UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1557
DOROTHY L. BUCHHAGEN, PH.D.,
Plaintiff - Appellant,
v.
ICF INTERNATIONAL, INC.; ICF Z-TECH INC.,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. J. Frederick Motz, Senior District
Judge. (8:12-cv-02470-JFM)
Argued: March 22, 2016 Decided: May 31, 2016
Before KING, AGEE, and FLOYD, Circuit Judges.
Affirmed by unpublished opinion. Judge Agee wrote the opinion,
in which Judge King and Judge Floyd joined.
ARGUED: Alan Banov, ALAN BANOV & ASSOCIATES, Silver Spring,
Maryland, for Appellant. Jeremy William Dutra, SQUIRE PATTON
BOGGS (US) LLP, Washington, D.C., for Appellees. ON BRIEF:
Stephanie Rapp-Tully, ALAN BANOV & ASSOCIATES, Silver Spring,
Maryland, for Appellant. Merrell B. Renaud, SQUIRE PATTON BOGGS
(US) LLP, Tysons Corner, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
AGEE, Circuit Judge:
Dr. Dorothy Buchhagen, Ph.D., appeals the grant of summary
judgment in favor of her former employer, ICF Z-Tech, Inc. (“Z-
Tech”), 1 on her claim of retaliation under the Age Discrimination
in Employment Act (“ADEA”), pursuant to 29 U.S.C § 623(d).
Because Buchhagen failed to meet the causation standard for her
claim, we affirm the district court’s judgment.
I.
In December 2006, Dr. Deborah Beebe, Ph.D., hired Buchhagen
to work on Lockheed-Martin Corporation’s Cancer Information
Analysis and Tracking (“CIAT”) contract with the National Cancer
Institute (“NCI”). At that time, Buchhagen was sixty-four years
old, and her primary responsibility was writing content for
NCI’s Dictionary of Cancer Terms (“Glossary”). In June 2009,
NCI awarded the CIAT contract to Z-Tech, and Buchhagen applied
for her old position with the new contract carrier. 2
1
ICF International, the parent company of ICF Z-Tech, is
also named as a defendant in this case. For ease of reference,
the joint defendants shall be referred to as Z-Tech throughout
this opinion.
2
Buchhagen claims that Beebe told her “no one will hire you
at your age” in the summer of 2009, shortly before she applied
for her position at Z-Tech.
2
Buchhagen negotiated a salary raise from $30.12 per hour to
$60.00 per hour and accepted the position at the age of sixty-
seven. Beebe continued as her supervisor. Shortly thereafter,
when a colleague left the CIAT contract to work directly at NCI,
Beebe confirmed Buchhagen’s promotion to be the Glossary and
Multimedia Manager.
Not long after Buchhagen began her new position, however,
her relationship with Beebe deteriorated. The impetus for this
change was Buchhagen’s failure to correctly upload a Spanish
Hysterectomy Image (“SHI”) to the Glossary, which caused the
Glossary entry to be defective. Buchhagen insisted this error
was a “glitch” rather than her own mistake. Although the
problem was eventually corrected, her attitude toward the
problem and others’ involvement in the solution became
contentious. The SHI issue initiated a trend of insubordination
and overall problematic behavior by Buchhagen.
Buchhagen met with Beebe and Human Resources personnel to
sort out the internal strife arising from the SHI issue;
however, Buchhagen believed that Beebe was angry with her
because she had received a significant raise from Z-Tech when
she was promoted. On October 12, 2009, she recorded notes from
their meeting and stated, “I then realized [Beebe] was furious
because I had gotten the raise. I also then realized that she
would be finding an excuse to terminate me.” J.A. 185.
3
In March 2010, Buchhagen received a low proficient rating
on her performance evaluation from Beebe. She vociferously
contested this rating and provided a rebuttal to it. Shortly
thereafter, she set up meetings with Human Resources and other
management personnel to complain of what Buchhagen claimed was
harassment by Beebe, which included yelling at Buchhagen and
pounding her fists on the table. Buchhagen, Beebe, and Human
Resources had three meetings to discuss the interpersonal
issues, but Buchhagen was ultimately unsatisfied with the
progress of Z-Tech’s investigation of her complaints.
In June 2010, Z-Tech instituted a plan that would assist
Buchhagen in managing the Glossary and that addressed NCI’s
request to have a backup process. The proposed backup plan also
created goals to strengthen the Glossary team and to present a
unified front to the client. Buchhagen considered this a
“replacement plan” and believed it was a way for Beebe to
embarrass and harass her. The record, however, indicates that
NCI specifically requested Z-Tech to have backup personnel on
the Glossary project in the event of illness, absence,
disability or other occurrences.
