UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-1476

CHUCKWUDI PERRY,

Plaintiff – Appellant,

v.

DAVID KAPPOS, Secretary of Commerce for Intellectual 

Property and Director of the United States Patent and 

Trademark Office,

Defendant – Appellee,

and

GARY F. LOCKE, Secretary, United States Department of 

Commerce, United States Patent and Trademark Office, 

Agency,

Defendant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Alexandria. James C. Cacheris, Senior 

District Judge. (1:10-cv-00167-JCC-TCB)

Argued: May 17, 2012 Decided: June 13, 2012

Before WILKINSON, DIAZ, and FLOYD, Circuit Judges.

Affirmed by unpublished opinion. Judge Diaz wrote the opinion, 

in which Judge Wilkinson and Judge Floyd joined.
2

ARGUED: Stephen Z. Chertkof, HELLER, HURON, CHERTKOF, LERNER, 

SIMON & SALZMAN, PLLC, Washington, D.C., for Appellant. Julie 

Ann Edelstein, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, 

Virginia, for Appellee. ON BRIEF: Douglas B. Huron, HELLER, 

HURON, CHERTKOF & SALZMAN, Washington, D.C., for Appellant. 

Neil H. MacBride, United States Attorney, R. Joseph Sher, 

Assistant United States Attorney, OFFICE OF THE UNITED STATES 

ATTORNEY, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
3

DIAZ, Circuit Judge:

The U.S. Patent & Trademark Office (“USPTO”) terminated the 

employment of Chuckwudi Perry. Perry responded by filing suit, 

alleging that the USPTO discharged him in contravention of the 

Rehabilitation Act of 1973 and Title VII. The district court 

granted summary judgment in favor of the USPTO. On appeal, we 

conclude that Perry’s Rehabilitation Act claim fails because he 

is unable to establish that he is disabled under the statute. 

Perry’s Title VII claim similarly lacks merit, as Perry has not 

shown a causal relation between his alleged protected conduct 

and the termination of his employment. We therefore affirm the 

judgment of the district court.

I.

A.

Perry suffers from vision problems. He has no vision in 

his left eye and reduced vision in his right eye. Perry’s 

ailments have caused a “lack of depth perception, frequent 

sudden degradation of vision in [his] right eye, and inability 

to distinguish subtle color changes.” J.A. 239. With the use 

of corrective devices, however, Perry is able to perform 

critical tasks. He has obtained a Maryland driver’s license and 

even feels comfortable traversing certain routes at night, 

provided they are familiar and well lit. Perry can moreover 
4

“read efficiently” with the use of magnifying glasses and 

straight-edge devices. Id. In the workplace, Perry reports 

that the “cumulative effects” of his conditions “frequently 

leave [him] fatigued and needing to take a break or rest before 

continuing work.” Id. Although Perry can perform an office job 

that requires him to work primarily at a computer, his vision 

problems render him “less efficient than able-bodied persons.” 

Id. 240. 

On January 22, 2007, Perry joined the USPTO as a patent 

examiner. Despite his vision problems, Perry “was able to 

perform the essential functions of his patent examining 

position.” Id. 258. Indeed, Perry was even able to drive 

himself to and from the local Metro stop each workday. While 

employed at the USPTO, Perry suffered complications with his 

eyesight that required continuing medical treatment. He sought 

a flexible schedule from the USPTO, allowing him to miss normal 

work hours to tend to his medical needs and make up the lost 

time at night or on the weekends. Perry claimed that none of 

his supervisors responded to his requests in a meaningful 

manner.

Soon after joining the USPTO, Perry became involved in a 

dispute about his salary. On January 29, Perry emailed April 

Irondi, a human-resources employee, to begin the process of 

securing a pay advance. Irondi told Perry to stop by her office 
5

when he had time to talk, and he visited Irondi’s office after 

receiving her response. He claimed that Irondi was on the phone 

when he arrived at her office. As he approached the door, Perry 

asserted that Irondi told him to leave immediately and close the 

door behind him. Irondi later complained to her supervisor 

about the incident, alleging that Perry had verbally accosted 

her. Jeffrey Pwu, Perry’s supervisor, learned about the 

incident and confronted Perry. Perry, an African American, 

believed that Irondi’s and Pwu’s actions were the result of 

discrimination against him on the basis of race. 

