                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 15-1054


CHRISELDA GUERRERO,

                Plaintiff - Appellant,

          v.

LORETTA E. LYNCH,

                Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.   T. S. Ellis, III, Senior
District Judge. (1:13-cv-00729-TSE-IDD)


Submitted:   July 23, 2015                 Decided:   August 7, 2015


Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Andrew C. Simpson, Christiansted, St. Croix, U.S. Virgin
Islands, for Appellant. Dana J. Boente, United States Attorney,
Antonia Konkoly, Assistant United States Attorney, Alexandria,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Chriselda Guerrero filed a complaint in the district court

alleging several violations of Title VII of the Civil Rights Act

of    1964,    42    U.S.C.    §§ 2000e-2000e(17)     (2012),    and    the   Civil

Service Reform Act of 1978 (“CSRA”), Pub L. No. 95-454, 92 Stat.

1111 (codified as amended in scattered sections of 5 U.S.C.).

The district court ruled in favor of the United States Marshals

Service (“USMS”), and Guerrero appeals.               We affirm.

       First, Guerrero argues that the district court erred in

granting the USMS’s motion to dismiss Count One of her complaint

for failure to exhaust her administrative remedies.                    We review a

district court’s dismissal for failure to state a claim “de novo

and    focus    only    on    the   legal   sufficiency   of    the    complaint.”

Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008).                        We

view “the complaint in the light most favorable to the non-

moving party.”         LeSueur-Richmond Slate Corp. v. Fehrer, 666 F.3d

261, 264 (4th Cir. 2012).            The complaint must state a “plausible

claim for relief.”           Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

       A federal employee must begin EEO counseling “within 45

days of the date of the matter alleged to be discriminatory or,

in the case of personnel action, within 45 days of the effective

date    of     the    action.”       29     C.F.R.   § 1614.105(a)(1)      (2010).

Guerrero does not contest the fact that she failed to initiate

counseling within 45 days of the personnel action, but argues

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that she had no reason to suspect the action was discriminatory

at the time.       However, the time limitation starts from when the

discriminatory        act      occurred,           not      when     it     was    discovered.

Hamilton v. 1st Source Bank, 928 F.2d 86, 87-88 (4th Cir. 1990)

(en    banc).      Moreover,           while      the       limitations      period      may   be

waived, Jakubiak v. Perry, 101 F.3d 23, 27 (4th Cir. 1996), we

find no waiver on the facts of this case.

       Second, Guerrero argues that the district court erred in

dismissing Count Three of her complaint when it found that she

was on probationary status at the time of her demotion.                                        The

CSRA provides no relief to federal employees who are serving a

probationary period.              Hardy v. Merit Sys. Prot. Bd., 13 F.3d

1571,      1573       (Fed.       Cir.            1994);       see        also      5     U.S.C.

§ 7511(a)(1)(A)(i)          (2012).               We    “review      a     district      court’s

jurisdictional        findings         of    fact      on    any    issues       that    are   not

intertwined       with     the    facts           central      to    the     merits      of    the

plaintiff’s       claims       under        the    clearly         erroneous      standard     of

review and any legal conclusions flowing therefrom de novo.”

United States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 348 (4th

Cir. 2009).

       Here,    Guerrero’s       probationary            status      was    not    intertwined

with the merits of her claim.                     Before it could reach the merits

-     whether   she      was     demoted          in    accordance         with    the    CSRA’s

procedural      safeguards         -        the    district         court    first       had    to

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determine whether she was on probation.                            Guerrero’s SF-50 stated

that she was subject to a probationary period, the SF-50 was

dated prior to her demotion, and the vacancy announcement for

the position clearly stated that the selectee could be subject

to a probationary status.                   The district court did not err in

rejecting       Guerrero’s      contention             to    the     contrary.      Thus,    the

district court correctly dismissed Guerrero’s CSRA claim.

     Finally, Guerrero argues that the district court erred in

granting        summary       judgment       to        the     USMS     on    her   claim     of

retaliation       concerning         an    internal          affairs    investigation       into

allegations       she     claimed         improper          travel    reimbursements.        We

review     de    novo     a    district        court’s          order     granting    summary

judgment.        Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d

562, 565 n.1 (4th Cir. 2015).                         “A district court ‘shall grant

summary judgment if the movant shows that there is no genuine

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

judgment as a matter of law.’”                    Id. at 568 (quoting Fed. R. Civ.

P. 56(a)).        In determining whether a genuine issue of material

fact exists, “we view the facts and all justifiable inferences

arising therefrom in the light most favorable to . . . the

nonmoving       party.”        Id.    at    565       n.1     (internal      quotation   marks

omitted).        However, “[c]onclusory 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

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

omitted).

     We       apply    the    familiar      McDonnell     Douglas ∗      framework      for

plaintiffs who lack direct evidence of retaliation.                             Foster v.

Univ.    of    Md.-E.     Shore,     787    F.3d   243,    250    (4th     Cir.    2015).

Guerrero must first establish a prima facie case that (1) she

engaged       in   a   protected     activity,     (2)     her    employer       took    an

adverse action, and (3) there was a causal connection between

the protected activity and the adverse action.                            Id.     Once a

prima    facie     case      is   established,     the    USMS    then    must    show    a

legitimate, nonretaliatory reason for its action.                        Id.     If there

is such a reason, then Guerrero has the burden to show that the

reason was a pretext for retaliation.                Id.

     Guerrero’s evidence of pretext amounts to nothing more than

impermissible speculation.                 Additionally, the allegations were

substantiated following an investigation.                        An employee is not

shielded       from    discipline        merely    by     engaging       in     protected

activity under Title VII.                See Glover v. S.C. Law Enf’t Div.,

170 F.3d 411, 414 (4th Cir. 1999) (“Employers retain . . . the

right to discipline or terminate employees for any legitimate,

nondiscriminatory reason.”).



     ∗   McDonnell Douglas v. Green, 411 U.S. 792 (1973).



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     Accordingly, we affirm the district court’s judgment.                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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