Ghioroaie-Panait v. Spry

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

ADRIAN GHIOROAIE-PANAIT, )

)

Plaintiff, )

)

v. ) Case No. 3:17-cv-00698-ALB-WC

)

HENRY ROLLE, et al., )

)

Defendants. )

)

MEMORANDUM OPINION AND ORDER

Plaintiff Adrian Ghioroaie-Panait (“Ghioroaie”) filed this action against (1)

Auburn University,1 his former employer, asserting discrimination and retaliation

under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et

seq.; (2) Ralph Spry, the head coach of the Auburn University Track and Field

Program (“track team”), asserting a negligent training and supervision claim under

Alabama law; and (3) Henry Rolle, an assistant coach of the track team, asserting

assault and battery claims under Alabama law. This matter comes before the Court

on Defendant Auburn University’s Motion for Summary Judgment (Doc. 62) and

1 In his original Complaint, Plaintiff incorrectly named the Board of Trustees of

Auburn University as a defendant. See Doc. 1. Plaintiff later filed an Amended

Complaint, naming Auburn University as the proper party defendant. See Doc. 21.

Defendant Ralph Spry’s Motion for Summary Judgment. (Doc. 63). For the reasons

stated below, the motions are due to be granted.

BACKGROUND

Ralph Spry, who is a black American, is the head coach of the track team and

has been employed by Auburn since the late 1990s. In December 2013, Auburn hired

Ghioroaie, a white Romanian, as an assistant coach of the track team. Ghioroaie

served as the horizontal jump coach and coached some multi-events. During his

employment at Auburn, Ghioroaie was one of five assistant coaches for the track

team. The other assistant coaches were Scott Richardson (white, American); Mark

Carroll (white, Irish); Knut Hjeltnes (white, Norwegian); and Henry Rolle (black,

Bahamian). Spry reported to Bernard Hill, a Senior Associate Athletics Director and

sports administrator to the track team, who reported to then-Athletic Director Jay

Jacobs.

Rolle, who was hired by Auburn in 2001, was the assistant head coach of the

track team. Though Rolle was occasionally in charge in Spry’s absence, the assistant

coaches reported directly to Spry, and Rolle did not otherwise have any supervisory

authority.

The assistant coaches for the track team sign one-year contracts, which may

be renewed on a continuing one-year basis at Spry’s discretion. Ghioroaie’s

employment contract was renewed in 2014 and 2015, but Spry decided not to renew

Ghioroaie’s contract in 2016.

I. Ghioroaie’s Employment with Auburn

According to Auburn, during Ghioroaie’s time as an assistant coach, he (1)

demonstrated an inability to get along with the rest of the coaching staff, his student-

athletes, professional athletes, high school and/or club coaches, and SEC officials,

(2) was insubordinate to Spry, and (3) committed multiple NCAA violations.

Ghioroaie disputes Auburn’s characterization—not necessarily the underlying

facts—of many of the events that took place during his employment.

Ghioroaie’s first verbal disagreement with Rolle occurred in March or April

2014 when he and Rolle had a disagreement regarding the team’s travel to Atlanta

for a track meet. According to Ghioroaie, Rolle became angry in a staff meeting after

the competition and stood over Ghioroaie, making comments like “[w]here I come

from, we have ways of dealing with someone like you.” Ghioroaie did not report this

incident to Human Resources.

A few months later in 2014, Ghioroaie’s contract was extended from August

1, 2014, until July 31, 2015. 2

2 Ghioroaie’s initial contract with Auburn was from December 9, 2013, through July

31, 2014, because he began his employment during the middle of the Athletic

Department’s fiscal year.

Ghioroaie was cited for an NCAA violation on April 23, 2015, for improperly

texting a recruit. He served a two-week recruiting penalty for the violation.

On May 16, 2015, Ghioroaie was involved in a heated argument with an SEC

official at the outdoor championships. After receiving what he deemed a bad call

from the official, Ghioroaie yelled at the official at the event site and followed the

official into the hospitality area, continuing to yell at the official. Though Ghioroaie

was not formally reprimanded by Spry after this incident, Spry verbally discussed

the incident with Ghioroaie.

