United States District Court, N.D. Alabama, Southern Division
OWEN BOWDRE, CHIEF UNITED STATES DISTRICT JUDGE.
employment discrimination case comes before the court on the
Defendant National Labor Relations Board’s second
motion for summary judgment. (Doc. 53). The court granted the
NLRB’s first motion for summary judgment on Plaintiff
Gregory Powell’s claim for judicial review of the Merit
Systems Protection Board’s decision affirming his
termination. Now, the NLRB moves for summary judgment on Mr.
Powell’s remaining Title VII, ADA, ADEA, and §
1981 discrimination and retaliation claims against it.
material undisputed facts of this case have not changed since
the NLRB’s first motion for summary judgment. Mr.
Powell, an attorney for the NLRB, learned and failed to
report that a company against which the agency was preparing
an unfair labor practices case received some of the
agency’s confidential witness affidavits. The NLRB
eventually discovered substantial evidence that Mr. Powell
lost those affidavits. When confronted with this evidence and
an investigation into the incident, Mr. Powell acted
insubordinately and attempted to shift blame to others. So,
after an Inspector General investigation, a proposal from the
NLRB Assistant to the General Counsel, and an Associate
General Counsel review, the NLRB terminated Mr. Powell.
Powell tells a different story. He contends that the NLRB
investigated and terminated him because he is
African-American, male, over the age of 40, and diabetic, and
in retaliation for him bringing EEO complaints against the
agency. He also alleges that the NLRB discriminated against
him when the agency counseled him on unprofessional conduct,
gave him a middling performance appraisal, reassigned a case
that he had been investigating, and failed to promote him to
a supervisory position.
evidence supports that Mr. Powell’s protected
characteristics or activities motivated the NLRB’s
decisions. And several of the NLRB’s allegedly
discriminatory actions are not serious enough to support an
employment discrimination claim. So, as further explained
below, the court will grant the NLRB’s motion for
STANDARD OF REVIEW
court can resolve a case on summary judgment only when the
moving party establishes two essential elements: (1) no
genuine disputes of material fact exist; and (2) the
moving party is entitled to judgment as a matter of law.
the first element of the moving party’s summary
judgment burden, “[g]enuine disputes [of material fact]
are those in which the evidence is such that a reasonable
jury could return a verdict for the
non-movant.” Evans v. Books-A-Million, 762
F.3d 1288, 1294 (11th Cir. 2014) (emphasis added) (quotation
omitted). Only factual evidence, as opposed to
conclusory statements, with “a real basis in the
record” can create genuine factual disputes.
Hairston v. Gainesville Sun Pub. Co., 9 F.3d 913,
919 (11th Cir. 1993). And when considering whether any
genuine disputes of material fact exist, the court must view
the evidence in the record in the light most favorable to the
non-moving party and draw reasonable inferences in favor of
the non-moving party. White v. Beltram Edge Tool Supply,
Inc., 789 F.3d 1188, 1191 (11th Cir. 2015).
The Hillshire Case Affidavits
Powell is African-American, male, over the age of 40, and has
diabetes. He worked as a field attorney for the NLRB in the
Birmingham, Alabama Resident Office from 1997 until his
termination on September 24, 2013. As a field attorney, Mr.
Powell investigated charges of unfair labor practices brought
against private employers.
November 7, 2012, Mr. Powell travelled to Florence, Alabama
to investigate an unfair labor practices complaint against
Hillshire Brands. In Florence, Mr. Powell gathered evidence
for a potential case against Hillshire by interviewing
witnesses in his hotel room and having those witnesses sign
affidavits that he drafted.
November 9, 2012, Hillshire’s counsel sent Mr. Powell
an email stating that a man who refused to identify himself
delivered unsigned affidavits to Hillshire’s facility
in Florence that appeared to have been taken in connection
with Mr. Powell’s investigation. Hillshire’s
attorney wrote in the email that the man who delivered the
affidavits claimed that he found them at a local hotel. (Doc.
25-8 at 22, 194).
