Walton-Horton v. Hyundai of Alabama et al (MAG+)

Filing 79

MEMORANDUM OPINION AND ORDER: Defendant's 56 Motion for summary judgment is GRANTED. It is further ORDERED that the pretrial conference, trial setting, and attendant deadlines are CANCELLED. An appropriate judgment will be entered. Signed by Honorable William Keith Watkins on 11/10/09. PTC set for 11/13/09 at 10:45 in chambers terminated; Jury Trial set for 12/7/09 terminated. (br, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION E L IZ A B E T H WALTON-HORTON, ) ) P la in tif f , ) ) v. ) ) H Y U N D A I MOTOR MANUFACTURING ) A L A B A M A , LLC, et al., ) ) D e f e n d a n ts. )

C A S E NO. 2:08-CV-268-WKW [WO]

M E M O R A N D U M OPINION AND ORDER P la in tif f Elizabeth Walton-Horton ("Walton-Horton") brings this action against H yu n d a i Motor Manufacturing Alabama, LLC ("HMMA"), Tommy Certain ("Certain"), and E ric George ("George"), (collectively "Defendants"), alleging sex discrimination and re ta lia tio n in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (" T itle VII"), and various state-law claims. This cause is before the court on Defendants' m o tio n for summary judgment on all claims. (Doc. # 56.) Walton-Horton opposes the m o tio n . (Doc. # 62.) After careful consideration of counsels' briefs, the relevant law, and th e record as a whole, the court finds that Defendants' motion is due to be granted. I. JURISDICTION AND VENUE S u b je c t matter jurisdiction is exercised pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3). The parties do not contest personal jurisdiction or venue, and there are adequate allegations in support of each.

II. FACTUAL AND PROCEDURAL BACKGROUND T h is case arises out of Walton-Horton's termination from HMMA in March 2006 for a lle g e d violations of HMMA's employment policy. Walton-Horton claims that the

te rm in a tio n was because of her sex and in retaliation for complaints she made about two male c o -w o rk e rs , Certain and George. Walton-Horton further asserts claims for defamation, libel, s la n d e r, and negligent/wanton supervision. Viewed in the light most favorable to WaltonH o rto n , the evidentiary submissions of the parties establish the following facts. A. F a c tu a l Background W a lto n -H o rto n began working for HMMA in February 2005 as a Technical Support S p e c ia lis t for the Production Control Department. (Am. Compl. ¶ 14 (Doc. # 49); Pl.'s Dep. 7 2 -7 4 (Ex. A to Defs.' Summ. J. Br. (Doc. # 57).) She worked the day shift for a short period b e f o re moving to the night shift, where she remained for the duration of her employment w it h HMMA. (Pl.'s Dep. 83.) George and Certain worked with Walton-Horton in the P ro d u c tio n Control Department on the same shift. (Pl.'s Dep. 80.) All three were hourly, n o n -m a n a g e m e n t employees with similar job responsibilities. (Pl.'s Dep. 81, 163-64.) Walton-Horton initially worked in the same building with Certain and George and had an a s s ig n e d cubicle near them. (Pl.'s Dep. 91.) In June 2005, she moved to the Paint Shop in a separate building. (Pl.'s Dep. 101-03.) While working in the Paint Shop, Walton-Horton's in te ra c tio n with Certain and George was limited to occasional lunches and compiling i n f o rm a tio n for the Technical Support Report at the end of the shift. (Pl.'s Dep. 103-04.)

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Walton-Horton testified that they spent "[a]bout an hour or two a day" together. (Pl.'s Dep. 1 0 4 .) O n March 10, 2006, Harry Chase, a Production Control Manager, informed the Team R e la tio n s Department at HMMA1 that he had received a complaint from PC Specialist Trey B u tle r about Walton-Horton's use of inappropriate language in the workplace. (Smith Decl. ¶ 3 (Ex. C to Defs.' Summ. J. Br.).) After receiving notice of the complaint against WaltonH o rto n , Team Relations Assistant Manager Shaun Flate ("Flate") instructed Smith to in v e s tig a te the allegations and "determine if [Walton-Horton] was indeed engaging in in a p p ro p ria te behavior." (Smith Decl. ¶ 3.) During the course of the investigation, Smith interviewed ten of Walton-Horton's cow o rk e rs . (Smith Decl. ¶ 4.) She summarized the interviews in a March 15, 2006 "Team R e la tio n s Memo" to Flate (Ex. 5 to Smith Decl.) and, in a separate memorandum, provided a statement of her recommendations based on these interviews (Ex. 6 to Smith Decl.). According to Smith's memos, the interviews conducted on March 10, 2006, and March 13, 2 0 0 6 , revealed the following about Walton-Horton's behavior in the workplace:

