Doc 189_ORDER_RENEWED_MSJ_4-2-15

Case 8:10-cv-02003-MSS-TGW Document 189 Filed 04/02/15 Page 1 of 12 PageID 2952 

CARLOS RAMIREZ, 

Plaintiff, 

UNITED STATES DISTRICT COURT 

MIDDLE DISTRICT OF FLORIDA 

TAMPA DIVISION 

v. Case No: 8:10-cv-2003-T-35TGW 

BAUSCH & LOMB, INC., 

Defendant. 

/ 

ORDER 

THIS CAUSE comes before the Court for consideration of the mandate of the 

United States Court of Appeals for the Eleventh Circuit (Dkt. 177); Defendant’s 

Supplemental Memorandum Regarding Causation, (Dkt. 183); and Plaintiff’s Response 

in opposition thereto. (Dkt. 188) In accordance with the Circuit Court’s mandate and 

upon consideration of all relevant filings, case law, and being otherwise fully advised, the 

Court hereby GRANTS Defendant’s renewed request for summary judgment. (Dkt. 183) 

I. BACKGROUND 

This case involves a claim that Defendant, Bausch & Lomb, Inc. (“B&L”), 

terminated Plaintiff, Carlos Ramirez (“Ramirez”), in violation of the Florida Whistleblower 

Act (“FWA”), Fla. Stat. § 448.102. (Dkt. 7-1) B&L moved for an entry of summary 

judgment in its favor on November 11, 2011. (Dkt. 78) This Court granted B&L’s Motion 

for Summary Judgment on August 10, 2012, finding that Ramirez had failed to establish 

a prima facie case of retaliation under the FWA. (Dkt. 155) Ramirez appealed this 

Court’s decision to the United States Court of Appeals for the Eleventh Circuit. (Dkt. 

159) On appeal, the Circuit Court vacated this Court’s Order and remanded the case,


directing the Court to “perform a new causation analysis.” (Dkt. 173 at P. 6; Dkt. 177) 

The Parties have filed supplemental memoranda addressing the issue of causation (Dkt. 

183; 188), and B&L accordingly renews its request for an entry of summary judgment in 

its favor. (Dkt. 183) 

II. 

STANDARD OF REVIEW 

Summary judgment is appropriate when the movant can show that there is no 

genuine issue of material fact and that the movant is entitled to judgment as a matter of 

law. Fennell v. Gilstrap, 559 F.3d 1212, 1216 (11th Cir. 2009) (citing Welding Servs., 

Inc. v. Forman, 509 F.3d 1351, 1356 (11th Cir. 2007)). Which facts are material depends 

on the substantive law applicable to the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 

242, 248 (1986). The moving party bears the burden of showing that no genuine issue 

of material fact exists. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). 

Evidence is reviewed in the light most favorable to the non-moving party. Fennell, 559 

F.3d at 1216 (citing Welding Servs., Inc., 509 F.3d at 1356). A moving party discharges 

its burden on a motion for summary judgment by showing or pointing out to the Court that 

there is an absence of evidence to support the non-moving party's case. Denney v. City 

of Albany, 247 F.3d 1172, 1181 (11th Cir. 2001). When a moving party has discharged 

its burden, the non-moving party must then go beyond the pleadings, and by its own 

affidavits, or by depositions, answers to interrogatories, and admissions on file, designate 

specific facts showing there is a genuine issue for trial. Porter v. Ray, 461 F.3d 1315, 

1321 (11th Cir. 2006). The party opposing a motion for summary judgment must rely on 

more than conclusory statements or allegations unsupported by facts. Evers v. Gen. 

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Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985) (“conclusory allegations without specific 

supporting facts have no probative value@). 

III. 

DISCUSSION 

The Circuit Court set forth the legal standard applicable to Ramirez’s FWA claim 

in its Opinion: 

We apply the state’s substantive law in cases involving diversity 

jurisdiction. Sierminski v. Transouth Fin. Corp., 216 F.3d 945, 950 (11th 

Cir. 2000). Nevertheless, where there is no controlling state law, FWA 

claims are analyzed under the Title VII retaliation framework. See id. For 

retaliation claims based on circumstantial evidence, we apply the burdenshifting 

analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 

792 (1973). Brown v. Ala. Dep’t of Transp., 597 F.3d 1160, 1181 (11th Cir. 