Less than a week later on May 22, 2015, Ghioroaie got into an argument with

Donald Thomas, a professional athlete who had permission to use Auburn’s track

facilities for training. According to Ghioroaie, Thomas disrespected him and

disregarded his position and told Ghioroaie that he was not going to “recommend[]

Auburn to any jumpers that ask any recommendations to come here since you have

been coaching at Auburn.” (Doc. 62-2 at 260).

On August 10, 2015, Ghoiroaie’s contract was again extended from August

1, 2015, until July 31, 2016.

On October 1, 2015, Spry held a staff meeting about recruiting and the

allotment of scholarships to recruits. During the meeting, Ghioroaie and Richardson

were involved in a heated argument regarding a recruit. According to Ghioroaie,

Rolle then started a verbal argument with Ghioroaie that turned physical. Richardson

reported this incident as follows:

Coach Adrian Ghioroaie, in attempt to make a case for his recruit,

began arguing for a full scholarship and Coach Spry let Adrian know

that his recruit didn’t meet the criteria for a full scholarship and

suggested that my recruit was just as good and mentioned that I was not

asking for a full scholarship. Adrian then began to lash out, first at me.

I responded to Adrian and then he redirected his verbal assault to other

members of the staff, criticizing the collective efforts of the staff in

terms of work effort, coaching and recruiting. Though there was no

yelling up to this point, Adrian’s tone was very aggressive. This lasted

maybe 5 minutes. He then began to strongly criticize Henry Rolle.

Adrian very aggressively went on to verbally attack[] Henry’s

coaching, recruiting, and character. This lasted for about another 10

minutes.

(Doc. 71-4).3 Rolle reacted by grabbing Ghioroaie by the neck, which forced the

other coaches to restrain Rolle. Rolle then grabbed a tiger statue, lifting and waving

it as if he was going to strike Ghioroaie, and again, the other coaches had to restrain

Rolle.

Ghioroaie reported this incident to Bernard Hill, a Senior Associate Athletics

Director. Hill subsequently met with and requested written statements from each of

the witnesses present during the October 1 meeting. As a result of this incident, Rolle

was placed on administrative leave and suspended for two weeks. In addition, he

was denied the opportunity to receive a bonus at the end of the year, he was required

3 Plaintiff filed this statement as an exhibit to his opposition to summary judgment

and relied on it throughout the opposition. It is broadly consistent with his own

testimony about the incident.

to complete 25 hours of community service and a six-month anger management

course, and he was not allowed to return to work until Ghioroaie reported that he felt

comfortable with him doing so.

On October 8, 2015, Ghioroaie stopped by Spry’s office to comment on

Rolle’s discipline. Spry claims that he tried to question Ghioroaie about his concerns

with Rolle, and Ghioroaie ignored him and walked away. Spry further claims that

he demanded that Ghioroaie return to his office and that Ghioroaie refused to

respond and left the facility. Ghioroaie, however, claims that he never heard Spry’s

requests and, therefore, was not insubordinate.

After this incident, Ghioroaie was involved in a string of additional verbal

confrontations over the next several months.

On October 30, 2015, Ghioroaie and Rolle were involved in a verbal

confrontation after Rolle observed Ghioroaie and a group of recruits talking to a

professional athlete who was training at the facility. That kind of communication

could be an NCAA violation.

On November 3, 2015, Ghioroaie was involved in a disagreement with Spry

regarding Spry’s refusal to award one of Ghioroaie’s recruits additional scholarship

money and his general allocation of scholarships.

In December 2015, one of Ghioroaie’s student-athletes expressed

dissatisfaction about Ghioroaie to her high school club coach. Ghioroaie talked to

the club coach. The club coach sent a text message to Spry about a “disturbing call”

in which Ghioroaie “pretty much call[ed] [him] a liar.” (Doc. 62-6 at 147). The club

coach informed Spry that “in trying to talk to [Ghioroaie] I have decided that I would

never send a jumper or a field event person his way.” (Doc. 62-6 at 148). “I’m sorry

I had to send this text but the man is crazy.” (Doc. 62-6 at 148).

