IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF ALABAMA 

 SOUTHERN DIVISION 

WILLIE RABB, : 

Plaintiff, : 

vs. : CA 09-0420-C 

GEORGIA PACIFIC, LLC, etc., et al, : 

 

Defendants. 

MEMORANDUM OPINION AND ORDER

This cause is before the undersigned on the defendants= motion for summary 

judgment (Doc. 25; see also Docs. 26-27), plaintiff=s response in opposition (Doc. 29), the 

defendants’ motion to strike (Doc. 30; see also Doc. 31 (memorandum of law in support 

of motion to strike); Doc. 32 (declaration of Sabrina Rockoff)), and the defendants= reply 

brief (Doc. 33). The defendants= motion for summary judgment is before the Court for 

disposition, pursuant to 28 U.S.C. ' 636(c), on the implicit consent of the parties. 

Compare Roell v. Withrow, 538 U.S. 580, 590, 123 S.Ct. 1696, 1703, 155 L.Ed.2d 775 

(2003) (AWe think the better rule is to accept implied consent where, as here, the litigant 

or counsel was made aware of the need for consent and the right to refuse it, and still 

voluntarily appeared to try the case before the Magistrate Judge. Inferring consent in 

these circumstances thus checks the risk of gamesmanship by depriving parties of the 

Case 1:09-cv-00420-C Document 37 Filed 07/26/10 Page 1 of 44
2 

luxury of waiting for the outcome before denying the magistrate judge=s authority. 

Judicial efficiency is served; the Article III right is substantially honored.@) with Doc. 2, 

at 1 (AThis civil action has been randomly assigned to United States Magistrate Judge 

William E. Cassady for all purposes including trial. In accordance with 28 U.S.C. '

636(c), the Magistrate Judges of this District Court have been designated to conduct any 

and all proceedings in a civil case, including a jury or non-jury trial, and to order the entry 

of a final judgment, upon the consent of all parties. . . . You have the right to have your 

case reassigned to a United States District Judge for trial and disposition. If you wish to 

have the case reassigned, you or your attorney need only return the Request for 

Reassignment to a United States District Judge (attached) by email to 

Edwina_Crawford@alsd.uscourts.gov.@) and Doc. 15, at & 8 (AThis consent action shall 

be pretried by Magistrate Judge William E. Cassady on July 15, 2010 at 2:00 p.m. in 

Mobile, Alabama.@). Upon consideration of the foregoing pleadings, and all other 

relevant pleadings in the file, the Court GRANTS the defendants’ motion for summary 

judgment (Doc. 25)1

 in its entirety and DISMISSES plaintiff’s complaint (Doc. 1), as 

amended (Doc. 22), WITH PREJUDICE.

2

 

 

1

 Any appeal taken from this memorandum opinion and order and judgment must be made 

to the Eleventh Circuit Court of Appeals. (See Doc. 2, at 1 (“An appeal from a judgment entered 

by a Magistrate Judge may be taken directly to the United States Court of Appeals for the 

Eleventh Circuit in the same manner as an appeal from any other judgment of a district court.”)) 

2

 It is clear to this Court, plaintiff making no argument to the contrary, that defendant 

Case 1:09-cv-00420-C Document 37 Filed 07/26/10 Page 2 of 44
3 

FINDINGS OF FACT

1. Willie Rabb began his employment with Smurfit-Stone Container 

Enterprises, Inc.=s paper mill in Brewton, Alabama in February of 1993. (Doc. 26, Exhibit 

B, Deposition of Willie Rabb, Jr., at 41-42) Rabb was initially hired to work on a paper 

machine (id. at 42); by 1998 or 1999, however, Rabb was working in the mill=s laboratory 

(id. at 44). Plaintiff became an environmental shift lab technician in 2004 or 2005. (Id. at 

48) This job required him to collect and test samples of wastewater from various ponds 

around the mill (that is, API, IPW, Ox pond, etc.) to determine biological oxygen 

demands (ABODs@)

3

 and chemical oxygen demands (ACODs@). (Id. at 49;4 see also id. at 

 

Georgia-Pacific LLC never employed Rabb and took no action against him; therefore, this 

defendant is not a proper party to this action and, for this additional reason, all claims against it 

are DISMISSED WITH PREJUDICE. See Hegre v. Alberto-Culver, USA, Inc., 508 F.Supp.2d 

1320, 1333 & 1334 (S.D. Ga. 2007) (“In assessing whether corporate entities have interrelated 

operations, courts consider whether the businesses have ‘combined accounting records, bank 

accounts, lines of credit, payroll preparation, switchboard, telephone numbers or offices.’ There 

is no evidence of such interrelation in this case. . . . Plaintiff has not presented evidence from 

which a reasonable juror could conclude that any entity other than BSG may be considered her 

employer. There is simply no indication that Alberto-Culver Company, AC, or SBC had 

anything to do with the terms and conditions of Plaintiff’s employment or her termination. 

Consequently, the Court lacks jurisdiction over these entities. Accordingly, Defendants SBC and 

AC are DISMISSED and Plaintiff’s motion to amend her complaint to add Alberto-Culver 

Company as a defendant . . . is DENIED as both untimely and futile.” (internal citations 

omitted)), judgment aff’d, 275 Fed.Appx. 873 (11th Cir. 2008). 

3

 In or around May of 2008, almost a year after Georgia-Pacific acquired from 

Smurfit-Stone certain assets of the Brewton paper mill, the BOD testing for wastewater collected 

from the compliance (or final discharge) points, that is, Ox Pond and Brewton Lake, was 

outsourced. (See id. at 76-77) Lab technicians at the mill continued to run the BOD tests on 

wastewater collected from noncompliance points and the mill sometimes made changes based 

upon the results of those tests. (See id. at 80-81) It is clear that BOD tests were not run on the 

Case 1:09-cv-00420-C Document 37 Filed 07/26/10 Page 3 of 44
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59 (in addition to CODs and BODs, plaintiff performed kappa tests, reduction tests, and 

viscosity tests)) 

2. In August of 2007, Georgia-Pacific Brewton, LLC acquired from Smurfit 

certain assets of the Brewton paper mill. (Doc. 26, Exhibit A, Declaration of Mike Wade, 

at & 4) As a term of this acquisition, Smurfit terminated all mill employees. (Compare id. 

at & 5 with Doc. 26, Exhibit B, Rabb depo., at 51) Georgia-Pacific Brewton, LLC5

 then 

accepted applications from any terminated employees, and others, who desired to file an 

application and hired individuals to staff the paper mill. (See Doc. 26, Wade declar., at &

5; Rabb depo., at 51-52) Rabb was hired by Georgia-Pacific Brewton, LLC as a shift lab 

tech (Doc. 26, Wade declar., at & 9) and his employment with Georgia-Pacific began in 

September of 2007 (Doc. 26, Rabb depo., at 56).6

 

3. In addition to terminating all employees of Smurfit, Georgia-Pacific “did 

 

water samples until nutrient water was added and the samples were incubated for five days. (See 

id. at 97-99) 

4

 As explained by Rabb, the testing for CODs was not required when he worked for 

Smurfit but was required after Georgia-Pacific acquired the Brewton mill. (See id.) Rabb 

testified that he reported any high COD numbers to Jack Kirkland or Roberto Flores. (See id. at 

95) 

5

 It is clear that Georgia-Pacific, LLC never employed any workers at the Brewton paper 

mill. (Doc. 26, Wade declar., at & 6) 

6

 Almost immediately after being hired by Georgia-Pacific, plaintiff was released from 

work under a physician=s care for knee surgery; Rabb was out of work from October 4, 2007 to 

December 3, 2007. (Id. at 140) 

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not immediately recognize the unions that had represented Smurfit employees at the 

Mill[,]” including the United Steelworkers union that represented shift laboratory 

technicians like Rabb. (Doc. 33, Declaration of Mike Wade, ¶¶ 6&7) Instead, “[d]uring 

this initial period, GP instituted a job skills and wood-products industry credit system to 

address past contractual elements of seniority.” (Id. at ¶ 7) 

After GP recognized the United Steelworkers, GP and the union 

actively bargained over seniority. The resulting collective bargaining 

agreement continued the industry credit system for vacation accrual. 

Additionally, GP and the United Steelworkers negotiated a mill service 

order that ranked employees for the purposes of job progression and job 

bidding within the Mill. 

