E. Ray Raynor v. G4S Secure Solutions (USA)

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 18-1773

E. RAY RAYNOR,

Plaintiff – Appellee,

v.

G4S SECURE SOLUTIONS (USA), INC.,

Defendant – Appellant,

and

CHUCK BROCK; DONALD S. ZECCARDI; MALCOLM C. BURCHETT;
TIFANI A. GRUSKY; MICHAEL A. NAIL,

Defendants.

No. 18-1831

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.
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)

Submitted: February 19, 2020 Decided: February 26, 2020

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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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.

1
In response to scheduling difficulties and then health concerns of counsel for G4S,
we twice agreed to reschedule oral argument. Given Raynor’s protest of the delays, we
have expedited consideration of the appeal and, upon that consideration, conclude that the
arguments are adequately presented in the briefs.
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 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 on

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July 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 alleged

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nine 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,

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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-discriminatory

2
Raynor’s notice of appeal also stated that he was appealing the court’s grant of
summary judgment on his claim brought pursuant to 42 U.S.C. § 1985 and claims against
individual defendants Malcolm Burchett, Tifani Grusky, and Michael Nail. He does not
properly raise these claims in his opening brief, however, and they are therefore deemed
abandoned. See United States v. Brooks, 524 F.3d 549, 556 n. 11 (4th Cir. 2008); Yousefi
v. United States INS, 260 F.3d 318, 326 (4th Cir. 2001); Edwards v. City of Goldsboro, 178
F.3d 231, 241 n. 6 (4th Cir. 1999).
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reason 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 prima facie case

beyond two conclusory assertions that he received less favorable severance packages than

white employees fired for misconduct, assertions rejected by the district court. Instead, he

attempts to resurrect time-barred aspects of his claim 3 and focuses on his accusation that

G4S’s reasons for his dismissal are pretextual. We conclude that Raynor has abandoned

his argument regarding comparators for failure to develop it. See United States v. Al-

3
Raynor has not appealed the district court’s judgment that all employment actions
prior to May 4, 2016 are time-barred, and so we only consider post-May 4 events.
8
Hamdi, 356 F.3d 564, 571 n.8 (4th Cir. 2004). Because Raynor has not demonstrated a

prima facie case, his disparate treatment theory fails.

We next consider Raynor’s allegation of retaliation. The district court granted

summary judgment to G4S because Raynor did not show a causal connection between a

protected act and an adverse employment action. We agree. Even if Raynor’s written

response to his severance package could be construed as giving notice of a complaint (a

protected activity), the record evidence establishes that G4S had by that time already made

the decision to fire him. Indeed, Raynor does not dispute the fact that G4S decided to fire

him prior to his written response to the severance package and release. Summary judgment

on Raynor’s retaliation theory was therefore proper. 4

Finally, as the district court explained, several actions Raynor offers in support of

his hostile environment theory are actually transparent attempts to evade the statute of

limitations barring discrete disparate treatment allegations. As the district court concluded,

the actions not barred by limitations that Raynor alleges demonstrate a hostile environment

were not sufficiently severe or pervasive to give rise to a hostile work environment.

4
Before the district court, Raynor alleged there were genuinely disputed issues of
fact regarding “motive, state of mind, intent, purpose and credibility” regarding the
administrative termination and the severance package but did not dispute that G4S decided
to terminate him before he received the severance letter.
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 III.

A.

At the end of the summary judgment hearing, the district court asked how much

time each party estimated the trial would take. G4S’s counsel responded, “I think we can

get this done in two . . . days.” Raynor’s counsel explained that he was still assessing his

case in light of discovery, but asserted “I’m sure we can do it in a few days as presently

postured.” The district court then stressed it believed the case was “a two-day trial at most”

and “reserv[ed] the right to use a chess clock to keep us moving.” Neither party objected.

Prior to trial, the district court confirmed that it was imposing a limit of 7.5 hours

on each party. Each side would have that time to present its case, including opening,

closing, and evidence, but the limits excluded objections and voir dire. At several points

during trial, the court apprised the parties of their remaining time. G4S presented its case

within the time limit, but Raynor struggled to do so. On the third day of trial, having used

almost all of his time, Raynor’s counsel requested and received additional time: 50 minutes

to show a video deposition, 30 minutes for additional cross-examination, and 30 minutes

for closing argument. At the end of this period, Raynor had called only four of his seven

witnesses and introduced only 33 of his 59 exhibits.

The parties concede that, in principle, a district court may set trial time limits. But

both now protest, for different reasons, that the limits in this case unfairly prejudiced them.

B.

