                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 11-1476


CHUCKWUDI PERRY,

                 Plaintiff – Appellant,

           v.

DAVID KAPPOS, Secretary of Commerce for Intellectual
Property and Director of the United States Patent and
Trademark Office,

                 Defendant – Appellee,

           and

GARY F. LOCKE, Secretary, United States Department of
Commerce, United States Patent and Trademark Office,
Agency,

                 Defendant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:10-cv-00167-JCC-TCB)


Argued:   May 17, 2012                      Decided:   June 13, 2012


Before WILKINSON, DIAZ, and FLOYD, Circuit Judges.


Affirmed by unpublished opinion. Judge Diaz wrote the opinion,
in which Judge Wilkinson and Judge Floyd joined.
ARGUED: Stephen Z. Chertkof, HELLER, HURON, CHERTKOF, LERNER,
SIMON & SALZMAN, PLLC, Washington, D.C., for Appellant.    Julie
Ann Edelstein, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.    ON BRIEF: Douglas B. Huron, HELLER,
HURON, CHERTKOF & SALZMAN, Washington, D.C., for Appellant.
Neil H. MacBride, United States Attorney, R. Joseph Sher,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
DIAZ, Circuit Judge:

       The U.S. Patent & Trademark Office (“USPTO”) terminated the

employment of Chuckwudi Perry.               Perry responded by filing suit,

alleging that the USPTO discharged him in contravention of the

Rehabilitation Act of 1973 and Title VII.                      The district court

granted summary judgment in favor of the USPTO.                     On appeal, we

conclude that Perry’s Rehabilitation Act claim fails because he

is unable to establish that he is disabled under the statute.

Perry’s Title VII claim similarly lacks merit, as Perry has not

shown a causal relation between his alleged protected conduct

and the termination of his employment.                We therefore affirm the

judgment of the district court.



                                         I.

                                         A.

       Perry suffers from vision problems.                He has no vision in

his left eye and reduced vision in his right eye.                             Perry’s

ailments    have    caused   a   “lack       of   depth   perception,         frequent

sudden degradation of vision in [his] right eye, and inability

to distinguish subtle color changes.”                 J.A. 239.        With the use

of     corrective   devices,     however,         Perry   is    able    to    perform

critical tasks.      He has obtained a Maryland driver’s license and

even    feels   comfortable      traversing        certain     routes    at    night,

provided they are familiar and well lit.                       Perry can moreover

                                         3
“read    efficiently”         with    the       use      of    magnifying        glasses    and

straight-edge devices.               Id.        In the workplace, Perry reports

that    the    “cumulative      effects”            of   his    conditions        “frequently

leave [him] fatigued and needing to take a break or rest before

continuing work.”         Id.       Although Perry can perform an office job

that requires him to work primarily at a computer, his vision

problems render him “less efficient than able-bodied persons.”

Id. 240.

       On January 22, 2007, Perry joined the USPTO as a patent

examiner.           Despite   his    vision         problems,     Perry      “was    able    to

perform       the     essential       functions          of     his   patent        examining

position.”          Id. 258.         Indeed, Perry was even able to drive

himself to and from the local Metro stop each workday.                                     While

employed at the USPTO, Perry suffered complications with his

eyesight that required continuing medical treatment.                                He sought

a flexible schedule from the USPTO, allowing him to miss normal

work hours to tend to his medical needs and make up the lost

time at night or on the weekends.                        Perry claimed that none of

his    supervisors       responded         to    his     requests       in   a    meaningful

manner.