(Id. at ¶ 8) 

4. Rabb filed a discrimination charge with the EEOC on March 5, 2008. (Doc. 

26, Rabb depo., at 121; see also Doc. 29, Exhibit H (charge of discrimination)7

) Some of 

the allegations contained in that particular filing relate to conduct which occurred when 

Rabb was a Smurfit employee. (See Doc. 26, Rabb depo., at 125)8

 The allegations related 

to Georgia-Pacific contained in this filing were the following: (1) Roberto Flores 

Ajumped@ him in public about drinking sodas out of the refrigerator even though it was 

 

7

 Rabb explained that he was filing the EEOC charge “to show . . . continuing action in the 

Brewton Mill and a lot of it is Retaliation because I am the only one who [is] still employed at 

the Brewton Mill who has filed EEOC charges against the members of management.” (Doc. 29, 

Exhibit H, Letter to Linda Poole, at 4)) 

8

 Rabb filed a separate lawsuit against Smurfit. (Id. at 56) 

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common practice for everyone to do that (see id. at 136-138)9;

10 (2) after he returned to 

work in early December of 2007, Flores made comments about plaintiff being gone so 

long just for knee surgery and when he learned that Rabb had also had a vasectomy, 

Roberto stated he did not consider that a reason to be off work (see Doc. 26, Rabb depo., 

at 142-143);11 (3) in December of 2007, plaintiff touched Flores on the stomach and 

asked him what was going on prompting Flores to retrieve a copy of the company=s code 

of conduct which he asked Rabb to read while informing Rabb that he could be taken to 

personnel for touching him (see id. at 144-145);12 (4) Flores blamed plaintiff for breaking 

chairs in the lab (id. at 147-148; see also id. at 139) and even posted letters in the lab 

informing lab employees that too many chairs were being damaged and no more new 

chairs were going to be ordered (see id. at 148 & 152);13 and (5) he was reported for 

 

9

 Although plaintiff testified that Roberto never Ajumped@ anyone else about the sodas, he 

admitted that he did not know whether Roberto spoke to others when he was not around. (Id. at 

137) 

10 According to Rabb, Flores also made several comments to him about his EEOC filings 

against Smurfit. (Doc. 29, Exhibit H, Rabb’s Letter to Linda Poole attached to his March 5, 

2008 Charge of Discrimination; see also Doc. 29, Exhibit G, Rabb depo., at 132-133) 

11 Rabb testified that he retained full benefits while he was out with his knee surgery and 

that, other than Flores’ comments, he suffered no adverse action because of the time he took off 

for the surgery. (See id. at 143-144) 

12 Rabb complained that Flores responded in this manner despite personally witnessing 

several people, on different occasions, poking and grabbing him. (See id. at 145-146) 

13 Rabb admitted that he was not mentioned by name in the letter. (Id. at 148) After seeing 

the letter, Rabb called the president of the local NAACP, Anthony McKenzie, to complain about 

Case 1:09-cv-00420-C Document 37 Filed 07/26/10 Page 6 of 44
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leaving an unopened (and unmarked) container of hydrochloric acid in the lab=s wet room 

despite the fact that Flores could have simply dumped the chemical in the sink14 (id. at 

154-159).15

 

the harassment he was enduring. (Id. at 149) After complaining to McKenzie, Rabb spoke to 

Jack Kirkland about the Achair@ situation and Kirkland told him he would handle things. (Id. at 

151-152) A few minutes after speaking with Kirkland, Flores removed the letters he had posted 

in the lab. (Id. at 152) The day after the letters were removed, Flores walked up to Rabb and 

informed him that Afrom now on this is a business only relationship.@ (Id. at 152) 

14 AOn February 25, 2008, I was involved in counseling Mr. Rabb for leaving out an 

unmarked container of what was suspected to be sulfuric acid after he had used it in mixing 

chemicals. During the investigation of this incident, Mr. Rabb admitted to me that he left out the 

unlabeled container of acid after making up additional acid. Although Mr. Rabb received a 

verbal counseling for this, the near-miss report that was filed did not mention his name.@ (Doc. 

26, Wade declar., at & 11) 

15 Rabb admitted that he never saw anyone employed by Georgia-Pacific dump chemicals 

down the sink (id. at 159) nor could he recall ever seeing instances where unlabeled acid was left 

out on the counter while he was employed by Georgia-Pacific (id. at 165). Plaintiff was 

counseled by Miles Ball and Dan Rowland about this incident. (Id. at 163) Rabb admitted that 

Rowland told him that a Anear miss report@ had to be filed but that he would not put Rabb=s name 

in the report. (Id.) The Anear miss report,@ which was identified by Rabb during his deposition 

(id. at 164), is attached as Exhibit A to Mike Wade=s declaration (Doc. 26, Exhibit A to Wade 

declar.), and contains the following description of the incident: AA container was discovered on 

the counter in the wet lab. This container is used to make up chemicals. This container contained 

approx 2000mL of clear liquid. The oncoming shift found container not knowing what it was. 

The liquid was suspected to be 8N Sulfuric acid.@ (Id.) The report, as aforesaid, did not mention 

Rabb=s name but does find that the root cause of the incident was A[e]mployee not making time 

on shift to complete the makeup of a batch of chemicals and forgot the container on counter.@

(Id.) 

According to Rabb during the meeting he had with Rowland, Ball and Dennis Shipp, the 

union rep, about the unlabeled container of acid (Doc. 29, Exhibit G, Rabb depo., at 211-212 & 

216), he actually showed Rowland a picture on his cell phone of a trip hazard (id. at 212) and 

also pointed out that the technicians did not wear lab coats when using a chemical that called for 

the wearing of lab coats (id. at 213-214); however, all of these “saftey hazards” were 

ignored/overlooked by Rowland and others (id. at 214). During the Rowland meeting, Anthony 

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5. On or about May 21, 2008, Rabb submitted a letter of revision to the 

EEOC. (See Doc. 26, Rabb depo., at 166-167) A significant portion of the information in 

the letter related to several incidents occurring at Smurfit, not Georgia-Pacific (see id. at 

169-172); the letter, however, revealed what plaintiff believed were examples of 

retaliation and a hostile work environment (id. at 172). This second filing made the 

following allegations: (1) after an in-house investigation performed by Amy Steinman 

with respect to plaintiff=s March, 2008 EEOC charge of discrimination,16 Flores raised 

Ahell@ to Rabb about his CODs being off (id. at 172-176; see also id. at 223 (Rabb 

reiterates that Steinman investigated at least his first EEOC charge)) and complained 

about Rabb filing EEOC Acharges@ against him (see id. at 182-183)17; (2) Flores and Jack 

Kirkland had another employee, Rusty Cunningham, go behind Rabb=s back and rerun or 

retest wastewater samples that he had already tested (see id. at 183 & 187; Doc. 29, 

 

McKenzie, the local NAACP president, called and asked Rabb if he needed him to come out to 

the mill but apparently Rabb thought better of that after Rowland said no names would be placed 

in the near-miss report. (See id. at 214) After concluding the meeting with Rowland, Rabb went 

directly to Mike Wade’s office and when plaintiff tried to show Wade a cell phone picture of a 

safety violation, Wade told him to stop taking pictures with his phone and he also told him to 

stop calling McKenzie while he was at work. (Id. at 215-217) 

16 Georgia-Pacific had an EEOC hotline for employees. (See id. at 225) Rabb did not call 

this hotline at any time to complain about his treatment by Flores but did call right before his 

termination regarding the incident that led to his termination. (See id.) 