After the incident with Irondi and discovering that the 

wrong salary grade and step had been entered in his file, Perry 

contacted Bernice Nesbitt, another human-resources employee, to 

remedy the problem. Nesbitt directed Perry to speak with 

Irondi. Perry responded in a February 6 email that he had “had 

problems with Ms. Irondi and [he did] not want to deal with her 

any more [sic].” Id. 144. He also threatened to file an 

administrative grievance if employees did not become more 

solicitous of his requests and complaints. 

About a week later, Perry contacted the USPTO’s Office of 

Civil Rights (“OCR”) about the incident with Irondi. On 

February 15, Lisa Dill, the Equal Employment Opportunity (“EEO”)

specialist at the USPTO, scheduled a meeting with Perry to 

discuss his concerns about the pay-advance dispute. Perry met 
6

with Dill and described his issues with Irondi and Pwu, alleging 

that the actions of both were racially discriminatory. Perry 

learned that the OCR would draft an informal complaint, after 

the issuance of which he would have fifteen days to file a 

formal complaint of employment discrimination. 

Perry testified that he felt pressure from Pwu not to file 

a formal complaint. According to Perry, Pwu began asking him 

about the status of his complaint in late February or early 

March. On the first occasion, Pwu asked Perry, “[W]hat’s going 

on?” and Perry informed him that he was “trying to work through 

the issues.” Id. 167. Pwu told Perry to keep him informed. In 

a second encounter, Pwu stopped Perry in the hall and again 

asked, “What’s going on?” Id. Perry responded that “everything 

was fine” because he feared being fired. Id. He explained why 

he thought Pwu was pressuring him not to file a formal 

complaint: 

It wasn’t so much what he said. It was what he did. 

He was very--he was constantly wanting to talk with me 

and get my--get my status or what was happening with 

this. It wasn’t from a standpoint of wanting to help, 

or at least that, because he really didn’t. It was 

just from the standpoint of wanting to know what was 

going on and whether or not I was going to file 

formal.

Id. 176–77. Perry received his Notice of Right to File a Formal 

Complaint on March 15, but he elected not to formalize his 

grievances. 
7

Citing Perry’s lackluster performance as a patent examiner, 

Deborah Reynolds, the assistant to the director at the Patent 

Training Academy, on May 14 filed a request for termination of 

his employment. Jim Ng, director of the Patent Training 

Academy, wrote to Perry on May 23 to inform him that he had been 

discharged. Ng explained that Perry’s performance had not 

“progressed at the expected rate,” that he had “routinely” 

missed due dates and failed to complete assignments, and that 

his work record “indicate[d] little or no potential for growth 

and development as a career professional in the USPTO.” Id.

129. 

 

B.

Perry responded to his termination by filing a second

informal complaint with the USPTO’s OCR, alleging that the USPTO 

had discriminated against him on the basis of race and 

disability. He subsequently filed a formal complaint of 

employment discrimination--which repeated the charges made in 

the second informal complaint--with the Equal Employment 

Opportunity Commission (“EEOC”). An administrative law judge 

dismissed Perry’s complaint, and the EEOC affirmed. 

Perry then filed this action in the U.S. District Court for 

the Eastern District of Virginia, raising two claims against 

David Kappos, the director of the USPTO. First, Perry alleged 
8

that the USPTO violated the Rehabilitation Act of 1973, 29 

U.S.C. § 701 et seq., by refusing to grant him reasonable 

accommodations and intentionally discriminating against him on 

the basis of his disability--i.e., monocular vision that 

impaired his ability to perform the major life activities of 

seeing and working. Second, Perry alleged that the USPTO 

discharged him in contravention of the antiretaliation provision 

of Title VII, 42 U.S.C. § 2000e-3(a). He claimed that the USPTO 

terminated his employment as retaliation for filing an informal 

complaint of discrimination.

The district court granted Kappos’s motion for summary 

judgment. The court first held that Perry was not “disabled” 

pursuant to the Rehabilitation Act, foreclosing relief on that 

claim. As for the Title VII claim, the court found that Perry’s 

filing an informal complaint was mere “opposition” activity 

under the statute. Because Perry had failed to demonstrate that 

he reasonably believed that the employment practice he opposed 

was unlawful, the court found this claim meritless. 

This appeal followed. 

II.

We review de novo the district court’s grant of summary 

judgment. EEOC v. Xerxes Corp., 639 F.3d 658, 668 (4th Cir. 