       Soon after joining the USPTO, Perry became involved in a

dispute about his salary.                  On January 29, Perry emailed April

Irondi,    a    human-resources        employee,           to   begin    the      process    of

securing a pay advance.              Irondi told Perry to stop by her office

                                                4
when he had time to talk, and he visited Irondi’s office after

receiving her response.              He claimed that Irondi was on the phone

when he arrived at her office.                 As he approached the door, Perry

asserted that Irondi told him to leave immediately and close the

door    behind      him.      Irondi       later    complained      to     her    supervisor

about the incident, alleging that Perry had verbally accosted

her.       Jeffrey         Pwu,   Perry’s      supervisor,          learned       about       the

incident      and     confronted      Perry.         Perry,    an    African          American,

believed      that    Irondi’s       and    Pwu’s    actions     were      the    result       of

discrimination against him on the basis of race.

       After the incident with Irondi and discovering that the

wrong salary grade and step had been entered in his file, Perry

contacted Bernice Nesbitt, another human-resources employee, to

remedy    the       problem.        Nesbitt        directed    Perry       to    speak     with

Irondi.       Perry responded in a February 6 email that he had “had

problems with Ms. Irondi and [he did] not want to deal with her

any    more   [sic].”         Id.    144.      He    also     threatened         to    file    an

administrative         grievance       if     employees       did    not        become     more

solicitous of his requests and complaints.

       About a week later, Perry contacted the USPTO’s Office of

Civil    Rights       (“OCR”)       about    the     incident       with    Irondi.            On

February 15, Lisa Dill, the Equal Employment Opportunity (“EEO”)

specialist       at    the   USPTO,        scheduled    a     meeting      with       Perry    to

discuss his concerns about the pay-advance dispute.                                   Perry met

                                              5
with Dill and described his issues with Irondi and Pwu, alleging

that the actions of both were racially discriminatory.                           Perry

learned that the OCR would draft an informal complaint, after

the issuance of which he would have fifteen days to file a

formal complaint of employment discrimination.

     Perry testified that he felt pressure from Pwu not to file

a formal complaint.           According to Perry, Pwu began asking him

about the status of his complaint in late February or early

March.   On the first occasion, Pwu asked Perry, “[W]hat’s going

on?” and Perry informed him that he was “trying to work through

the issues.”       Id. 167.      Pwu told Perry to keep him informed.              In

a second encounter, Pwu stopped Perry in the hall and again

asked, “What’s going on?”           Id.        Perry responded that “everything

was fine” because he feared being fired.                  Id.     He explained why

he   thought      Pwu   was   pressuring         him   not   to      file   a   formal

complaint:

     It wasn’t so much what he said.   It was what he did.
     He was very--he was constantly wanting to talk with me
     and get my--get my status or what was happening with
     this. It wasn’t from a standpoint of wanting to help,
     or at least that, because he really didn’t.     It was
     just from the standpoint of wanting to know what was
     going on and whether or not I was going to file
     formal.

Id. 176–77.       Perry received his Notice of Right to File a Formal

Complaint    on    March   15,    but     he    elected   not   to    formalize   his

grievances.


                                           6
       Citing Perry’s lackluster performance as a patent examiner,

Deborah Reynolds, the assistant to the director at the Patent

Training Academy, on May 14 filed a request for termination of

his    employment.            Jim    Ng,    director      of     the       Patent     Training

Academy, wrote to Perry on May 23 to inform him that he had been

discharged.        Ng      explained       that    Perry’s       performance          had       not

“progressed      at     the    expected      rate,”       that       he    had     “routinely”

missed due dates and failed to complete assignments, and that

his work record “indicate[d] little or no potential for growth

and development as a career professional in the USPTO.”                                         Id.

129.



                                             B.

       Perry    responded       to    his    termination         by       filing     a    second

informal complaint with the USPTO’s OCR, alleging that the USPTO

had    discriminated          against       him    on     the    basis        of     race       and

disability.           He   subsequently           filed    a     formal       complaint          of

employment      discrimination--which             repeated       the       charges       made    in

the    second     informal          complaint--with            the        Equal     Employment

Opportunity Commission (“EEOC”).                    An administrative law judge

dismissed Perry’s complaint, and the EEOC affirmed.

