Powell v. National Labor Relations Board

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

GREGORY POWELL, ]

]

Plaintiff, ]

]

v. ] CIVIL ACTION NO.

] 2:16-CV-01492-KOB

NATIONAL LABOR RELATIONS ]

BOARD, ]

]

Defendant. ]

MEMORANDUM OPINION

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.

I. STANDARD OF REVIEW

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).

II. BACKGROUND

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

information during the investigation by attempting to shift blame to Ms. Bennett.

(Doc. 25-8 at 8–9).

Relying on the IG’s report, the NLRB Assistant to the General Counsel

proposed removing Mr. Powell for his failure to safeguard agency property,

negligent performance of duties, failure to follow supervisory instructions, and

lack of candor during the IG investigation. (See Doc. 25-6).

On September 24, 2013, the NLRB Associate General Counsel accepted the

proposal to remove and terminated Mr. Powell. (See Doc. 25-10). In doing so, the

Associate General Counsel evaluated all of the relevant factors established in

Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981), that the MSPB

required her to consider in determining an appropriate penalty.

Mr. Powell appealed the NLRB’s decision to terminate him to the MSPB.

After a three-day hearing, the MSPB ALJ determined that the NLRB proved its

charges against Mr. Powell—failure to safeguard agency property, negligent

performance of duties, failure to follow supervisory instructions, and lack of

candor—by a preponderance of the evidence. So the ALJ affirmed the NLRB’s

decision to terminate Mr. Powell.

Mr. Powell then appealed the ALJ’s decision to this court. The court found

that substantial evidence supported the ALJ’s decision and that the ALJ did not

reach an arbitrary and capricious decision. So, on the NLRB’s motion for

summary judgment, the court denied Mr. Powell’s appeal.

E. Mr. Powell’s Performance Appraisal and Supervisory

Applications

Other events relevant to Mr. Powell’s discrimination claims occurred behind

the scenes of the NLRB’s investigation and decision-making process.

Shortly after the IG issued his investigation report, the NLRB conducted Mr.

Powell’s 2012–2013 performance appraisal. The agency rated him “Fully

Successful,” which was a lesser rating than the possible “Outstanding” and

“Commendable” ratings, but better than the possible “Minimally Successful” and

“Unacceptable” ratings. (Doc. 53-4 at 1). The agency rated him as such in part

because of the way he handled the Hillshire case and the lost affidavits. (See id. at

4–5).

Mr. Powell also applied for supervisory positions at NLRB Regional Offices

in Kansas City, Winston-Salem, Cincinnati, and Baltimore. Different review

panels consisting of three or four individuals reviewed applications for each

location. The review panels scored each applicant on criteria like the applicant’s

knowledge of NLRB procedures, trial experience, managerial abilities, and writing

skills. Mr. Powell’s scores for the Kansas City, Cincinnati, and Baltimore

positions were not high enough to receive an interview for those locations. He

received a score of 81 out of 100 for the Winston-Salem position, which was high

enough to receive an interview for that location. (Doc. 53-8 at 10–11). Following

Mr. Powell’s interview, Mr. Harrell recommended another applicant for the

position who scored a 92.3 and, according to Mr. Harrell, had excellent leadership,

writing, and trial skills. (Id. at 4–5).

F. Mr. Powell’s Claims

From the facts discussed above, in his amended complaint, Mr. Powell

brings an employment discrimination claim and a retaliation claim under several

statutes against the NLRB. The court will analyze each of Mr. Powell’s claims in

turn.

III. ANALYSIS

A. Discrimination

Mr. Powell contends that the NLRB terminated him, failed to promote him

to a supervisory position, gave him a middling performance appraisal, verbally

counseled him, and took him off the Hillshire case investigation because he is

African-American and/or male in violation of Title VII of the Civil Rights Act of

1964 and 42 U.S.C. § 1981, over 40 years old in violation of the Age

Discrimination in Employment Act, and diabetic in violation of the Americans

with Disabilities Act.

The Eleventh Circuit employs the burden-shifting framework established in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to evaluate Title VII,

§ 1981, ADA, and ADEA discrimination claims based on circumstantial evidence.