As June progressed, the relationship between Buchhagen and
Beebe continued to deteriorate. Buchhagen involved NCI in
internal Z-Tech matters by raising questions about the
implementation of the backup plan. She further undermined
4
Beebe’s authority by questioning the plan as a mechanism to
harass her. In response, Beebe drafted a Process Improvement
Plan (PIP) for Buchhagen and sent it to Human Resources. Before
it was approved, however, Buchhagen filed a complaint with Human
Resources accusing Beebe of harassment in violation of Z-Tech’s
policy, but made no age-related claim. After review, Human
Resources and Z-Tech management approved the PIP for Buchhagen.
The PIP was finalized on June 23, 2010, and presented to
Buchhagen the next day. It specifically stated, “Failure to
demonstrate immediate and sustained improvement in these areas
will result in termination of employment.” J.A. 323.
Almost immediately after receiving the PIP, Buchhagen
attempted to take unscheduled leave. Although she and Beebe
resolved the issue, Z-Tech considered this to be a continuation
of Buchhagen’s defiance and insubordination. On July 14, 2010,
Buchhagen failed to organize her back ups for a Glossary meeting
with the client and did not inform Beebe about the meeting.
Beebe prepared a draft email for Human Resources that reminded
Buchhagen of the terms of her PIP and indicated that her
performance was not fulfilling those expectations. In short,
she cautioned, “This email is to remind you that your employment
will be terminated according to the PIP if this continues.”
J.A. 351. Beebe sent the approved email to Buchhagen on July
20, 2010.
5
Shortly before receiving Beebe’s email, however, Buchhagen
sent a document thoroughly detailing all of her complaints of
harassment and discrimination to Human Resources. In this
document, she noted for the first time her status as a member of
a protected class due to her age, among a multitude of other
employment practice complaints.
Z-Tech decided to end Buchhagen’s employment on or around
July 21, 2010, and she was informed of this decision a few days
later.
II.
In 2013, Buchhagen brought this action against Z-Tech,
raising claims of hostile work environment, unlawful
termination, and retaliation under the ADEA. See Buchhagen v.
ICF Int’l, Inc., 545 F. App’x. 217 (4th Cir. 2013). The
district court dismissed her complaint in full, and Buchhagen
appealed to this Court. Id. at 219. We agreed that Buchhagen
failed to allege facts sufficient to state a hostile work
environment claim and affirmed the district court’s dismissal of
that count. Id. at 219–20. As to Buchhagen’s claims of
wrongful discharge and retaliation, however, we reversed on
grounds that her complaint alleged sufficient facts to raise a
plausible claim to relief. Id. at 220-21.
6
On remand to the district court, the parties completed
discovery. Z-Tech moved for summary judgment on the remaining
claims, and after considering the parties’ briefs along with the
record evidence, the district court granted Z-Tech’s motion.
Buchhagen v. ICF Int’l, Inc., No. JFM–12–2470, 2015 WL 727947
(D. Md. Feb. 18, 2015). The district court concluded, “there is
no evidence to suggest that defendants discriminated against
plaintiff because of her age or that plaintiff has been able to
demonstrate either that she was meeting the legitimate
expectations of ICF or that the reasons ICF articulated for the
termination of her employment were pretextual.” Id. at *2.
Buchhagen timely appealed, contesting only the dismissal of
her ADEA retaliation claim. We now consider whether she
presented sufficient evidence on that claim to survive Z-Tech’s
motion for summary judgment.
III.
We review a grant of summary judgment de novo. Foster v.
Univ. of Md.-E. Shore, 787 F.3d 243, 248 (4th Cir. 2015).
“Summary judgment is appropriate when there is no genuine
dispute as to any material fact and the movant is entitled to
7
judgment as a matter of law.” Id. 3 “A dispute is genuine if a
reasonable jury could return a verdict for the nonmoving party.”
Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir.
2013). Further, “[a] fact is material if it might affect the
outcome of the suit under the governing law.” Id. The Court
must view “the facts and all justifiable inferences arising
therefrom in the light most favorable to the nonmoving party.”
Id. at 312.