17 It is clear that Flores’ complaints about Rabb’s CODs and his comments to plaintiff about 

the EEOC charges occurred on the same day and on several occasions that same day. (Doc. 29, 

Exhibit G, Rabb depo., at 174-183) 

Case 1:09-cv-00420-C Document 37 Filed 07/26/10 Page 8 of 44
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Exhibit G, Rabb depo., at 184-186 & 188-189;18 cf. Doc. 26, Exhibit D, Declaration of 

Jack Kirkland, at & 11 (AAt some point, I recall asking another lab employee to run COD 

tests on Mr. Rabb=s samples to confirm accuracy. Asking another employee to run the 

tests was a common way to check lab employee accuracy, particularly when an employee 

had shown he had difficulty performing a test properly.@));19 (3) on May 9, 2008, while 

dumping his COD values Rabb spilled some of the liquid on his arm and the spot on his 

arm turned white prompting Kirkland to comment, “don’t let Michael Jackson see that[,]” 

(Doc. 29, Exhibit G, Rabb depo., at 191);20 and (4) on May 15, 2008, his foreman, Miles 

Ball, handed him a paper to sign and stated he was being counseled about his absences 

from work including four unexcused absences on March 8-11 when plaintiff was out of 

work on account of his father’s death (see id. at 195-197 & 202-209)21 

6. According to Rabb, supervisory officials ignored or overlooked all of his 

 

18 In fact, Rabb spoke to Cunningham who informed him that Kirkland and Flores were 

having him rerun the tests. (Doc. 29, Exhibit G, Rabb depo., at 187-188) This happened over the 

course of one week when plaintiff was working the dayshift. (See id. at 193-194) 

19 Rabb did not know whether other people were rerunning tests behind the person on the 

day shift but stated that he was never asked to rerun a day shift test (Doc. 26, Rabb depo., at 190) 

and he had never heard of Cunningham rerunning tests behind the other shift techs all of whom 

were white (Doc. 29, Exhibit G, Rabb depo., at 253) 

20 Rabb was not offended by Kirkland’s comment. (Id. at 192-193) 

21 Georgia-Pacific’s policy was to pay for three days of funeral leave and Rabb, in fact, 

was paid for three of the four days he missed work because of his father’s funeral. (Id. at 209) 

Rabb does not recall asking anyone why the three days of paid funeral leave were recorded as 

unexcused absences. (Id.) 

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complaints about his treatment at the hands of Roberto Flores. (See id. at 219 & 222; id. 

at 223 (Rabb=s testimony that Mike Wade=s sole focus was on plaintiff=s conduct in 

leaving the acid out unlabeled as opposed to any conduct by Flores))22 Rabb testified that 

other than the fact that he was the only black man working in the lab and Flores did not 

treat anyone else like he treated Rabb, he has no other evidence that Flores’ conduct was 

motivated by race. (Id. at 222) 

7. Jeff Joyce, the mill manager at Georgia-Pacific Brewton LLC=s paper mill 

in Brewton has provided evidence by declaration that he made the decision to terminate 

Rabb23 based upon plaintiff=s admissions that he falsified BOD test documents and lied to 

his supervisor about when he ran the tests. (Doc. 26, Exhibit C, Declaration of Jeff Joyce, 

at & 8; see also id. at & 9 (AGP takes allegations of falsification and dishonesty very 

seriously. I am not aware of any GP employee who has been retained after allegations 

were substantiated that the employee falsified test documentation and lied during a 

company investigation.@)) In addition, the fact that Rabb Aattempted to minimize the 

 

22 Flores was disciplined by Georgia-Pacific for discussing with Rabb his EEOC charges. 

(Doc. 26, Exhibit E, Declaration of Roberto Flores, at & 7) Flores says he approached Rabb upon 

learning of his EEOC claims because he was Asurprised and confused[]@ and wanted to know 

why plaintiff had made allegations against him. (Id.) AI now understand that it was inappropriate 

of me to discuss that subject. I made no other comments to Mr. Rabb regarding his EEOC 

complaints.@ (Id.) 

23 Neither Jack Kirkland nor Roberto Flores played any role in the decision to terminate 

Rabb. (Doc. 26, Joyce declar., at & 10; see also Wade declar., at & 14; Kirkland declar., at & 13; 

Case 1:09-cv-00420-C Document 37 Filed 07/26/10 Page 10 of 44
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importance of his falsification by suggesting that the tests in question were mere >mill 

tests,=@ also factored into the termination decision. (Id. at ¶ 8) Prior to making the 

decision to terminate Rabb, Joyce discussed the allegations against Rabb with Mike Wade 

and Dan Rowland, both of whom reported to Joyce numerous findings based upon their 

investigation of the incident, as follows: 

 a. On Saturday, July 26, 2008, Sunday, July 27, 2008 and Monday, 

July 28, 2008, Mr. Rabb was working the day shift and was 

responsible for testing the BOD samples in the incubator that had 

been collected the prior Monday, Tuesday and Wednesday. 

b. A college co-op working in the lab over the weekend noticed that the 

final BOD tests were not recorded on Saturday or Sunday. When he 

asked Mr. Rabb about the tests, Mr. Rabb said he had run them but 

had not yet recorded the numbers. However, the samples remained in 

the incubator. On Monday, the co-ops noticed by that morning that 

all three days= test results were recorded as if they had been run on 

the correct days. 

c. On August 1, 2008, Dan Rowland, Mr. Rabb=s supervisor, 

confronted Mr. Rabb about the BOD tests in question. At that time, 

Mr. Rabb told Mr. Rowland that he had not run the test as required 

on Saturday, but that he had run both Saturday=s test and Sunday=s 

test on Sunday. 

 

Flores declar., at & 8) 

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d. When Mr. Rowland met again with Mr. Rabb on August 6,24 Mr. 

Rabb admitted to Mr. Rowland he had lied to him during the first 

investigation. This time, Mr. Rabb reported that he had not run the 

tests for Saturday or Sunday until Monday morning. 

e. Based on other witness statements, it was unclear whether Mr. Rabb 

was telling the truth about running all the tests on Monday. One of 

his co-workers reported seeing Mr. Rabb=s results fully recorded by 

8:00 a.m. on Monday, which would not have provided enough time 

to run all three tests. 

f. During the investigation, Mr. Rabb stressed that the tests in question 

were only AMill@ tests, rather than tests that would be reported to an 

environmental agency. 

(Doc. 26, Joyce declar., at & 7 (footnote added); see also Doc. 26, Wade declar., at & 12 

(same)) Rabb admits that he did not test the samples until Monday morning and that he 

did not tell any members of management this fact because he did not trust any of them. 

(Doc. 26, Rabb depo., at 242)25

Q So then you say, so on August 1st, 2008, I was called into a 

meeting with members of management about these issues. In this meeting 

were Dan Rowland and Wesley Skipper. I told them a different story 

because I was looking to see if the environmental management still had 

 

24 Rabb met not only with Rowland but also with Wesley Skipper, Mike Wade, and Daren 

Sims. (Doc. 29, Exhibit G, Rabb depo., at 257) Ronnie Duncan, Rabb’s union rep, was also 

present at the meeting. (Id.) 

25 Although Rabb claims that he was told by Donald Carver that, on another occasion, Joey 

Pitts forgot to run the same tests he forgot to run (id. at 245, 247-248) yet was not discharged (id. 

at 313), GP=s investigation of this allegation found no evidence to support it (Doc. 26, Wade 

declar., at & 12.g. (AWe investigated this allegation. When questioned, both Joey Pitts and 

Donald Carver denied Mr. Rabb=s allegation.@); see Doc. 26, Rabb depo., at 247 (the union rep 

told plaintiff that Carver recanted his story about Joey)). 

Case 1:09-cv-00420-C Document 37 Filed 07/26/10 Page 12 of 44
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Rusty Cunningham, who would have been the 3:00 to 11:00 shift tech, still 

checking behind me and reporting it to Jack and Roberto and covering it up. 

A Yes. 

Q So when Dan asked you about running these samples, you 

didn’t=t tell him the truth? 

A I didn’t=t tell him the truth at first. Because, the reason being, I 

asked him three times what was going on, and he never did give me a 

response. So I said, okay. So I changed up just to see if B like I say, if Rusty 

was looking behind me like he did with the CODs. And I knew he wasn=t 

going to tell me, but he=ll tell the union rep if that is what happened. 

(Id. at 249-250) 

8. On August 19, 2008, Rabb was informed by an intra-company memo 

penned by Dan Rowland, plaintiff=s supervisor, that he was being terminated. (Doc. 26, 

Wade declar., at & 13) 

On Friday, August 1, 2008, we met to investigate B.O.D. test procedures 

you were scheduled to perform over the three day period from Saturday, 

July 26th, thru Monday, July 28th, 2008. At that time you informed me that 

you had not performed a test on Saturday, 7/26, but conducted both tests on 

Sunday, 7/27, and subsequently recorded these test results as though both 

were performed on the correct day. Additionally, Wesley Skipper reports 

that when he called you on Tuesday, 8/5, to schedule a follow-up interview 

to investigate this issue further, you stated that you had told us on Friday, 

8/1, everything you knew about the B.O.D. testing you were scheduled to 

have performed and had nothing further to add. 