See Maynard v. Bd. of Regents of Div. of Fla. Dept. of Educ., 342 F.3d 1281, 1289

(11th Cir. 2003) (Title VII); Sledge v. Goodyear Dunlop Tires N. Am., Ltd., 275

F.3d 1014, 1015 n.1 (11th Cir. 2001) (§ 1981); Cleveland v. Home Shopping

Network, Inc., 369 F.3d 1189, 1193 (11th Cir. 2004) (ADA); Chapman v. AI

Transp., 229 F.3d 1012, 1024 (11th Cir. 2000) (ADEA). Under this framework,

the plaintiff must first establish a prima facie case of discrimination. Maynard,

342 F.3d at 1289. The plaintiff succeeds at this step by showing that (1) he is a

member of a protected class; (2) he was qualified for his position; (3) he suffered

an adverse employment action; and (4) he was treated less favorably than a

similarly situated individual outside of his protected class. Id.

Under the third element of the prima facie case, for conduct to qualify as an

“adverse employment action,” the conduct “must, in some substantial way, ‘alter[]

the employee’s compensation, terms, conditions, or privileges of employment,

deprive him or her of employment opportunities, or adversely affect [] his or her

status as an employee.’” Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008)

(quoting Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 587 (11th Cir. 2000)). And

the change in compensation, terms, conditions, or privileges of employment must

be “serious and material.” Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1239

(11th Cir. 2001).

Under the fourth element of the prima facie case, to show that his employer

treated him less favorably than a similarly situated individual outside of his

protected class, the plaintiff must present evidence that he and that individual—a

so-called “comparator”—were “similarly situated in all material respects.” Lewis

v. City of Union City, Georgia, 918 F.3d 1213, 1218 (11th Cir. 2019).

But succeeding under McDonnell Douglas is not the only way a plaintiff can

defeat summary judgment. Rather, a plaintiff can also show “a convincing mosaic

of circumstantial evidence that would allow a jury to infer intentional

discrimination by the decisionmaker.” Smith v. Lockheed-Martin Corp., 644 F.3d

1321, 1328 (11th Cir. 2011) (quotations, citations, and footnote omitted).

Here, Mr. Powell has not stated a prima facie case of discrimination under

McDonnell Douglas or offered any circumstantial evidence of discrimination. His

discrimination claims based on the NLRB giving him a “Fully Successful”

performance appraisal, verbally counseling him about the unprofessional tone of

his emails, and reassigning the Hillshire case investigation fail because those

actions are not adverse employment actions. And his discrimination claims based

on his termination and the NLRB’s failure to promote him—which are adverse

employment actions—fail because he has not shown that the NLRB treated him

less favorably than a similarly situated individual outside of his protected class.

1. Discrimination claims not based on termination and failure to

promote

The verbal counseling that Mr. Powell received for his unprofessional email

was not an adverse employment action because the meeting and the letter

memorializing that meeting only “express[ed] concern and criticism by [Mr.

Harrell] over one aspect of [Mr. Powell’s] recent performance.” See Davis, 245

F.3d at 1240 (finding that such a counseling memorandum, without evidence of

any tangible consequences, was not an adverse employment action). No evidence

shows that the counseling affected the terms or conditions of Mr. Powell’s

employment in any serious or material way, so the counseling was not an adverse

employment action.

Mr. Powell’s “Fully Successful” performance appraisal fails to rise to an

adverse employment action because no evidence shows any tangible consequences

of this appraisal. See Greene v. Alabama Dep’t of Pub. Health, 2017 WL 727038,

at *7 (M.D. Ala. Feb. 3, 2017) (finding that the plaintiff’s “middling” performance

appraisals were not adverse employment actions because the plaintiff “[did] not

allege any appreciable consequence” of the appraisals). An unfavorable

performance appraisal could affect an employee’s future opportunities, but no

evidence on the record in this case shows any actual or potential serious

consequences of Mr. Powell’s “Fully Successful” appraisal.

And the NLRB did not commit an adverse employment action when it

reassigned the Hillshire case. The reassignment only changed Mr. Powell’s work

responsibilities; it did not change his salary, title, or any other terms of his

employment. So, to show that the reassignment was nevertheless an adverse

employment action, Mr. Powell must show that the reassignment was “one of those

unusual instances where the change in responsibilities was so substantial and

material that it [] indeed alter[ed] the terms, conditions, or privileges of [his]

employment.” Kidd v. Mando Am. Corp., 731 F.3d 1196, 1203 (11th Cir. 2013)

(quotations omitted). He has not done so; no evidence shows how being released

from the Hillshire case was such a substantial and material change to his

employment.

So, because Mr. Powell’s discrimination claims not based on termination or

failure to promote do not state an adverse employment action as required to state a

prima facie case of discrimination, the court will grant summary judgment for the

NLRB as to those claims.