On February 23, 2016, Ghioroaie and Rolle were involved in another

confrontation, which involved a dispute about who could use an area on the track.

Ghioroaie wrote a long, detailed email to human resources about the dispute.

On March 1, 2016, a student-athlete coached by Ghioroaie was transferred to

a different coach after she became upset during practice.

On May 1, 2016, Spry and David Mines, a Senior Associate Athletics

Director, met with Ghioroaie to inform him that his contract was not being renewed.

At that meeting, Ghioroaie raised concerns that he was being discriminated against

and also asked to say goodbye to the student-athletes on the track team. Plaintiff

recorded the meeting, and the following is a small portion:

Ghioroaie: I just want to give my group a hug and wish them all the

best, man.

Mines: Well, you know, sometimes that’s great and sometimes it’s

just not a good thing.

Spry: Well, again, Adrian, I’ll be honest with you, now, I’m

concerned because you’re now talking about all this discrimination

stuff and I don’t know if I want you back with the team. I mean, I . . .

Ghioroaie: I’m not going to—I never brought any of that to the team,

Coach.

Spry: Yeah, but you never know.

Ghioroaie: I never brought any of that to the team, man.

Spry: I’m just saying, the way you’re talking now, I mean, now I’m

. . .

Ghioroaie: Because I have to look at all the angles, Coach. I mean, I

really do. It’s a weird situation for . . .

Mines: And it’s probably best to not have any kind of contact

with . . .

Spry: Yeah. Why don’t you write them a letter and I’ll make sure

they get it. That’s what we’ll do. And I’ll address it tomorrow at the

team meeting. I’m not going to go into any details. But inform the

team of where we are.

(Doc. 62-5 at 30:00–32:00).

Because Ghioroaie’s contract was set to expire on July 31, 2016, Auburn

allowed him to use the remaining period of his contract to find a new job.

II. Ghioroaie’s Complaints of Discrimination

According to Auburn, Ghioroaie first complained about race or national origin

discrimination at the May 1, 2016 meeting when Spry informed him that his contract

was not being renewed. But Ghioroaie claims that he made multiple complaints of

race and national origin discrimination.

Ghioroaie claims that he complained of discrimination in writing on March 1,

2016, when he sent an email to Hill and Linda Maxwell-Evans, Executive Director

of the Human Resources Department, regarding the February 23 confrontation he

had with Rolle on the track. Ghioroaie’s three-page email described the incident and

stated the following:

I truly believe in us functioning as a team and helping each other. I

always look at the bigger picture and direct my actions and energy for

the benefit of the student-athletes that I am employed to serve. But I

also believe that regardless of our nationality, skin color, accent, and

other differences we have the right to do the work we have been

employed to do in a safe environment.

(Doc. 62-2 at 286).

Ghioroaie also asserts without elaboration in a declaration that he verbally

raised concerns about race and national origin discrimination. Ghioroaie says he

raised these issues after the March 1 email in “subsequent meetings with Bernard

Hill, Linda Maxwell-Evans, and Sonya Dixon, all HR personnel for Auburn.” (Doc.

71-3, ¶ 13). Ghioroaie says that he also “discussed these concerns with Coach Spry

when he met with me about the February 23, 2016 confrontation” between Ghioroaie

and Rolle. (Doc. 71-3, ¶ 13).

STANDARD OF REVIEW

Summary judgment is appropriate when 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.” Fed. R. Civ. P. 56(a). The moving party “has the burden of either

negating an essential element of the nonmoving party’s case or showing that there is

no evidence to prove a fact necessary to the nonmoving party’s case.” McGee v.

Sentinel Offender Servs., LLC, 719 F.3d 1236, 1242 (11th Cir. 2013).

If the moving party meets its burden, the nonmoving party must then “go

beyond the pleadings and by [his] own affidavits, or by the depositions, answers to

interrogatories, and admissions on file, designate specific facts showing that there is

a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)

(internal quotations omitted). A genuine dispute of material fact exists when the

nonmoving party produces evidence allowing a reasonable fact finder to return a

verdict in its favor. Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279

(11th Cir. 2001). But “unsubstantiated assertions alone are not enough to withstand

a motion for summary judgment.” Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529

(11th Cir. 1996). The Court views the evidence, and all reasonable inferences drawn

therefrom, in the light most favorable to the nonmoving party. Jean-Baptiste v.

