                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-1557


DOROTHY L. BUCHHAGEN, PH.D.,

                Plaintiff - Appellant,

           v.

ICF INTERNATIONAL, INC.; ICF Z-TECH INC.,

                Defendants - Appellees.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.     J. Frederick Motz, Senior District
Judge. (8:12-cv-02470-JFM)


Argued:   March 22, 2016                    Decided:   May 31, 2016


Before KING, AGEE, and FLOYD, Circuit Judges.


Affirmed by unpublished opinion. Judge Agee wrote the opinion,
in which Judge King and Judge Floyd joined.


ARGUED: Alan Banov, ALAN BANOV & ASSOCIATES, Silver Spring,
Maryland, for Appellant.    Jeremy William Dutra, SQUIRE PATTON
BOGGS (US) LLP, Washington, D.C., for Appellees.      ON BRIEF:
Stephanie Rapp-Tully, ALAN BANOV & ASSOCIATES, Silver Spring,
Maryland, for Appellant. Merrell B. Renaud, SQUIRE PATTON BOGGS
(US) LLP, Tysons Corner, Virginia, for Appellees.


Unpublished opinions are not binding precedent in this circuit.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

       Dr. Dorothy Buchhagen, Ph.D., appeals the grant of summary

judgment in favor of her former employer, ICF Z-Tech, Inc. (“Z-

Tech”), 1 on her claim of retaliation under the Age Discrimination

in   Employment         Act   (“ADEA”),   pursuant    to   29   U.S.C    §   623(d).

Because Buchhagen failed to meet the causation standard for her

claim, we affirm the district court’s judgment.



                                          I.

       In December 2006, Dr. Deborah Beebe, Ph.D., hired Buchhagen

to   work        on    Lockheed-Martin    Corporation’s     Cancer      Information

Analysis and Tracking (“CIAT”) contract with the National Cancer

Institute (“NCI”).            At that time, Buchhagen was sixty-four years

old,       and   her    primary   responsibility     was   writing   content    for

NCI’s Dictionary of Cancer Terms (“Glossary”).                    In June 2009,

NCI awarded the CIAT contract to Z-Tech, and Buchhagen applied

for her old position with the new contract carrier. 2




       1
       ICF International, the parent company of ICF Z-Tech, is
also named as a defendant in this case. For ease of reference,
the joint defendants shall be referred to as Z-Tech throughout
this opinion.
       2
       Buchhagen claims that Beebe told her “no one will hire you
at your age” in the summer of 2009, shortly before she applied
for her position at Z-Tech.



                                           2
       Buchhagen negotiated a salary raise from $30.12 per hour to

$60.00 per hour and accepted the position at the age of sixty-

seven.       Beebe continued as her supervisor.                  Shortly thereafter,

when a colleague left the CIAT contract to work directly at NCI,

Beebe confirmed Buchhagen’s promotion to be the Glossary and

Multimedia Manager.

       Not long after Buchhagen began her new position, however,

her relationship with Beebe deteriorated.                      The impetus for this

change was Buchhagen’s failure to correctly upload a Spanish

Hysterectomy Image (“SHI”) to the Glossary, which caused the

Glossary entry to be defective.                     Buchhagen insisted this error

was    a    “glitch”       rather    than   her     own     mistake.         Although   the

problem          was    eventually    corrected,       her     attitude       toward    the

problem          and    others’      involvement       in     the     solution      became

contentious.            The SHI issue initiated a trend of insubordination

and overall problematic behavior by Buchhagen.

       Buchhagen met with Beebe and Human Resources personnel to

sort       out    the    internal     strife       arising    from     the    SHI   issue;

however,         Buchhagen    believed      that      Beebe    was     angry    with    her

because she had received a significant raise from Z-Tech when

she was promoted.            On October 12, 2009, she recorded notes from

their meeting and stated, “I then realized [Beebe] was furious

because I had gotten the raise.                    I also then realized that she

would be finding an excuse to terminate me.”                        J.A. 185.