2. Discrimination claims based on termination and failure to

promote

Turning to Mr. Powell’s claims based on actual adverse employment

actions—termination and failure to promote—those claims fail because Mr. Powell

has not shown that the NLRB treated him less favorably than any employee outside

of his protected class similarly situated to him in all material respects. In fact, Mr.

Powell has not engaged in any meaningful comparator analysis at all.

Instead, Mr. Powell brings the following allegations of employee

misconduct and the NLRB’s disciplinary actions or lack thereof that, according to

Mr. Powell, show that the NLRB treated him less favorably than similarly situated

white and/or female employees:

• “Frank Rox and several other white males failed to follow the orders of

[supervisors] but they were never investigated, disciplined, or had their

appraisal negatively affected by their acts”;

• The IG has found that “other attorneys” lost affidavits but did not

discipline them;

• “There were multiple instances of behavior inconsistent with NLRB

professional responsibilities by white and female employees including

but not limited to multiple instances of insubordination, refusal to

complete assigned duties, sexual activity on Agency property, and theft

of Agency funds with little or no discipline . . .”;

• “[A]n election specialist . . . failed in his basic duties and misrepresented

the facts to his supervisors in Region 10 and got a letter of reprimand

which was removed after a year” and was not “referred to the IG nor

terminated”;

• “Carla Wiley committed credit card fraud and lack of candor according to

her investigation and received only a four day suspension,” which, “to

[Mr. Powell’s] understanding[,] was removed from her file . . . later,” and

was not “referred to the IG nor terminated”;

• “Individuals” outside of Mr. Powell’s protected classes “were not

investigated in the Region[,] not disciplined[,] and not terminated for

their proven and serious violations of Agency rules and regulations”;

• “[T]he only individual(s) issued discipline in Region 10 from 2010

through 2013 were African American Males”;

• “Senior Management of Region 10 were well aware that McCarty[,] a

field investigator[,] repeatedly refused to take affidavits as directed yet he

never faced discipline or lowered appraisals for his misconduct”;

• “No Field Attorney in Region 10 other than Powell was suspended or

terminated within five (5) years of his dismissal other than Carla Wiley

further Wiley’s suspension was later reduced from four (4) days to two

(2) days despite her criminal act and lack of candor”;

• NLRB supervisors “either failed to investigate allegations of the Region

10 Director having sex in the NLRB offices or . . . take action”;

• NLRB supervisors refused to investigate “allegations of sexual

misconduct by NLRB employees on NLRB property . . . because it

involved a white male and female”;

• “There has been only one IG investigation in Region 10 since Powell

relevant to this case and the white female field attorney involved was not

terminated”;

• “Carla Wiley was never investigated for her misconduct with a bar rules

violation”;

• Frank Rox “was insubordinate and engaged in cursing matches with [the

Regional Director] but he was never disciplined”;

• “A white female attorney in the Atlanta Office of Region 10 was also

guilty of sexual misconduct on the premises but [the IG] refused to

investigate”;

• “Carla Wiley, Kathi Chahrouri, Frank Rox[,] and others . . . have had one

or multiple misconduct issues in the past and [were] never investigated

by the IG or terminated despite the seriousness of their actions”; and

• “No other employee was individually counseled like Powell including

Kathi Chahrouri who had a history of incivility in her email

communications.”

(See Doc. 60 at 18–27, 31).

For the most part, these allegations are conclusory and without evidentiary

basis. But, more importantly, even if the court were to assume the truth of Mr.

Powell’s allegations1, none of those allegations help Mr. Powell satisfy his actual

burden to show that the NLRB treated him less favorably than an individual

outside of his protected class “similarly situated [to him] in all material respects.”

See Lewis, 918 F.3d at 1218.

To be “similarly situated in all material respects,” ordinarily, the comparator

1 The court assumes the truth of Mr. Powell’s allegations only for argumentative purposes and to

demonstrate that he has nevertheless failed to raise a genuine issue of discrimination. In doing

so, the court reinforces that it does not accept the truth of conclusory allegations on summary

judgment. As stated above, the court must only construe factual evidence in the light most

favorable to the non-moving party and draw reasonable inferences in favor of the non-moving

party. See White, 789 F.3d at 1191.

“will have engaged in the same basic conduct (or misconduct) as the plaintiff”;

“will have been subject to the same employment policy, guideline, or rule as the

plaintiff”; “will ordinarily (although not invariably) have been under the

jurisdiction of the same supervisor as the plaintiff”; “will share the plaintiff’s

employment or disciplinary history”; and “cannot reasonably be distinguished” Id.