There is no explicit source permitting trial judges to set time limitations on the

overall presentation of evidence. Nonetheless, our sister circuits have unanimously

10
suggested that the practice is within the authority of the district court. See, e.g., In re

Baldwin, 700 F.3d 122, 129 (3d Cir. 2012) (collecting cases); Life Plus Intern. v. Brown,

317 F.3d 799, 807 (8th Cir. 2003); Sparshott v. Feld Entm’t., Inc., 311 F.3d 425, 433 (D.C.

Cir. 2002); Gen. Signal Corp. v. MCI Telecomm. Corp., 66 F.3d 1500, 1508 (9th Cir. 1995);

Deus v. Allstate Ins. Co., 15 F.3d 506, 520 (5th Cir. 1994); Johnson v. Ashby, 808 F.2d

676, 678 (8th Cir. 1987); MCI Comms. v. AT&T, 708 F.2d 1081 (7th Cir. 1982). These

decisions have generally inferred this authority from the Federal Rules of Civil Procedure

and the Federal Rules of Evidence, which confer wide discretion on district courts to

manage the presentation of evidence and assure a fair and efficient trial. 5

To be sure, reviewing courts have not given district courts free rein to manage time

limits. Appellate courts have uniformly reviewed such impositions for abuse of discretion,

disfavoring time limits that are set, managed, or revoked in an arbitrary or inflexible way.

See, e.g., Duquesne Light Co. v. Westinghouse Elec. Corp., 66 F.3d 604, 610 (3d Cir.

1995); McKnight v. General Motors Corp., 908 F.2d 104, 114–15 (7th Cir. 1990); Johnson

v. Ashby, 808 F.2d 676, 678 (8th Cir. 1987).

We agree that the district court has the authority in a civil case to limit the

presentation of evidence by imposing overarching time limits on each party, although we

stress that district courts should not adopt this practice as a “matter of course.” 6 Duquesne

5
Federal Rule of Civil Procedure 1, for example, emphasizes that a trial should be
both fair and efficient, while the Federal Rules of Evidence (e.g., Fed. R. Evid. 102, 403,
611) allow judges to issue pretrial orders limiting proof and allow courts to exclude
evidence to avoid wasting time. Some courts have relied on the district court’s inherent
right to control its docket rather than the Rules. See, e.g., Deus, 15 F.3d at 510.
6
We do not opine about the appropriateness of such time limits in a criminal case.
11
Light Co. 66 F.3d at 310. (“[D]istrict courts should not exercise this discretion as a matter

of course . . . Rather, a district court should impose time limits only when necessary, after

making an informed analysis based on a review of the parties’ proposed witness lists and

proffered testimony, as well as their estimates of trial time.”). The district court’s power

in this respect is not unbounded. Efficiency is an important value in our judicial system,

but it is not the only one. There comes a point at which the pursuit of trial efficiency

undermines the fundamental fairness of a trial. The creativity of the human spirit suggests

it would be unwise to enumerate the ways in which time limits might undermine trial

fairness. Eschewing a bright line rule, we think that the touchstone is the reasonableness

of both the limits themselves and the district court’s implementation of them. We adopt

abuse of discretion as the appropriate standard for our review.

C.

With these principles in mind, we consider the parties’ arguments.

G4S argues that the district court unfairly granted Raynor additional time. The

company contends that it “would [] have greatly benefited from the ability to prepare a

longer case.” The record belies this contention. G4S did not exhaust the time it was given.

Beyond this, G4S presents no persuasive evidence that it would have benefited from more

time. The company maintains that it could have done more with additional time, given

Raynor’s “intransigent” testimony. The excerpts in G4S’s brief offer no support for their

position; if anything, Raynor’s combative testimony may have helped G4S by making

Raynor look like the difficult employee G4S alleged him to be. Undeterred, G4S generally

claims that it would have prepared its case differently had it known about the potential for

12
extra time, with the implication that the verdict might have come out differently. But this

doesn’t make it so. Moreover, G4S’s claim that counsel should have received more time

is at odds with its rejection of the district court’s tentative offer of extra time in light of the

additional time granted to Raynor. G4S can hardly protest now, having refused the district

court’s offer, that the district court committed reversible error.

Though G4S believes the district court’s accommodation to Raynor went too far,

Raynor insists that the district court should have gone further. He argues that the time

limits were arbitrary, that they were inappropriate given the complex facts and number of

claims, that changing the limits mid-trial (a change which inured to his benefit) was an

abuse of discretion, and that the time limits should have been explained to the jury.

According to Raynor, these alleged flaws deprived him of a fair trial.