According to Team Relations Specialist Gabriela Smith ("Smith"), the Team Relations Department at HMMA provides training to team Members and new hires on policies and procedures, makes recommendations to management on corrective action, communicates with management on the application and interpretation of policies and procedures, and investigates claims of discrimination and harassment, as well as investigat[es] other work rule violations. (Smith Decl. ¶ 2.)

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(1)

Four employees ­ Certain, George, Ricky Trull, and Scott Smith ­ indicated th a t Walton-Horton had offered them her "jelly," a term understood by them to have sexual connotations. Walton-Horton denied this fact, and contended th a t Certain gave her the nickname "Jelly Bean" after telling her that someone lik e d her and "wanted some of her jelly." F iv e employees ­ Certain, George, Trey Butler, James Vaught, and Paula B a lla rd ("Ballard") ­ indicated that they had heard Walton-Horton use p r o f a n i t y. C ertain and Jackson Lancaster ("Lancaster") indicated that Walton-Horton had a s k e d Lancaster to go out on a date with her on several occasions. Lancaster s ta te d that he was flattered, but that it bothered him that she asked him in front o f another employee. Lancaster stated that on one occasion, Walton-Horton told him (in front of a c o n tra c to r), "You can have me with my tits all over you." C e rta in and Scott Smith indicated that Walton-Horton had asked them, on m o re than one occasion, whether they found her attractive. Scott Smith stated th a t Walton-Horton's insistence on a "yes" or "no" answer bothered him. George indicated that Walton-Horton had said to him, "I bet you have a big d ic k , I can tell, I can tell just by looking at you." George said that Walton-Horton thrust her breasts at other team members to g e t attention and that, on one occasion, Walton-Horton leaned over him while h e was working on his computer and said, "Here rest this black tit on your e a r ." Certain indicated that after telling Walton-Horton that she was wearing a nice d re s s , Walton-Horton lifted her dress to expose her "behind." S e v e ra l employees indicated that Walton-Horton had falsely stated that she w a s the niece of George Kimble, Director of Human Resources, thus creating f e a r of retaliation for speaking negatively about her. Smith met with Walton-Horton to discuss the above

(2 )

(3)

(4)

(5)

(6)

(7)

(8 )

(9 )

(E x s . 5 and 6 to Smith Decl.)

a c c u s a tio n s on March 13, 2006. (Ex. 5 to Smith Decl.) Walton-Horton adamantly denied 4

all of the accusations made against her. (Exs. 5 and 6 to Smith Decl.) She also indicated d u rin g her interview with Smith on March 13, 2006, that there was a lot of joking at work, g iv in g specific examples of profanity and sexually explicit jokes made by Certain and G e o rg e . (Ex. 5 to Smith Decl.) O n March 14, 2006, the day after the interviews concluded, Walton-Horton contacted T e a m Relations to make a complaint against Certain. (Attach. 5 to Smith Decl.) According to Smith's memos, Walton-Horton made the following complaints: (1 ) In reference to a surgery Walton-Horton had on March 7, 2006, Certain asked W a lto n -H o rto n whether she was "going to have [her] vagina tight." Certain used the term "mother fucker." Certain called another employee "faggot." Certain told Walton-Horton that another female employee was a "carpet m u n c h e r," understood to be a derogatory term for a lesbian. Certain referred to Walton-Horton's banana as a vibrator. Certain called another female employee a "dike bitch."

(2) (3 ) (4 )

(5) (6)

(A tta c h . 5 to Smith Decl.) Smith subsequently interviewed Certain, who admitted using p ro f a n ity and calling a female employee "carpet muncher." (Attach. 5 to Smith Decl.) Certain denied calling a male employee "faggot," but admitted saying that "I think he is a little sweet." (Attach. 5 to Smith Decl.) Certain denied using the term "dike bitch" and m a k in g any reference to Walton-Horton's surgery. (Attach. 5 to Smith Decl.) Smith's in v e s tig a tio n into Certain's conduct at HMMA amounted to one interview with Ballard.

