BAILEY, J.
Disposition of Cases by Unpulished Memorandum Decision.
Affirmed.
MAY, J. Concurs.
BARNES, J. Concurs.
Holifield suffered adverse employment action during this time; he was reassigned from CHP to staff physician, and was then terminated from his employment altogether."), this Court's sole focus becomes whether plaintiff has established a causal relationship between the two events.
The burden of causation can be met by showing close temporal proximity between the statutorily protected activity and the adverse employment action. But mere temporal proximity, without more, must be "very close." A three to four month disparity between the statutorily protected expression and the adverse employment action is not enough. Thus, in the absence of other evidence tending to show causation, if there is a substantial delay between the protected expression and the adverse action, the complaint of retaliation fails as a matter of law.
Thomas, supra, 506 F.3d at 1364 (internal citations omitted). In this case, there is approximately a three month period of time between plaintiffs August 19, 2008 termination and the filing of his letter of revision with the EEOC on or about May 21, 2008 (that is, the protected activity in closest proximity to plaintiffs termination). The undersigned finds that this three-month period, standing alone, is not enough to establish a causal connection,
see Thomas, supra ("That three (3) month period, without more, does not rise to the level of `very close.'"),
and because plaintiff has not come forward
with any credible other evidence tending to establish causation,
he has not established a prima facie case of retaliation and the defendants are entitled to summary judgment.
This Court additionally finds that any inference of a causal connection was broken by Rabb's misconduct. See Hankins v. AirTran Airways, Inc., 237 Fed.Appx. 513, 520-521 (11th Cir. 2007) ("Here, it is undisputed (indeed, Hankins herself acknowledges) that on 14 September-five days after Hankins allegedly reported Durham's suspected racial bias to Head-Hankins yelled at a co-worker for cutting her off in line and stated that she would `kick his ass if he ever tried to cut in front of [her] again in line.' This intervening act of misconduct, which was plainly in violation of Rules 1 and 14 of AirTran Airways Crew Member Handbook, severed the causal connection (if any) between Hankins' initial complaint of discrimination and AirTran's decision to terminated her employment.").
Any suggestion by plaintiff that his sister told him that some unidentified person told her that he was terminated for filing charges of discrimination with the EEOC does not supply the type of other evidence of causation contemplated in this circuit both because it is hearsay but, more importantly, because it is clear from plaintiffs testimony that the hearsay comment attributable through his sister was that he was being terminated for agreeing to testify in Barbara Rostchild's case against Smurfit. Thus lacking is a causal connection between Rabb's EEOC filings against Georgia-Pacific and his termination by Georgia-Pacific.
14. Moreover, even if this Court was to assume that Rabb has successfully established the causation prong of his retaliation claim thereby demonstrating a prima facie case of retaliation, it is clear that Georgia-Pacific has provided a legitimate, non-discriminatory reason for plaintiffs termination-namely, his failure to perform his job duties by not conducting BOD tests on the days they were scheduled to be performed, coupled with lying to his supervisor about when he conducted the tests and his arguable falsification of documents and data to reflect either that the tests had been performed when they were not performed at all or to reflect that the tests were performed earlier than would have been possible under the circumstances. See, e.g., Holifield, supra, 115 F.3d at 1566 ("Once the plaintiff establishes his prima facie case, the employer must proffer a legitimate, non-discriminatory reason for the adverse employment action."). "Having successfully `rebut[ed] the presumption of retaliation by producing [a] legitimate reason[] for the adverse employment action,' the burden shifts to [Rabb] to `demonstrate that [he] will be able to establish at trial that the employer's proffered non-discriminatory reasons are a pretextual ruse designed to mask retaliation.'" Hankins v. AirTran Airways, Inc., 237 Fed.Appx. 513, 521 (11th Cir. 2007) (internal citations omitted). Rabb can make this showing `"either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence."' Id. at 522 (citation omitted). While plaintiff does not directly address either form of pretext in his brief in opposition to the motion for summary judgment ( see Doc. 29), the Court nonetheless considers this issue in more depth.
"The relevant issue here is not whether [the employee] actually falsified the entry, but rather whether [the employer] honestly believed [the employee] falsified the entry." Cooper v. Southern Co., 390 F.3d 695, 740 (11th Cir. 2004) (emphasis in original), cert. denied, 546 U.S. 960, 126 S.Ct. 478, 163 L.Ed.2d 363 (2005).
15. Plaintiff certainly has not shown that a discriminatory reason more likely motivated Georgia-Pacific's termination decision inasmuch as the primary individual with the alleged racial bias, Roberto Flores, had no involvement in the decision to terminate Rabb. Standing unrefuted is the declaration statement of the Brewton mill manager, Jeff Joyce, that it was he who decided to terminate Rabb's employment with Georgia-Pacific for lying and falsifying data and, of course, there is no evidence whatsoever that Joyce exhibited any racial bias toward plaintiff. See id.