       Perry then filed this action in the U.S. District Court for

the Eastern District of Virginia, raising two claims against

David Kappos, the director of the USPTO.                         First, Perry alleged

                                              7
that   the     USPTO   violated      the     Rehabilitation        Act   of    1973,   29

U.S.C.   §     701    et   seq.,    by   refusing        to   grant   him     reasonable

accommodations and intentionally discriminating against him on

the    basis     of    his    disability--i.e.,            monocular     vision     that

impaired his ability to perform the major life activities of

seeing   and     working.          Second,       Perry   alleged      that    the   USPTO

discharged him in contravention of the antiretaliation provision

of Title VII, 42 U.S.C. § 2000e-3(a).                    He claimed that the USPTO

terminated his employment as retaliation for filing an informal

complaint of discrimination.

       The    district     court     granted      Kappos’s      motion   for    summary

judgment.       The court first held that Perry was not “disabled”

pursuant to the Rehabilitation Act, foreclosing relief on that

claim.       As for the Title VII claim, the court found that Perry’s

filing   an     informal      complaint      was    mere      “opposition”     activity

under the statute.           Because Perry had failed to demonstrate that

he reasonably believed that the employment practice he opposed

was unlawful, the court found this claim meritless.

       This appeal followed.



                                           II.

       We review de novo the district court’s grant of summary

judgment.       EEOC v. Xerxes Corp., 639 F.3d 658, 668 (4th Cir.

2011).       Summary judgment is appropriate where the moving party

                                             8
“shows that there is no genuine dispute as to any material fact”

and that it is “entitled to judgment as a matter of law.”                       Fed.

R.   Civ.   P.   56(a).     “The   mere       existence     of   a   scintilla   of

evidence    in    support   of     the       plaintiff’s    position     will     be

insufficient; there must be evidence on which the jury could

reasonably find for the plaintiff.”                 Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 252 (1986).               At the summary judgment stage,

the nonmoving party must come forward with more than “ ‘mere

speculation or the building of one inference upon another’ ” to

resist dismissal of the action.                Othentec Ltd. v. Phelan, 526

F.3d 135, 140 (4th Cir. 2008) (quoting Beale v. Hardy, 769 F.2d

213, 214 (4th Cir. 1985)); see also Francis v. Booz, Allen &

Hamilton,    Inc.,   452    F.3d    299,      308    (4th   Cir.     2006)   (“Mere

unsupported speculation is not sufficient to defeat a summary

judgment motion if the undisputed evidence indicates that the

other party should win as a matter of law.”).



                                     III.

       Perry first challenges the district court’s holding that he

does not suffer from a “disability” under the Rehabilitation

Act.    He argues that his monocularity “substantially limits” the




                                         9
major       life    activity     of    seeing. 1      Because    Perry’s    admissions

reveal that he is able to function adequately with the use of

corrective devices, he has not established disability under the

Rehabilitation Act.             His claim on that score consequently fails.

       As a threshold matter, a plaintiff seeking relief pursuant

to    the    Rehabilitation        Act 2   for      discrimination    or   failure   to

accommodate must establish disability.                    Edmonson v. Potter, 118

F.    App’x        726,   728   (4th    Cir.     2004).     To    successfully     show

disability, a plaintiff must prove “(1) that he has a physical

or mental impairment, (2) that this impairment implicates at

least one major life activity, and (3) that the limitation is

substantial.”             Heiko v. Colombo Savings Bank, F.S.B., 434 F.3d

249, 254 (4th Cir. 2006).               The USPTO does not dispute that Perry

has     a    physical       impairment      that     implicates      the   major   life

activity of seeing.               Our analysis thus centers on the third




       1
       Perry at various times in the litigation has referenced a
limitation on the major life activities of working and reading.
On appeal, however, he has abandoned the argument with regard to
working.   See Appellant’s Br. 16 n.2.    As for the major life
activity of reading, Perry raises this claim for the first time
on appeal and it is therefore waived. See United States v. Am.
Target Adver., Inc., 257 F.3d 348, 351 (4th Cir. 2001).
       2
        Given the overlapping standards, we rely on cases
construing the Americans with Disabilities Act when resolving
claims under the Rehabilitation Act.  Hooven-Lewis v. Caldera,
249 F.3d 259, 268 (4th Cir. 2001).



