                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-1563


MICHAEL J. PEARLMAN,

                Plaintiff - Appellant,

          v.

PENNY PRITZKER, Secretary of U.S. Department of Commerce,

                Defendant – Appellee.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.     Peter J. Messitte, Senior District
Judge. (8:12-cv-03381-PJM)


Submitted:   October 21, 2013             Decided:   April 3, 2014


Before DUNCAN and THACKER, Circuit Judges, and DAVIS, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Ellen K. Renaud, SWICK & SHAPIRO, P.C., Washington, D.C., for
Appellant. Rod J. Rosenstein, United States Attorney, Baltimore,
Maryland, Neil R. White, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Michael Pearlman sued Penny Pritzker, Secretary of the U.S.

Department         of   Commerce,      for    violations       of    the      Rehabilitation

Act.    29    U.S.C.      §   794(a).        Pearlman       alleged       that      his    former

employer,       the     National      Oceanic       and   Atmospheric         Administration

(NOAA), discriminated against him on the basis of his deafness

by terminating his employment in retaliation for his complaints

about     the       inadequacy       of     NOAA’s        interpreter         services.         The

district court granted summary judgment in favor of Pritzker,

concluding that there was no genuine dispute of material fact

that         Pearlman         was         terminated          for         a         legitimate,

nondiscriminatory,            and    nonpretextual          reason.       Pearlman        appeals

the district court’s judgment. For the reasons that follow, we

affirm.

                                               I.

       Pearlman, a deaf man, was hired in June 2010 as a program

analyst at NOAA. He requested the services of an interpreter

during       his     tenure,        which    NOAA      provided       by      virtue       of     a

preexisting         arrangement        it    had     with    an     outside         contractor.

Pearlman found twelve of the fourteen interpreters substandard,

placing them on his “do not call” or “black-list.”

       Pearlman’s employment with NOAA was terminated in May 2011,

one year after his start date. In the termination memorandum,

Christine          Carpino,     the       Deputy      Director       of       the     Workforce

                                                2
Management     Office,      wrote        that       Pearlman’s       “performance           and

conduct”     did   not    merit    continued         employment        with       NOAA.    With

respect to his performance, Carpino wrote that Pearlman had, at

an April 2011 midyear review, taken credit for work that he had

not   done   by    claiming       that    he     had    “successfully             implemented

independently”       23    projects          that      Carpino       knew         “had     been

implemented and/or managed by others,” including herself. J.A.

142-43 (emphasis added). Carpino instructed Pearlman to provide

specifics on his work for the projects listed. He did so, but

the   additional      information         suggested        to    her    that        his    work

product did not warrant a promotion, and her consultation with

other     supervisors      revealed          that      Pearlman      “provided            little

tangible assistance” on the projects listed. J.A. 143.

      Pearlman’s      conduct,      however,         was   the    core       of    Carpino’s

memorandum. She listed several incidents, starting in December

2010 and into May 2011, in which Pearlman had behaved in a

manner “unacceptable and unbecoming a federal employee.” J.A.

143. Carpino had received complaints about “the manner” in which

Pearlman     interacted     with       his     coworkers:       he     was    reported       as

“abrupt      and     demanding,”          “intimidating,             disrespectful           or

personally     offensive.”        He     exhibited       “outbursts          of    anger    and

frustration        when    co-workers            disagreed”       with        him,        wrote

communications that were “inappropriately sarcastic and verging



                                             3
on hostile in tone,” and would send “angry, derogatory e-mails”

that he was warned would damage his reputation. J.A. 141-42.

       He had previously received a warning in December about his

conduct and agreed to take several actions that would improve

his    working     relationship    with       his   coworkers.   His   behavior,

however, continued and culminated in two more incidents. First,

displeased with an interpreter, Pearlman – in front of other

employees, one of whom reported that she thought Pearlman was

“going to explode” - “got very loud, angry, and waved [his] hand

frantically telling the interpreter to ‘just go,’” J.A. 143.