Generally speaking, the ADEA creates a cause of action for
employees who allege adverse employment action on the basis of
age. 29 U.S.C. § 623(a). An employer can also violate the ADEA
by retaliating against an employee for engaging in protected
activity, such as filing a complaint of age discrimination. Id.
at § 623(d). “To establish a prima facie case of retaliation
[under the ADEA], a plaintiff must demonstrate that: (1) he
engaged in protected activity; (2) an adverse employment action
was taken against him; and (3) there was a causal link between
the protected activity and the adverse action.” Laber v.
Harvey, 438 F.3d 404, 432 (4th Cir. 2006) (en banc).
When there is no direct evidence of retaliatory
discrimination, which is the case here, the Fourth Circuit
3
This opinion omits internal marks, alterations, citations,
emphasis, or footnotes from quotations unless otherwise noted.
8
applies the McDonnell Douglas 4 burden-shifting framework.
Foster, 787 F.3d at 250. 5 “Under this framework, the plaintiff
must first establish a prima facie case.” Laber, 438 F.3d at
430. “Once a plaintiff makes this prima facie case, he creates
a presumption of [retaliation], and the burden of production
shifts to the defendant to articulate a legitimate, non-
discriminatory reason for its adverse employment decision.” Id.
“If the defendant satisfies this burden, the presumption
disappears[,] and the plaintiff must show that the articulated
reason is a pretext for [retaliation]. To do so, the plaintiff
must do more than simply show the articulated reason is false;
he must also show that the employer [retaliated] against him on
the basis of” the proffered protected activity. Id. at 430–31.
IV.
A.
Z-Tech first presents a procedural argument that it claims
forecloses this appeal. According to Z-Tech, Buchhagen waived
4 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
5
Buchhagen argues that Beebe’s comment while at Lockheed-
Martin “about my age” and that ”it would be difficult . . . to
get another job,” coupled with her later complaints of age
discrimination are direct evidence of retaliation. Cf. J.A.
913. We do not find this to be persuasive, as it is taken out
of context. Moreover, Beebe had already hired her at age sixty-
four and later promoted her at age sixty-seven.
9
her ability to appeal the district court’s grant of summary
judgment as to her retaliation claim because she did not appeal
the district court’s findings of law as to the wrongful
discharge claim, which, they argue, apply to the retaliation
claim as well. We do not find this argument persuasive.
While perhaps maladroit, Buchhagen’s issue statement
directly addressed the necessary aspects of a retaliation claim:
“Whether the District Court erred by dismissing [Buchhagen’s]
reprisal claim when she presented abundant evidence of
retaliatory motive for her termination; Defendants offered
shifting, pretextual reasons for her termination; material
issues surrounding her discharge were in dispute; and the Court
made credibility resolutions against [Buchhagen].” Opening Br.
1–2. Her issue statement, along with the evidence and argument
presented throughout her opening and reply briefs, directly
appeals the district court’s findings as to each element, which
is sufficient to pursue review of this claim. For these
reasons, we determine that Buchhagen did not waive her right to
appeal.
B.
Turning to the merits, to survive summary judgment
Buchhagen must have presented a prima facie case by showing (1)
that she engaged in protected activity, (2) that Z-Tech took
adverse employment action against her, and (3) that the adverse
10
action was causally connected to her protected activity. See
S.B. v. Bd. of Edu. of Harford Cnty., No. 15–1474, 2016 WL
1391787, at *6 (4th Cir. Apr. 8, 2016). The parties do not
contest that Buchhagen’s termination constituted an adverse
employment action against her. At issue here, then, are the
first and third elements of Buchhagen’s claim.
1.
Buchhagen argues she engaged in protected activity by
lodging complaints of age discrimination throughout her tenure
with Z-Tech. To be sure, Buchhagen frequently objected to her
working environment. But contrary to her position now, her
complaints were largely silent about age and were instead
directed at what Buchhagen considered to be harassment or other
unfair treatment by Beebe. As best we can tell, Buchhagen
brought her age and its protective status to Z-Tech’s attention
only once, in her July 20 e-mail to Human Resources. And when
read in context, her cursory statement seems to be an
afterthought in a laundry list of other complaints rather than
the driving force behind any fear of age discrimination or age-
related termination. Although the bar to show protected
activity is rather low, see EEOC v. Navy Fed. Credit Union, 424
F.3d 397, 406 (4th Cir. 2005), we are hard pressed to credit
this stray reference as carrying the day.
11
Nevertheless, for purposes of efficiently adjudicating this
case, we will assume that Buchhagen engaged in protected
activity as required by the ADEA. We thus move on to the
remaining element in contention.
