By Jeff Birren, Senior Writer
Adrian Ghioroaie-Panait may be added to the list of those who have learned that litigation does not always go as planned. Ghioroaie-Panait, who goes by Ghioroaie, has coached track and field for over a dozen years at various colleges. He is currently coaching at the University of Toledo. Previously he was at Auburn. In May 2016 Auburn informed Ghioroaie that his contract would not be renewed. Ghioroaie sued Auburn, head coach Ralph Spry (“Spry”) and assistant coach Henry Rolle (“Rolle”), both African-Americans. In January 2020, the United States District Court granted motions for summary judgment on behalf of Auburn and Spry (Ghioroaie-Panait v Rolle et al, Memorandum and Order, U.S. Dist. Court for the Middle District of Alabama, Eastern Division, Case No. 3:17-cv-00698-ALB-WC, 3-3-U.S. Dist. LEXIS 4285, 1-10-20 (“Ghioroaie”),at 3).
Background
Ghioroaie is “a white man of Romanian descent and nationality” (Ghioroaie, Report and Recommendation of the Magistrate Judge, 2-13-18 (“Report”) at 1). Both of his parents were involved in track and field in Romania. Ghioroaie began his collegiate career at UTEP. He transferred to Kent State and won the conference triple jump championship three times. That led to coaching stops at Jacksonville State, Cumberlands, Kent State, and Southern Mississippi prior to Auburn.
Ghioroaie was hired by Auburn in December 2013 and within months he had his first “verbal disagreement with Rolle” (Ghioroaie at 3). In 2015 Ghioroaie was found to have violated an NCAA rule and served a two-week recruiting penalty (Id. at 4). He also had a “heated argument with an SEC official at the outdoor championships” and “followed the official into the hospitality area, continuing to yell at the official” (Id.). Less than a week later he “got into argument” with a professional athlete who had permission to use the Auburn facilities (Id.).
On Oct. 1, 2015 at a staff meeting, Ghioroaie and another assistant coach “were involved in a heated argument” (Id.). Ghioroaie began to criticize the rest of the staff” and then “began to strongly criticize” Rolle “for another ten minutes” (Id.). “Rolle reacted by grabbing Ghioroaie by the neck, which forced the other coaches to restrain Rolle. Rolle then grabbed a tiger statute, lifting it and waving it as if he was going to strike Ghioroaie and the other coaches had to restrain Rolle” (Id.). Rolle was placed on administrative leave, suspended for two weeks, lost an opportunity to receive a bonus, had to complete 25 hours of community service and an anger management course (Id.).
On Oct. 30, 2015 Rolle and Ghioroaie got into yet another “verbal confrontation after Rolle observed Ghioroaie” and some recruits “talking to a professional athlete who was training at the facility. That kind of communication could be an NCCA violation” (Id.). Four days later Ghioroaie had a disagreement with Spry over Spry’s “refusal to award one of Ghioroaie’s recruits additional scholarship money and his general allocation of scholarships” (Id. at 5). In December Ghioroaie had a conversation with the high school coach of one of the student- athletes. That coach sent a text to Spry that said in part: “I have decided that I would never send a jumper or field event person his way” and “I’m sorry I had to send this text but the man is crazy” (Id.).
He had yet another confrontation with Rolle on Feb. 23, 2016 (Id.). Six days later “a student-athlete coached by Ghioroaie transferred to a different coach after she became upset during practice” (Id.).
On May 1, 2016 Spry and an associate athletic director met with Ghioroaie and told him that his contract would not be renewed and that he could not meet with the team. During the meeting he complained that he was discriminated against. His contract was to expire on July 31, 2016 and he was told that he could use that time to find another job (Id.). Auburn also “released assistant coach Knut Hjetnes” but Hjetnes, unlike Ghioroaie, was allowed “to complete the remainder of the season with his event group” (Report at 4). Ghioroaie was replaced by an African American (Id.).
Let the Litigation Games Begin
Initial Litigation Wrangling: Ghioroaie filed a charge of discrimination with the U. S Equal Employment Opportunity Commission on 10-26-16. That agency “could not conclusively determine whether Ghioroaie’s claims had merit and it issued a ‘Dismissal and Notice of Rights,’ commonly known as a right-to-sue letter, on July 18, 2017” (Report at 5). Ghioroaie sued Auburn’s Board of Regents, asserting claims under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq and state law assault and battery claims against Rolle on Oct. 17, 2017 (Id.). Ghioroaie filed an amended complaint in December that substituted Auburn in place of the Trustees and added Spry as a defendant.
