only reflect a discriminatory attitude, but

must also bear directly on the contested employment decision.

Fuller v. Phipps, 67 F.3d 1137, 1142 (4th Cir. 1995), abrogated

on other grounds by Desert Palace, 539 U.S. 90 (2003).

       Volochayev     argues       that    his        supervisors’      alleged      anti-

Russian       comments        constitute        direct         evidence      of      HHS’s

discrimination.          We   disagree.         Even     viewing      the   evidence      in

Volochayev’s favor and assuming the comments were actually made,

                                           8
Volochayev has put forth no evidence that those stray comments

had    any   direct      bearing         on    his    firing,    as    is     required     under

Phipps, 67 F.3d at 1142.                     Without some closer nexus, we cannot

conclude that the remarks raise an inference that Volochayev’s

firing was motivated by an impermissible basis.

       Neither does HHS’s more lenient treatment of fellow nurses

Mark    Pavlick       and          Carol      Wingfield       raise     an     inference     of

discrimination.               As    the       district      court     observed,      Pavlick’s

violations occurred over a period of nine months, each dealt

with    a    breach      of    a     different        rule,     and    only    one    involved

controlled substances.                  Volochayev, on the other hand, committed

multiple      violations           of    a    single     rule    concerning       controlled

substances in a concentrated period, suggesting disregard for

the ICU’s practices and rules rather than mere negligence on

isolated      occasions.                Wingfield,       for    her     part,     was      still

considered     a    trainee         at     the   time    of    her    violations,       whereas

Volochayev         had        extensive           nursing        experience          and     was

understandably held to higher standards.

       Lacking      sufficient             direct      or     circumstantial         evidence,

Volochayev may nevertheless proceed under a second method of

proof: the burden-shifting framework of McDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1973).                       Under this framework, Volochayev

may establish a prima facie case of employment discrimination if

he can show that (1) he is in a protected class; (2) he suffered

                                                  9
an    adverse     employment         action;      (3)       he    was    performing         his     job

duties       at    a   level         that      met          his    employer’s             legitimate

expectations at the time of the employment action; and (4) the

position       remained       open    or    was       filled      by    similarly          qualified

applicants outside the protected class.                             Bonds v. Leavitt, 629

F.3d 369, 373 (4th Cir.) (internal quotations omitted), cert.

denied, 132 S. Ct. 398 (2011).                    Once this prima facie showing is

made,       the   burden       shifts       to        the     defendant            to     produce     a

legitimate,         non-discriminatory                 reason           for        its      actions.

McDonnell Douglas, 411 U.S. at 802.                         The burden then shifts back

to the plaintiff to show, by a preponderance of the evidence,

that     the      proffered      legitimate            reason          was     a        pretext     for

discrimination.        Id. at 804.

       The district court held that Volochayev had failed to make

out a prima facie discrimination case because he could not show

that he was performing his job duties at a level that met his

employer’s legitimate expectations.                         The court further concluded

that even if Volochayev had established a prima facie case, HHS

had     presented         a     legitimate,             non-pretextual                  reason      for

terminating him: his pervasive documentation violations relating

to controlled substances.

       In    Volochayev’s       view,       the       district         court       mishandled       the

McDonnell Douglas analysis by failing to merge its “legitimate

expectations” analysis with the question of pretext.                                        He cites

                                                 10
cases from our sister circuits for the proposition that where a

plaintiff argues that he has “performed satisfactorily and the

employer is lying about the business expectations required for

the     position,      the     second          prong        and      the     pretext    question

seemingly     merge       because        the        issue      is    the   same--whether        the

employer is lying.”            Hague v. Thompson Distrib. Co., 436 F.3d

816, 823 (7th Cir. 2006).                     Volochayev suggests that by failing

to    merge   these     two    parts           of    the       analysis,      HHS’s     proffered

justification for the firing did not receive proper scrutiny

under the burden shifting approach.

