Michael Pearlman v. Rebecca Blank
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:12-cv-03381-PJM Copies to all parties and the district court/agency. [999329229].. [13-1563]
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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
Act.
29
of
Commerce,
U.S.C.
employer,
the
§
for
794(a).
National
violations
Pearlman
Oceanic
and
of
the
alleged
Rehabilitation
that
Atmospheric
his
former
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
nondiscriminatory,
was
and
terminated
nonpretextual
for
a
reason.
legitimate,
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
preexisting
tenure,
which
arrangement
it
NOAA
had
provided
with
an
by
virtue
outside
of
a
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
2
Director
of
the
Workforce
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Management
conduct”
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Office,
did
not
wrote
merit
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that
Pearlman’s
continued
“performance
employment
with
and
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
independently”
23
that
he
projects
had
“successfully
that
Carpino
implemented
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
“abrupt
and
personally
frustration
with
demanding,”
offensive.”
when
He
his
coworkers:
“intimidating,
exhibited
co-workers
he
was
disrespectful
“outbursts
disagreed”
reported
with
of
anger
him,
as
or
and
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
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.
4
an
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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,
contending
that
inadequacy
of
he
and
was
the
he
initiated
terminated
interpreter
for
legal
proceedings,
complaining
services,
a
about
the
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
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agree
legitimate,
with
the
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district
nondiscriminatory,
court
and
that
there
nonpretextual
was
a
reason
for
terminating Pearlman.
The
material
facts
are
not
disputed:
lodging
complaints
about the quality of interpreters could be a valid protected
activity;
viewed
disrespectful
objectively,
behavior
was
over-the-top;
and
Pearlman’s
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
reason
issue
for
raised
terminating
by
Pearlman
him
is
is
not
that
the
NOAA’s
actual
proffered
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
7
for
his
termination.
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Speculation is not enough. Williams v. Cerberonics, Inc., 871
F.2d 452, 456 (4th Cir. 1989).
Pearlman
Carpino
was
argues
lying
that
a
about
reasonable
some
of
the
jury
could
proffered
find
that
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
falsity
assistance.”
of
harmonizes
J.A.
appellee’s
the
supposed
143.
Far
from
nondiscriminatory
inconsistencies
demonstrating
motive,
and
the
paints
a
the
record
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
interpreter
remark
in
“black-list,”
the
workplace,
that
offended
referring
other
to
the
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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