However, on Wednesday, 8/6, you confirmed that you had lied to me during 

our meeting on Friday, 8/1, and you had not run the scheduled B.O.D. tests 

on either Saturday or Sunday. Instead, your statement on 8/6 was that you 

ran all three B.O.D. tests on Monday morning, 7/28, after completing your 

Mill rounds, and recorded those results by 10:00 a.m. Further, you 

Case 1:09-cv-00420-C Document 37 Filed 07/26/10 Page 13 of 44
14 

trivialized your job performance responsibilities by stating that these were 

Ajust@ Mill tests that you failed to complete as assigned. 

According to other witness statements, B.O.D. results for all three 

scheduled test dates were recorded on the Water Report by 8:00 a.m. on 

Monday morning, 7/28, in direct conflict with your statement that you 

completed the testing and recorded the data by approximately 10:00 a.m. As 

you stated when questioned about this conflicting information during a call 

on Wednesday afternoon, 8/6, there was not enough time for you to have 

completed your Mill rounds, eaten your breakfast, performed B.O.D. testing 

on all three samples and recorded results by 8:00 a.m. However, you have 

maintained that you performed all three tests and recorded the data by 10:00 

a.m. This conflicting information and your admission that you were not 

truthful with respect to other matters during this investigation cause us to 

question your statement that you conducted the required B.O.D. tests at 

all.26

Based on the results of our investigation[,] including the information 

referenced above, your actions of failing to perform your job duties, 

knowingly recording falsified test data and lying during an investigation is 

(sic) found to be in violation of the Company=s Code of Conduct and 

contractual agreement between the Company and the United Steelworkers. 

Therefore, your employment with GP-Brewton LLC is being terminated 

effective Tuesday, August 19, 2008. 

(Doc. 26, Exhibit C to Wade declar. (footnote added)) While Rabb agreed during his 

deposition that many of the statements in this termination memo were correct (see Doc. 

 

26 “Right. And my point is that, once again, they are not looking at the facts that’s before 

them – that was before them, where you have their own supervisor standing right here, no more 

than from here to the court reporter, when I’m running the test. Which it’s stated by Mike Wade 

that she said that she couldn’t tell which day I was running them from, but she knew . . . she was 

there when I was running them. And that was around 8:00 when I was running them. You’re not 

going to get this here data unless you run your tests. In other words . . ., they said I just wrote the 

numbers up, but that’s showing you that that is not right. They are saying that I was dishonest. 

But like I said earlier, it was know[n] about management, that management was dishonest, too, 

in this . . . investigation. And nobody looked at management being dishonest, they just looked at 

Case 1:09-cv-00420-C Document 37 Filed 07/26/10 Page 14 of 44
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26, Rabb depo., at 270-275), he rejected the statement in the memo referencing Skipper 

(id. at 271) and indicated that the referenced information about other witness statements 

simply supported his conspiracy theory (id. at 274). 

A They were saying . . . what witnesses said. But that=s what I=m 

talking about right there. 

Q Okay. That=s what your talking about management lying? 

A That=s what I=m talking about. 

. . . 

 

me.” (Doc. 29, Exhibit G, Rabb depo., at 276) 

Q Dan Rowland and Wesley Skipper ch[]ose to ignore these 

findings and brand me a liar. This is a clear[-]cut [case] of discrimination 

towards me as a black American, because they chose to ignore what the 

facts shows and still called me a liar. 

Now, you agree that you lied to them during their investigation; 

correct? 

A Yeah, I agreed. I admit I changed my story up just to see what 

kind of information they would B and I told them that prior to the meeting. I 

mean, in the meeting, the very first meeting, I told them that and I told them 

why I did it. And I also told them that the reason I didn’t=t tell management 

about it [was] because all . . . this what I had been through, I don=t trust 

management. 

. . . [M]e not trusting management never concerned them and they 

never tried to reconcile that to make sure that management can be 

trustworthy. 

. . . 

Q Other than the fact you were the only black American in the 

Case 1:09-cv-00420-C Document 37 Filed 07/26/10 Page 15 of 44
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lab . . . do you have any other facts that support your termination being at 

all racially motivated? 

A Other than that. That=s the only fact for the termination. 

. . . 

Q Other than the fact you had [filed previous EEOC charges] . . 

., do you have any other fact to support your claim that you were terminated 

in retaliation for filing EEOC charges? 

 

A. No, . . . not if I=m understanding the question correctly, I 

don=t. 

(Id. at 279, 279-280 & 281; see Doc. 29, Exhibit G, Rabb depo. at 284-287(plaintiff’s 

testimony that his sister told him that she had been informed by an unidentified 

Georgia-Pacific employee that he was terminated in retaliation for being a witness in an 

upcoming lawsuit filed against Smurfit27)

28 Following his termination, the union, Local 

 

27 While Rabb also testified that his sister told him he was terminated in retaliation for 

filing the EEOC charges (see id., at 284 & 287), his revelations regarding the specifics of what 

his sister told him relate solely to his agreement to testify for a former Smurfit employee in her 

lawsuit against Smurfit-Stone (see id. at 285-287) and have no link to the EEOC charges he filed 

against Georgia-Pacific (see id.). 

28 Rabb testified that Jack Kirkland falsified environmental test data while working for GP. 

(Doc. 26, Rabb depo., at 295-300) Plaintiff indicated that Kirkland changed the volume to add 

amounts when he was running the compliance point samples. (See id. at 296-297) 

[W]hen I ran . . . these samples, all my BODs bottom[ed] out. . . . [W]hich 

was no good . . . for all three days. And so I put a call in to the duty 

environmental, which (sic) was Steve Vines at that time, then they called Roberto, 

then they called Jack. And what I ended up doing, I ended up saving my sample 

and Jack changed these volume numbers over here. 

(Id. at 296) Rabb told no one about what Kirkland did (id. at 297); he did not call the ethics 

Case 1:09-cv-00420-C Document 37 Filed 07/26/10 Page 16 of 44
17 

941, filed a grievance on Rabb’s behalf. (Doc. 29, Exhibit G, Rabb depo., at 290)29

Needless to say, Rabb did not get his job back. (Id.) 

 9. After Rabb was terminated, he was informed that the Mobile Register ran a 

story about the failure of mill officials to report noncombustible gases to the State of 

Alabama yet no one was terminated as a result of this incident. (Doc. 29, Exhibit G, Rabb 

depo., at 264) According to Rabb, the individuals who made this mistake were none other 

than Jack Kirkland and Roberto Flores because they were the individuals responsible for 

making such reports to the State. (See id.) Because plaintiff was no longer working for the 

company, he does not know if anyone, including Flores and Kirkland, were disciplined 

because of the failure to report. (See id. at 265) 

 10. Rabb filed suit against the defendants in this Court on July 14, 2009. (Doc. 

1) His complaint, as amended on November 2, 2009, reads, in relevant part, as follows: 

 The Plaintiff and his co-workers [at Smurfit] had filed numerous 

grievances regarding this conduct internally, had filed charges with the 

EEOC, and had, in fact, filed suit in Federal District Court alleging 

numerous things, including discriminatory practices, at the time that 

 

hotline (id. at 300). 

 In addition, plaintiff testified that while he was working at the mill, “two white guys got 

caught while still on the clock and off company property in a company truck stealing a deer 

stand and they only got ten days off. And everybody knows that stealing is a violation of the 

company’s code of conduct. But . . . no one got terminated in that issue.” (Doc. 29, Exhibit G, 

Rabb depo., at 265-266; see also id. at 267) 

29 It was the union’s position that Rabb’s punishment was extreme given the length of his 

employment at the Brewton Mill, both when it was owned by Smurfit and after being taken over 

by Georgia-Pacific. (See Doc. 29, Exhibit J) 

Case 1:09-cv-00420-C Document 37 Filed 07/26/10 Page 17 of 44
18 

Smurfit-Stone sold to Georgia Pacific. The Defendants knew, therefore, that 

they could not terminate the Plaintiff at that time without being subject to 

liability. The Plaintiff, however, had been labeled a “trouble maker,” and 

this opinion of the Plaintiff was widely held by the management of Georgia 

Pacific when they bought the plant. 