                                               3
        In March 2010, Buchhagen received a low proficient rating

on    her    performance      evaluation            from    Beebe.        She    vociferously

contested this rating and provided a rebuttal to it.                                     Shortly

thereafter, she set up meetings with Human Resources and other

management personnel to complain of what Buchhagen claimed was

harassment by Beebe, which included yelling at Buchhagen and

pounding her fists on the table.                          Buchhagen, Beebe, and Human

Resources       had     three     meetings          to     discuss     the      interpersonal

issues,       but     Buchhagen      was    ultimately            unsatisfied          with     the

progress of Z-Tech’s investigation of her complaints.

       In June 2010, Z-Tech instituted a plan that would assist

Buchhagen      in     managing      the    Glossary         and    that   addressed           NCI’s

request to have a backup process.                        The proposed backup plan also

created goals to strengthen the Glossary team and to present a

unified       front    to   the     client.           Buchhagen        considered        this    a

“replacement        plan”     and    believed         it    was    a   way      for    Beebe    to

embarrass and harass her.                  The record, however, indicates that

NCI specifically requested Z-Tech to have backup personnel on

the     Glossary       project      in     the       event        of   illness,         absence,

disability or other occurrences.

       As June progressed, the relationship between Buchhagen and

Beebe       continued    to     deteriorate.               Buchhagen      involved       NCI    in

internal       Z-Tech       matters        by       raising       questions           about    the

implementation         of   the     backup       plan.        She      further        undermined

                                                4
Beebe’s      authority     by     questioning      the   plan    as     a   mechanism     to

harass her.          In response, Beebe drafted a Process Improvement

Plan (PIP) for Buchhagen and sent it to Human Resources.                              Before

it was approved, however, Buchhagen filed a complaint with Human

Resources accusing Beebe of harassment in violation of Z-Tech’s

policy, but         made   no    age-related      claim.        After       review,    Human

Resources and Z-Tech management approved the PIP for Buchhagen.

The    PIP    was    finalized      on    June    23,    2010,       and    presented     to

Buchhagen the next day.                  It specifically stated, “Failure to

demonstrate immediate and sustained improvement in these areas

will result in termination of employment.”                     J.A. 323.

       Almost       immediately      after       receiving      the     PIP,     Buchhagen

attempted to take unscheduled leave.                       Although she and Beebe

resolved the issue, Z-Tech considered this to be a continuation

of Buchhagen’s defiance and insubordination.                         On July 14, 2010,

Buchhagen failed to organize her back ups for a Glossary meeting

with the client and did not inform Beebe about the meeting.

Beebe prepared a draft email for Human Resources that reminded

Buchhagen      of    the   terms     of     her   PIP    and    indicated        that    her

performance was not fulfilling those expectations.                              In short,

she cautioned, “This email is to remind you that your employment

will   be    terminated         according    to   the    PIP    if    this     continues.”

J.A. 351.       Beebe sent the approved email to Buchhagen on July

20, 2010.

                                             5
       Shortly before receiving Beebe’s email, however, Buchhagen

sent a document thoroughly detailing all of her complaints of

harassment        and     discrimination        to    Human      Resources.       In   this

document, she noted for the first time her status as a member of

a protected class due to her age, among a multitude of other

employment practice complaints.

       Z-Tech decided to end Buchhagen’s employment on or around

July 21, 2010, and she was informed of this decision a few days

later.



                                              II.

       In   2013,       Buchhagen         brought    this      action   against    Z-Tech,

raising          claims       of     hostile         work       environment,      unlawful

termination, and retaliation under the ADEA.                            See Buchhagen v.

ICF    Int’l,      Inc.,      545    F.    App’x.     217      (4th   Cir.   2013).      The

district court dismissed her complaint in full, and Buchhagen

appealed to this Court.                Id. at 219.          We agreed that Buchhagen

failed      to    allege      facts       sufficient      to    state   a    hostile   work

environment claim and affirmed the district court’s dismissal of

that   count.           Id.   at     219–20.         As   to    Buchhagen’s     claims   of

wrongful     discharge         and    retaliation,          however,    we    reversed    on

grounds that her complaint alleged sufficient facts to raise a

plausible claim to relief.                 Id. at 220-21.