Gutierrez, 627 F.3d 816, 820 (11th Cir. 2010).

DISCUSSION

Plaintiff brings this action against Auburn, Spry, and Rolle. Both Spry and

Auburn have moved for summary judgment on all claims against them, and thus the

Court addresses those claims below.

I. Spry’s Motion for Summary Judgment

Plaintiff asserts a negligent supervision and training claim against Spry in his

individual capacity. Spry argues that he is entitled to summary judgment on this

claim because (1) Alabama does not recognize a claim for negligent supervision and

training against an employee, (2) Plaintiff’s claim is time-barred, (3) Spry is immune

from liability, and (4) Plaintiff has failed to meet his burden to show that a genuine

dispute of material fact exists.4 The Court need not address each of these arguments

as Spry’s first argument is dispositive. 5

Whether a plaintiff may bring a claim against an employee for negligent

supervision and training of a subordinate is not a novel question raised for the first

time by the plaintiff in this case. Rather, it is a question that has been frequently and

unanimously answered by federal courts in Alabama with a resounding “no.” See,

e.g., Hand v. Univ. of Ala. Bd. of Trustees, 304 F. Supp. 3d 1173, 1182 (N.D. Ala.

2018) (“Alabama law does not recognize a cause of action against a supervisor for

that supervisor’s negligent training or supervision of a subordinate.”); Brannon v.

Etowah Cnty. Court Referral Program, LLC, 325 F.R.D 399, 427 (N.D. Ala. 2018)

(finding that a supervisor “cannot be liable for negligent training or supervision

4 On September 24, 2018, Spry moved for a judgment on the pleadings. (Doc. 47).

In light of the Court’s ruling on Spry’s motion for summary judgment, that motion

is due to be denied as moot.

5 On March 6, 2019, Spry moved to amend his Answer to add a statute of limitations

defense. (Doc. 56). Because of the Court’s ruling on the underlying claim, that

motion is due to be denied as moot.

because the ECCRP is the employer and not her”); Doe v. City of Demopolis, 799 F.

Supp. 2d 1300, 1312 (S.D. Ala. 2011) (recognizing no negligent supervision or

training claim against supervisor under Alabama law); Ott v. City of Mobile, 169 F.

Supp. 2d 1301, 1314-15 (S.D. Ala. 2001) (same).

Plaintiff argues that other federal district court decisions are not binding on

this Court and that a negligent supervision and training claim against an employee

is a viable claim because it is “at its heart a negligence claim.” But the Court finds

persuasive the reasoning of the many other federal district courts that have addressed

this issue. A negligent supervision and training claim is predicated on a master-

servant relationship between the employer and the employee. See, e.g., Weissenbach

v. Tuscaloosa Cnty. Sch. Sys., No. 7:17-cv-001642, 2018 WL 5848047, at *7 (N.D.

Ala. Nov. 8, 2018) (holding that vice principals were also employees of the Board

of Education and thus to the extent the plaintiff’s negligence claims were “not based

directly on [the vice principals’ negligence], but instead, [were] based on claims of

negligent supervision, those claims fail to state a claim”). And under Alabama law,

an employee supervisor is not the “master” of his subordinate co-worker. Ott, 169

F. Supp. 2d at 1315. Rather, the master is “restricted to one who is actually or

essentially the employer of the servant.” Id.

Here, Plaintiff alleges that Spry was negligent in supervising Rolle, but it is

undisputed that both Spry and Rolle were employed by Auburn. In other words, Spry

was not in a master-servant relationship with Rolle. Both he and Rolle were in a

master-servant relationship with Auburn. Because Spry was not Rolle’s employer,

Spry cannot be held liable for the alleged negligent supervision and training of Rolle,

and Spry’s motion for summary judgment is due to be granted for that reason.

II. Auburn’s Motion for Summary Judgment

Plaintiff asserts three claims against Auburn under Title VII: (1) race

discrimination, (2) national origin discrimination, and (3) retaliation.