 4. Subsequent to the sale of the plant, on August 19, 2008, the 

Plaintiff was terminated because of alleged misconduct for which other 

employees, non-minority, were not terminated. 

 . . . 

COUNT ONE-RACIAL DISCRIMINATION (TITLE VII)

 8. The Plaintiff incorporates by reference and realleges as if 

fully set out herein all previous allegations. 

 9. The Plaintiff belongs to a racial minority, and was qualified 

for the job for which the Defendants employed him. 

 10. The Defendants subjected the Plaintiff to an adverse job 

action. 

 11. The Defendants treated similarly situated employees outside 

of the Plaintiff’s racial class more favorably. 

 WHEREFORE, plaintiff is entitled to damages, including net lost 

wages and benefits to the date of trial (including interest); compensation for 

mental and emotional humiliation or pain and anguish; punitive damages 

since a higher management official or defendant personally acted with 

malice or reckless indifference to Plaintiff’s protected rights, and the 

Defendants did not act in a good faith attempt to comply with the law by 

adopting policies and procedures to prohibit such workplace 

discrimination;30 attorney’s fees and costs; and any other relief the Court 

 

30 Rabb was aware that Georgia-Pacific had a code of conduct (Doc. 26, Exhibit B, Rabb 

depo., at 315), same providing, in relevant part, as follows: 

. . . Our continued success requires that we utilize every employee’s skills and 

Case 1:09-cv-00420-C Document 37 Filed 07/26/10 Page 18 of 44
19 

 

knowledge, without discrimination or harassment based on color, race, religion, 

gender, sexual orientation . . . or any other basis prohibited by applicable law. 

 . . . 

Nondiscrimination 

GP’s goal is to place the right people with the right virtues and talents in the right 

jobs. In striving to reach this goal, as well as in all other aspects of employment, 

GP provides equal opportunity to all persons without unlawful discrimination. 

Unlawful discrimination will not be tolerated. 

If you feel you have been discriminated against, have observed unlawful 

discrimination, or if someone confides to you that he or she has been 

discriminated against, you must contact one of the following: your immediate 

supervisor, the manager of the facility, the local Human Resources leader, the 

Corporate Human Resources Department, the Law Department, the Compliance 

and Ethics Department, or the GuideLine. Retaliation against anyone for reporting 

unlawful discrimination in good faith is against Company policy and prohibited 

by law. 

Prohibition of Discriminatory Harassment in the Workplace 

We forbid any verbal or other conduct that is offensive, intimidating or 

disparaging to any individual or group on account of color, race, religion, gender, 

sexual orientation . . . or other basis prohibited by applicable law, or that 

contributes to an intimidating, hostile or offensive working environment on such 

account. All forms of such conduct are prohibited, including but not limited to: 

● Verbal conduct such as epithets, derogatory and/or sexual jokes or comments, 

teasing, name calling, slurs, or unwarranted sexual advances, invitations, or 

comments; 

● Visual displays such as derogatory and/or sexually-oriented posters, 

photography, pictures, pornographic displays, cartoons, drawings, or gestures; 

● Physical conduct including assault, unwanted touching, gestures intentionally 

blocking normal movement or interfering with work because of sex, race, or any 

other unlawful basis; 

Case 1:09-cv-00420-C Document 37 Filed 07/26/10 Page 19 of 44
20 

 

● Threats and demands to submit to sexual requests as a condition of continued 

employment or to avoid some other loss, and offers of employment benefits in 

return for sexual favors; and 

● Retaliation for reporting or threatening to report harassing conduct. 

The use of electronic media, including telephone, fax, e-mail, instant messages or 

the internet for such purposes will not be tolerated. 

GP’s policy against harassing conduct applies to all persons involved in the 

operation of the Company and prohibits such behavior by any employee – 

whether a supervisor or a coworker – and any other representative of the 

Company. Our policy prohibits all such behavior, whether directed to employees, 

applicants for employment, or other people who we do business with, such as 

outside vendors, contractors, or customers. 

Discriminatory harassment in any form will not be tolerated. 

If you feel you have been subjected to harassing behavior or if you observe such 

conduct or if someone confides to you that he or she has been subjected to it, you 

must contact one of the following: your immediate supervisor, the manager of the 

facility, the local Human Resources leader, the Corporate Human Resources 

Department, the Law Department, the Compliance and Ethics Department, or the 

GuideLine. Retaliation against anyone for reporting discriminatory harassment in 

good faith is against Company policy and prohibited by law. 

Expectations of Employees 

Every employee is required to follow our policy against unlawful discrimination 

and discriminatory harassment and to bring to the Company’s attention any action 

that does not comply with that policy or our commitment to equal employment 

opportunity. Supervisors and managers must be watchful for any signs that our 

policy is not being followed and must see that any possible violations are 

immediately referred for investigation, whether or not there has been a complaint. 

The Company will investigate and respond to all reports of unlawful 

discrimination or discriminatory harassment. 

(Doc. 26, Exhibit B, Code of Conduct) Rabb maintained during his deposition that even 

though the policy provided a number of people he could have complained to about 

Case 1:09-cv-00420-C Document 37 Filed 07/26/10 Page 20 of 44
21 

deems just and proper. 

COUNT TWO-HOSTILE WORK ENVIRONMENT (TITLE VII) 

 12. The Plaintiff incorporates by reference and realleges as if 

fully set out herein all previous allegations. 

 13. The Plaintiff was subjected to a hostile and/or abusive work 

environment because of Plaintiff’s race. 

 14. A supervisor and/or supervisors with immediate or 

successively higher authority over the Plaintiff created this environment 

and/or permitted its existence. 

 15. Plaintiff suffered damages as a proximate or legal result of 

such hostile or abusive work environment. 

 WHEREFORE, plaintiff is entitled to damages, including net lost 

wages and benefits to the date of trial (including interest); compensation for 

mental and emotional humiliation or pain and anguish; punitive damages 

since a higher management official or defendant personally acted with 

malice or reckless indifference to Plaintiff’s protected rights, and the 

Defendants did not act in a good faith attempt to comply with the law by 

adopting policies and procedures to prohibit such workplace discrimination; 

attorney’s fees and costs; and any other relief the Court deems just and 

proper. 

COUNT THREE-RETALIATION 

 16. The Plaintiff incorporates by reference and realleges as if 

fully set out herein all previous allegations. 

 17. The Plaintiff and a group of his co-employees engaged in a 

 

Flores’ conduct, when he reported his concerns to Mike Wade his “version” or “points” 

were ignored. (Doc. 29, Exhibit G, Rabb depo., at 316-317) 

 

Case 1:09-cv-00420-C Document 37 Filed 07/26/10 Page 21 of 44
22 

statutorily-protected activity which included objecting to what they felt 

were discriminatory practices of promotion, unequal application of 

company policy, hostile work environment issues, and harassment. They 

filed, as well, charges with the EEOC based on these perceived violations of 

law. 

 18. The Plaintiff suffered an adverse employment action. 

 19. Such action was causally related to Plaintiff’s 

statutorily-protected activities. 

 20. As a proximate result thereof, the Plaintiff has been damaged. 

WHEREFORE, plaintiff is entitled to damages, including net lost wages 

and benefits to the date of trial (including interest); compensation for 

mental and emotional humiliation or pain and anguish; punitive damages 

since a higher management official or defendant personally acted with 

malice or reckless indifference to Plaintiff’s protected rights, and the 

Defendants did not act in a good faith attempt to comply with the law by 

adopting policies and procedures to prohibit such workplace discrimination; 

attorney’s fees and costs; and any other relief the Court deems just and 

proper. 

COUNT FOUR-NEGLIGENT SUPERVISION

 21. The Plaintiff incorporates by reference and realleges as if 

fully set out herein all previous allegations. 

 22. At all times relevant hereto, the 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. 

 23. As a proximate result thereof, the Plaintiff has been damaged. 

 WHEREFORE, for the above reasons, the Plaintiff demands 

judgment against the Defendant[s] for compensatory damages, to include 

damages for mental anguish, plus costs. 