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During that interview, Ballard stated that she heard Certain call another employee "faggot" a n d overheard a conversation between George and Certain in which the phrase "lesbian b itc h " was used to refer to a female employee. (Attach. 5 to Smith Decl.) B a se d on the foregoing, Smith made the following recommendations: It is my conclusion that in order to protect our team members as well as the co m p a n y, Elizabeth [Walton-]Horton should be terminated due to her unlawful v e rb a l, physical, and visual sexual harassment towards HMMA [employees]. . . . . It is also my recommendation that Tommie Certain receive[] a Serious M is c o n d u c t for the involvement he has had in the sexual innuendoes and p ro f a n ity used at HMMA. (Attach. 6 to Smith Decl.) Walton-Horton was terminated from HMMA on March 22, 2006, for "creat[ing] a h o s tile work environment of a sexual nature." (Letter from Harry Chase, Production Control M a n a g e r, to Walton-Horton, Mar. 22, 2006 (Ex. 11 to Pl.'s Dep.).) Certain received a S e rio u s Misconduct Letter, the most severe form of punishment at HMMA short of d is c h a rg e . (Smith Decl. ¶ 12.) Walton-Horton claims that her prior relationship with Certain served as the impetus f o r his detailed accusations against her during Smith's investigation. Specifically, WaltonH o rto n contends that prior to the investigation that led to Walton-Horton's termination, she a n d Certain had a falling out concerning money Walton-Horton had loaned Certain and w h ic h he had not paid back. (Am. Compl. ¶ 15; Pl.'s Resp. Br. 11.) Walton-Horton also c o n te n d s that she complained about Certain's misconduct in the workplace to four different

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people on five separate occasions between April 2005 and February 2006,2 and even re q u e s te d that she be taken out of the rotation with Certain and George. (Pl.'s Dep. 142-56; P l.'s Decl. ¶ 5.) There is no evidence that anything other than reprimands resulted from these c o m p la in ts . (Pl.'s Dep. 142-56.) B. P r o c e d u r a l Background W a lto n -H o rto n filed an Amended Complaint on September 30, 2008 (Doc. # 49) a lle g in g : (1) gender discrimination under Title VII against HMMA, (2) retaliation under Title V II against HMMA and Smith,3 (3) defamation against Certain and George, (4) libel and s la n d e r against Certain, and (5) negligent and wanton supervision against HMMA. Defendants moved for summary judgment on all claims. (Doc. # 56.) III. STANDARD OF REVIEW " S u m m a ry judgment is appropriate `if the pleadings, depositions, answers to in te rro g a to rie s , and admissions on file, together with the affidavits, if any, show there is no g e n u in e issue as to any material fact and that the moving party is entitled to judgment as a m a tte r of law.'" Greenberg v. BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir. 2 0 0 7 ) (per curiam); Fed. R. Civ. P. Rule 56(c) (Summary judgment "should be rendered if th e pleadings, the discovery and disclosure materials on file, and any affidavits show that

According to Walton-Horton, she complained about Certain's sexually explicit comments and told a supervisor that she "was fed up with listening to Eric [George] and Tommy [Certain] demean[] . . . wom[e]n." (Pl.'s Dep. 152.) All claims against Smith were dismissed pursuant to this court's order entered November 14, 2008. (Doc. # 55.)
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there is no genuine issue as to any material fact and that the movant is entitled to judgment a s a matter of law."). The party moving for summary judgment "always bears the initial re s p o n s ib ility of informing the district court of the basis for its motion, and identifying those p o rtio n s of [the record, including pleadings, discovery materials and affidavits], which it b e l i e v e s demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. C a tr e tt, 477 U.S. 317, 323 (1986). The movant may meet this burden by presenting evidence in d ic a tin g there is no dispute of material fact or by showing that the nonmoving party has f a ile d to present evidence in support of some element of its case on which it bears the u ltim a te burden of proof. Id. at 322-24. If the movant meets its evidentiary burden, the burden shifts to the nonmoving party to establish, with evidence beyond the pleadings, that a genuine issue material to each of its c la im s for relief exists. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); C e lo te x Corp., 477 U.S. at 324; Fed. R. Civ. P 56(e)(2) ("When a motion for summary ju d g m e n t is properly made and supported, an opposing party may not rely merely on a lle g a tio n s or denials in its own pleading; rather, its response must . . . set out specific facts s h o w in g a genuine issue for trial."). What is material is determined by the substantive law a p p lic a b le to the case. Celotex Corp., 477 U.S. at 248; Lofton v. Sec'y of the Dep't of C h ild r e n & Family Servs., 358 F.3d 804, 809 (11th Cir. 2004) ("Only factual disputes that a re material under the substantive law governing the case will preclude entry of summary ju d g m e n t." ). Furthermore, "[t]he mere existence of some factual dispute will not defeat