A. Title VII Discrimination Claims

Absent direct evidence, a claim for intentional discrimination is analyzed

under the burden-shifting framework established in McDonnell-Douglas Corp. v.

Green, 411 U.S. 792 (1973). Flowers v. Troup Cnty., Ga., Sch. Dist., 803 F.3d 1327,

1335 (11th Cir. 2015). Under the McDonnell-Douglas framework, a plaintiff must

first establish a prima facie case of discrimination. Id. at 1336. If the plaintiff

establishes a prima facie case, the burden then shifts to the employer to offer a

legitimate, non-discriminatory reason for the adverse employment action. Flowers,

803 F.3d at 1336. Once the employer meets its burden of production, the burden

shifts back to the plaintiff to show that the employer’s proffered reason is pretext for

unlawful discrimination. Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1326

(11th Cir. 2011).

For purposes of summary judgment, Auburn concedes that Plaintiff has

established a prima facie case of race or national origin discrimination. But Auburn

argues that it has articulated multiple legitimate, non-discriminatory reasons for its

decision not to renew Plaintiff’s contract and that Plaintiff cannot show that its

reasons are pretext for unlawful discrimination. The Court agrees.

To show pretext, a plaintiff must introduce substantial evidence both that the

employer’s articulated reason for the employment decision is false and that the real

reason is unlawful discrimination. Brooks v. Cnty. Cmm’n of Jefferson Cnty., Ala.,

446 F. 3d 1160, 1162 (11th Cir. 2006). Plaintiff has shown neither. Plaintiff first

attempts to demonstrate pretext by showing that Auburn offered inconsistent reasons

for the non-renewal of his contract. Specifically, he claims that Auburn’s failure to

provide him with specific reasons for his non-renewal in the May 1, 2016 meeting

demonstrates an inconsistency with Auburn’s articulation of those specific reasons

now. But to create an inference of pretext based on an employer’s inconsistent

reasons, “the new reasons relied on in litigation must plainly contradict the reasons

relied on at the time of the decision.” Pate v. Chilton Ctny. Bd. of Educ., 853 F. Supp.

2d 1117, 1133-34 (M.D. Ala. 2012); see Thomas v. Dolgencorp, LLC, 30 F. Supp.

3d 1340, 1351 (M.D. Ala. 2014) (finding that alternative reasons asserted by

employer did not create inference of pretext).

Here, Auburn’s reasons for non-renewing Plaintiff’s contract have not

changed. In fact, Auburn’s reasoning has been wholly consistent from the time the

decision was made until now: Plaintiff was not a good fit for the track team. The

specific examples and reasons articulated by Auburn throughout this litigation

explain its reasoning—they do not contradict it. See Davis v. City of Lake City, Fla.,

553 F. App’x 881, 886-87 (11th Cir. 2014) (holding that the city’s “description of

[plaintiff’s] shortcomings forming the basis of his termination [were] all variations

on the same non-retaliatory theme” and that its reasons were “wholly consistent”

and “merely further elaboration of a general reason for [plaintiff’s] termination”).

Plaintiff next attempts to show pretext by claiming that he did not engage in

some of the misconduct alleged by Auburn—that it was a misunderstanding—or that

his actions were not serious enough to justify his non-renewal. For example, Plaintiff

does not deny that he committed NCAA violations or that he was involved in a verbal

altercation with an SEC official. He merely disagrees with Auburn regarding the

seriousness of those incidents. See Doc. 71 at 22. But the Eleventh Circuit has long

held that, to establish pretext, a plaintiff “must do more than criticize the business

judgment of his employer” and “quarrel with the wisdom of the decision.” Knight v.

Fla. Dep’t of Transp., 291 F. App’x 955, 959 (11th Cir. 2008) (citing Chapman v.

Al Transport, 229 F.3d 1012, 1030 (11th Cir. 2000)). Thus, Plaintiff’s subjective

opinion about the seriousness of his actions does not create an inference of pretext.