                                               6
       On    remand   to   the    district          court,     the   parties       completed

discovery.       Z-Tech moved for summary judgment on the remaining

claims, and after considering the parties’ briefs along with the

record      evidence,    the     district      court      granted      Z-Tech’s      motion.

Buchhagen v. ICF Int’l, Inc., No. JFM–12–2470, 2015 WL 727947

(D. Md. Feb. 18, 2015).            The district court concluded, “there is

no    evidence   to     suggest    that       defendants       discriminated         against

plaintiff because of her age or that plaintiff has been able to

demonstrate      either         that     she       was     meeting      the     legitimate

expectations of ICF or that the reasons ICF articulated for the

termination of her employment were pretextual.”                        Id. at *2.

       Buchhagen timely appealed, contesting only the dismissal of

her    ADEA    retaliation       claim.            We    now   consider       whether    she

presented sufficient evidence on that claim to survive Z-Tech’s

motion for summary judgment.



                                             III.

       We review a grant of summary judgment de novo.                           Foster v.

Univ.    of   Md.-E.     Shore,        787   F.3d       243,   248   (4th     Cir.    2015).

“Summary      judgment     is    appropriate            when   there    is    no     genuine

dispute as to any material fact and the movant is entitled to




                                               7
judgment as a matter of law.”                    Id. 3      “A dispute is genuine if a

reasonable jury could return a verdict for the nonmoving party.”

Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir.

2013).         Further, “[a] fact is material if it might affect the

outcome of the suit under the governing law.”                             Id.      The Court

must       view   “the    facts     and    all       justifiable     inferences        arising

therefrom in the light most favorable to the nonmoving party.”

Id. at 312.

       Generally speaking, the ADEA creates a cause of action for

employees who allege adverse employment action on the basis of

age.       29 U.S.C. § 623(a).            An employer can also violate the ADEA

by retaliating against an employee for engaging in protected

activity, such as filing a complaint of age discrimination.                                  Id.

at § 623(d).         “To establish a prima facie case of retaliation

[under      the   ADEA],     a    plaintiff          must   demonstrate        that:   (1)    he

engaged in protected activity; (2) an adverse employment action

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

the    protected         activity    and    the        adverse      action.”       Laber      v.

Harvey, 438 F.3d 404, 432 (4th Cir. 2006) (en banc).

       When       there     is      no     direct           evidence      of     retaliatory

discrimination,           which    is     the    case       here,   the    Fourth      Circuit



       3
       This opinion omits internal marks, alterations, citations,
emphasis, or footnotes from quotations unless otherwise noted.



                                                 8
applies       the       McDonnell     Douglas 4         burden-shifting     framework.

Foster, 787 F.3d at 250. 5             “Under this framework, the plaintiff

must first establish a prima facie case.”                          Laber, 438 F.3d at

430.       “Once a plaintiff makes this prima facie case, he creates

a presumption of [retaliation], and the burden of production

shifts      to    the     defendant    to    articulate        a    legitimate,   non-

discriminatory reason for its adverse employment decision.”                        Id.

“If    the       defendant    satisfies          this     burden,    the   presumption

disappears[,] and the plaintiff must show that the articulated

reason is a pretext for [retaliation].                     To do so, the plaintiff

must do more than simply show the articulated reason is false;

he must also show that the employer [retaliated] against him on

the basis of” the proffered protected activity.                      Id. at 430–31.



                                            IV.

                                            A.

       Z-Tech first presents a procedural argument that it claims

forecloses this appeal.               According to Z-Tech, Buchhagen waived


       4   McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
       5
       Buchhagen argues that Beebe’s comment while at Lockheed-
Martin “about my age” and that ”it would be difficult . . . to
get another job,” coupled with her later complaints of age
discrimination are direct evidence of retaliation.    Cf. J.A.
913. We do not find this to be persuasive, as it is taken out
of context. Moreover, Beebe had already hired her at age sixty-
four and later promoted her at age sixty-seven.