2011). Summary judgment is appropriate where the moving party 
9

“shows that there is no genuine dispute as to any material fact” 

and that it is “entitled to judgment as a matter of law.” Fed. 

R. Civ. P. 56(a). “The mere existence of a scintilla of 

evidence in support of the plaintiff’s position will be 

insufficient; there must be evidence on which the jury could 

reasonably find for the plaintiff.” Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 252 (1986). At the summary judgment stage, 

the nonmoving party must come forward with more than “ ‘mere 

speculation or the building of one inference upon another’ ” to 

resist dismissal of the action. Othentec Ltd. v. Phelan, 526 

F.3d 135, 140 (4th Cir. 2008) (quoting Beale v. Hardy, 769 F.2d 

213, 214 (4th Cir. 1985)); see also Francis v. Booz, Allen & 

Hamilton, Inc., 452 F.3d 299, 308 (4th Cir. 2006) (“Mere 

unsupported speculation is not sufficient to defeat a summary 

judgment motion if the undisputed evidence indicates that the 

other party should win as a matter of law.”).

III.

Perry first challenges the district court’s holding that he 

does not suffer from a “disability” under the Rehabilitation 

Act. He argues that his monocularity “substantially limits” the 
10

major life activity of seeing.1 Because Perry’s admissions 

reveal that he is able to function adequately with the use of 

corrective devices, he has not established disability under the 

Rehabilitation Act. His claim on that score consequently fails. 

As a threshold matter, a plaintiff seeking relief pursuant 

to the Rehabilitation Act2 for discrimination or failure to 

accommodate must establish disability. Edmonson v. Potter, 118 

F. App’x 726, 728 (4th Cir. 2004). To successfully show 

disability, a plaintiff must prove “(1) that he has a physical 

or mental impairment, (2) that this impairment implicates at 

least one major life activity, and (3) that the limitation is 

substantial.” Heiko v. Colombo Savings Bank, F.S.B., 434 F.3d 

249, 254 (4th Cir. 2006). The USPTO does not dispute that Perry 

has a physical impairment that implicates the major life 

activity of seeing. Our analysis thus centers on the third 

 1 Perry at various times in the litigation has referenced a 

limitation on the major life activities of working and reading. 

On appeal, however, he has abandoned the argument with regard to 

working. See Appellant’s Br. 16 n.2. As for the major life 

activity of reading, Perry raises this claim for the first time 

on appeal and it is therefore waived. See United States v. Am. 

Target Adver., Inc., 257 F.3d 348, 351 (4th Cir. 2001). 

2 Given the overlapping standards, we rely on cases 

construing the Americans with Disabilities Act when resolving 

claims under the Rehabilitation Act. Hooven-Lewis v. Caldera, 

249 F.3d 259, 268 (4th Cir. 2001). 
11

prong--whether the limitation on Perry’s vision is 

“substantial.”3

The Rehabilitation Act’s substantiality requirement must 

“be interpreted strictly to create a demanding standard.” 

Toyota Motor Mfg. v. Williams, 534 U.S. 184, 197 (2002). 

Regulations accompanying the Act provide the following 

definition of the phrase “substantially limits”:

(i) Unable to perform a major life activity that the 

average person in the general population can 

perform; or

(ii) Significantly restricted as to the condition, 

manner or duration under which an individual can 

perform a particular major life activity as 

compared to the condition, manner, or duration 

under which the average person in the general 

population can perform that same major life 

activity.

29 C.F.R. § 1630.2(j)(1), amended by 76 Fed. Reg. 16,978 (2011). 

Plaintiffs claiming disability are required to “have an 

impairment that prevents or severely restricts [them] from doing 

activities that are of central importance to most people’s daily 

lives” to meet the substantiality standard. Toyota, 534 U.S. at 

 3 The ADA Amendments Act of 2008 superseded the Supreme 

Court’s elucidation of the substantiality test in Toyota Motor

Mfg. v. Williams, 534 U.S. 184 (2002), and Sutton v. United Air 

Lines, Inc., 527 U.S. 471 (1999). But as the parties agree, the 

ADA Amendments Act of 2008 does not apply retroactively to the 

conduct giving rise to this dispute. See Cochran v. Holder, 436 

F. App’x 227, 232 (4th Cir. 2011). Precedent construing the 

prior version of the statute and regulations consequently 

governs this case. 
12

198. Mindful of the Supreme Court’s admonition to interpret the 

regulations exactingly, we have explained that the 

substantiality prong is intended to “preclude[] coverage of 

impairments whose effects on a major life activity rise only to 

the level of a mere difference with the abilities of an average

individual.” Heiko, 434 F.3d at 256 (internal quotations 

omitted). 

