Raynor v. G4S Secure Sols. (USA), Inc.

E. RAY RAYNOR, Plaintiff - Appellee, v. G4S SECURE SOLUTIONS (USA), INC., Defendant - Appellant,andCHUCK BROCK; DONALD S. ZECCARDI; MALCOLM C. BURCHETT;

TIFANI A. GRUSKY; MICHAEL A. NAIL, Defendants.

E. RAY RAYNOR, Plaintiff - Appellant, v. G4S SECURE SOLUTIONS (USA), INC.; CHUCK BROCK;

DONALD S. ZECCARDI; MALCOLM C. BURCHETT; TIFANI A. GRUSKY;

MICHAEL A. NAIL, Defendants - Appellees.

No. 18-1773

No. 18-1831

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Submitted: February 19, 2020

February 26, 2020

UNPUBLISHED

Appeals from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, Chief District Judge. (3:17-cv-00160-FDW-DSC)

Before MOTZ, KING, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Kelly E. Eisenlohr-Moul, DINSMORE & SHOHL, LLP, Atlanta, Georgia; Joseph D. Budd, LEWIS BRISBOIS BISGAARD & SMITH LLP, Raleigh, North Carolina, for Appellant/Cross-Appellee. William E. Moore, Jr., Gray Layton Kersh. SOLOMAN FURR & SMITH PA, Gastonia, North Carolina, for Appellee/Cross-Appellant.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

After 15 years of employment, G4S Secure Solutions, Inc. ("G4S"), fired E. Ray Raynor. He brings a host of federal and state law claims related to his employment and termination. The district court granted summary judgment to G4S on some of these claims. Others went to trial, where a jury found for G4S on some claims and for Raynor on others. Both G4S and Raynor then moved for judgment as a matter of law and in the alternative a new trial; Raynor also moved for attorney fees. The court granted Raynor's motions in part and denied them in part and denied G4S's motion in its entirety. G4S appeals this order, and Raynor cross-appeals. Raynor also asks us to reverse the grant of summary judgment in favor of G4S on his race discrimination and retaliation claim. For the reasons that follow, we affirm.¹

I.

A.

In 2001, G4S, a provider of security services, hired Raynor as an hourly employee. The company promoted Raynor several times. From 2008 to 2014, Raynor served as Regional Manager of Field Support, a salaried position with benefits; he received favorable evaluations and had no history of formal discipline.

In September 2014, G4S released Raynor from his position as Regional Manager, purportedly due to budget cuts. Rather than terminate him, however, G4S Senior Regional Vice President Malcolm Burchett facilitated Raynor's transition to the position of Site Manager at a client site in Charlotte, North Carolina. Although technically a demotion, Raynor's salary and benefits stayed the same. Raynor remained in this position until 2015, when he was removed for reasons disputed by the parties.

Upon removing Raynor as Site Manager, G4S did not terminate him. Rather, considering Raynor to be a useful "utility player" within the company, Burchett arranged for Raynor to work for G4S in a series of short-term positions. Again, Raynor was employed in these positions without change to his compensation or benefits. In March 2016, in an alleged attempt to find Raynor a permanent "home" within G4S, Burchett offered Raynor two mid-level positions in Ohio, which Raynor ultimately declined (Raynor alleges these offers were illusory). Raynor's last active assignment for G4S ended on May 31, 2016.

The parties dispute the reasons for Raynor's eventual termination in the summer of 2016. On July 8, Raynor submitted a written inquiry asking to use his vacation time. When informed by G4S that he had none accrued, Raynor protested that he had earned vacation time. Internally, G4S began discussing Raynor's discharge and administratively terminated him without his knowledge. After G4S headquarters informed the local G4S office in North Carolina that a severance package would be appropriate, G4S administratively reinstated Raynor, again without his knowledge. The reinstatement was a formality to allow a severance package to be prepared. At an in-person meeting onJuly 20, G4S informed Raynor that the company had "no more work for his skill set," and presented him with a severance package with an effective date of July 18, 2016. The package was contingent on a release of claims; it explained that G4S was terminating Raynor for cause, that he could not seek re-employment with the company, and that he was releasing all potential legal claims against the company.