                                             9
her    ability    to    appeal       the   district          court’s      grant    of   summary

judgment as to her retaliation claim because she did not appeal

the    district     court’s          findings        of     law     as    to   the      wrongful

discharge claim, which, they argue, apply to the retaliation

claim as well.         We do not find this argument persuasive.

       While     perhaps           maladroit,         Buchhagen’s          issue      statement

directly addressed the necessary aspects of a retaliation claim:

“Whether the District Court erred by dismissing [Buchhagen’s]

reprisal       claim        when     she       presented          abundant     evidence      of

retaliatory       motive       for       her    termination;             Defendants     offered

shifting,      pretextual           reasons      for        her    termination;         material

issues surrounding her discharge were in dispute; and the Court

made credibility resolutions against [Buchhagen].”                                 Opening Br.

1–2.    Her issue statement, along with the evidence and argument

presented      throughout          her    opening         and     reply    briefs,      directly

appeals the district court’s findings as to each element, which

is    sufficient       to    pursue       review       of    this     claim.         For   these

reasons, we determine that Buchhagen did not waive her right to

appeal.

                                                B.

       Turning     to       the      merits,         to     survive       summary       judgment

Buchhagen must have presented a prima facie case by showing (1)

that she engaged in protected activity, (2) that Z-Tech took

adverse employment action against her, and (3) that the adverse

                                                10
action was causally connected to her protected activity.                                   See

S.B. v. Bd. of Edu. of Harford Cnty., No. 15–1474, 2016 WL

1391787, at *6 (4th Cir. Apr. 8, 2016).                           The parties do not

contest       that   Buchhagen’s           termination     constituted        an     adverse

employment action against her.                     At issue here, then, are the

first and third elements of Buchhagen’s claim.

                                              1.

       Buchhagen        argues       she    engaged   in    protected      activity        by

lodging complaints of age discrimination throughout her tenure

with Z-Tech.         To be sure, Buchhagen frequently objected to her

working       environment.           But   contrary   to    her    position         now,   her

complaints       were    largely       silent      about    age    and   were        instead

directed at what Buchhagen considered to be harassment or other

unfair    treatment       by     Beebe.       As   best    we    can   tell,       Buchhagen

brought her age and its protective status to Z-Tech’s attention

only once, in her July 20 e-mail to Human Resources.                                And when

read     in    context,        her     cursory      statement      seems       to     be   an

afterthought in a laundry list of other complaints rather than

the driving force behind any fear of age discrimination or age-

related       termination.            Although     the     bar    to   show     protected

activity is rather low, see EEOC v. Navy Fed. Credit Union, 424

F.3d 397, 406 (4th Cir. 2005), we are hard pressed to credit

this stray reference as carrying the day.



                                              11
       Nevertheless, for purposes of efficiently adjudicating this

case,    we    will    assume      that    Buchhagen      engaged        in     protected

activity      as   required   by    the    ADEA.     We   thus        move    on    to    the

remaining element in contention.

                                           2.

       To reiterate, a plaintiff raising a retaliation claim must

show a causal connection between the adverse employment action

and    the    protected    activity.         Dowe    v.   Total        Action      Against

Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998).

As     this    Court   has      previously      explained,         the        traditional

principles of but-for causation apply here, which simply means

that    the   retaliation     was    the    “real    reason”       for       the   adverse

employment action.         Foster, 787 F.3d at 252.                   Put differently,

the    employee     must   show     that   he   would     not     have       suffered      an

adverse employment action “but for” the protected activity.                              Id.

       Because this case is proceeding under the burden-shifting

framework of McDonnell Douglas, Buchhagen                    “must establish both

that [Z-Tech’s proffered legitimate business] reason was false

and    that   retaliation     was    the    real    reason      for    the     challenged

conduct.”      Foster, 787 F.3d at 252.              We conclude she failed to

meet this burden.