Lewis, 918 F.3d at 1227–28 (citations and quotations omitted). But no evidence

shows that Mr. Powell and another employee shared any of these characteristics or

circumstances. No evidence shows that any employee besides Mr. Powell had ever

failed to safeguard agency property, failed to report a breach of confidentiality,

acted insubordinately when supervisors asked about such breach, and lacked

candor during an investigation into the breach, or any similar series of

transgressions. So Mr. Powell has not offered any evidence to support an inference

that the NLRB treated him differently because of any protected characteristic. And

no evidence, individually or collectively, paints “a convincing mosaic of

circumstantial evidence that would allow a jury to infer intentional discrimination

by the decisionmaker.” See Smith, 644 F.3d at 1328 (quotations, citations, and

footnote omitted).

Mr. Powell’s discrimination claims based on adverse employment actions do

not rely on any evidence from which a reasonable jury could infer discrimination,

so the court will grant summary judgment for the NLRB as to those claims.

B. Retaliation

Mr. Powell next claims that the NLRB initiated its investigation of the lost

affidavits and terminated him in retaliation for his bringing EEO complaints

against the NLRB that the parties settled in October 2012. For the following

reasons, the court disagrees.

The McDonnell Douglas burden-shifting analysis also applies to retaliation

claims based on circumstantial evidence. Furcron v. Mail Centers Plus, LLC, 843

F.3d 1295, 1310 (11th Cir. 2016). “To establish a prima facie case of retaliation . .

. , ‘the plaintiff must show (1) that she engaged in statutorily protected expression;

(2) that she suffered an adverse employment action; and (3) that there is some

causal relation between the two events.’” Thomas v. Cooper Lighting, Inc., 506

F.3d 1361, 1363 (11th Cir. 2007) (quoting Meeks v. Computer Assocs. Int’l, 15

F.3d 1013, 1021 (11th Cir. 1994)).

Here, to focus on the primary issue with Mr. Powell’s retaliation claim, the

court will assume without deciding that filing and then settling the EEOC case in

October 2012 was statutorily protected expression and that the NLRB’s initiation

of the investigation in February 2013 was itself an adverse employment action.2

So the court turns to the third element of Mr. Powell’s retaliation claim—requiring

him to show that “some causal relation between the two events” exists.

2 By not evaluating whether the investigation itself was an adverse employment action, the court

does not suggest that the investigation suffices as an adverse employment action.

Mr. Powell offers only one argument to support his contention that his EEO

activity caused the NLRB’s investigation: “[the] investigation which led to the

adverse job action against Powell of termination was begun only four (4) months

after Powell’s successful settlement of his pending EEO cases against Region 10

and its agents on October 22, 2012.” (Doc. 60 at 33). Indeed, on October 22,

2012, the NLRB agreed to settle Mr. Powell’s past claims of discrimination by

increasing his overall performance rating on two prior appraisals, rescinding a past

reprimand, providing opportunities for career advancement, and paying him

$20,000. (Doc. 25-14 at 1–2).

But to raise a genuine issue of causation based only on the temporal

proximity between the settlement and the investigation, the temporal proximity

must be “very close.” See Cooper Lighting, 506 F.3d at 1364. The settlement and

the investigation, taking place four months apart, were not “very close.” See id.

(“Thomas failed to present evidence from which a reasonable jury could find any

causal connection between her April 2005 complaint(s) of sexual harassment and

the termination of her employment three (3) months later in July 2005. That three

(3) month period, without more, does not rise to the level of ‘very close.’”). So,

without any other evidence that could support an inference of causation, Mr.

Powell has failed to state a prima facie case of retaliation.

Also, Mr. Powell has failed to show “a convincing mosaic of circumstantial

evidence that would allow a jury to infer intentional discrimination [or retaliation]

by the decisionmaker” and survive summary judgment despite his failure to satisfy

McDonnell Douglas. See Smith, 644 F.3d at 1328 (quotations, citations, and

footnote omitted). As explained in detail above, no circumstantial evidence

suggests that Mr. Powell’s termination had anything to do with any protected

characteristic or EEO activity.

IV. CONCLUSION

For the reasons stated above, by separate order, the court will GRANT the

NLRB’s motion for summary judgment. (Doc. 53).

DONE and ORDERED this 20th day of September, 2019.

____________________________________

KARON OWEN BOWDRE

CHIEF UNITED STATES DISTRICT JUDGE