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summary judgment unless that factual dispute is material to an issue affecting the outcome o f the case." McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003) (p e r curiam) (internal quotation marks and citation omitted). A genuine issue of material fact exists when the nonmoving party produces evidence th a t would allow a reasonable fact-finder to return a verdict in its favor. Greenberg, 498 F .3 d at 1263; Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001). However, if the evidence on which the nonmoving party relies, "is merely colorable, or is not s ig n if ic a n tly probative, summary judgment may be granted." Anderson v. Liberty Lobby, In c ., 477 U.S. 242, 249-50 (1986) (citations omitted). "A mere `scintilla' of evidence s u p p o rtin g the [nonmovant's] position will not suffice; there must be enough of a showing th a t the [trier of fact] could reasonably find for that party," Walker v. Darby, 911 F.2d 1573, 1 5 7 7 (11th Cir. 1990), and the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith R a d io Corp., 475 U.S. 574, 587 (1986). Conclusory allegations based on subjective beliefs a re likewise insufficient to create a genuine issue of material fact and do not suffice to o p p o se a motion for summary judgment. Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11th C ir. 1997) (per curiam) (A plaintiff's "conclusory assertions . . . in the absence of supporting e v id e n c e , are insufficient to withstand summary judgment."). Hence, when a plaintiff fails t o set forth specific facts supported by appropriate evidence sufficient to establish the e x is te n c e of an element essential to his case and on which the plaintiff will bear the burden

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of proof at trial, summary judgment is due to be granted in favor of the moving party. Celotex Corp., 477 U.S. at 323 ("[F]ailure of proof concerning an essential element of the n o n m o v in g party's case necessarily renders all other facts immaterial."). Thus, in cases where the evidence before the court is admissible on its face or can be re d u c e d to admissible form and indicates there is no genuine issue of material fact, and where th e party moving for summary judgment is entitled to it as a matter of law, summary ju d g m e n t is proper. Celotex Corp., 477 U.S. at 323-24 (summary judgment appropriate w h e re pleadings, evidentiary materials and affidavits before the court show there is no g e n u in e issue as to a requisite material fact). I V . DISCUSSION A. T itle VII Claims Title VII makes it unlawful for an employer "to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual's race, color, religion, o r national origin . . . ." 42 U.S.C. § 2000e-2(a)(1). Title VII also makes it unlawful to re ta lia te against an employee "because he [or she] has opposed any practice made an u n la w f u l employment practice . . . ." 42 U.S.C. § 2000e-3(a). Because there is no direct e v id e n c e of discrimination or retaliation,4 Walton-Horton's Title VII claims are governed by

Walton-Horton claims in her response brief that there is direct evidence of discrimination (Pl.'s Resp. Br. 8), yet she produces no evidence to support this claim. Direct evidence of discrimination is evidence "that the complained-of employment decision was motivated by the decision-maker's [sexism]." Damon v. Fleming Supermarkets of Fla., 196 F.3d 1354, 1358-59 (11th Cir. 1999). Thus, "`only the most blatant remarks, whose intent could be nothing other than to discriminate on the basis of [sex]' will constitute direct evidence of discrimination." Id. at 1359 (quoting Earley v. Champion Int'l Corp., 907 F.2d 1077, 1081-82 (11th Cir. 1990)). Moreover, Walton-Horton analyzes her claim under the