2010). Under Title VII, a plaintiff can make out a prima facie case of 

retaliation by showing that (1) he engaged in statutorily protected 

expression; (2) he suffered an adverse employment action; and (3) the 

adverse action was causally related to the protected expression. Crawford 

v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008). Once a plaintiff establishes 

a prima facie case of retaliation, the employer has an opportunity to 

articulate a legitimate, non-retaliatory reason for the challenged 

employment action. Id. At that point, the plaintiff then has the ultimate 

burden of establishing by a preponderance of the evidence that the 

employer’s proffered explanation is pretext. Perryman, 698 F.2d at 1142. 

To prove pretext, the plaintiff must show that the employer’s proffered 

reasons were “a coverup for a . . . discriminatory decision.” Rojas v. 

Florida, 285 F.3d 1339, 1342 (11th Cir. 2002) (quotation omitted). 

Ramirez v. Bausch & Lomb, Inc., 546 F. App’x 829, 831-32 (11th Cir. 2013). 

The Circuit Court vacated this Court’s Order granting B&L’s Motion for Summary 

Judgment and remanded this case stating that the Court had failed to consider all of the 

evidence offered by Ramirez to establish a causal connection between his allegedly 

protected activity and his termination. First, the Circuit Court directed this Court to 

consider evidence of the November 3, 2008 meeting that Ramirez attended at which he 

complained about perceived violations of Standard Operating Procedures (“SOP’s”) and 

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Good Manufacturing Practice Regulations (“GMP’s”) 1 and whether his remarks 

constituted protected activity that was sufficiently close in time to demonstrate causation. 

Id. at 832. If not, the Circuit Court stated that this Court should consider Ramirez’s 

multiple instances of alleged protected activity that occurred prior to the time that he went 

on FMLA leave as evidence of causality. Id. at 833. The Circuit Court stated that, if 

necessary, this Court may consider the additional incidents of alleged protected activity 

(and not just those events which occurred during the three-month window prior to 

Ramirez’s termination, largely comprised of his FMLA leave) because Ramirez did not 

rely solely on temporal proximity to establish a causal connection. Id. 

a. Whether Ramirez’s Remarks at the November 3, 2008 Meeting 

Constituted Protected Activity Sufficiently Close in Time to Establish 

a Causal Connection 

Upon his return to work on November 3, 2008, Ramirez attended a meeting with 

Human Resources Representative Javier Callejas (“Callejas”) and Quality Team Leader 

Anita Mujagic (“Mujagic”). (Dkt. 86-9) Notes from that meeting indicate that when 

asked if Ramirez had anything he would like to share before returning to work, he 

indicated that some of his issues were: “Violation of SOP’s and GMP’s” and “Issues with 

nonconformance documents.” (Id.) Ramirez’s work journal 2 indicates that he informed 

1 

GMP’s are regulatory requirements for all manufacturers of drugs and medical devices, codified at 

21 C.F.R., Parts 210, 211, 600 and 820. The FDA requires that registrants manufacture their 

products in accordance with their SOPs, which must be approved by the FDA. (Dkt. 88-1 at P. 6) 

2 

Despite B&L’s objection to the consideration of Ramirez’s work journal on summary judgment as 

inadmissible hearsay, the Court finds that the work journal may be properly considered to the extent 

that it is reducible to admissible evidence at trial. See Macuba v. Bedoer, 193 F.3d 1316, 1322-24 

(11th Cir. 1999). Ramirez’s sworn deposition testimony confirms that the journal was made by him 

and contains his personal observations of the events in question. (Dkt. 77-3 at P. 6; Dkt. 88-3 at P. 

6; Dkt. 88-4 at P. 2) Ramirez could be called to testify at trial regarding his statements made during 

this meeting, not for the truth of the matter asserted but for the fact that the Defendant was made 

aware of Ramirez’s perceptions. See Jones v. UPS Ground Freight, 683 F.3d 1283, 1294 (11th Cir. 

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Callejas and Mujagic that his issues included: “Downgrading my defects findings, not 

following SOP’s, GMP’s . . . .” (Dkt. 86-3 at P. 16) 

The FWA states that “[a]n employer may not take any retaliatory personnel action 

against an employee because the employee has: . . . [o]bjected to, or refused to 

participate in, any activity, policy, or practice of the employer which is in violation of a law, 

rule, or regulation.” Fla. Stat. § 448.102(3). The comments made by Ramirez during 

the November 3, 2008 meeting indicate that he was objecting to what he perceived to be 

a violation of law committed by B&L. However, in order to prevail on his claim, Ramirez 

“must prove that the activity, policy or practice objected to is, in fact, in violation of a law, 

rule or regulation.” White v. Purdue Pharma, Inc., 369 F. Supp. 2d 1335, 1337 (M.D. Fla. 

