Michael J. Pearlman v. PENNY PRITZKER, Secretary of U.S. Department of Commerce

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

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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

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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.

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