                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 17-1248


RONALD G. ULLRICH,

                    Plaintiff - Appellant,

             v.

CEXEC, INC.,

                    Defendant - Appellee.



Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. T.S. Ellis, III, Senior District Judge. (1:16-cv-00570-TSE-IDD)


Submitted: September 28, 2017                                 Decided: October 12, 2017


Before NIEMEYER, THACKER, and HARRIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


R. Scott Oswald, Nicholas Woodfield, EMPLOYMENT LAW GROUP, PC,
Washington, D.C., for Appellant. Steven W. Ray, Amanda S. DiSanto, ISLER DARE,
PC, Vienna, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Ronald G. Ullrich brought this action against CEXEC, Inc., alleging employment

discrimination and retaliation in violation of the Age Discrimination in Employment Act

(“ADEA”), 29 U.S.C. §§ 621–634, and the Americans with Disabilities Act (“ADA”), 42

U.S.C. §§ 12101–12213. The district court granted CEXEC’s motion for summary

judgment. On appeal, Ullrich challenges only the dismissal of his retaliation claims,

alleging that the district court improperly found that he failed to make a sufficient

showing that his termination was based on retaliatory animus. We affirm.

       In 1984, Ullrich was hired by CEXEC. He rose through the ranks, and in January

2008, he took over the duties typically associated with a Chief Operating Officer, and

worked in a non-billable, overhead role.       In May 2014, the President and CEO of

CEXEC, Weston Rhodes, demoted Ullrich by realigning Ullrich’s job duties to focus

exclusively on business development. In the same month, Ullrich complained to the

human resources director, Carolyn Cahoon (“H.R. Director”), that Rhodes was harassing

him regarding his work performance. A year later, in March 2015, Ullrich filed a Charge

of Discrimination with the EEOC (“EEOC Charge”) asserting claims of discrimination

on the basis of age and disability.

       In August 2015, CEXEC suffered two significant business losses. As a result, a

number of employees would become overhead until they were able to find new billable

work. Rhodes determined that CEXEC needed to reduce overhead. Devon Musselman,

Ullrich’s supervisor, contacted Ullrich directly to advise him that his position was in

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jeopardy unless CEXEC could find a direct billing opportunity for him. Musselman

requested that, by September 20, 2015, Ullrich either identify (1) work at which he could

immediately become billable, or (2) a project that had a high probability of a win for

CEXEC. On September 20, Ullrich emailed Musselman a document outlining his plan

for obtaining direct billing. A significant portion of the plan was a verbatim reiteration of

content from the internet on business development.           Further, Ullrich’s plan only

referenced a single prospect for direct billing which was not yet open for bidding.

       After receiving Ullrich’s email, Musselman informed Rhodes that Ullrich had

failed to identify a direct billing opportunity or a potential contract with a high

probability of a win. Accordingly, Musselman called Ullrich on September 21, 2015, and

told him that he was being laid off. He also sent a follow-up letter, explaining the

circumstances of the layoff.

       Subsequently, Ullrich filed the instant suit in district court. The district court

granted summary judgment, finding that the gaps between Ullrich’s complaint to the H.R.

Director in May 2014 and his termination in September 2015 and between Ullrich’s

EEOC Charge in March 2015 and his termination were too lengthy to permit an inference

of retaliation.   The court further ruled that the H.R. Director’s testimony regarding

Rhodes’ statements was insufficient evidence of a retaliatory motive to prevent summary

judgment. Ullrich timely appealed.

       We review a district court’s order granting summary judgment de novo, drawing

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

Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th Cir. 2001). Summary judgment may

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be granted only 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); see Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986). An otherwise properly supported motion for summary

judgment will not be defeated by the existence of some factual dispute; rather, “[o]nly

disputes over facts that might affect the outcome of the suit under the governing law will

properly preclude the entry of summary judgment.” Hooven-Lewis, 249 F.3d at 265

(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Indeed, to withstand

a motion for summary judgment, the non-moving party must produce competent evidence

sufficient to reveal the existence of a genuine issue of material fact for trial. Fed. R. Civ.

P. 56(c)(1); see Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir.

2002) (“Conclusory or speculative allegations do not suffice, nor does a mere scintilla of

evidence in support of [the non-moving party’s] case.” (internal quotation and citation

omitted)).

       A plaintiff may proceed by direct and indirect evidence of a retaliatory animus or

by the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802 (1973). See Foster v. Univ. of Md., 787 F.3d 243, 249 (4th Cir. 2015). Under

McDonnell Douglas, once the plaintiff establishes his prima facie case, the burden shifts

to the employer to put forth a legitimate, non-discriminatory reason for the action. See

McDonnel Douglas, 411 U.S. at 802. To prevail on an ADEA or ADA retaliation claim,

a plaintiff must show that: (1) he engaged in protected conduct; (2) an adverse action

was taken against him by the employer; and (3) there was a causal connection between

the first two elements. See Reynolds v. Am. Nat’l Red Cross, 701 F.3d 143, 154 (4th Cir.