                                               10
prong--whether         the        limitation          on       Perry’s         vision      is

“substantial.” 3

      The    Rehabilitation        Act’s    substantiality           requirement         must

“be   interpreted       strictly      to    create         a   demanding        standard.”

Toyota      Motor    Mfg.    v.   Williams,      534       U.S.    184,    197     (2002).

Regulations         accompanying      the       Act        provide       the     following

definition of the phrase “substantially limits”:

      (i)    Unable to perform a major life activity that the
             average person in the general population can
             perform; or

      (ii) Significantly restricted as to the condition,
           manner or duration under which an individual can
           perform a particular major life activity as
           compared to the condition, manner, or duration
           under which the average person in the general
           population can perform that same major life
           activity.

29 C.F.R. § 1630.2(j)(1), amended by 76 Fed. Reg. 16,978 (2011).

Plaintiffs      claiming      disability        are        required       to     “have     an

impairment that prevents or severely restricts [them] from doing

activities that are of central importance to most people’s daily

lives” to meet the substantiality standard.                       Toyota, 534 U.S. at

      3
       The ADA Amendments Act of 2008 superseded the Supreme
Court’s elucidation of the substantiality test in Toyota Motor
Mfg. v. Williams, 534 U.S. 184 (2002), and Sutton v. United Air
Lines, Inc., 527 U.S. 471 (1999). But as the parties agree, the
ADA Amendments Act of 2008 does not apply retroactively to the
conduct giving rise to this dispute. See Cochran v. Holder, 436
F. App’x 227, 232 (4th Cir. 2011).     Precedent construing the
prior version of the statute and regulations consequently
governs this case.



                                           11
198.     Mindful of the Supreme Court’s admonition to interpret the

regulations           exactingly,           we        have            explained          that      the

substantiality         prong       is     intended      to        “preclude[]        coverage      of

impairments whose effects on a major life activity rise only to

the level of a mere difference with the abilities of an average

individual.”           Heiko,        434    F.3d       at        256    (internal         quotations

omitted).

       We     must     take        into     account          mitigating           measures        when

performing the disability analysis.                         Sutton v. United Air Lines,

Inc., 527 U.S. 471, 482 (1999) (concluding that plaintiffs, who

had 20/200 or worse vision in their right eye and 20/400 vision

or worse in their left eye but had 20/20 vision with the aid of

corrective lenses, were not disabled for statutory purposes).

Indeed, it impermissibly strains the text of the Rehabilitation

Act    to     posit    that        “persons      are        to    be     evaluated        in    their

hypothetical uncorrected state.”                      Id.

       Evaluating disability under the Rehabilitation Act demands

an    individualized,         case-by-case            analysis,         in    which       plaintiffs

point    to    concrete       evidence        of      their       own       experience      with    an

impairment.           Toyota, 534 U.S. at 198.                          Such a case-specific

inquiry       is   particularly           important         when       an    individual         claims

disability         based      on     monocularity,               as     the       many    variables

associated with the condition “are not the stuff of a per se

rule.”        Albertson’s,         Inc.     v.     Kirkingburg,             527    U.S.    555,    566

                                                 12
(1999).        “While monocularity inevitably leads to some loss of

horizontal field of vision and depth perception,” acknowledged

the Supreme Court, a plaintiff must present evidence showing

that     his       case     of     monocularity       amounts     to      a    substantial

limitation         on     seeing.       Id.    at     566–67.      Though       the   Court

counseled that “people with monocular vision ‘ordinarily’ will

meet the Act’s definition of disability,” such individuals are

not excused from the obligation to “offer[] evidence that the

extent of the limitation in terms of their own experience . . .

