                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 15-1482


GERARD OUSLEY,

                 Plaintiff – Appellant,

          v.

ROBERT A. MCDONALD, Secretary of the Department of Veterans
Affairs,

                 Defendant - Appellee.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.   William L. Osteen,
Jr., Chief District Judge. (1:12-cv-00031-WO-LPA)


Submitted:   April 27, 2016                   Decided:   May 16, 2016


Before KING, KEENAN, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James E. Hairston, Jr., Raleigh, North Carolina, for Appellant.
John Stuart Bruce, Acting United States Attorney, Jennifer P.
May-Parker, Sharon C. Wilson, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Gerard Ousley appeals the district court’s grant of summary

judgment,      which           dismissed      his        complaint       alleging          that     the

Department          of         Veterans          Affairs        engaged         in        race-based

discrimination in violation of Title VII of the Civil Rights

Act,    42    U.S.C.           §§ 2000e     to     2000e-17       (2012).            Specifically,

Ousley alleged that he was wrongly removed from his position as

Police      Chief     at       the    Department          of    Veterans       Affairs       Medical

Center in Durham, North Carolina (“DVAMC”).                                On appeal, Ousley

argues       that     the        district         court    abused        its     discretion         in

permitting          only        limited      discovery          before        granting       summary

judgment and erred, as a matter of law, in granting summary

judgment.      We affirm.

       We    review        a    district      court’s          decision    to       grant    summary

judgment without discovery for abuse of discretion.                                   See Harrods

Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir.

2002).       Generally, “summary judgment [should] be refused where

the    nonmoving         party       has    not    had    the    opportunity          to    discover

information that is essential to his opposition.”                                     Anderson v.

Liberty      Lobby,        Inc.,      477    U.S.       242,     250    n.5    (1986).            After

reviewing      the       record       in    this     case,       we    discern       no    abuse    of

discretion      in       the      district        court’s       decision       to     permit      only

limited      discovery           before      ruling       on     the    Secretary’s          summary

judgment motion.                The parties engaged in substantial discovery

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before the Equal Employment Opportunity Commission, where Ousley

was represented by counsel.                   Further, Ousley fails to specify

the manner in which additional discovery would alter the result

in this case.

       We next review the merits of the district court’s grant of

summary judgment de novo, drawing all reasonable inferences in

favor of the nonmoving party.                  Butler v. Drive Auto. Indus. of

Am., Inc., 793 F.3d 404, 407 (4th Cir. 2015).                             Summary judgment

is only appropriate when “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter

of law.”    Fed. R. Civ. P. 56(a).                    In opposing summary judgment,

“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.”

Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013).

       Title VII prohibits federal employers from discriminating

against employees on the basis of race.                        42 U.S.C. § 2000e-16

(2012).     Every   case        in    which       a     plaintiff    alleges       disparate

treatment   on   the     basis       of   a   protected       trait       poses    the   same

ultimate    question:     “whether        the         plaintiff     was    the    victim   of

intentional discrimination.”              Hill v. Lockheed Martin Logistics,

354 F.3d 277, 286 (4th Cir. 2004) (en banc) (internal quotation

marks omitted), abrogated in part on other grounds, Univ. of

Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013).                                To

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that end, an individual alleging racial discrimination must show

that     the     protected    trait     “actually       played       a     role     in     the

employer’s        decisionmaking        process       and     had     a        determinative

influence       on   the    outcome.”         Id.     (internal       quotation          marks

omitted).

       Determining     the    actual     decisionmaker            responsible       for   the

adverse        employment    action     can     be    paramount           to     determining

whether the protected trait played a role in the decision.                                 Id.

at 286-87.        Generally, employers are liable only for the acts of

employees with supervisory authority who are empowered to make

“tangible employment decisions.”                Id. at 287.          But form does not

triumph over substance:

       When a formal decisionmaker acts merely as a cat’s paw
       or rubber-stamps a decision, report, or recommendation
       actually made by a subordinate, it is not inconsistent
       to   say   that   the   subordinate   is   the   actual
       decisionmaker or the one principally responsible for
       the contested employment decision, so long as he
       otherwise   falls   within   the  parameters   of   the
       discrimination statute’s definition of an employer or
       agent of the employer.

Id. at 290.

       We concur with the district court’s identification of the

actual    decisionmaker         in   this     case.         The    record        shows    that

William    Dale      Hendley,    whom    Ousley       charges       as     the    puppeteer

behind his demotion, merely acted as a consultant for Ralph T.

Gigliotti, DVAMC’s Director, who had the sole power to make the

contested decision.           As a result, the district court properly

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focused      on   Gigliotti’s    motivations         in    considering      whether     to

grant summary judgment.

       With this threshold issue decided, we turn to the two means

by which a plaintiff can establish discrimination under Title

VII: (1) “through direct and indirect evidence,” also known as

the     “mixed-motive”          framework;           or        (2)    “through        the

burden-shifting framework of McDonnell Douglas Corp. v. Green,

411 U.S. 792 [(1973)],” also known as the “pretext” framework.

Foster v. Univ. of Maryland-Eastern Shore, 787 F.3d 243, 249

(4th Cir. 2015).

       Under the “mixed-motive” framework, a plaintiff succeeds if

he “demonstrates that race . . . was a motivating factor for any

employment practice, even though other factors also motivated

the practice.”           Diamond v. Colonial Life & Acc. Ins. Co., 416

F.3d    310,      317    (4th   Cir.    2005)       (internal        quotation       marks

omitted).          The     plaintiff     may       do     so     through    direct     or

circumstantial evidence.          Id. at 318.              This evidence must both

display       a    “discriminatory       attitude”             and   bear   a    causal

relationship with the adverse employment action.                        Warch v. Ohio

Cas. Ins. Co., 435 F.3d 510, 520 (4th Cir. 2006).

       The    materials     before      us       offer     insufficient     direct      or

indirect evidence to suggest that race was a motivating factor

in    Ousley’s     demotion.      The    record          reflects    little,    if    any,



                                             5
“discriminatory attitude” toward Ousley’s race.                        Therefore, the

district court properly dismissed his mixed-motive claim.

     Under       the    “pretext”     framework,    the    plaintiff       bears     the

initial burden to show a prima facie case of discrimination.

Laing v. Fed. Express Corp., 703 F.3d 713, 719 (4th Cir. 2013).

If he does so, the burden shifts to the employer, who must

proffer a legitimate, nondiscriminatory reason for the adverse

employment action.            Id.     If the employer does so, the burden

shifts back to the plaintiff to demonstrate that the employer’s

proffered reason was merely a pretext for discrimination.                      Id.

     When evaluating pretext, it is not within our purview to

question whether the employer’s proffered basis for the disputed

action “was wise, fair, or even correct, ultimately, so long as

it truly was the reason for” the action.                   Id. at 722 (internal

quotation marks omitted).                 In order to succeed at this stage,

the plaintiff must “show both that the reason advanced was a

sham and that the true reason was an impermissible one under the

law.”     Russell v. Microdyne Corp., 65 F.3d 1229, 1235 (4th Cir.

1995).

     In       this    case,   the   evidence     does    not    show    that   DVAMC’s

proffered bases for demoting Ousley were pretextual.                           Ousley

fails    to    show    that   the    dual    investigations      resulting     in    his

demotion      were     anything     but    independent    and    unbiased.      These

investigations concluded that Ousley exercised poor judgment and

                                             6
that    his    department      suffered     from     numerous     deficiencies.

Therefore,    the   district    court     properly    concluded    that   Ousley

failed to support his burden of showing pretext.

       Accordingly, we affirm the district court’s order granting

summary judgment.        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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