Auburn filed a motion to dismiss. On Feb. 13, 2018 the magistrate judge recommended “that Auburn’s motion to dismiss his claim granted based on color discrimination be granted” but “be denied with respect to all other claims” (Id. at 6/7). No objections were filed, and Chief Judge W. Keith Watkins affirmed the Magistrate’s Report (Ghioroaie, Order, 4-9-18, at 2). Rolle left Auburn after 20 years on Sept. 1, 2018 and joined athletic gear company Puma. Spry is still the Auburn head coach.
The Case Continues: Spry filed a motion for judgment on the pleadings on Sept. 24, 2018 (Ghioroaie, FN. 4 at 6). He later moved to amend his answer on March 6, 2019, Id. FN. 5). No immediate ruling on either motion was forthcoming, though both motions were later denied as moot in the Court’s summary judgment ruling (Id. at 10). Spry and Auburn, but not Rolle, filed motions for summary judgment on March 29, 2019. Ghioroaie filed his opposition on May 7, 2019 and the reply briefs came one week later. On May 31, , one of Ghioroaie’s counsel was given judicial permission to withdraw from the case.
Summary Judgment
Spry’s Motion: Ghioroaie asserted federal law claims against Spry for negligent supervision and training (Id. at 6). Spry’s motion asserted four theories but the Court only dealt with the argument that Alabama does not “recognize a claim for negligent supervision and training against an employee” (Id.). This was easy as “it is a question that has been frequently and unanimously answered by federal courts in Alabama with a resounding ‘no’” (Id.) (citations omitted). Ghioroaie argued that the prior decisions were not binding on the court and that it was basically a negligent claim. That went nowhere.
Negligent supervision claims are “predicated on a master-servant relationship between the employer and the employee” (Id.) (citations omitted). Here, “it is undisputed that both Spry and Rolle were employed by Auburn. In other words, Spry was not in a master-servant relationship with Rolle. Both Spry and Rolle were in a master-servant relationship with Auburn. Because Spry was not Rolle’s employer, Spry cannot be held liable for the alleged negligent supervision and training of Rolle” so Spry’s motion “is due to be granted for that reason” (Id.).
Auburn’s Motion
Discrimination Claims: Ghioroaie had two Title VII discrimination claims: one for racial discrimination and one for national origin discrimination. Auburn conceded that Ghioroaie had established a prima facie case, but that it had “articulated multiple legitimate, non-discriminatory reasons for its decision to not renew” his contract and that he “cannot show that its reasons are pretext for unlawful discrimination” (Id. at 7).
The Court began its analysis by stating that in order to show pretext a plaintiff “must introduce substantial evidence both that the employer’s articulated reason for the employment decision is false and that real reason is unlawful discrimination. Plaintiff has done neither” (Id.) (citation omitted). Ghioroaie argued that Auburn failed to provide him with specific reasons for the non-renewal at the May 1, 2016 meeting but “to create an inference of pretext based on an employer’s inconsistent reasons” the new reasons “must plainly contradict the reasons relied on at the time of the decision” (Id.). “Here, Auburn’s reasons… have not changed. In fact, Auburn’s reasoning has been wholly consistent from the time the decision was made until now: Plaintiff was not a good fit for the track team” (Id. at 8). Furthermore, the reasons offered “by Auburn explain its reasoning—they do not contradict it” (Id.) (emphasis in the original).
Ghioroaie next claimed that the reasons were pretextual because he did not engage in some of the supposed misconduct, that it was a misunderstanding and that it did not justify his non-renewal. Yet he could “not deny that he committed NCAA violations or that he was involved in a verbal altercation with an SEC official. He merely disagrees with Auburn regarding the seriousness of those incidents” (Id.). The Eleventh Circuit has “long held that a plaintiff ‘must do more than criticize the business judgment of his employer’ and ‘quarrel with the wisdom of the decision.’ Thus, Plaintiff’s subjective opinion about the seriousness of his actions does not create an inference or pretext” (Id.).
Ghioroaie insisted that he had rebutted one of the incidents but “his argument is unavailing. This incident was only one of many that led Auburn to conclude that Plaintiff was not a good fit for the track team. And when the employer proffers more than one legitimate, non-discriminatory reasons, the plaintiff must rebut each one to survive summary judgment” (Id.). Moreover, on Oct. 8, 2015 Spry tried to question Ghioroaie about his concerns with Rolle (Id.). Ghioroaie’s “testimony” did not rebut Spry’s declaration but merely stated that he did not hear Spry’s questions (Id.).