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the burden-shifting framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1 9 7 3 ). "Under the McDonnell Douglas framework, a plaintiff first must show an inference o f discriminatory intent, and thus carries the initial burden of establishing a prima facie case o f discrimination." Brooks v. County Comm'n, 446 F.3d 1160, 1162 (11th Cir. 2006). Once a plaintiff establishes a prima facie case, the burden shifts to the employer "to `articulate s o m e legitimate, nondiscriminatory reason' for the adverse employment action." 5 Crawford v . Carroll, 529 F.3d 961, 976 (11th Cir. 2008) (quoting McDonnell Douglas, 411 U.S. a t 802). If the employer meets its burden, the burden shifts back to the plaintiff to show that th e employer's stated reason for the adverse employment action was a "pretext" for d is c rim in a tio n . Id. The pretext inquiry requires a determination, based upon the totality of th e evidence, as to whether the plaintiff "`has cast sufficient doubt on the defendant's p ro f f e re d nondiscriminatory reason[] to permit a reasonable factfinder to conclude that the e m p l o ye r 's proffered legitimate reason[] [was] not what actually motivated its conduct.'" Id. (quoting Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997) (brackets a d d e d )).

McDonnell Douglas framework. (Pl.'s Resp. Br. 9-11.) The principles in Brooks and Crawford apply equally to retaliation claims. See Wright v. Southland Corp., 187 F.3d 1287, 1305 (11th Cir. 1999) ("[T]he same analytical framework applies to retaliation claims as applies to other employment discrimination claims, including the availability of the McDonnell Douglas presumption.").
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1.

S e x Discrimination

W a lto n -H o rto n can establish a prima facie case of disparate treatment on the basis of s e x by showing that (1) she is a member of a protected class, (2) she was qualified for the jo b , (3) she suffered an adverse employment action, and (4) HMMA treated similarly situated m a le employees more favorably. Maniccia v. Brown, 171 F.3d 1364, 1386 (11th Cir. 1999); M c D o n n e ll Douglas, 411 U.S. at 802. "Demonstrating a prima facie case is not onerous; it re q u ire s only that the plaintiff establish facts adequate to permit an inference of d is c rim in a tio n ." Holifield, 115 F.3d at 1562. Neither party disputes that Walton-Horton is a member of a protected class, was q u a lif ie d for her job, and suffered an adverse employment action. Thus, the only issue is w h e th e r Walton-Horton has presented sufficient evidence to create a genuine issue of m a t e ria l fact that HMMA treated similarly situated male employees more favorably. To s a tis f y her burden in this respect, Walton-Horton must show that male employees were " i n v o lv e d in or accused of the same or similar conduct and [were] disciplined in different w a ys ." Holifield, 115 F.3d at 1562. In other words, Walton-Horton must show that "[she] a n d the employees are similarly situated in all relevant respects." Id. (emphasis added). In M a n ic c ia , the Eleventh Circuit interpreted this standard to "require that the quantity and q u a l i t y of the comparator's misconduct be nearly identical to prevent courts from secondg u e s s in g employers' reasonable decisions and confusing apples with oranges." 171 F.3d at 1368.

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Defendants contend that Walton-Horton has failed to show that "the quantity and q u a lity" of Certain's misconduct was "nearly identical" to Walton-Horton's misconduct. Specifically, Defendants argue that Walton-Horton's complaints about Certain ­ that he used p ro f a n ity and sexually explicit language ­ are not comparable to the misconduct that n u m e ro u s employees attributed to Walton-Horton ­ namely, profanity, intimidation, and s e x u a lly-s u g g e s tiv e statements and actions. While offensive, Certain's alleged misconduct does not rise to the level of WaltonH o rto n 's . Although both Walton-Horton and Certain allegedly used profane, sexuallye x p lic it language in the workplace, Walton-Horton fails to present any evidence that Certain e v e r inappropriately touched another employee or exposed himself. Nor does she present any e v i d e n c e that Certain propositioned or otherwise intimidated other employees. Although H M M A interviewed ten people regarding Walton-Horton's conduct and only one person re g a rd in g Certain's conduct, Walton-Horton does not argue the sufficiency of HMMA's in v e s tig a tio n . Instead of deposing other HMMA employees to determine the extent of C e rta in 's alleged misconduct, Walton-Horton relies solely on her own deposition and d e c la ra tio n testimony. The court cannot speculate as to what a more detailed investigation c o u ld have revealed regarding Certain's conduct. The evidence before the court shows that W a lto n -H o rto n 's alleged misconduct ­ including inappropriate touching, exposing herself, a n d asking co-workers out on dates ­ was more severe in terms of both quantity and quality th a n that of Certain. Thus, having failed to point to a similarly situated male employee,