       As noted in the first appeal, “some of Buchhagen’s behavior

as described in the complaint could be construed as problematic

or    even    insubordinate.”         Buchhagen,      545    F.       App’x.       at    220.

                                           12
Discovery proved this statement to be true, and in light of the

undisputed evidence of Buchhagen’s continued insubordination, no

reasonable jury could conclude she was terminated for any reason

other     than     Z-Tech’s        legitimate       business     interests.           Z-Tech

presents a clear and long train of frustration with Buchhagen’s

noncompliance.          Buchhagen’s interactions with Beebe after the

October 2009 SHI incident demonstrated a troubling pattern of

obstinate      behavior       to    the     point    where     Beebe    lost    trust        in

Buchhagen’s ability to perform her job.                       As early as March 2010,

Z-Tech noticed that Buchhagen repeatedly refused to acknowledge

Beebe’s authority as her supervisor.                    In addition, she failed to

recognize the common sense business practice of implementing a

back-up process, even though NCI specifically requested one.                                 In

sum,     the      record      fully       documents     Buchhagen’s          contumacious

behavior,        despite      repeated       warnings        from    Beebe     and        Human

Resources.

        Further,        the         record          details         Z-Tech’s         growing

dissatisfaction         with       Buchhagen’s        work     ethic    prior        to     any

complaints about age.               The decision to place her on a PIP, and

Beebe’s July 20 e-mail warning Buchhagen of the effects of not

following        the   PIP’s       terms,    predate     her     protected      activity.

Although Buchhagen colors this July 20 e-mail as a reaction to

her complaints of age discrimination and other harassment, the

record indicates that the e-mail and its language were drafted

                                             13
well before she engaged in protected activity.               As this Court

and others have stated, an employment action cannot be adverse

when the action was contemplated before the protected activity

occurred.     See Baqir v. Principi, 434 F.3d 733, 748 (4th Cir.

2006) (recognizing that employee must show that the employer

knew of his protected activity to constitute retaliation); see

also Leitgen v. Franciscan Skemp Healthcare Inc., 630 F.3d 668,

676 (7th Cir. 2011) (“A claim of retaliation based on suspicious

timing depends on what the relevant decision-makers knew and

when . . . .”).

     We further determine that Buchhagen’s argument based on the

temporal    proximity   between   her    termination   and   her   protected

activity is insufficient to persuade a reasonable jury that she

was fired because of her age.      As this Court recently held,

            While the temporal proximity between [an
            employee’s]   protective    activity    and   the
            [adverse    employment      action]     may    be
            sufficient to make an initial prima facie
            showing of causation, see Jacobs v. N.C.
            Admin. Office of the Courts, 780 F.3d 562,
            579 (4th Cir. 2015), timing alone generally
            cannot defeat summary judgment once an
            employer    has     offered     a     convincing,
            nonretaliatory explanation. See Pinkerton v.
            Colo. Dep’t of Transp., 563 F.3d 1052, 1066
            (10th Cir. 2009). Without more than his own
            assertions, [an employee] cannot meet his
            burden at summary judgment. See Haulbrook v.
            Michelin N. Am., Inc., 252 F.3d 696, 705–06
            (4th   Cir.   2001)    (rejecting     plaintiff’s
            retaliation    claim    at    summary    judgment
            because no reasonable jury could find the
            employer’s explanation pretextual).

                                    14
S.B., 2016 WL 1391787, at *7.   The same is true here.

     The district court fittingly summarized Buchhagen’s claims:

     [t]his case provides an unfortunate example of an
     employee who, though talented, came to believe she was
     indispensible because of her experience.    In effect,
     plaintiff seeks to turn the ADEA on its head by
     arguing that her age and experience gave her the right
     to work on her own, unsupervised and without the back-
     up her employer thought was essential.    The ADEA is
     intended to prevent discrimination based on age, not
     to confer increased status upon those who become
     older.

Buchhagen, 2015 WL 727947, at *2.



                                V.

     For these reasons, we affirm the judgment of the district

court.

                                                         AFFIRMED




                                15