Further, although Plaintiff claims he has presented evidence “effectively

rebutt[ing]” the October 8, 2015 insubordination incident, his argument is

unavailing. This incident was only one of many that led Auburn to conclude that

Plaintiff was not a good fit for the track team. And when the employer proffers more

than one legitimate, non-discriminatory reason, the plaintiff must “meet [each]

reason head on and rebut it” to survive a motion for summary judgment. Chapman,

229 F.3d at 1030; Crawford v. City of Fairburn, Ga., 482 F.3d 1305, 1308 (11th Cir.

2007). Moreover, Plaintiff’s testimony says nothing about whether Spry honestly

considered his failure to respond to his requests on October 8 to be insubordinate.

See Winborn v. Supreme Beverage Co. Inc., 572 F. App’x 672, 674 (11th Cir. 2014)

(recognizing that employer is required to have an honest belief—not a correct one—

that the employee engaged in misconduct). Plaintiff testified that he did not hear

Spry’s requests, not that Spry did not make them.

Finally, Plaintiff erroneously argues that the following evidence creates an

inference of unlawful discrimination: (1) vague allegations that Spry treated two

other white coaches unfairly and (2) comments made by Spry and Rolle referencing

Plaintiff’s national origin. These are insufficient to create a genuine dispute of fact.

As an initial matter, Plaintiff’s threadbare allegations regarding Spry’s unfair

treatment of two other white coaches fall short for the same reasons his own

allegations of mistreatment fall short—there is no evidence in the record that any

such treatment was based on the coaches’ race or national origin.

Likewise, the supposed comments that Spry made about Plaintiff’s national

origin are insufficient to create a genuine issue of fact. Many of the comments do

not evidence a discriminatory intent at all, such as “you do not understand certain

things because of where you are from” or “it’s not like where you are from.” See

generally Ekokotu v. Fed. Exp. Corp., 523 F. App’x 629, 632 (11th Cir. 2013)

(finding no invidious intent behind manager’s remarks that he had difficulty

understanding plaintiff because of his fast speech and accent). Plaintiff’s brief argues

that he was “often referred to by Spry and Rolle as ‘Gypsy’” (Doc. 71 at 24), but

this argument is no better. During his deposition, Plaintiff testified that Spry

“cracked a joke here and there about . . . being from Romania.” (Doc. 63-2 at 215:7-

21). But when asked to identify the specifics regarding Spry’s comments, Plaintiff

stated that he could not remember when any such comments were made or even what

the comments were. Further, Plaintiff testified generally that some people used the

phrase “hey, gypsy” to refer to him. (Doc. 63-2 at 214:10-11). But Plaintiff conceded

in his deposition that he was not offended by the phrase at the time. (Doc. 63-2 at

214:16-215:6). Without more, Plaintiff has presented insufficient evidence to infer

discriminatory intent. 6

Federal anti-discrimination law prevents discrimination; it does not require

co-workers to get along. See Woodruff v. Jackson Hosp. & Clinic, Inc., No. 2:18-cv-

514, 2019 WL 5616906, at *5 (M.D. Ala. Oct. 30, 2019) (finding no substantial

evidence that plaintiff was being harassed because of her race where plaintiff was

“essentially complaining about workplace antipathy demonstrated by co-workers

who happen to be African-Americans”). Here, Spry consistently renewed Plaintiff’s

contract until Plaintiff engaged in a series of intense disputes with a fellow coach

and a club coach reported to Spry that Plaintiff was “crazy.” At most, Plaintiff has

presented evidence that Rolle mistreated him and that Spry showed favoritism to

Rolle. But to be actionable under federal law, mistreatment and favoritism must be

based on a protected characteristic—in this case, race or national origin. See, e.g.,

6 The law requires that comments like these—even if generally inappropriate—be

considered in the context of Plaintiff’s employment as a college track coach, not as

a laborer or office worker. The Supreme Court has explained that “[t]he real social

impact of workplace behavior often depends on a constellation of surrounding

circumstances, expectations, and relationships which are not fully captured by a

simple recitation of the words used or the physical acts performed.” Oncale v.

Sundowner Offshore Servs., Inc., 523 U.S. 75, 81–82 (1998). And other courts have

taken note of “the informal, sometimes jocular, college sports team atmosphere that

fosters familiarity and close relationships between coaches and players.” Jennings v.