Caught unaware by this turn of events, Raynor objected to the release and requested more information regarding his termination. G4S told him to put his questions and objections in writing. The following day, Raynor sent G4S a written memo with questions regarding the reasons for his termination and the specifics of the release. Approximately three weeks later, Burchett contacted Raynor and apologized for the release, which Burchett claimed was intended for another employee. Raynor again inquired about his vacation pay, and Burchett replied that he would look into it. In addition, Raynor informed Burchett that he had applied for another position with G4S in Raleigh, North Carolina, in hopes he would be considered for it.

That conversation was the last contact between the parties until the instigation of this suit. G4S administratively terminated Raynor a second time on August 26, 2016. Raynor did not receive any severance or payment for the vacation and leave time he alleged he was owed.

B.

Based on these facts, Raynor filed a charge with the Equal Employment Opportunity Commission, which issued a right to sue letter. Raynor then filed suit against G4S and the individual defendants in North Carolina state court; G4S removed. The complaint allegednine causes of action: wrongful discharge under North Carolina law; violation of North Carolina's wage and hour act; breach of contract (for violations of Raynor's 2014 Bonus Performance Contract); intentional and negligent infliction of emotional distress; race discrimination and retaliation in violation of Title VII and 42 U.S.C. § 1981; conspiracy to violate Raynor's constitutional rights pursuant to § 1985; violations of North Carolina's constitution; and punitive damages pursuant to North Carolina law.

The district court partially granted G4S's motion for judgment on the pleadings, concluding that aspects of Raynor's race discrimination and retaliation claim were time-barred and dismissing as meritless some of his other claims. Raynor does not appeal this order. G4S subsequently moved for summary judgment, which the district court granted as to the balance of the race discrimination and retaliation claim, the § 1985 claim, and the intentional and negligent infliction of emotional distress claims. The district court denied summary judgment as to the remaining claims for violation of North Carolina's wage and hour act and breach of contract. After discovery and shortly before trial, the district court allowed Raynor to amend his complaint to include an age discrimination claim under the Age Discrimination in Employment Act ("ADEA") and North Carolina law. A five-day jury trial on that and the remaining claims followed. The jury found for G4S on Raynor's age discrimination and breach of contract claims, and for Raynor on his other state law claims. The jury found G4S liable to Raynor for $21,409.76 in compensatory damages and $64,347.52 in punitive damages.

The parties filed multiple post-trial motions. G4S moved for judgment as a matter of law or to alter or amend the judgment or for a new trial. Raynor moved for a new trial,relief from final judgment, and attorney fees pursuant to N.C. Gen. Stat. §1D-45 and Fed. R. Civ. P. 37. The court denied G4S's motion in its entirety. It partially granted Raynor's motion for attorney fees in the amount of $31,808, based on expenses incurred by Raynor's counsel in moving to compel discovery. It denied the remainder of Raynor's post-trial motions. G4S appealed and Raynor cross-appealed.

II.

Raynor appeals the district court's grant of summary judgment to G4S on Raynor's race discrimination and retaliation claim under Title VII and 42 U.S.C. § 1981.² We review a grant of summary judgment de novo. Foster v. Univ. of Maryland-Eastern Shore, 787 F.3d 243, 248 (4th Cir. 2015).

We turn first to Raynor's allegation of disparate treatment. As Raynor presents no direct evidence of discrimination, we use the McDonnell Douglas burden-shifting framework to assess his disparate treatment theory. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). Under this framework, Raynor must establish a prima facie case of discrimination, at which point the burden of production shifts to G4S to prove by a preponderance of the evidence that it had a legitimate, non-discriminatoryreason for Raynor's firing. If G4S does so, the burden then shifts back to Raynor to prove, by a preponderance of the evidence, that the stated reason is pretextual and the real reason is discriminatory. See Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 216 (4th Cir. 2016). To establish a prima facie case of discrimination, Raynor must demonstrate that he: (1) is a member of a protected class; (2) suffered an adverse employment action; (3) was performing at a level that met his employer's legitimate expectations; and (4) was treated differently from similarly situated employees ("comparators") outside the protected class. Id. at 219; Coleman v. Md. Ct. of App., 626 F.3d 187, 190 (4th Cir. 2010).

Before the district court, Raynor identified as comparators Tifani Grusky (respecting his allegation that he was terminated for turning down job opportunities within G4S) and various employees who were given more generous severance packages than him (respecting his allegation that he was discriminated against with respect to the conditions, terms, and compensations of his employment). The district court rejected the comparators for a variety of reasons.

Raynor offers no argument in his opening brief regarding his...