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Walton-Horton has not established a prima facie case under McDonnell Douglas. Accordingly, Defendants' motion for summary judgment on Walton-Horton's Title VII sex d is c rim in a tio n claim is due to be granted on this record. 2. R e ta lia tio n

T o establish a prima facie case of retaliation, Walton-Horton must show: "(1) that [ s ]h e engaged in statutorily protected expression; (2) that [s]he suffered an adverse e m p lo ym e n t action; and (3) that there is some causal relationship between the two events." Holifield, 115 F.3d at 1566. At issue here are elements (1) and (3). W a lto n -H o rto n contends that she engaged in protected expression when she reported C e rta in 's and George's conduct on five separate occasions. Even on the assumption that this s p e e c h constitutes "statutorily protected expression," Walton-Horton has failed to meet her b u rd e n under the third prong of her prima facie case. The third element's causal relationship can be established through evidence "`that the p ro te c te d activity and the adverse action were not wholly unrelated.'" Brungart v. BellSouth T e le c o m m s ., Inc., 231 F.3d 791, 799 (11th Cir. 2000) (quoting Clover v. Total Sys. Servs., In c ., 176 F.3d 1346, 1354 (11th Cir. 1999)). In Brungart, the Eleventh Circuit explained that " [ t]h e general rule is that close proximity between the employee's protected conduct and the a d v e rs e employment action is sufficient circumstantial evidence to create a genuine issue of m a te ria l fact of a causal connection." Id. (emphasis added). Brungart, however, recognized th a t "there is this exception" to that general rule: "[T]emporal proximity alone is insufficient

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to create a genuine issue of fact as to causal connection where there is unrebutted evidence t h a t the decision maker did not have knowledge that the employee engaged in protected c o n d u c t. Id. (emphasis added); see also McCollum v. Bolger, 794 F.2d 602, 610 (11th Cir. 1 9 8 6 ) (Affirmative, uncontradicted evidence that the decision maker was unaware of the p ro te c te d activity defeated the prima facie causation element of the plaintiff's retaliation c la im .). "A decision maker cannot have been motivated to retaliate by something unknown to [her]." Brungart, 231 F.3d at 799. Walton-Horton testified that she complained about Certain and George to Kuyong J u n g , in April 2005, Greg Stroud, in May 2005, Greg Kimble, in December 2005, and s o m e o n e named "Marcus," in January and February 2006. (Pl.'s Dep. 142-56; Pl.'s Decl. ¶ 5 .) There is no evidence, however, that any of these individuals played a part in the in v e s tig a tio n that led to Walton-Horton's termination. Rather, the evidence reveals that Flate in s tru c te d Smith to investigate the allegations of Walton-Horton's inappropriate behavior, a n d Smith was the one who conducted the investigation and recommended Walton-Horton's te rm in a tio n based on this investigation. (Smith Decl. ¶ 3.) Moreover, Smith states in her d e c la ra tio n that her interview with Walton-Horton on March 14, 2006 was "the first time [ s h e ] was aware of Ms. [Walton-]Horton making any complaints of inappropriate behavior a t HMMA." (Smith Decl. ¶ 4). Walton-Horton has failed to present any evidence,

c irc u m s ta n tia l or otherwise, that prior to this date, Smith was aware of Walton-Horton's prior c o m p la in ts about Certain and George. Because the investigation that led to Walton-Horton's

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termination had already begun at that point, it cannot reasonably be argued that WaltonH o rto n 's complaint on March 14, 2006, after said investigation, caused her termination. Cf. C la r k County Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001) ("Employers need not suspend p re v io u s ly planned transfers upon discovering that a Title VII suit has been filed, and their p ro c e e d in g along lines previously contemplated, though not yet definitively determined, is n o evidence whatever of causality."). Walton-Horton claims that the mere temporal proximity of these complaints to her te rm in a tio n on March 22, 2006 creates an inference of causality. (Pl.'s Resp. 12.) However, tim in g alone is insufficient to establish the causation element when the evidence is u n r e b u tte d that the HMMA agent who actually took the adverse action against WaltonH o r t o n was unaware of the alleged protected conduct. See Brungart, 231 F.3d 799. As s ta te d , Defendants have presented evidence that Smith was not aware of the complaints made b y Walton-Horton prior to the March 14 interview (Smith Decl. ¶ 4), and Walton-Horton has f a ile d to present any evidence showing that a genuine issue of material fact exists on this p o in t. See Celotex Corp., 477 U.S. at 322-24. For these reasons, Walton-Horton's Title VII c la im for retaliation cannot survive summary judgment. C. S ta te -L a w Claims 1. D e fa m a tio n