Second, he contacted the president of the contractor to complain

that   a   tardy    interpreter    was    “unacceptable”     and   the    company

president should “take corrective action to make sure this does

not happen again,” J.A. 143. In his e-mail, Pearlman took a

hostile    tone     with   the    company      president,   writing      that   an

interpreter in question was

       CLEARLY on my black list of interpreters THAT ARE NOT
       SUPPOSED TO BE ASSIGNED TO ME. DO YOU REALIZE THAT A
       NON QUALIFIED INTERPRETER WHO WOULD BE TRANSLATING
       WHAT I SAY TO SENIOR MANAGEMENT IN THE WRONG WAY COULD
       HURT ME DURING MY PERFORMANCE REVIEW AND ASKING FOR
       POTENTIAL PROMOTION? I am clearly not a happy camper
       at all about this. This was a stressful matter that I
       had to take care of this morning. I had to have [a
       representative] call [the interpreter service] and
       immediately change interpreter [sic] to someone else
       who was OK OK [sic] and didn’t have enough time to
       review my materials before my meeting.




                                          4
J.A. 134. A representative of the contractor had written Carpino

to inform her that Pearlman was a “very exacting client” whose

behavior had made the interpreters uncomfortable. J.A. 144. NOAA

terminated     Pearlman,     and    he        initiated      legal       proceedings,

contending   that    he   was    terminated         for   complaining      about   the

inadequacy      of   the        interpreter         services,        a     reasonable

accommodation to which he was entitled under law.

                                      II.

     Pearlman    sued     NOAA    under       the   Rehabilitation        Act,   which

provides that no qualified individual “shall, solely by reason

of her or his disability, . . . be subjected to discrimination”

in various federal programs. 29 U.S.C. § 794(a). The statute

incorporates the standards of the Americans with Disabilities

Act, id. § 794(d), which includes an anti-retaliation provision.

42 U.S.C. § 12203(a). Case law has transmuted these statutory

prohibitions     into     the    following          analytical    framework        for

assessing whether a plaintiff has properly made out a case for

discrimination:

     On the one hand, an employee may utilize ordinary
     principles of proof using any direct or indirect
     evidence relevant to and sufficiently probative of the
     issue. To avoid summary judgment, the plaintiff must
     produce direct evidence of a stated purpose to
     discriminate and/or [indirect] evidence of sufficient
     probative force to reflect a genuine issue of material
     fact. What is required is evidence of conduct or
     statements that both reflect directly the alleged
     discriminatory attitude and that bear directly on the
     contested employment decision.

                                          5
            On the other hand, under the burden-shifting
       method of proof, to establish a prima facie case of
       retaliation, a plaintiff must show that: (1) she
       engaged in a protected activity; (2) her employer
       acted adversely against her; and (3) her protected
       activity was causally connected to her employer's
       adverse action. The employer then has the burden to
       rebut the presumption of retaliation by articulating a
       legitimate nonretaliatory reason for its actions. If
       the employer does so, the plaintiff must demonstrate
       that the proffered reason is a pre-text for forbidden
       retaliation. The plaintiff always bears the ultimate
       burden of persuading the trier of fact that she was
       the victim of retaliation.

Rhoads       v.   F.D.I.C.,    257    F.3d       373,    391-92   (4th     Cir.   2001)

(citations and quotations omitted). Courts routinely use Title

VII precedent when construing the Americans with Disabilities

Act. Fox v. General Motors Corp., 247 F.3d 169, 176 (4th Cir.

2001).

       Pearlman       presented      no   direct        or   indirect     evidence   of

discrimination, leaving the district court to resolve his case

on     the    basis    of   the    burden-shifting           framework.     The   court

ultimately concluded that Pearlman had made out a prima facie

case     of       retaliation,     but    that      there      was   a     legitimate,

nondiscriminatory, and nonpretextual reason for his termination:

he was disruptive, rude, sarcastic, and a bully in the manner in

which        he   complained      about    his      desire     for      higher-caliber

interpreters. We review the district court’s summary judgment

ruling de novo. Snider International Corp. v. Town of Forest

Heights, Md., 739 F.3d 140, 145 (4th Cir. 2014).