Case 1:09-cv-00420-C Document 37 Filed 07/26/10 Page 22 of 44
23 

(Doc. 22, at 2 & 2-5) Plaintiff testified during his deposition regarding information he 

believes supports the allegation in his complaint, as amended, that Georgia-Pacific 

management regarded him as a troublemaker when they purchased the Brewton mill. (See 

Doc. 29, Exhibit G, Rabb depo., at 363-364) 

 A When they terminated everybody from that mill and [] hired back, 

another co-worker, who was Barbara Rostchild, at that time had told me 

that they was going to hire . . . the salary . . . personnel, and she told me that 

somebody from the mill, she never did tell me who it was, told [her] that 

they would start hiring hourly personnel, but Rabb, that troublemaker, he 

can forget it. 

 Q And Barbara Rostchild told you this? 

 A Yes, ma’am. 

 Q And who told her that? 

 A She did not give me no answer. She . . . would not indulge (sic) [on 

that]. 

 Q Other than the statement that someone, we don’t know who, said to 

Barbara Rostchild about you being a troublemaker . . . is there any other 

thing that makes you think that you were labeled a troublemaker in the 

opinion of management of Georgia-Pacific before they hired you? 

 A The incident with that hangman’s noose, for one. I mean . . . that’s 

when that was brought out, after the incident with the hangman’s noose. 

 Q Because you were on television? 

 A Yes. 

 Q Now, I think you testified earlier that you don’t know who made the 

Case 1:09-cv-00420-C Document 37 Filed 07/26/10 Page 23 of 44
24 

decision to hire you for Georgia-Pacific; is that right? 

 A Yeah. . . . All I know is somebody called me. I still don’t know who 

called me. 

 Q You don’t even know who you interviewed with; is that right? 

 A . . . I can’t remember the names who I interviewed with, who called 

me to give me this letter, to sign this letter. I don’t know none of their 

names or nothing. 

 . . . 

 Q But my question was: Do you know if any of the people who made 

the decision to hire you even knew about it [i.e., the hangman’s noose]? 

 A I don’t know what they knew about it, if that’s what you’re asking. 

(Id. at 363-365) 

CONCLUSIONS OF LAW

A. Motion to Strike Exhibits. 

 1. The defendants have moved to strike certain exhibits attached by plaintiff to 

his response in opposition, namely the entirety of Exhibits A, B, C, D, E, I, and J and 

portions of Exhibits F and H. (See Doc. 30; compare id. with Doc. 29, Attached Exhibits) 

Exhibit A purports to be a compilation of various grievance reports made by Rabb while 

employed with Smurfit, disposition of those grievances, internal memoranda, and the like; 

Exhibit B purports to be Rabb’s first charge of discrimination filed with the EEOC in 

August of 2006 when he was employed by Smurfit; Exhibit C purports to be Rabb’s 

Case 1:09-cv-00420-C Document 37 Filed 07/26/10 Page 24 of 44
25 

amendment to his original charge of discrimination with attached documentation in 

support thereof; Exhibit D apparently purports to be a picture but same did not scan to 

provide a viewable image; Exhibit E purports to be an August 5, 2007 police report about 

a rope found hanging inside the mill when it was owned by Smurfit; Exhibit F is the 

affidavit of Ed Hwoington; Exhibit H is Rabb’s March 5, 2008 charge of discrimination 

with attachments; Exhibit I purports to be a copy of the August 19, 2008 intracompany 

memo terminating Rabb’s employment with Georgia-Pacific; and Exhibit J purports to be 

a copy of a August 28, 2008 grievance report filed on Rabb’s behalf by the union 

president objecting to plaintiff’s termination. The defendants seek to strike these exhibits 

primarily on the basis that same were not authenticated but they also argue that Exhibits 

A through E should be stricken because they are irrelevant to this cause of action in that 

they relate solely to Rabb’s employment with Smurfit. (See Doc. 30, at 2) 

 2. “To be considered on summary judgment, documents must be authenticated 

by and attached to an affidavit made on personal knowledge setting forth such facts as 

would be admissible in evidence or a deposition that meets the requirements of 

Fed.R.Civ.P. 56(e). Documents which do not meet those requirements cannot be 

considered.” Shanklin v. Fitzgerald, 397 F.2d 596, 602 (8th Cir.) (internal quotation 

marks omitted; citations omitted), cert. denied sub nom. Shanklin v. Pattonville R-111 

School Dist. Bd. of Educ., 546 U.S.. 1066, 126 S.Ct. 807, 163 L.Ed.2d 636 (2005); see 

Case 1:09-cv-00420-C Document 37 Filed 07/26/10 Page 25 of 44
26 

First Nat’l Life Ins. Co. v. California Pacific Life Ins. Co., 876 F.2d 877, 881 (11th Cir. 

1989) (“The photocopies of the Coffman complaint and CPIS cross-claim that FNL 

submitted did not bear the imprint of the New Mexico court’s seal nor were they 

supported by an affidavit of an officer having legal custody of the originals attesting to 

their authenticity. They were therefore not properly authenticated under Fed.R.Civ.P. 

44(a)(1) or Fed.R.Evid. 902(1) or (2).”); Ripps v. Powers, 2008 WL 5428195, *2 (S.D. 

Ala. 2008) (“For a document to be considered in support of or in opposition to a motion 

for summary judgment, it must be authenticated by an affidavit that meets the 

requirements of the summary judgment Rule 56(e).”), judgment aff’d in part and rev’d in 

part, 356 Fed.Appx. 352 (11th Cir. 2009); Lugue v. Hercules, Inc., 12 F.Supp.2d 1351, 

1355-1356 (S.D. Ga. 1997) (“Documents which are not properly authenticated and 

verified do not meet the requirements of Rule 56(e) and should not be considered when 

evaluating a motion for summary judgment.”). Exhibits A through E attached to 

plaintiff’s brief in opposition to defendants’ motion for summary judgment have been 

submitted to this Court unattached to an affidavit or deposition and, therefore, they are 

unauthenticated. Accordingly, these exhibits are STRICKEN 31 and have not been 

considered by the undersigned in ruling on the defendants’ motion for summary 

 

31 Because Exhibit H consists, in part, of another copy of the police report at Exhibit E, it 

too is STRICKEN. In addition, the “Hydrochloric Acid” page of Exhibit H and the February 26, 

2008 email penned by Roberto Flores are STRICKEN because they have not been properly 

authenticated. 

Case 1:09-cv-00420-C Document 37 Filed 07/26/10 Page 26 of 44
27 

judgment.32 However, the Court declines to strike Exhibits I and J. Exhibit I, the August 

19, 2008 intracompany memo detailing the reasons for Rabb’s termination, was attached 

as an exhibit to Mike Wade’s declaration filed in support of the defendants’ motion for 

summary judgment (see Doc. 26, Exhibit C) and, therefore, it would amount to mere form 

over substance for the Court to strike this copy of the memo simply because it has some 

indiscernible written marks (and perhaps remarks) on it. Moreover, Exhibit J is not 

stricken because Rabb discussed during his deposition the fact that the union had filed a 

grievance on his behalf challenging his termination and that is the only significance of 

this document.33

 3. Finally, the defendants seek to strike certain statements in the affidavit of 

Ed Howington, a former Smurfit employee who never worked for Georgia-Pacific. (See 

Doc. 30, at 2; Doc. 31, at 8) Rule 56(e) of the Federal Rules of Civil Procedure makes 

 

32 These five exhibits also are due to be STRICKEN because they are irrelevant to this 

cause of action inasmuch as they relate solely to Rabb’s reports of racial discrimination while he 

was employed by Smurfit. Cf. Jackson v. Sara Lee Bakery Group, 677 F.Supp.2d 1268, 1276 

(N.D. Ala. 2009) (“It is undisputed that Daudelin was not a decision-maker regarding the 

elimination of Jackson’s ZBM position during the conversion process. Therefore, any comments 

made by Daudelin to Givens are immaterial and irrelevant.”). Portions of Ed Howington’s 

affidavit are also STRICKEN because they relate solely to Rabb’s claims of racial 

discrimination while employed by Smurfit and are, therefore, irrelevant. Those portions stricken 

as irrelevant are paragraphs 1 and 4 and the last two sentences of paragraph 2. 

33 The union makes no reference to plaintiff’s termination being discriminatory or 

retaliatory; therefore, consideration of same will have no impact on this Court’s analysis of the 

summary judgment motion. 