Defamation, which encompasses both libel and slander,6 carries a two-year statute of

Walton-Horton purports to bring a defamation claim against Certain and George and a libel and slander claim against Certain. However, because defamation encompasses both libel and slander, see

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limitations. Ala. Code § 6-2-38(k). The statute of limitations "begins to run at the time [the c a u s e of action] accrues, that is, when the defamatory matter is published." Tonsmeire v. T o n s m e ire , 233 So. 2d 465, 467 (Ala. 1970). The alleged defamatory statements in this case w e re made before Walton-Horton was terminated on March 22, 2006. Walton-Horton c o m m e n c e d this lawsuit when she filed her complaint on April 7, 2008 (Doc. # 1), more than tw o years after her claims accrued. Thus, Walton-Horton's defamation claims against C e rta in and George and her libel and slander claims against Certain are time-barred,7 and D e f e n d a n ts ' motion for summary judgment on these claims is due to be granted. 2. N e g lig e n t and Wanton Supervision

A claim for negligent and/or wanton supervision must be brought within two years of th e time the cause of action accrues. Ala. Code § 6-2-38(l); Boyce v. Cassese, 941 So. 2d 9 3 2 , 945 (Ala. 2006) ("[N]egligence and wantonness claims are governed by a two-year s ta tu te of limitations."); Jim Walter Homes v. Nicholas, 843 So. 2d 133, 136 (Ala. 2002) (s a m e ). "The statute of limitations begins to run from the time the plaintiff's cause of action a c c ru e s , and there is no `discovery rule' for negligence claims that would toll the running of th e statute of limitations from the time the cause of action was `discovered' by the plaintiff." S in g e r Asset Fin. Co., LLC v. Conn. Gen. Life Ins. Co., 975 So. 2d 375, 382 (Ala. Civ. App.

Butler v. Town of Argo, 871 So. 2d 1, 16-17 (Ala. 2003), her libel and slander claims against Certain are redundant. Walton-Horton does not dispute that her defamation, libel, and slander claims are time-barred. (Pl.'s Resp. 8.)
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2007) (citing Henson v. Celtic Life Ins. Co., 621 So. 2d 1268, 1274 (Ala. 1993) and Desouza v . Lauderdale, 928 So. 2d 1035 (Ala. Civ. App. 2005)). Based upon these authorities, Walton-Horton must show that the alleged wrongdoing o c c u rre d less than two years before she commenced this lawsuit, which was April 7, 2008. It appears that Walton-Horton's negligent and/or wanton supervision claims stem from H M M A 's failure to take action against Certain despite Walton-Horton's repeated complaints o f harassment and unfair treatment. (Pl.'s Resp. 18.) HMMA terminated Walton-Horton's e m p lo ym e n t on March 22, 2006; hence, her internal complaints and HMMA's alleged failure to act on these complaints must have occurred prior to Walton-Horton's date of termination.. Viewing the evidence in the light most favorable to Walton-Horton, her negligent and w a n to n supervision claims accrued before her termination on March 22, 2006, more than two ye a rs before she filed her complaint on April 7, 2008. (Doc. # 1.) Walton-Horton does not d is p u te this fact. (See Pl.'s Surrebuttal Br. 13 ("As the record in this case shows[,] the a c t i o n s complained of by Ms. Walton-Horton occurred prior to 2006.").) Walton-Horton f a ils to present any evidence showing that her negligent and/or wanton supervision claims a re not time-barred. Accordingly, Defendants' motion for summary judgment on WaltonH o rto n 's negligent and/or wanton supervision claims against HMMA is due to be granted. V. CONCLUSION A c c o rd in g ly, it is ORDERED that Defendant's motion for summary judgment is G RA N TED .

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It is further ORDERED that the pretrial conference, trial setting, and attendant d e a d lin e s are CANCELLED. An appropriate judgment will be entered. D O N E this 10th day of November, 2009. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE

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