is     substantial.”              Id.   at    567.         We   have    held     monocular

individuals         to      the     burden     articulated        by    the      Court   in

Albertson’s, concluding in one case that a monocular plaintiff

had not met the substantiality prong because he had overcome his

impairment with the use of corrective devices.                         Foore v. City of

Richmond,      6    F.     App’x    148,     153    (4th   Cir.   2001)       (unpublished)

(explaining that the court was not presented with the “ordinary

case” referenced in Albertson’s).

       Applying these principles to Perry’s impairment, we find

that he has not demonstrated that he is substantially limited in

the major life activity of seeing.                     We note initially that our

analysis focuses on Perry’s global ability to see; it is not

confined to his ability to read highly technical documents while

examining patent applications at the USPTO.                       Nor may we overlook

the ameliorative effect of corrective lenses and straight-edge

                                               13
devices on Perry’s ability to see.                    Conducting the disability

inquiry      at    the    proper      level   of   generality    and    taking       into

account mitigating measures, we conclude that Perry has failed

to     establish        that    his    monocularity      “prevents      or     severely

restricts,” Toyota, 534 U.S. at 198, him from seeing.

          The record shows that Perry, like the plaintiff in Foore,

“has overcome his impairment and is not substantially limited,”

6    F.    App’x   at    153.      Indeed,     through   the    use    of    mitigating

measures Perry was able to obtain a Maryland driver’s license.

He drove himself to the Metro stop each workday, and he could

even drive at night along familiar, well-lit routes.                         Perry was

moreover able to “read efficiently” with the use of “magnifying

glasses and straight-edge-type devices.”                    J.A. 239.       He admitted

that his vision problems did not preclude him from “perform[ing]

the essential functions of his patent examining position.”                           Id.

258.        Although     Perry   suffered      fatigue   when    reading      for    long

periods of time, we do not deem this--when viewed in conjunction

with his ability to read efficiently, drive, and perform all the

functions required of him at the USPTO--sufficient to establish

that he was “severely restrict[ed],” Toyota, 534 U.S. at 198

(emphasis added), from seeing.

          To be sure, the Supreme Court has instructed that monocular

individuals        “ordinarily”        will    meet   the    Rehabilitation         Act’s

definition of disability.              Albertson’s, 527 U.S. at 567.            But we

                                              14
find that Perry has not presented an “ordinary” case, as he has

not demonstrated “a disability by offering evidence that the

extent of the limitation in terms of [his] own experience . . .

is substantial,” id.; see also Foore, 6 F. App’x at 153.

       Perry’s failure to prove disability in this case does not

inexorably doom possible future claims under the Rehabilitation

Act.        Disability determinations are inherently fluid, changing

as a plaintiff’s underlying conditions improve or deteriorate.

Should Perry’s vision continue to decline and lead to greater

impediments in his daily life, he might be able to obtain relief

in a later action.



                                     IV.

       We turn next to Perry’s Title VII retaliation claim.                  The

parties and the district court focused on whether Perry’s filing

of     an     informal   complaint   qualified     as     participation       or

opposition activity under the statute.            But we need not resolve

that issue to decide this case.            See Seremeth v. Bd. of Cnty.

Comm’rs, 673 F.3d 333, 337 n.2 (4th Cir. 2012) (recognizing that

a circuit court may affirm on grounds different from those on

which the district court relied).           Because Perry has failed to

demonstrate a causal link between the filing of the complaint

and    his    discharge,   we   conclude   that   he    has   not   raised   an

actionable retaliation claim under Title VII.

                                     15
       Title VII’s antiretaliation provision forbids an employer

“to discriminate against any of [its] employees . . . because

[the     employee]       has    opposed      any    practice      made     an     unlawful

employment practice by this subchapter, or because he has made a

charge, testified, assisted, or participated in any manner in an

investigation,         proceeding,      or   hearing     under    this     subchapter.”

