UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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 
3

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 
4

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.
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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.
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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).
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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.
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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 
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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.