Tremayne A. Powell v. Biscuitville, Inc.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-2378
TREMAYNE A. POWELL,
Plaintiff - Appellant,
v.
BISCUITVILLE, INC.,
Defendant - Appellee.
Appeal from the United States District Court for the Western District of Virginia, at
Lynchburg. Norman K. Moon, Senior District Judge. (6:19-cv-00080-NKM-RSB)
Submitted: June 4, 2021 Decided: June 15, 2021
Before GREGORY, Chief Judge, KING, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Tremayne A. Powell, Appellant Pro Se. Dena Beth Langley, Greensboro, North Carolina,
BROOKS, PIERCE, MCLENDON, HUMPHREY & LEONARD, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Tremayne A. Powell appeals from the district court’s order granting summary
judgment to Biscuitville in Powell’s employment discrimination suit alleging retaliation.
The district court ruled that Biscuitville provided legitimate, non-retaliatory reasons for
Powell’s termination and Powell failed to show that these reasons were pretextual. Powell
timely appealed.
This court “review[s] de novo the district court’s order granting summary
judgment.” Jacobs v. N.C. Admin. Off. of the Cts., 780 F.3d 562, 565 n.1 (4th Cir. 2015).
“A district court ‘shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.’” Id. at 568 (quoting Fed. R. Civ. P. 56(a)). “A dispute is genuine if a reasonable
jury could return a verdict for the nonmoving party.” Id. (internal quotation marks
omitted). In determining whether a genuine issue of material fact exists, this court “view[s]
the facts and all justifiable inferences arising therefrom in the light most favorable to . . .
the nonmoving party.” Id. at 565 n.1 (internal quotation marks omitted). However, “the
nonmoving party must rely on more than conclusory allegations, mere speculation, the
building of one inference upon another, or the mere existence of a scintilla of evidence.”
Humphreys & Partners Architects, L.P. v. Lessard Design, Inc., 790 F.3d 532, 540 (4th
Cir. 2015) (internal quotation marks omitted).
A plaintiff may demonstrate retaliation through either direct evidence of retaliation
or through the McDonnell Douglas pretext framework. Laing v. Fed. Exp. Corp., 703 F.3d
713, 717 (4th Cir. 2013). Under McDonnell Douglas, to establish a prima facie case of

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retaliation, a plaintiff is required to “show (1) that []he engaged in protected activity;
(2) that h[is] employer took an adverse action against h[im]; and (3) that a causal
connection existed between the adverse activity and the protected action.” Jacobs, 780
F.3d at 578 (brackets and internal quotation marks omitted). If the plaintiff “establish[es]
a prima facie case, the burden shifts to the employer to provide a legitimate,
nondiscriminatory reason for the adverse employment action.” Haynes v. Waste
Connections, Inc., 922 F.3d 219, 223 (4th Cir. 2019). The burden then shifts back to the
plaintiff to “demonstrate that the [employer’s] proffered reason is pretextual.” Id.
In his informal brief on appeal, Powell continues to deny all allegations of
misconduct, and he asserts that he has shown a prima facie case of discrimination.1
However, the district court assumed that Powell had made a prima facie case of
discrimination but concluded that Biscuitville had provided legitimate, nonretaliatory
reasons for Powell’s termination. Although the district court ruled that these reasons
(cursing, insubordination, threats) were uncontroverted, Powell asserted in district court
and again on appeal that all the allegations of his misconduct were fabricated as pretext for
Biscuitville’s retaliatory actions. Powell asserts that any failings in his initial complaints
should have been fleshed out by Biscuitville’s investigation.
1 Powell asserts that he was retaliated against on February 1 and 5, 2019, by being
yelled at and/or sent home in response to his complaints of discrimination. He also claims
that he was retaliated against on February 7 when he was told not to come to work until
human resources had investigated the situation. Finally, he argues that his termination was
retaliation for his EEOC complaint.

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First, the fact that Biscuitville’s investigation may not have been as thorough as
Powell would have liked does not establish pretext, so long as the investigation was not
“obviously inadequate.” Villa v. CavaMezze Grill, LLC, 858 F.3d 896, 905 (4th Cir. 2017).
While Powell asserts that Biscuitville failed to clarify his complaints of workplace
discrimination, it is undisputed that Biscuitville spoke to and/or received statements from
numerous employees. In addition, Powell admits that human resources spoke with him
both about his allegations and the complaints against him. Powell does not assert what
Biscuitville should have done that it did not do, and even on appeal, Powell does not
provide any details supporting cognizable claims of sex, age, or race discrimination that
could be investigated.2
Moreover, in determining whether Powell engaged in the misconduct, “[i]t is the
perception of the decision maker which is relevant.” Evans v. Techs. Applications & Serv.
Co., 80 F.3d 954, 960-61 (4th Cir. 1996) (internal quotation marks omitted) (noting that
“unsubstantiated allegations and bald assertions” fail to show pretext). Here, Biscuitville
had to choose between Powell’s denials and numerous employees’ statements that Powell’s
behavior was improper. Given the consistency and number of complaints against Powell
and Powell’s failure to provide Biscuitville with any corroboration of his claims, we find
that Biscuitville’s decision to terminate Powell does not demonstrate pretext and that
2 Powell’s complaints to Biscuitville alleged that he had been treated differently
than other employees but did not allege that he was treated differently based on a protected
characteristic. Moreover, Powell did not provide the sex, race, or age of any other
employees or any other facts from which Biscuitville could have discerned that he was
alleging unlawful discrimination.

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Powell has failed to raise a material issue of fact in that regard. See Villa, 858 F.3d at 903
(“If [plaintiff] was fired for misconduct []he did not actually engage in, that is unfortunate,
but a good-faith factual mistake is not the stuff of which Title VII violations are made.”).
Finally, Powell has failed to produce evidence that Biscuitville’s preliminary actions of
sending him home early and cancelling his shifts was pretextual in light of the fact that it
is undisputed that other employees complained about him and expressed a fear for their
safety. Whether the employees’ complaints were true or false, Biscuitville reasonably took
preliminary action to protect their employees and their property. Accordingly, we find that
the district court did not err in rejecting Powell’s retaliation claims.
As such, we affirm. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED

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