**UN PUBLISHED** 
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

**No. 1**  **3 -**  **1563**

MICHAEL J. PEARLMAN , Plaintiff

- Appellant ,
v.
PENNY PRITZKER , S ecretary of U.S. Department of C ommerce, 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 un published 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 St ates Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.2 PER CURIAM : Michael Pearlman sued Penny Pritzker, Secretary of the U.S. Department of Commerce , for vi olations of the Rehabilitation
Act. 29 U.S.C. § 794(a). Pearlman alleged that his former employer, t he National Oceanic and Atmospheric Administration (NOAA), discriminated against him on the basis of his deaf ness by terminating his employment in re taliat ion 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, nondiscriminator y , and nonpretextual reason . Pearlman appeals the district court’ s judgment
. For the reasons that follow, w e affirm.
I. Pearlman, a deaf man, was hired in June 2010 as a program analyst at NOAA. He requested the services of an interpreter durin g 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 Workforce3 Management Office, wrote that Pearlman’s “performance and cond uct” 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 specific s on his work for the projects listed . He did so, but the add itional informatio n 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 C arpino’s memorandum. She listed several incidents, starting in December 2010 and in to 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 whic h Pearlman interacted with his coworkers: he was reported as “abrupt and demanding,” “intimidating, disrespectful or personally offensive
. ” H e exhibited “outbursts of anger and frustration when co

- workers disagreed” with him, wrote communications that were “inappropriately sarcastic and verging4 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 hi s conduct and agreed to take several actions that would improve his working relationship with h is coworkers
. His behavior, however, continued and culmin ated in two more incidents
. First, displeased with an interpreter, Pearlman

– in front of other employee s, 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 contact ed the president of the contractor to complain that a tard y 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 wa s 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.5 J.A. 134. A representative o f the contractor had written Carpino to inform her that Pearlman was a “very exacting client” whose behavior had made th e 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

accommo dation to which he wa s entitled un der law
. II. Pearlman sued NOAA under the Rehabilitation Act, which provides that n o 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 suffi ciently probative of the issue. To avoid summary judgmen t, 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 requi red is evidence of conduct or statements that both reflect directly the alleged discriminatory attitude and that bear directly on the contested employment decision.6 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 enga ged 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. Th e employer then has the burden to rebut the presumption of retaliation by articulating a le gitimate nonretal iatory reason for its actions. If the e mployer 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 s he 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 w ith 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,

non discriminatory , and nonpretextual reason for his termin ation: he was disruptive, rude, sarcastic, and a bully in the manner in which he complained about his desire for higher

- caliber inte rpreters. 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)
.7 W e agree with the district court that there was a legitimate, nondiscriminatory , and no npretextual reason for terminating Pearlman
. The material facts are not disputed: lodging complaints about the quality of interpreters coul d be a valid protected activity; viewed objectively, Pearlman’s behavior was disre spectful and over - the

- top ; Pearlma n ’s coworker s were offended by his behavior , a nd 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 , 54 7 F.3d 220, 229 (4th Cir. 2008); Kiel v. Select Artificials, Inc. , 169 F.3d 1131, 1136 (8th Cir. 1999)
. T he issue raised by Pearlman is that NOAA’s proffered reason for terminating him is not the actual reason he was terminated . He co ntends, 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 nondiscrimin atory base s for his term ination
.8 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 fol low

- 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 project s “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 Pe arlman’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

re plied 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 even ts that i s 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, and9 false, explanation ” for his termination : that he mad e a racially insensitive remark in the workplace , referring to the interpreter “black

- list ,” that offended other coworkers . App. Br. 39. T he racially insensitive remarks are

– as the district court wisely observed

- a red herring because racism was never the basis for Pearlman’s termina tion as stated in the relevant memorandum . Thus, Pearlman cannot expose Carpino’s “ rationale as pretextual by focusing on minor discrepancies that do no t cast doubt on [her] explanation’ s validity, or by raising points that are wholly irrelevant to it. ” Hu x v. City of Newport News, Va. , 451 F.3d 311, 315 (4th Cir. 2006)
. ∗
III. For the reasons stated above, t he 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.