A 7.5-hour time limit might be inappropriate in many circumstances. We recognize

that Raynor could not call several of his witnesses and that his cross-examination was cut

short. Nonetheless, we do not think the record here demonstrates that the court abused its

discretion. The court indicated that it would impose time limits after summary judgment

and in consideration of the parties’ pre-trial submissions, including their exhibit and

witness lists and their own estimates of trial time. When the court announced the limits,

Raynor did not object. Apprised of these limits in advance of trial, Raynor had notice and

adequate time to craft his case. Raynor did have the burden of persuasion on multiple

claims, a fact that might be persuasive in other circumstances. Here, however, it cuts both

ways, as all of these claims related to the same set of relatively uncomplicated facts

surrounding the final years of Raynor’s tenure at G4S. The record also shows that although

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Raynor’s counsel exhausted his 7.5 hours in part due to his focus on witnesses and facts

marginal to his case, the district court nonetheless granted additional time. Viewed in its

entirely, the record indicates that Raynor was given a fair chance to present his case to the

jury. We are left with the impression that the partial failure of Raynor’s case was

attributable to the limitations of his evidence, rather than time constraints. We cannot

conclude that the district court abused its discretion.

IV.

We turn to the litigants’ challenges to the district court’s award of attorney fees. We

review the award of fees under Fed. R. Civ. P. 37 for abuse of discretion. Southern States

Rack and Fixture, Inc v. Sherwin-Williams Co., 318 F.3d 592, 595 (4th Cir. 2003). We use

the same standard to review awards pursuant to N.C. Gen. Stat. § 1D-45. See Philips v.

Pitt Cty. Mem’l. Hosp., Inc., 775 S.E.2d 882, 884 (2015).

Prior to trial, Raynor moved for an order compelling discovery and sanctions. The

court granted the motion in part and denied it in part, ruling that G4S had failed to timely

disclose or supplement discovery requests as required by Rule 26, failed to produce non-

privileged documents as requested under Rule 34, and did not designate a prepared

deponent to answer questions as the Rule 30(b)(6) witness. As a result of these discovery

abuses, the court awarded fees under Rule 37(a)(5)(A) and 37(c)(1). But the court granted

less than the full amount Raynor requested, primarily because the court found his

timekeeping records insufficiently specific. Both G4S and Raynor complain about the

14
award of fees: the former, that it was not enough, the latter that it was too much. We reject

these arguments.

G4S does not contest that the time spent working on the motion is compensable

under Rule 37. Instead, it attacks the district court’s calculation of the actual amount of

fees as arbitrary because of lack of support in the billing documents. The district court

considered the billing rate (which G4S does not contest) and the total number of hours.

G4S seeks to impose a requirement that the district court not only “roughly approximate[]

the fee” but calculate the exact amount. Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542,

551 (2010). That is more than is required here. The court did not need to determine the

amount awarded with the exacting specificity demanded by G4S, but only determine a

“reasonable” amount. For his part, Raynor contends that the district court unfairly cut his

counsel’s billable hours. Given that he offers no response to the district court’s conclusion

that counsel billed for some time not authorized by Rule 37, we cannot hold the district

court abused its discretion.

Raynor also raises two other claims as to the district court’s denial of all requested

attorney fees: that the district court erred in denying Raynor’s motion for fees under N.C.

Gen. Stat. § 1D-45, which authorizes fees against a defendant who asserts a defense that

the defendant knows or should know is frivolous or malicious, and that the district court

erred by failing to rule on his “statutory entitlement” to fees pursuant to N.C. Gen. Stat.

§ 95-25.22(d). As to the former, the district court concluded that G4S’s actions did not

meet the high bar needed to justify such an award, noting that fees were awarded in cases

where the defendants perjured themselves or persistently denied a fact they later admitted

15
to be true. The court listed four separate points on which G4S had “legitimate grounds for

contesting the [punitive damages] claim,” rendering these defenses non-frivolous. These

grounds were reasonable, and we therefore find no abuse of discretion.

As to Raynor’s claim to entitlement to fees under § 95-25.22(d), his argument fails

for two independent reasons. First, that provision is not mandatory; it is permissive (“The

court, in any action brought under this Article may . . . order costs and fees of the action

and reasonable attorneys’ fees . . . .”). Second, and more importantly, there is nothing in

the record before us that suggests Raynor actually moved for such fees; he asked only for

fees under N.C. Gen. Stat. § 1D-45 and Fed. R. Civ. P. 37. He cannot now complain that

the court failed to infer that he actually wanted fees pursuant to a section of the statute he

omitted from his motions.

V.

We have examined the parties’ remaining claims and have determined all are

without merit. Accordingly, the judgment of the district court is in all respects

AFFIRMED.

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