                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 13-1875


SHASTA D. STALEY,

                Plaintiff - Appellant,

          v.

MARTIN GRUENBERG, Acting Chairman, Federal Deposit Insurance
Corporation,

                Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:12-cv-00530-GBL-JFA)


Submitted:   May 30, 2014                     Decided:   June 6, 2014


Before WILKINSON, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Gerald L. Gilliard, LAW OFFICE OF GERALD L. GILLIARD, ESQ., LLC,
Washington, D.C., for Appellant. Dana J. Boente, Acting United
States Attorney, Dennis C. Barghaan, Jr., Assistant United
States Attorney, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             The     President        of      the      United       States,     through   an

Executive     Order,        directed          the       Federal       Deposit     Insurance

Corporation (“FDIC” or “Defendant”) to decide promptly whether

to convert certain interns to permanent status.                              After the FDIC

decided not to convert Shasta Staley to permanent status, Staley

filed a complaint alleging that the FDIC retaliated against her

for engaging in protected activities, in violation of Title VII

of   the    Civil    Rights      Act    of       1964    (“Title       VII”),    42   U.S.C.

§§ 2000e to 2000e-17 (2012); the Americans with Disabilities Act

(“ADA”), 42 U.S.C. §§ 12201-12213 (2012); and the Rehabilitation

Act,   29   U.S.C.       §§ 701-796        (2012).        Staley       alleged    that    she

engaged in the following protected activities: (1) requesting a

reasonable        accommodation;        (2)      filing       a    grievance     after    her

request     was    denied;      and     (3)      filing       an    informal    and   formal

complaint     with       the    Equal      Employment          Opportunity       Commission

(“EEOC”).          The   district       court         granted       summary    judgment    to

Defendant     on     this      claim,      and       Staley       appeals.      Finding    no

reversible error, we affirm.

             We review a district court’s grant of summary judgment

de novo, viewing the facts and drawing reasonable inferences in




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the light most favorable to the nonmoving party. 1                          Halpern v.

Wake Forest Univ. Health Scis., 669 F.3d 454, 460 (4th Cir.

2012).      Summary    judgment       is    appropriate       when    “there    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).     Summary judgment will be granted unless “a reasonable

jury could return a verdict for the nonmoving party” on the

evidence presented.         Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986).        “Conclusory or speculative allegations do not

suffice, nor does a mere scintilla of evidence in support of

[the nonmoving party’s] case.”                 Thompson v. Potomac Elec. Power

Co., 312 F.3d 645, 649 (4th Cir. 2002) (internal quotation marks

omitted).

            Because     Staley    presented           no     direct     evidence     of

retaliation, we analyze her claim under the familiar burden-

shifting    framework      established         in   McDonnell   Douglas      Corp.   v.

Green, 411 U.S. 792 (1973).                Price v. Thompson, 380 F.3d 209,

212 (4th Cir. 2004) (Title VII); Ennis v. Nat’l Ass’n of Bus. &

    1
       Because the district court struck Staley’s memorandum in
opposition to Defendant’s motion for summary judgment and Staley
does not challenge that order on appeal, we confine our review
to Staley’s complaint and the evidence presented in the exhibits
accompanying Defendant’s memorandum in support of summary
judgment. See Custer v. Pan Am. Life Ins. Co., 12 F.3d 410, 416
(4th Cir. 1993) (providing that facts presented in summary
judgment motion are “uncontroverted” if opposing party fails to
respond).



                                           3
Educ. Radio, Inc., 53 F.3d 55, 57-58 (4th Cir. 1995) (ADA &

Rehabilitation       Act).        “Importantly,         although        intermediate

evidentiary burdens shift back and forth under this framework,

[Staley retains] the ultimate burden of persuading the trier of

fact,” Hoyle v. Freightliner, LLC, 650 F.3d 321, 336 (4th Cir.

2011) (internal quotation marks and alteration omitted), that

her engagement in the protected activities was a “but for” cause

of her non-conversion to permanent status.                    Univ. of Tex. Sw.

Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013); see Feist v.

La., Dep’t of Justice, Office of the Atty. Gen., 730 F.3d 450,

454   (5th   Cir.    2013)    (applying       “but   for”   test   to   retaliation

claim under ADA).

             The    primary   issue   on      appeal   is   whether      Staley   has

demonstrated       that   Defendant’s     proffered     reasons     for    her    non-

conversion to permanent status were pretextual. 2                  A plaintiff can

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

      2
       Staley also suggests that the incidents identified in the
Letter of Warning and Letter of Admonishment are not legitimate,
non-retaliatory reasons for her non-conversion to permanent
status because they relate to her disability.    However, “[t]he
law is well settled that the ADA is not violated when an
employer discharges an individual based on an employee’s
misconduct, even if the misconduct is related to a disability.”
Jones v. Am. Postal Workers Union, 192 F.3d 417, 429 (4th Cir.
2009); see also Calhoun v. U.S. Dep’t of Labor, 576 F.3d 201,
214 (4th Cir. 2009) (holding that insubordinate behavior is
sufficient to discharge the employer’s burden to produce a
legitimate, non-retaliatory reason for an adverse employment
action).



                                          4
unworthy        of     credence        or     by     offering          other        forms       of

circumstantial          evidence       sufficiently          probative         of     .     .     .

[retaliation].”          Mereish v. Walker, 359 F.3d 330, 336 (4th Cir.

2004)    (internal       quotation      marks       omitted).           “[A]    plaintiff’s

prima facie case, combined with sufficient evidence to find that

the employer’s asserted justification is false, may permit the

trier     of    fact      to     conclude      that      the     employer           unlawfully

discriminated.”          Reeves v. Sanderson Plumbing Prods., Inc., 530

U.S. 133, 148 (2000).

               We conclude that Staley has failed to establish that

Defendant’s          legitimate,        non-retaliatory               reasons        for        not

converting her to permanent status were pretext for retaliation

— either for requesting a reasonable accommodation, filing a

grievance after that request was denied, or filing an informal

and formal complaint with the EEOC.                     To the contrary, the record

reveals    that        Staley    was    not    converted         to    permanent          status

because    she       disregarded       FDIC        policy,      was    disrespectful             to

supervisors, and demonstrated poor judgment.                           Although Staley’s

non-conversion occurred shortly after she filed the formal EEOC

complaint, this temporal proximity alone is not sufficient to

establish that her engagement in protected activity was a “but

for”    cause    of     her     non-conversion.           See    Hernandez          v.     Yellow

Transp.,       Inc.,    670     F.3d   644,       660   (5th     Cir.)     (holding         that

“‘[b]ut for’ causation . . . cannot be established by temporal

                                              5
proximity alone”), cert. denied, 133 S. Ct. 136 (2012).                       Nor is

there any evidence that Staley’s supervisors were conspiring to

prevent her non-conversion by creating a paper trail of “trumped

up” disciplinary charges.            In any event, it is not for this

court to decide whether the decision by Staley’s supervisors was

wise.   See DeJarnette v. Corning, Inc., 133 F.3d 293, 299 (4th

Cir. 1998) (observing that “this [c]ourt does not sit as a kind

of   super-personnel        department        weighing       the   prudence        of

employment     decisions    made     by   firms   charged       with     employment

discrimination” (internal quotation marks omitted)).

             Accordingly, we affirm the entry of summary judgment

in   favor    of    Defendant   on    Staley’s    retaliation          claim.      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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