Univ. of N. Carolina, 482 F.3d 686, 698 (4th Cir. 2007) (en banc); see also United

States v. Marks, 2013 WL 4502319, at *4 (S.D. Fla. Mar. 5, 2013) (recognizing that

use of the term “gypsy” does not inherently evidence discriminatory intent but may

create an inference of discrimination when used as part of an ethnic stereotype).

Platner v. Cash & Thomas Contractors, Inc., 908 F.2d 902, 905 (11th Cir. 1990)

(“A racially discriminatory motive cannot, as a matter of law, be invariably inferred

from favoritism shown on the basis of some family relationship.”); Vickery v.

Medtronic, Inc., 997 F. Supp. 2d 1244, 1255 (S.D. Ala. 2014) (holding that evidence

“that a manager treated employees unfairly and showed slight favoritism toward

others” did not create a “convincing mosaic” of unlawful discrimination). And that

is where Plaintiff’s evidence is lacking. There is no substantial evidence suggesting

that Spry or Rolle had antipathy toward white people or Romanians. Instead,

Plaintiff concedes that Spry and Rolle had a preexisting relationship that likely

explained why Spry took Rolle’s side. See Duncan v. Jefferson Cnty. Bd. of Educ.,

No. 05-PWG-0442-S, 2006 WL 8436717, at *5 (N.D. Ala. Mar. 17, 2006) (holding

that favoritism based on previous work relationship, not race, is insufficient to

support § 1983 claim). For these reasons, Plaintiff’s discrimination claims based on

race or national origin fail, and summary judgment is due to be granted.

B. Title VII Retaliation Claim

Like Plaintiff’s discrimination claims, Plaintiff’s retaliation claim is analyzed

under the McDonnell-Douglas framework. To establish a prima facie case of

retaliation, a plaintiff must show that (1) he engaged in statutorily protected activity,

(2) he suffered an adverse employment action, and (3) there is some causal

connection between the two events. Thomas v. Cooper Lighting, Inc., 506 F.3d 1361,

1364 (11th Cir. 2007); Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th

Cir. 2001).

Auburn first argues that Plaintiff cannot establish a prima facie case of

retaliation because Plaintiff did not complain of race or national origin

discrimination prior to May 1, 2016, when he learned that his contract was not being

renewed. Plaintiff claims that he complained of race or national origin discrimination

in his March 1, 2016 email to Hill and Maxwell-Evans. But as Auburn points out,

Plaintiff’s March 1 email contains nothing more than a complaint about another

confrontation he had with Rolle on the track, not a complaint about race or national

origin discrimination. Though Plaintiff’s three-page email includes one reference to

his belief that all employees should be entitled to work in a safe environment

“regardless of our nationality, skin color, accent, and other differences,” this passing

reference to protected characteristics is not enough to constitute protected activity

for purposes of his retaliation claim. See Ingram v. Sec’y of the Army, No. 6:16-cv-

150, 2017 WL 4574607, at *12 (M.D. Fla. Oct. 13, 2017), aff’d, 743 F. App’x 914

(11th Cir. 2018) (“The Eleventh Circuit has held that, at a minimum, protected

activity requires a plaintiff to communicate his belief to his employer that

discrimination is occurring.”). By making this reference, Plaintiff in no way

communicated to Auburn that he was the subject of race or national origin

discrimination or that he believed his treatment by Rolle or Spry was due to a

protected characteristic. In fact, Plaintiff stated in the same email that he believed

Spry favored Rolle “because of their history together.” (Doc. 62-2 at 286).

But even though Plaintiff did not engage in protected activity in his March 1,

2016 email, Plaintiff also asserts in his declaration that he verbally complained of

race or national origin discrimination in conversations with Spry, Hill, Maxwell-

Evans, and Dixon in relation to the February 23 confrontation between himself and

Rolle. It is Plaintiff’s obligation to submit substantial evidence in support of his

prima facie case of retaliation, but he has failed to identify when he made these

alleged verbal statements or what he allegedly said to anyone. The only information

in the record is Plaintiff’s vague and conclusory assertion in his declaration that he

had discussions about discrimination and these witnesses’ sworn statements that

Plaintiff never made any such complaint. Plaintiff’s declaration does not create a

genuine issue of material fact. See King Corp. v. E-Z Eating, 572 F.3d 1306, 1315,