Ghioroaie also made “vague allegations that Spry treated two other white coaches unfairly” and made “comments based on his national origin” (Id.). As to the first allegation, the Court found that there was “no evidence in the record that any such treatment was based on the coaches’ race or national origin” (Id.).
As to the second allegation, Ghioroaie claimed that Spry and Rolle made certain comments that he could not understand certain things “because of where you are from” or “it’s not like where you are from” (Id.). Ghioroaie further claimed that they had “cracked a joke here and there” about his Romanian origin, though he could not “identify the specific comments” (Id.). He also stated that he had been called “Gypsy” though he admitted in deposition that he was not offended by it (Id.). That was not enough. The Court stated that “other courts have taken note of ‘the informal, sometimes jocular, college team atmosphere that fosters familiarity and close relationships between coaches and players, and a prior case held that use of the term ‘gypsy’ does not inherently evidence discriminatory intent” (Id. at 8/9, FN 6).
Furthermore, “Spry consistently renewed Plaintiff’s contract until Plaintiff engaged in a series of intense disputes with a fellow coach and a club coach reported to Spry that Plaintiff was ‘crazy’” (Id. at 9). “At most, Plaintiff has presented evidence that Rolle mistreated him and that Spry showed favoritism to Rolle” (Id.) However, to be actionable the mistreatment on one hand and favoritism on the other “must be based on a protected characteristic—in this case, race or national origin” (Id.) (citations omitted). That “is where Plaintiff’s evidence is lacking. There is no substantial evidence suggesting that Spry or Rolle had antipathy toward white people or Romanians” (Id.). Rather, “Plaintiff concedes that Spry and Rolle had a preexisting relationship that likely explained why Spry took Rolle’s side.” The Court cited a case that held “favoritism based on previous work relationship, not race, is insufficient to support a § 1983 claim” (citation omitted). Thus, Ghioroaie’s “discrimination claims based on race or national origin fail” (Id.).
Title VII Retaliation Claim
A retaliation claim requires the plaintiff to show that he or she engaged in statutorily protected activity, that he or she suffered an adverse employment action and that there is some causal connection between those two events. Auburn asserted that Ghioroaie did not complain of race or national origin discrimination prior to May 1, 2016 when he was told that his contract would not be renewed (Id. at 9). Ghioroaie responded that he had verbally made such complaints in February when he discussed his most recent confrontation with Rolle (Id.). However, the Court found that he “failed to identify when he made those alleged verbal statements or what he allegedly said to anyone” (Id. at 10). Those statements were merely “vague and conclusory” assertions in his declaration as opposed to the Auburn witnesses’ “sworn statements that Plaintiff never made any such complaint. Plaintiff’s declaration does not create a genuine issue of material fact” (Id.).
Auburn also asserted that the prima facie case also failed because Ghioroaie “cannot show a causal connection between any alleged complaints of discrimination and the non-renewal of his contract” (Id.) Ghioroaie argued that he “presented direct evidence of retaliation based on statements Spry made at the May 1 nonrenewal meeting” (Id.). The Court disagreed. “Plaintiff is wrong.” His comments were made after he was told that he was not being retained. “Nothing about this conversation indicates that Plaintiff was terminated because he made a discrimination claim” (Id.).
Moreover, even if Ghioroaie “had established a prima facie case for retaliation, Plaintiff’s claims still suffers from the same flaw as his discrimination claims: there is not substantial evidence rebutting Auburn’s explanation” for the non-renewal that would allow a jury to conclude that “Auburn’s reasons were pretext for retaliation” (Id.). The Court granted Auburn summary judgment on all claims asserted against it.
Conclusion
The Court entered judgment in favor of Auburn on Jan. 28, 2020. It noted that Ghioroaie’s state law claims against Spry and Rolle remain pending but at the pretrial conference the parties “SHALL address” whether “the Court has jurisdiction over Plaintiff’s assault and battery charges under 18 U.S.C. § 1367” (Id. at 10/11). Those claims are scheduled to begin trial on March 2, 2020. In January the parties filed their exhibit and witness lists and deposition designations. Since Rolle pled guilty to criminal charges related to the earlier incident, he would not seem to have much of a defense in a civil case, but the damages may not to be very large because Ghioroaie was not hospitalized nor did he miss a paycheck as a result of the incident. A settlement conference seems appropriate for all concerned.
Birren is the former general counsel of the Oakland Raiders and is an adjunct professor of law at Southwestern University School of Law. He is a Senior Writer for Hackney Publications.