                                             6
        We    agree     with       the      district           court      that      there      was     a

legitimate,         nondiscriminatory,                  and    nonpretextual            reason       for

terminating Pearlman.

        The    material       facts      are    not       disputed:           lodging    complaints

about the quality of interpreters could be a valid protected

activity;          viewed          objectively,               Pearlman’s            behavior         was

disrespectful          and     over-the-top;                  Pearlman’s         coworkers          were

offended by his behavior, and he does not dispute that such

extreme conduct – insubordination, poor workplace demeanor, or

angry         outbursts        -      can       constitute                a     legitimate           and

nondiscriminatory basis for taking an adverse employment action.

Ziskie v. Mineta, 547 F.3d 220, 229 (4th Cir. 2008); Kiel v.

Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999).

        The    issue    raised        by    Pearlman           is    that      NOAA’s     proffered

reason       for   terminating        him      is       not    the    actual        reason     he    was

terminated. He contends, in other words, that rather than firing

him for his conduct, NOAA forced him to resign “in retaliation

for     complaining          about       inadequate            sign-language            interpreter

services provided . . . as a reasonable accommodation for his

disability.”           App.        Br.      24-25.            We      disagree          with        this

interpretation of the record, and for a simple reason: Pearlman

has     produced       no     evidence         other          than     his      own     speculative

assertions to raise an inference suggesting the falsity of the

proffered          nondiscriminatory                bases           for       his     termination.

                                                    7
Speculation is not enough. Williams v. Cerberonics, Inc., 871

F.2d 452, 456 (4th Cir. 1989).

        Pearlman    argues      that    a     reasonable         jury     could    find      that

Carpino    was     lying   about       some        of    the     proffered       reasons      for

terminating him. He asserts that at his performance review in

April 2011, Carpino told him that he was “doing very well,” but

then abruptly changed her mind at a follow-up meeting two weeks

later    when    she    asked    him     to    modify          the    description       of    his

accomplishments to reflect that he had not, in fact, completed

23   projects      “independently.”           J.A.       167.    He     asserts    that      this

change is proof of her retaliatory motive. He is mistaken. The

termination      memorandum       explains         any        ostensible    inconsistency.

Carpino consulted other supervisors, who reported on Pearlman’s

performance       and    corrected       her       initial       view     that     he   was    a

productive member of the workplace: “I also sought input from

three other senior staff members regarding the assistance that

you had provided to them on programs they managed. All of them

replied that you had been in a learning mode and provided little

tangible     assistance.”        J.A.       143.        Far    from     demonstrating        the

falsity     of     appellee’s      nondiscriminatory                 motive,      the   record

harmonizes       the    supposed       inconsistencies            and    paints     a   single

picture of events that is not contradicted by any evidence.

      Pearlman next asks that we infer a cover-up of the actual

reason for his termination from his employer’s “very late, and

                                               8
false, explanation” for his termination: that he made a racially

insensitive    remark   in    the     workplace,   referring    to     the

interpreter   “black-list,”   that    offended   other   coworkers.   App.

Br. 39. The racially insensitive remarks are – as the district

court wisely observed - a red herring because racism was never

the basis for Pearlman’s termination as stated in the relevant

memorandum. Thus, Pearlman cannot expose Carpino’s “rationale as

pretextual by focusing on minor discrepancies that do not cast

doubt on [her] explanation’s validity, or by raising points that

are wholly irrelevant to it.” Hux v. City of Newport News, Va.,

451 F.3d 311, 315 (4th Cir. 2006). ∗

                                    III.

     For the reasons stated above, the judgment of the district

court is

                                                               AFFIRMED.




     ∗
       For similar reasons, Pearlman’s related contention, that a
genuine dispute exists as to the actual content or tone of his
complaints over the interpreters, lacks merit. See Kiel, 169
F.3d at 1136.


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