42   U.S.C.     §     2000e-3(a).       Under      the   familiar    burden-shifting

model,    the       plaintiff    must     establish      a   prima   facie        case   of

retaliation.          EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 405

(4th Cir. 2005).              To meet this initial burden, the plaintiff

must satisfy a three-part test:                    (1) he engaged in a protected

activity;       (2)     his    employer      took    adverse      employment        action

against him; and (3) there was a causal link between the two

events.       Id. at 405–06.        Our analysis here is confined solely to

the third prong of the formulation.

       Save     for     situations      in    which      the     adverse        employment

decision follows the protected activity “very close[ly],” “mere

temporal proximity” between the two events is insufficient to

satisfy the causation element of the prima facie requirement.

Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (per

curiam) (internal quotations omitted).                   Although neither we nor

the Supreme Court have adopted a bright temporal line, we have

held that a three- or four-month lapse between the protected

activities and discharge was “too long to establish a causal

                                             16
connection by temporal proximity alone,” Pascual v. Lowe’s Home

Ctrs.,      Inc.,    193     F.     App’x       229,     233      (4th     Cir.        2006)

(unpublished).        Even    a    mere     ten-week      separation       between         the

protected activity and termination “is sufficiently long so as

to weaken significantly the inference of causation between the

two events.”        King v. Rumsfeld, 328 F.3d 145, 151 n.5 (4th Cir.

2003).      Where    the   time     between      the     events    is    too    great       to

establish     causation      based    solely       on     temporal       proximity,          a

plaintiff     must    present      “other       relevant    evidence       .     .     .    to

establish     causation,”     such    as    “continuing        retaliatory        conduct

and animus” in the intervening period.                   Lettieri v. Equant Inc.,

478 F.3d 640, 650 (4th Cir. 2007).

      Perry may not rely on temporal proximity alone to establish

the requisite nexus of causation.                  Perry first contacted Dill,

the   EEO    specialist,      on    February       14,     2007    about       filing       an

informal     complaint,      more    than       three     months     before       he       was

discharged, on May 23.            Such a three-month lapse is too long to

establish causation, without more.                See Clark Cnty., 532 U.S. at

273–74 (collecting cases).           Even assuming that Pwu did not learn

about the complaint until just prior to questioning Perry about

it, in late February or early March, roughly ten weeks or more

elapsed between that time and the USPTO’s decision to terminate

Perry’s employment.          This separation between the two events is

“sufficiently long so as to weaken significantly the inference

                                           17
of causation,” requiring Perry to present additional evidence of

retaliation.       See King, 328 F.3d at 151 n.5.

         This he has not done.             In fact, Perry has presented no

evidence    that     any   supervisors      at    the   USPTO    displayed        animus

toward   him    or     otherwise    retaliated      against     him    in    the    time

between his filing the informal complaint and the termination of

his      employment.               Perry        testified       that        Pwu      was

“uncharacteristically aggressive” about checking the status of

his complaint and twice asked him whether he had filed a formal

complaint.      J.A. 176.     Perry assigns nefarious motives to Pwu’s

questions      about    the   complaint,        attempting      to    convert      Pwu’s

actions from those of a solicitous supervisor to those of a boss

scheming to thwart the exercise of federally recognized rights.

At the summary judgment stage, however, we will not allow the

nonmoving party to “ ‘create a genuine issue of material fact

through mere speculation or the building of one inference upon

another.’ ”      Othentec, 526 F.3d at 140 (quoting Beale, 769 F.2d

at 214).       Because Perry has not come forward with any evidence

to establish causation beyond temporal proximity, we find that

he has not met his burden to establish a prima facie case of

retaliation.




                                           18
                             V.

     For the foregoing reasons, we affirm the judgment of the

district court.

                                                     AFFIRMED




                             19