2.
To reiterate, a plaintiff raising a retaliation claim must
show a causal connection between the adverse employment action
and the protected activity. Dowe v. Total Action Against
Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998).
As this Court has previously explained, the traditional
principles of but-for causation apply here, which simply means
that the retaliation was the “real reason” for the adverse
employment action. Foster, 787 F.3d at 252. Put differently,
the employee must show that he would not have suffered an
adverse employment action “but for” the protected activity. Id.
Because this case is proceeding under the burden-shifting
framework of McDonnell Douglas, Buchhagen “must establish both
that [Z-Tech’s proffered legitimate business] reason was false
and that retaliation was the real reason for the challenged
conduct.” Foster, 787 F.3d at 252. We conclude she failed to
meet this burden.
As noted in the first appeal, “some of Buchhagen’s behavior
as described in the complaint could be construed as problematic
or even insubordinate.” Buchhagen, 545 F. App’x. at 220.
12
Discovery proved this statement to be true, and in light of the
undisputed evidence of Buchhagen’s continued insubordination, no
reasonable jury could conclude she was terminated for any reason
other than Z-Tech’s legitimate business interests. Z-Tech
presents a clear and long train of frustration with Buchhagen’s
noncompliance. Buchhagen’s interactions with Beebe after the
October 2009 SHI incident demonstrated a troubling pattern of
obstinate behavior to the point where Beebe lost trust in
Buchhagen’s ability to perform her job. As early as March 2010,
Z-Tech noticed that Buchhagen repeatedly refused to acknowledge
Beebe’s authority as her supervisor. In addition, she failed to
recognize the common sense business practice of implementing a
back-up process, even though NCI specifically requested one. In
sum, the record fully documents Buchhagen’s contumacious
behavior, despite repeated warnings from Beebe and Human
Resources.
Further, the record details Z-Tech’s growing
dissatisfaction with Buchhagen’s work ethic prior to any
complaints about age. The decision to place her on a PIP, and
Beebe’s July 20 e-mail warning Buchhagen of the effects of not
following the PIP’s terms, predate her protected activity.
Although Buchhagen colors this July 20 e-mail as a reaction to
her complaints of age discrimination and other harassment, the
record indicates that the e-mail and its language were drafted
13
well before she engaged in protected activity. As this Court
and others have stated, an employment action cannot be adverse
when the action was contemplated before the protected activity
occurred. See Baqir v. Principi, 434 F.3d 733, 748 (4th Cir.
2006) (recognizing that employee must show that the employer
knew of his protected activity to constitute retaliation); see
also Leitgen v. Franciscan Skemp Healthcare Inc., 630 F.3d 668,
676 (7th Cir. 2011) (“A claim of retaliation based on suspicious
timing depends on what the relevant decision-makers knew and
when . . . .”).
We further determine that Buchhagen’s argument based on the
temporal proximity between her termination and her protected
activity is insufficient to persuade a reasonable jury that she
was fired because of her age. As this Court recently held,
While the temporal proximity between [an
employee’s] protective activity and the
[adverse employment action] may be
sufficient to make an initial prima facie
showing of causation, see Jacobs v. N.C.
Admin. Office of the Courts, 780 F.3d 562,
579 (4th Cir. 2015), timing alone generally
cannot defeat summary judgment once an
employer has offered a convincing,
nonretaliatory explanation. See Pinkerton v.
Colo. Dep’t of Transp., 563 F.3d 1052, 1066
(10th Cir. 2009). Without more than his own
assertions, [an employee] cannot meet his
burden at summary judgment. See Haulbrook v.
Michelin N. Am., Inc., 252 F.3d 696, 705–06
(4th Cir. 2001) (rejecting plaintiff’s
retaliation claim at summary judgment
because no reasonable jury could find the
employer’s explanation pretextual).
14
S.B., 2016 WL 1391787, at *7. The same is true here.
The district court fittingly summarized Buchhagen’s claims:
[t]his case provides an unfortunate example of an
employee who, though talented, came to believe she was
indispensible because of her experience. In effect,
plaintiff seeks to turn the ADEA on its head by
arguing that her age and experience gave her the right
to work on her own, unsupervised and without the back-
up her employer thought was essential. The ADEA is
intended to prevent discrimination based on age, not
to confer increased status upon those who become
older.
Buchhagen, 2015 WL 727947, at *2.
V.
For these reasons, we affirm the judgment of the district
court.
AFFIRMED
15