1316 n.12 (11th Cir. 2009) (upholding district court’s grant of summary judgment

because the party’s “vague” affidavits provided “scant evidence ... too scant to create

a genuine [dispute],” where affidavits failed to state “when exactly the meeting was,

where it was held, who specifically attended, what the attendees said, or what sort

of information was exchanged”); Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1217

(11th Cir. 2000) (“This court has consistently held that conclusory allegations

without specific supporting facts have no probative value.”); Wilborn v. Kraft Foods

Grp., Inc., 71 F. Supp. 3d 927, 934-35 (W.D. Wis. 2014) (citations omitted) (noting

a “declaration in opposition to a motion for summary judgment must set forth

specific facts, not mere conclusions,” especially since the “point of the evidentiary

requirements in Rule 56 is to require the non-moving party to go beyond the

conclusory allegations of the complaint, not simply recast those conclusory

allegations in the form of a declaration,” and finding that plaintiff “cannot evade

[defendant's] documented refutation of [plaintiff's] evidence with a vague

declaration that does not provide any specific details or cite any documentary

evidence”).

Auburn next argues that, even if Plaintiff engaged in protected activity,

Plaintiff’s prima facie case fails because he cannot show a causal connection

between any alleged complaints of discrimination and the non-renewal of his

contract. To establish a causal connection, Plaintiff must show that the relevant

decisionmaker was “aware of the protected conduct, and that the protected activity

and the adverse employment actions were not wholly unrelated.” Shannon v.

Bellsouth Telecomm., Inc., 292 F.3d 712, 716 (11th Cir. 2002) (quoting Gupta v.

Fla. Bd. of Regents, 212 F.3d 571, 590 (11th Cir. 2000), overruled on other grounds,

Burlington N. & Santa Fe Ry. Co v. White, 548 U.S. 53 (2006)). Temporal proximity

alone may be enough to show that the protected activity and adverse employment

actions were not “wholly unrelated,” but the temporal proximity must be “very

close.” Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007).

Plaintiff’s main argument on this front is that he presented direct evidence of

retaliation based on statements Spry made at the May 1 nonrenewal meeting. But a

review of the record of that meeting establishes that Plaintiff is wrong. After Plaintiff

was informed that his contract was not being renewed, he complained about

discrimination. Plaintiff also asked to say goodbye to the team. Spry said that

Plaintiff would not be allowed to say goodbye in-person to his student-athletes

because of his complaint, which he made “now” in the meeting. Nothing about this

conversation indicates that Plaintiff was terminated because he made a

discrimination complaint.

Nevertheless, even if Plaintiff had established a prima facie case for

retaliation, Plaintiff’s retaliation claim still suffers from the same flaw as his

discrimination claims: there is no substantial evidence rebutting Auburn’s

explanation for the non-renewal of his contract from which a jury could conclude

that Auburn’s reasons were pretext for retaliation. For these reasons, Plaintiff’s

retaliation claim fails.

CONCLUSION

Based on the foregoing reasons, the Court orders as follows:

1. Spry’s Motion for Judgment on the Pleadings (Doc. 47) is DENIED AS

MOOT.

2. Spry’s Motion for Leave to Amend Answer (Doc. 56) is DENIED AS

MOOT.

3. Auburn’s Motion for Summary Judgment (Doc. 62) and Spry’s Motion for

Summary Judgment (Doc. 63) are due to be, and hereby are, GRANTED.

4. Rolle did not move for summary judgment, and Plaintiff’s state-law claims

against him remain pending. The parties SHALL address the following at the

already-scheduled pretrial conference: (1) whether the Court has jurisdiction

over Plaintiff’s assault and battery claims under 18 U.S.C. § 1332 and/or 18

U.S.C. § 1367, and (2) whether a final judgment should be entered consistent

with this order under Federal Rule of Civil Procedure 54(b).

5. This case is not closed.

DONE and ORDERED this 10th day of January 2020.

/s/ Andrew L. Brasher

ANDREW L. BRASHER

UNITED STATES DISTRICT JUDGE