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2012) (ADA); Laber v. Harvey, 438 F.3d 404, 432 (4th Cir. 2006) (en banc) (ADEA). If

this burden is met, the plaintiff must then show by a preponderance of the evidence that

the proffered reason is pretextual or his claim will fail. See Foster, 787 F.3d at 250. That

is, “[i]f a plaintiff can show that []he was fired under suspicious circumstances and that

h[is] employer lied about its reasons for firing h[im], the factfinder may infer that the

employer’s undisclosed retaliatory animus was the actual cause of her termination.” Id.

       On appeal, Ullrich first claims that the district court erred by finding that

CEXEC’s CEO, Weston Rhodes’s “multiple statements of intent to retaliate” during the

sixty days following Ullrich’s March 2015 EEOC Charge were insufficient to show either

retaliatory animus or causation.     However, the evidence, viewed in the light most

favorable to Ullrich, does not show that Rhodes made any statements showing an intent

to retaliate, much less any such statements during that time period. While Rhodes

discussed terminating Ullrich with the H.R. Director four orfive times between May

2014 and May 2015, there is no evidence that any of these conversations took place after

March 2015. Additionally, while Rhodes was counseled about avoiding the appearance

of retaliation, it is unclear whether the H.R. Director was referencing retaliation based

upon Ullrich’s May 2014 informal complaint or the March 2015 EEOC Charge. In any

event, in these conversations, the fact that Rhodes was considering terminating Ullrich

was tied to his performance and business concerns. Finally, while the H.R. Director was

of the belief that Rhodes felt Ullrich’s complaint was a distraction that was costing

CEXEC time and money, she could not remember if Rhodes had ever actually voiced this



                                             5
concern. To the contrary, she remembered that Rhodes stated that such complaints were

the cost of doing business and were covered by insurance.

       We find that this evidence does not provide more than a scintilla of evidence of

retaliatory motive. Moreover, it is not clear that any of the Rhodes’s conversations

actually took place after the EEOC Charge. In any event, while there is evidence of the

general subject of the conversations, no specific retaliatory statements can be attributed to

Rhodes. Accordingly, the district court properly found that Ullrich had not put forth

sufficient direct or indirect evidence of retaliation to avoid summary judgment. For the

same reasons, Ullrich fails to make a prima facie case of retaliation.

       Moreover, the district court found that, even if Ullrich’s evidence was sufficient to

constitute a prima facie case, CEXEC provided a legitimate, non-discriminatory reason

for Ullrich’s termination—the need to reduce overhead and Ullrich’s inability to show a

likelihood that he could quickly become billable. Ullrich contends that he has shown

pretext through testimony regarding Rhodes’s statements, Rhodes’s decision to terminate

Ullrich prior to Ullrich’s submission of his plan for direct billing, and the failure to

require other employees to provide similar direct billing plans.

       First, evidence of Rhodes’s statements fails to show pretext for the reasons

discussed above. Regarding Rhodes’s decision to terminate Ullrich, Rhodes’s email

dated September 9, 2015, referenced by Ullrich, clearly shows an intent to lay off Ullrich,

that would be “revisit[ed]” if he (or the company) could find direct work that would

offset Ullrich’s costs. As such, this letter does not contradict CEXEC’s later request for

Ullrich to show that he could find direct billable work. Moreover, it does not show an

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intent to retaliate, as the decision was tied to performance and the need to reduce

overhead and occurred over five months after Ullrich’s EEOC Charge. Further, the

significant passage of time between the two actually tends to negate an inference of

retaliation. See Hoover-Lewis, 249 F.3d at 278 (citing Dowe v. Total Action Against

Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998)) (holding that a six month

lag is sufficient to negate any inference of causation).

       Finally, turning to the proffered comparators, both of these employees were

working partially on directly billable work in September 2015 and became fully billable

within a couple of months. Ullrich does not dispute that he was completely nonbillable at

the time of his termination. He also failed to show any likelihood that he would be able

to become billable within a short period of time. Further, Ullrich did not provide any

evidence regarding these would-be comparators’ positions, supervisors, history, or other

relevant information. Accordingly, Ullrich’s attempt to show pretext through the use of

comparators is without merit. See Anderson v. Westinghouse Savannah River Co., 406

F.3d 248, 272–73 (4th Cir. 2005) (requiring comparators to hold similar positions); see

also Coleman v. Donahoe, 667 F.3d 835, 841–42 (10th Cir. 2012) (while comparator

evidence is relevant at the pretext stage, there must be “sufficient commonalities” to

permit a “meaningful comparison”). As such, the district court correctly concluded that

Ullrich failed to show pretext.

       Thus, we affirm the district court’s order granting summary judgment to CEXEC.

We dispense with oral argument because the facts and legal contentions are adequately



                                              7
presented in the materials before this court and argument would not aid the decisional

process.



                                                                          AFFIRMED




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