Case 1:09-cv-00420-C Document 37 Filed 07/26/10 Page 27 of 44
28 

clear that “[a] supporting or opposing affidavit must be made on personal knowledge, set 

out facts that would be admissible in evidence, and show that the affiant is competent to 

testify on the matters stated.” Therefore, “[a] court may strike portions of an affidavit that 

are not based upon the affiant’s personal knowledge or make generalized and conclusory 

statements.” Davis v. Valley Hospitality Services, LLC, 372 F.Supp.2d 641, 653 (M.D. 

Ga. 2005), aff’d in part, 214 Fed.Appx. 877 (11th Cir. Nov. 13, 2006), rev’d in part, 211 

Fed.Appx. 841 (11th Cir. Nov. 30, 2006), cert. denied, 549 U.S. 1341, 127 S.Ct. 2048, 

167 L.Ed.2d 768 (2007); see also Hegre, supra, 508 F.Supp.2d at 1325 (“‘Evidence 

inadmissible at trial cannot be used to avoid summary judgment.’ Likewise, ‘[e]ven on 

summary judgment, a court is not obligated to take as true testimony that is not based 

upon personal knowledge.’” (internal citations omitted)); cf. Nicolatos v. Sprint/United 

Management Co., 2006 WL 3003955, *2 (N.D. Ga. Oct. 19, 2006) (“An affidavit 

submitted in opposition to a motion for summary judgment must affirmatively show that 

the statements made in the affidavit are those of the affiant.”), order vacated in part on 

reconsideration, 2006 WL 3490817 (N.D. Ga. Nov. 28, 2006). Moreover, just as 

“common sense dictates that if an affiant is an employee of a company, []he has personal 

knowledge of events and circumstances that occurred at the company within [his] sphere 

of observation[,]” Davis, supra, 372 F.Supp.2d at 653, so too common sense dictates that 

an affiant not employed by a company would have no personal knowledge of events or 

Case 1:09-cv-00420-C Document 37 Filed 07/26/10 Page 28 of 44
29 

circumstances occurring at the company. Because Howington’s statements in paragraph 

3 and his statements in paragraph 2 from sentence two through sentence five are not 

based upon his personal knowledge but, instead, are clearly based on information 

received from other sources, they are STRICKEN and will not be considered by the 

undersigned in ruling on the defendants’ motion for summary judgment. 

 B. Summary Judgment Standard. 

 4. Summary judgment is proper “if the pleadings, the discovery and disclosure 

materials on file, and any affidavits show that there is no genuine issue as to any material 

fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 

56(c)(2); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S.Ct. 2505, 

2510, 91 L.Ed.2d 202 (1986) (“The mere existence of some alleged factual dispute 

between the parties will not defeat an otherwise properly supported motion for summary 

judgment.”); Garczynski v. Bradshaw, 573 F.3d 1158, 1165 (11th Cir. 2009) 

(“[S]ummary judgment is appropriate even if ‘some alleged factual dispute’ between the 

parties remains, so long as there is ‘no genuine issue of material fact.’”). 

 5. The party seeking summary judgment has the initial responsibility of 

informing the court of the basis for the motion and of establishing, based upon the 

discovery instruments outlined in Rule 56(c), that there is no genuine issue of material 

fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. 

Case 1:09-cv-00420-C Document 37 Filed 07/26/10 Page 29 of 44
30 

v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); see also 

Allen v. Board of Public Educ. for Bibb County, 495 F.3d 1306, 1313 (11th Cir. 2007) 

(“The moving party bears the initial burden of showing the court, by reference to 

materials on file, that there are no genuine issues of material fact that should be decided at 

trial.”). Once this initial demonstration is made, Rule 56(e) requires the nonmoving party 

to “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., supra, 477 U.S. at 324, 106 S.Ct. at 2553, 

quoting Fed.R.Civ.P. 56(e); see also Allen, supra, at 1314 (“‘When a moving party has 

discharged its burden, the non-moving party must then “go beyond the pleadings,” and 

show by its own affidavits, or by “depositions, answers to interrogatories, and admissions 

on file,” designate specific facts showing that there is a genuine issue for trial.’”); see 

Comer v. City of Palm Bay, Florida, 265 F.3d 1186, 1192 (11th Cir. 2001) (“Once the 

moving party discharges its initial burden of showing that there is an absence of evidence 

to support the non-moving party’s case, the non-moving party must specify facts proving 

the existence of a genuine issue of material fact for trial confirmed by affidavits, 

‘”depositions, answers to interrogatories, and admissions on file.”’”). 

 Forbidding reliance upon pleadings precludes a party from 

“choos[ing] to wait until trial to develop claims or defenses relevant to the 

summary judgment motion.” . . . This effectuates the purpose of summary 

judgment which “‘is to pierce the pleadings and to assess the proof in order 

Case 1:09-cv-00420-C Document 37 Filed 07/26/10 Page 30 of 44
31 

to see whether there is a genuine need for trial.’” . . . Thus, “mere general 

allegations which do not reveal detailed and precise facts” will not prevent 

the award of summary judgment upon a court’s determination that no 

genuine issue for trial exists. 

Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 592 (11th Cir.), cert. denied sub 

nom. Jones v. Resolution Trust Corp., 516 U.S. 817, 116 S.Ct. 74, 133 L.Ed.2d 33 (1995); 

see also LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832, 835 (11th Cir. 1998) 

(“[The nonmoving party] must raise ‘significant probative evidence’ that would be 

sufficient for a jury to find for that party.”). In other words, there is no genuine issue for 

trial “[w]here the record taken as a whole could not lead a rational trier of fact to find for 

the non-moving party[.]” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 

U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); see Comer, supra, 265 F.3d 

at 1192 (“Summary judgment is required where the non-moving party’s response to a 

motion is merely ‘a repetition of his conclusional allegations’ and is unsupported by 

evidence showing an issue for trial.”). 

 6. In considering whether the defendants are entitled to summary judgment, 

the Court has viewed the facts in the light most favorable to plaintiff Willie Rabb. Comer, 

supra, 265 F.3d at 1192 (“We view the evidence and all factual inferences raised by it in 

the light most favorable to the non-moving party, and resolve all reasonable doubts about 

the facts in favor of the non-moving party.”). 

 The requirement to view the facts in the nonmoving party’s favor 

Case 1:09-cv-00420-C Document 37 Filed 07/26/10 Page 31 of 44
32 

extends only to “genuine” disputes over material facts. A genuine dispute 

requires more than “some metaphysical doubt as to the material facts.” A 

“mere scintilla” of evidence is insufficient; the non-moving party must 

produce substantial evidence in order to defeat a motion for summary 

judgment. 

Garczynski, supra, 573 F.3d at 1165 (internal citations omitted). 

C. Abandonment of Claim(s).

7. Plaintiff has specifically abandoned his hostile work environment claim, 

that is, Count Two of his complaint, as amended. See, e.g., Walton ex rel R.W. v. 

Montgomery County Bd. of Educ., 371 F.Supp.2d 1318, 1324 (M.D. Ala. 2005) (finding 

abandonment of claim). Therefore, the Court hereby GRANTS the defendants’ motion 

for summary judgment on Rabb’s hostile work environment claim. 

8. While, as pointed out by the defendants, plaintiff did not specifically argue 

his racial discrimination claim, focusing instead on his retaliation and negligent 

supervision claims (see Doc. 29, at 6-8), since he does not explicitly abandon that claim 

and appears to intertwine that claim with his retaliation and negligent supervision claims, 

the Court will give some consideration to Count One of the complaint, as amended. 

D. Racial Discrimination (Count One). 

9. Rabb claims that his termination on August 19, 2008, was the result of 

unlawful race discrimination in violation of Title VII. In a Title VII disparate treatment 

case, a plaintiff must prove intentional discrimination. See Armindo v. Padlocker, Inc., 

Case 1:09-cv-00420-C Document 37 Filed 07/26/10 Page 32 of 44
33 

209 F.3d 1319, 1320-1322 (11th Cir. 2000); Schoenfeld v. Babbitt, 168 F.3d 1257, 1266 

& 1267 (11th Cir. 1999). A plaintiff “may use three different kinds of evidence of 

discriminatory intent: direct evidence, circumstantial evidence or statistical evidence.” 

Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998). The plaintiff in 

this case seeks to show discrimination using circumstantial evidence. (See Doc. 22, ¶ 11 

(“The Defendants treated similarly situated employees outside of the Plaintiff’s racial 

class more favorably.”)) 

When a plaintiff attempts to prove intentional discrimination in 

violation of Title VII using circumstantial evidence, we apply the now 

familiar shifting burden framework established by the Supreme Court in 

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 

L.Ed.2d 668 (1973), and Texas Dep’t of Community Affairs v. Burdine, 450 

U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Under this framework, 

the plaintiff has the initial burden of establishing a prima facie case of 

discrimination. If he meets that burden, then an inference arises that the 

challenged action was motivated by a discriminatory intent. The burden 

then shifts to the employer to “articulate” a legitimate, non-discriminatory 

reason for its action. If the employer successfully articulates such a reason, 

then the burden shifts back to the plaintiff to show that the proffered reason 

is really pretext for unlawful discrimination. 

Schoenfeld, supra, 168 F.3d at 1267 (internal citations omitted); see also Burke-Fowler v. 

Orange County, Florida, 447 F.3d 1319, 1323 (11th Cir. 2006) (“If the plaintiff satisfies 

[the prima facie] elements, then the defendant must show a legitimate, non-discriminatory 

reason for its employment action. If it does so, then the plaintiff must prove that the 

reason provided by the defendant is a pretext for unlawful discrimination.” (internal 

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34 

citations omitted)). 

10. In order to make out a prima facie case of disparate treatment in a race 

discrimination case, plaintiff must show: “(1) he belongs to a racial minority; (2) he was 

subjected to adverse job action; (3) his employer treated similarly situated employees 

outside his classification more favorably; and (4) he was qualified to do the job.” 

Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997) (citations omitted); see also 

Burke-Fowler, supra (“To establish a prima facie case for disparate treatment in a race 

discrimination case, the plaintiff must show that: (1) she is a member of a protected class; 

(2) she was subjected to an adverse employment action; (3) her employer treated similarly 

situated employees outside of her protected class more favorably than she was treated; 

and (4) she was qualified to do the job.”). 

11. The defendants admit that plaintiff has established the first two elements of 

his prima facie case but argue that the final two elements are missing. (See Doc. 26, at 

13-17) Because this Court is in agreement with the defendants that plaintiff has not come 

forward with evidence establishing that the defendants treated similarly situated 

employees outside of his protected class more favorably than he was treated, it need not 

consider the defendants’ argument that Rabb was not qualified to do his job. 

When a plaintiff alleges discriminatory discipline, to determine whether 

employees are similarly situated, we evaluate whether the employees are 

involved in or accused of the same or similar conduct and are disciplined in 

different ways. When making that determination, [w]e require that the 

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35 

quantity and quality of the comparator’s misconduct be nearly identical to 

prevent courts from second-guessing employer’s reasonable decisions and 

confusing apples with oranges. 

Burke-Fowler, supra, 447 F.3d at 1323 (internal quotation marks and citations omitted); 

see also Holifield, supra, 115 F.3d at 1562 (“To make a comparison of the plaintiff’s 

treatment to that of non-minority employees, the plaintiff must show that he and the 

employees are similarly situated in all relevant respects. In determining whether 

employees are similarly situated for purposes of establishing a prima facie case, it is 

necessary to consider whether the employees are involved in or accused of the same or 

similar conduct and are disciplined in different ways. If a plaintiff fails to show the 

existence of a similarly situated employee, summary judgment is appropriate where no 

other evidence of discrimination is present.” (internal citations omitted; emphasis in 

original)). 

 12. In is clear in this case that Rabb was terminated from his employment with 

Georgia-Pacific not only because he failed to perform his job duties by failing to conduct 

BOD tests on the days they were scheduled to be conducted but, more importantly, 

because he initially lied to his supervisor about when he conducted the tests and then 

arguably falsified documents and data to either reflect 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. Rabb attempts to compare himself to 

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36 

several people: (1) Joey Pitts, who (he heard from a third party) allegedly failed to run a 

BOD test; (2) Jack Kirkland, who Rabb testified altered BOD test results; (3) two white 

males who allegedly stole a deer stand from nearby property during work hours yet were 

only suspended for ten (10) days for their conduct; and (4) Roberto Flores, who not only 

was merely disciplined for questioning Rabb about his EEOC charges but was not 

terminated after committing acts which led to the Brewton mill being fined. There is 

nothing about the conduct of the two “deer stand” employees that is comparable to 

Rabb’s conduct and, therefore, they are not apt comparators. Moreover, none of the other 

employees, including the “deer stand” employees, are apt comparators to Rabb because 

plaintiff has produced no evidence whatsoever that any of these other employees, to 

which he compares himself, lied to anyone about their alleged misconduct/failure to 

perform job duties. See Maniccia v. Brown, 171 F.3d 1364, 1369 (11th Cir. 1999) 

(“Deputies Bodree, Odell, and Lane each may have carried unauthorized passengers on 

one occasion, but there is no evidence they lied about it as Appellant did.”). In other 

words, the quality of Rabb’s misconduct is not the same as that of the individuals to 

which he attempts to compare himself. Because Rabb has failed to meet his burden of 

pointing to a non-minority employee who engaged in the same or similar misconduct and, 

as well, has presented no other circumstantial evidence suggesting racial discrimination,34

 

34 Rabb’s opinion that he was discriminated against, without more, is not sufficient to 

establish a prima facie case nor is any alleged bias by held Flores or Wade because neither of 

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37 

he cannot establish a prima facie case of racial discrimination and the defendants are 

entitled to summary judgment in their favor on Count One of the complaint, as amended. 

E. Retaliation (Count Three). 

 13. Rabb also claims that he was terminated on August 19, 2008, in retaliation 

for numerous internal complaints at Georgia-Pacific and charges of discrimination with 

the Equal Employment Opportunity Commission (“EEOC”). “To establish a prima facie 

case of retaliation, the plaintiff must show: (1) that he engaged in statutorily protected 

expression; (2) that he suffered an adverse employment action; and (3) that there is some 

causal relationship between the two events.” Holifield, supra, 115 F.3d at 1566 (citations 

omitted); see also Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007) 

(“To establish a prima facie case of retaliation under Title VII, ‘the plaintiff must show 

(1) that she engaged in statutorily protected expression; (2) that she suffered an adverse 

employment action; and (3) that there is some causal relation between the two events.”). 

Because it is clear in this case both that Rabb engaged in statutorily protected expression 

and that he suffered an adverse employment action, see Holifield, supra, 115 F.3d at 1566 

(“Here, it is clear that Holifield engaged in statutorily protected expression. Holifield filed 

EEO[C] complaints and voiced his concerns about racial discrimination to his superiors. 

Both forms of expression are protected under Section 704(a). . . . It is also clear that 

 

these individuals made or influenced the termination decision. See Holifield, supra, 115 F.3d at 

1563-1564. 

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38 

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 plaintiff’s 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 plaintiff’s 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.’”),35 and because plaintiff has not come forward 

 

35 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, 

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39 

with any credible other evidence tending to establish causation,36 he has not established a 

prima facie case of retaliation and the defendants are entitled to summary judgment. 

 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 plaintiff’s 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 data37 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 

 

severed the causal connection (if any) between Hankins’ initial complaint of discrimination and 

AirTran’s decision to terminated her employment.”). 

36 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 plaintiff’s 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. 

37 “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). 

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40 

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. 

 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 

 

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41 

exhibited any racial bias toward plaintiff.38 See id. 

 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 plaintiff’s 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 

 

38 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. 

Case 1:09-cv-00420-C Document 37 Filed 07/26/10 Page 41 of 44
42 

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 plaintiff’s 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),39 (2) the employer had actual notice of this conduct or would have gained such 

 

39 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.”). 

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43 

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. 

CONCLUSION

 Based upon the foregoing, the Court GRANTS the defendants’ motion for 

summary judgment (Doc. 25) in its entirety and DISMISSES plaintiff’s complaint (Doc. 

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1), as amended (Doc. 22), WITH PREJUDICE. 

DONE and ORDERED this the 26th day of July, 2010. 

 s/WILLIAM E. CASSADY 

 UNITED STATES MAGISTRATE JUDGE

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