        Again,    we   disagree.              While      we    have    recognized       that   the

McDonnell        framework     contains             no      “impermeable        barrier”       that

prevents the sort of merged analysis Volochayev urges, Warch v.

Ohio Cas. Ins. Co., 435 F.3d 510, 516 (4th Cir. 2006), we also

see no need to insist upon it in every case.                               Here, the district

court    fully     engaged         in    the        pretext         analysis,     giving   HHS’s

proffered     justification             the    scrutiny         Volochayev        complains    was

lacking.         In    doing       so,    the        court      found      that      Volochayev’s

pervasive        record       of        documentation               errors      constituted      a

legitimate, nondiscriminatory reason for Volochayev’s removal.

We concur and conclude that in light of his poor work record,

Volochayev       cannot    show         that    he       was    meeting      HHS’s     legitimate

business expectations or that his failure to do so was not the

true    motivation      for    his       firing.            Accordingly,        we    affirm    the

                                                    11
district       court’s       grant   of    summary         judgment      on     Volochayev’s

discrimination claim.

                                               2.

       To   make      out    a   prima    facie      showing      of    retaliation         under

Title VII, a plaintiff must demonstrate that (1) he engaged in

protected activity; (2) he suffered some form of adverse action;

and (3) some causal connection existed between the protected

activity and the adverse action.                      Holland v. Washington Homes,

Inc., 487 F.3d 208, 218 (4th Cir. 2007).                               The district court

held    that    Volochayev        failed    to      establish       both   the          first   and

third prongs.

       As evidence of protected EEO activity, Volochayev cites a

February       2007    conversation        and      email    in   which       he    complained

about    his    supervisors’         unprofessional           treatment,           as    well    as

another     alleged         email,   written        with    his   colleague         Jacqueline

Cooper’s assistance, threatening to file a complaint with the

EEO.    He further submits that a causal link existed between his

complaints and his eventual firing.                         In Volochayev’s view, the

long lapse between his February 2007 complaints and his March

2008 removal does not sever the nexus, since he claims the fall

2007    Fentanyl         incident        was     simply       the       first       reasonable

opportunity his supervisors had to retaliate against him without

drawing suspicion of retaliatory motive.



                                               12
       Although       it   is    true      that    informal              complaints         about

discriminatory         treatment        relating        to     a        protected          status

constitute      protected       activity    under       Title       VII,       Armstrong       v.

Index Journal Co., 647 F.2d 441, 448 (4th Cir. 1981), Volochayev

has presented no evidence that his February 2007 interactions

with   his     supervisors       had    anything       to    do     with       his    protected

status.       As for the alleged second email threatening EEO action,

Volochayev      was   unable     to     produce    a    copy       of     this       email,   his

supervisors testified that they never received it, and HHS was

unable to locate it on its servers.                          Even when viewing the

evidence in the light most favorable to Volochayev, we cannot

see    how     he   satisfies      the     first       prong        of     a     prima     facie

retaliation claim.

       Furthermore, even if we assume, arguendo, that Volochayev

did engage in protected EEO conduct, we discern no causal link

between his February 2007 complaints and his March 2008 removal.

There is no evidence that his supervisors were ever aware of

Volochayev’s intent to file an EEO claim, and the investigation

into    his     removal    did     not    begin        until       seven       months       after

Volochayev lodged his informal complaint.                          Meanwhile, the fall

2007   Fentanyl       incident,        rather   than        being       merely       the    first

reasonable opportunity for his supervisors to retaliate against

him,    was     instead    a     legitimate,       non-pretextual                reason       for



                                           13
Kolakowski to launch the investigation that ultimately resulted

in Volochayev’s removal.

     Since Volochayev cannot make out a prima facie retaliation

claim, we affirm the district court’s grant of summary judgment.



                              III.

     For these reasons, we affirm the district court’s judgment.



                                                         AFFIRMED




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