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Powell v. National Labor Relations Board

United States District Court, N.D. Alabama, Southern Division

September 20, 2019




         This 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.

         The 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.

         Mr. 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.

         But no 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 summary judgment.


         A trial 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. Fed.R.Civ.P. 56(a).

         As to 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).


         A. The Hillshire Case Affidavits

         Mr. 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.

         On 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.

         On 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).

         On 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).

         Then, 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).

         B. Verbal Counseling for Mr. Powell’s Unprofessional Email

         After 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).

         On 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).

         C. The NLRB Learns of the Lost Affidavits

         On 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).

         Ms. 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).

         On the 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?” (Id.).

         Ms. 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.).

         D. The Inspector General Investigation, Mr. Powell’s Termination, and Appeals

         The 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. Powell’s appeals.

         Following 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 misleading ...

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