November 14, 2012, after he returned to the Birmingham
office, Mr. Powell responded to the email from
Hillshire’s counsel and told her to return the
affidavits to him. The affidavits arrived by mail to Mr.
Powell’s office on November 19, 2012. Mr. Powell did
not immediately report the loss of the affidavits to any
other members of NLRB. (Doc. 25-8 at 30).
before learning of the lost affidavits, the Resident Officer
who supervised all investigations out of the NLRB Birmingham
Resident Office, Belinda Bennett, assigned the Hillshire case
to an NLRB attorney in Atlanta, Carla Wiley, to litigate. Ms.
Bennett testified that she reassigned the Hillshire case
because Mr. Powell was not efficiently investigating the
case-eight months had passed since the NLRB received the
complaint against Hillshire and Mr. Powell still had not
collected sufficient evidence for the agency to decide the
merits of the complaint. (Doc. 53-1 at 11).
Verbal Counseling for Mr. Powell’s Unprofessional
reassigning the Hillshire case to Ms. Wiley, Ms. Bennett
asked Mr. Powell to provide the Hillshire case files to Ms.
Wiley. In an email, Mr. Powell “responded
inappropriately to her requests, ” though the court
cannot discern which of the several emails on the record
contains the specific language that he used. (See
Doc. 53-2 at 15).
April 26, 2013, the Regional Director for Region 10, Claude
Harrell, and Ms. Bennet met with Mr. Powell and the union
president to advise Mr. Powell on being professional and
collegial with supervisors. A “Memorialization of
Verbal Counseling of April 26, 2013” stated that the
counseling “was not a disciplinary action and this
memorandum does not memorialize or constitute
discipline.” (Doc. 53-2 at 25).
The NLRB Learns of the Lost Affidavits
February 8, 2013-approximately three months after Mr. Powell
learned of the lost affidavits-Ms. Wiley told her supervisor
that Hillshire’s attorney had recently informed her
that he saw the affidavits in November 2012, and that based
on what he saw in the affidavits, Hillshire was not concerned
about NLRB’s claims. Ms. Wiley’s supervisor
reported this information to Ms. Bennett and Mr. Harrell.
(Doc. 25-8 at 283).
Bennett called Mr. Powell to inquire about the affidavits.
For the first time, Mr. Powell told Ms. Bennet that
Hillshire’s counsel informed him back in November 2012
that the company received the affidavits. (Doc. 25-8 at 30).
morning of February 8, 2013, Ms. Bennett emailed Mr. Powell
and instructed him to prepare a memo detailing the
circumstances of the affidavits. That afternoon, Ms. Bennet
emailed him again and instructed him to prepare a memo
because she “need[ed] to address these concerns right
away.” (Doc. 25-8 at 277). Mr. Powell responded,
“I have already responded. There will be no additional
written responses. White employees don’t have to write
responses so why do African American men have to?”
Bennett responded, “[w]hat are you talking about? What
has race got to do with this? Confidential statements were
compromised. We need to know what happened with the return of
the affidavits by the company. This is not about race.
Whether black or white I would be asking the same
thing.” (Id.). Ms. Bennett asked,
“[w]hat is the extent of exposure for our witnesses?
Which ones were exposed?” (Id.). Mr. Powell
responded, “[t]hese statements would have been seen in
court anyway.” (Id.).
The Inspector General Investigation, Mr. Powell’s
Termination, and Appeals
NLRB Inspector General investigated the lost affidavits
incident. The court presented the facts of this investigation
and its consequences in detail in the court’s January
10, 2019 Memorandum Opinion on the NLRB’s first motion
for summary judgment. (See Doc. 39 at 8–18).
Even so, the court will summarize the relevant facts of the
investigation, the agency’s resulting actions, and Mr.
his investigation, the IG determined that Mr. Powell lost the
affidavits, failed to properly safeguard the Hillshire case
file, failed to report the loss of the affidavits, acted
insubordinately by refusing to provide information after the
NLRB learned of the lost affidavits, and provided false and