We must take into account mitigating measures when 

performing the disability analysis. Sutton v. United Air Lines, 

Inc., 527 U.S. 471, 482 (1999) (concluding that plaintiffs, who 

had 20/200 or worse vision in their right eye and 20/400 vision 

or worse in their left eye but had 20/20 vision with the aid of 

corrective lenses, were not disabled for statutory purposes). 

Indeed, it impermissibly strains the text of the Rehabilitation 

Act to posit that “persons are to be evaluated in their 

hypothetical uncorrected state.” Id. 

Evaluating disability under the Rehabilitation Act demands 

an individualized, case-by-case analysis, in which plaintiffs 

point to concrete evidence of their own experience with an 

impairment. Toyota, 534 U.S. at 198. Such a case-specific 

inquiry is particularly important when an individual claims 

disability based on monocularity, as the many variables 

associated with the condition “are not the stuff of a per se

rule.” Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 566 
13

(1999). “While monocularity inevitably leads to some loss of 

horizontal field of vision and depth perception,” acknowledged 

the Supreme Court, a plaintiff must present evidence showing

that his case of monocularity amounts to a substantial 

limitation on seeing. Id. at 566–67. Though the Court 

counseled that “people with monocular vision ‘ordinarily’ will 

meet the Act’s definition of disability,” such individuals are 

not excused from the obligation to “offer[] evidence that the 

extent of the limitation in terms of their own experience . . . 

is substantial.” Id. at 567. We have held monocular 

individuals to the burden articulated by the Court in 

Albertson’s, concluding in one case that a monocular plaintiff 

had not met the substantiality prong because he had overcome his 

impairment with the use of corrective devices. Foore v. City of 

Richmond, 6 F. App’x 148, 153 (4th Cir. 2001) (unpublished)

(explaining that the court was not presented with the “ordinary 

case” referenced in Albertson’s). 

Applying these principles to Perry’s impairment, we find 

that he has not demonstrated that he is substantially limited in 

the major life activity of seeing. We note initially that our 

analysis focuses on Perry’s global ability to see; it is not 

confined to his ability to read highly technical documents while 

examining patent applications at the USPTO. Nor may we overlook 

the ameliorative effect of corrective lenses and straight-edge 
14

devices on Perry’s ability to see. Conducting the disability 

inquiry at the proper level of generality and taking into 

account mitigating measures, we conclude that Perry has failed 

to establish that his monocularity “prevents or severely 

restricts,” Toyota, 534 U.S. at 198, him from seeing. 

The record shows that Perry, like the plaintiff in Foore, 

“has overcome his impairment and is not substantially limited,” 

6 F. App’x at 153. Indeed, through the use of mitigating 

measures Perry was able to obtain a Maryland driver’s license. 

He drove himself to the Metro stop each workday, and he could 

even drive at night along familiar, well-lit routes. Perry was 

moreover able to “read efficiently” with the use of “magnifying 

glasses and straight-edge-type devices.” J.A. 239. He admitted 

that his vision problems did not preclude him from “perform[ing] 

the essential functions of his patent examining position.” Id.

258. Although Perry suffered fatigue when reading for long 

periods of time, we do not deem this--when viewed in conjunction 

with his ability to read efficiently, drive, and perform all the 

functions required of him at the USPTO--sufficient to establish 

that he was “severely restrict[ed],” Toyota, 534 U.S. at 198 

(emphasis added), from seeing. 

To be sure, the Supreme Court has instructed that monocular 

individuals “ordinarily” will meet the Rehabilitation Act’s 

definition of disability. Albertson’s, 527 U.S. at 567. But we 
15

find that Perry has not presented an “ordinary” case, as he has 

not demonstrated “a disability by offering evidence that the 

extent of the limitation in terms of [his] own experience . . . 

is substantial,” id.; see also Foore, 6 F. App’x at 153.

Perry’s failure to prove disability in this case does not 

inexorably doom possible future claims under the Rehabilitation 

Act. Disability determinations are inherently fluid, changing 

as a plaintiff’s underlying conditions improve or deteriorate. 

Should Perry’s vision continue to decline and lead to greater 

impediments in his daily life, he might be able to obtain relief 

in a later action. 

IV.