Even if this Court was to find that Rowland actually terminated Rabb, there is still no evidence that Rowland exhibited any racial bias toward plaintiff. In fact, it was Rowland who decided not to name plaintiff in the "near-miss" report and there is no evidence in the record that Rabb complained about Rowland or filed any charge of discrimination against him.
16. The undersigned also finds that plaintiff has failed to establish that Georgia-Pacific's proffered explanation for his termination is unworthy of credence. While plaintiff, again, does not mention the word "pretext" in his opposition, he does contend that the evidence reflects "that other employees who engaged in conduct similar to [him] were not fired from their job[s]" and, therefore, he is entitled to have a jury consider his retaliation claim ( see Doc. 29, at 7). See Hankins, supra, 237 Fed.Appx. at 522 ("Nor are we persuaded that AirTran's proffered explanations were pretextual based on Hankins' contention that other AirTran employees who engaged in similar acts of misconduct were not terminated."). However, as previously indicated, the alleged misconduct of Flores, Kirkland, and all others to whom Rabb seeks to compare himself, is particularly distinguishable from plaintiffs misconduct in terms of the quality of that misconduct inasmuch as there is absolutely no evidence that anyone other than plaintiff lied to their supervisors. See Maniccia, supra, 171 F.3d at 1369. Accordingly, pretext has not been established and summary judgment is appropriate on Rabb's retaliation claim. Cooper, supra, 390 F.3d at 725 (`"If the plaintiff does not proffer sufficient evidence to create a genuine issue of material fact regarding whether each of the defendant employer's articulated reasons is pretextual, the employer is entitled to summary judgment on the plaintiff's claim."').
F. Negligent Supervision (Count Four).
17. Rabb's final contention is that a question of fact exists on the issue of negligent supervision. ( See Doc. 29, at 7) It is plaintiffs position that the employees of Georgia-Pacific who supervised, and ultimately decided to terminate, him were the same employees about whom he complained numerous times yet no steps were taken to insulate him "from the actions of these individuals, and they were allowed [by Georgia-Pacific] to continue their pattern of harassment[.]" ( Id. at 8; see also id. at 7; compare id. at 7-8 with Doc. 22, ¶ 22 ("[T]he Defendants were under a duty to supervise the actions of their agents, servants and employees who were in a supervisory position over the Plaintiff, having previously been put on notice of harassing conduct, but failed to correct said conduct."))
18. It is clear in this circuit that "[t]o support a claim of negligent supervision, the plaintiff must first demonstrate that (1) the employee committed a tort recognized under Alabama law, Stevenson v. Precision Standard, Inc., 762 So.2d 820, 824 (Ala. 1999), (2) the employer had actual notice of this conduct or would have gained such notice if it exercised `due and proper diligence,' Armstrong Bus. Servs. v. AmSouth Bank, 817 So.2d 665, 682 (Ala. 2001), and (3) the employer failed to respond to the notice adequately." Edwards v. Hyundai Motor Mfg. Alabama, LLC, 603 F.Supp.2d 1336, 1357 (M.D. Ala. 2009) (footnote added). With respect to the first requirement, it is not only well settled that "Alabama does not recognize an independent cause of action for sexual harassment[,]" Machen v. Childersburg Bancorporation, Inc., 761 So.2d 981, 983 n. 1 (Ala. 1999); see also Thrasher, supra, 195 F.Supp.2d at 1320 ("Alabama does not recognize a common-law tort for sex discrimination in employment[.]"), but, as well, that Alabama does not "recognize a common-law tort for race . . . discrimination[,]" Thomas v. Utility Trailer Mfg. Co., 2006 WL 2480057, *3 (M.D. Ala. 2006). Because Alabama does not recognize a common-law tort for race discrimination in employment, this Court finds that Rabb cannot maintain an action for negligent supervision "based upon conduct that is employment discrimination, but does not support a common-law tort." Thrasher, supra. Therefore, the defendants' motion for summary judgment as to Rabb's negligent supervision claim is GRANTED.
See also Thrasher v. Ivan Leonard Chevrolet, Inc., 195 F.Supp.2d 1314, 1320 (N.D. Ala. 2002) ("In order to establish a claim against an employer for negligent supervision, training, and/or retention, the plaintiff must establish that the allegedly incompetent employee committed a common-law, Alabama tort.").
CONCLUSION
Based upon the foregoing, the Court GRANTS the defendants' motion for summary judgment (Doc. 25) in its entirety and DISMISSES plaintiffs complaint (Doc. 1), as amended (Doc. 22), WITH PREJUDICE. DONE and ORDERED.