We turn next to Perry’s Title VII retaliation claim. The 

parties and the district court focused on whether Perry’s filing 

of an informal complaint qualified as participation or 

opposition activity under the statute. But we need not resolve 

that issue to decide this case. See Seremeth v. Bd. of Cnty. 

Comm’rs, 673 F.3d 333, 337 n.2 (4th Cir. 2012) (recognizing that 

a circuit court may affirm on grounds different from those on 

which the district court relied). Because Perry has failed to 

demonstrate a causal link between the filing of the complaint 

and his discharge, we conclude that he has not raised an 

actionable retaliation claim under Title VII. 
16

Title VII’s antiretaliation provision forbids an employer 

“to discriminate against any of [its] employees . . . because 

[the employee] has opposed any practice made an unlawful 

employment practice by this subchapter, or because he has made a 

charge, testified, assisted, or participated in any manner in an 

investigation, proceeding, or hearing under this subchapter.” 

42 U.S.C. § 2000e-3(a). Under the familiar burden-shifting 

model, the plaintiff must establish a prima facie case of 

retaliation. EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 405 

(4th Cir. 2005). To meet this initial burden, the plaintiff 

must satisfy a three-part test: (1) he engaged in a protected 

activity; (2) his employer took adverse employment action 

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

events. Id. at 405–06. Our analysis here is confined solely to 

the third prong of the formulation. 

Save for situations in which the adverse employment 

decision follows the protected activity “very close[ly],” “mere 

temporal proximity” between the two events is insufficient to 

satisfy the causation element of the prima facie requirement. 

Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (per 

curiam) (internal quotations omitted). Although neither we nor 

the Supreme Court have adopted a bright temporal line, we have 

held that a three- or four-month lapse between the protected 

activities and discharge was “too long to establish a causal 
17

connection by temporal proximity alone,” Pascual v. Lowe’s Home 

Ctrs., Inc., 193 F. App’x 229, 233 (4th Cir. 2006)

(unpublished). Even a mere ten-week separation between the 

protected activity and termination “is sufficiently long so as 

to weaken significantly the inference of causation between the 

two events.” King v. Rumsfeld, 328 F.3d 145, 151 n.5 (4th Cir. 

2003). Where the time between the events is too great to 

establish causation based solely on temporal proximity, a 

plaintiff must present “other relevant evidence . . . to 

establish causation,” such as “continuing retaliatory conduct 

and animus” in the intervening period. Lettieri v. Equant Inc., 

478 F.3d 640, 650 (4th Cir. 2007).

Perry may not rely on temporal proximity alone to establish 

the requisite nexus of causation. Perry first contacted Dill, 

the EEO specialist, on February 14, 2007 about filing an 

informal complaint, more than three months before he was 

discharged, on May 23. Such a three-month lapse is too long to 

establish causation, without more. See Clark Cnty., 532 U.S. at 

273–74 (collecting cases). Even assuming that Pwu did not learn 

about the complaint until just prior to questioning Perry about 

it, in late February or early March, roughly ten weeks or more 

elapsed between that time and the USPTO’s decision to terminate 

Perry’s employment. This separation between the two events is 

“sufficiently long so as to weaken significantly the inference 
18

of causation,” requiring Perry to present additional evidence of 

retaliation. See King, 328 F.3d at 151 n.5. 

 This he has not done. In fact, Perry has presented no 

evidence that any supervisors at the USPTO displayed animus 

toward him or otherwise retaliated against him in the time 

between his filing the informal complaint and the termination of 

his employment. Perry testified that Pwu was 

“uncharacteristically aggressive” about checking the status of 

his complaint and twice asked him whether he had filed a formal 

complaint. J.A. 176. Perry assigns nefarious motives to Pwu’s 

questions about the complaint, attempting to convert Pwu’s 

actions from those of a solicitous supervisor to those of a boss 

scheming to thwart the exercise of federally recognized rights. 

At the summary judgment stage, however, we will not allow the 

nonmoving party to “ ‘create a genuine issue of material fact 

through mere speculation or the building of one inference upon 

another.’ ” Othentec, 526 F.3d at 140 (quoting Beale, 769 F.2d 

at 214). Because Perry has not come forward with any evidence 

to establish causation beyond temporal proximity, we find that 

he has not met his burden to establish a prima facie case of 

retaliation. 
19

V.

For the foregoing reasons, we affirm the judgment of the 

district court.

AFFIRMED