2005); see also In re Standard Jury Instructions in Civil Cases--Report No. 2011-01 

(Unlawful Retaliation), 95 So. 3d 106, 107-10 (Fla. 2012). It is not enough that Ramirez 

reasonably believed that the actions he objected to were in violation of a law, rule, or 

regulation. Id. A “[l]aw, rule, or regulation” is defined to include “any statute or 

ordinance or any rule or regulation adopted pursuant to any federal, state, or local statute 

or ordinance applicable to the employer and pertaining to the business.” Fla. Stat. § 

448.101(4). 

Generally, violations of a company’s own internal rules and policies are not 

considered violations of law under the FWA. See Lawson v. Dollar General Corp., No. 

8:04-cv-2366-T-17TBM, 2006 WL 1980277, at *3 (M.D. Fla. July 12, 2006). However, 

violations of a federal rule or regulation are considered violations of law under the FWA 

because federal regulations are adopted pursuant to federal statutes, and thus, fall within 

2012). 

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the definition of a “[l]aw, rule, or regulation” under the FWA. See Diaz v. Impex of Doral, 

Inc., 7 So. 3d 591, 594-95 (Fla. 3d DCA 2009). In the context of this case, federal 

regulations, referred to as GMP’s, require manufacturers such as B&L to establish written 

procedures, referred to as SOP’s, for production and process control and to maintain 

detailed batch production and control records. See 21 C.F.R. §§ 211.100, 211.122, 

211.188. Any deviation from the written procedures must be recorded and justified. Id. 

Additionally, manufacturers such as B&L are required to have a quality control unit that is 

responsible for ensuring that the written procedures are followed. 21 C.F.R. § 211.22. 

Ramirez worked as a Quality Control Coordinator (“QCC”) in B&L’s quality control 

unit. (Dkt. 77 at 1; Dkt. 77-1 at P. 13) Many of Ramirez’s alleged “protected actions” 

are instances of Ramirez detecting and reporting potential nonconformities and defects 

in the manufacturing process which were then recorded and corrected in accordance with 

B&L’s SOP’s. These allegations represent Ramirez performing his job as part of the 

quality control unit. (Dkt. 77-1 at P. 13-14) A violation of law does not occur simply 

because a potential issue is identified by a QCC and corrective action is taken. (Id.) On 

the contrary, such actions are actually consistent with, rather than in violation of, the 

federal manufacturing regulations applicable to B&L. See 21 C.F.R. §§ 211.100, 

211.122, 211.188, 211.22. 

However, Ramirez also made allegations regarding incidents during which he or 

other employees were instructed to record incorrect information regarding 

nonconformance issues and anomalies in the batch records. (See Dkt. 88 at 6) For 

example, on March 19, 2008, Ramirez contends that he was ordered by his supervisor, 

Valerie Gordon (“Gordon”), to record only two defective units in the batch records when 

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there were actually more than two defective units. (Dkt. 77-1 at P. 51; Dkt. 77-3 at P. 20- 

21) Also, on May 13, 2008, Ramirez contends that he observed Gordon instruct his 

colleague, Deccia Edwards, to ignore seven rejected units and to record zero 

nonconforming units in the batch record. (Dkt. 88 at 7; Dkt. 88-3 at P. 12-13) Each 

manufactured lot is assigned an Acceptable Quality Level (“AQL”), which denotes the 

number of variances that the lot may have before a more complicated and timeconsuming 

inspection must be conducted. (Dkt. 77 at 8-9) Ramirez contends Gordon 

instructed him to record a number of nonconforming units that was below the AQL despite 

the presence of a number of nonconforming units that exceeded the AQL in order to avoid 

the more work-intensive inspection from being invoked. (Dkt. 77-1 at P. 61) 

These incidents, if true, would constitute a violation of the federal regulations, 

which require full and detailed batch records, including a record of any deviations and 

defects found during the manufacturing process. 21 C.F.R. §§ 211.100, 211.122, 

211.188. Although B&L contends that Gordon’s instructions to Ramirez were the result 

of her own independent conclusion as to the number of nonconforming units in each 

batch, this only demonstrates that a disputed issue of material fact exists as to whether a 

violation of law actually occurred. (Dkt. 77-8 at 5) Notwithstanding B&L’s contention, 

Ramirez has presented evidence, which if believed by a jury, would establish that an 

actual rather than a perceived violation of the law occurred in these instances. 

Furthermore, from this evidence and the evidence of Ramirez’s comments to 

Callejas and Mujagic about supervisors downgrading his defects findings and issues with 

nonconformance documents, a jury could reasonably conclude that Ramirez was 

objecting to an actual violation of law, specifically, Gordon’s ordering him to record an 

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incorrect number of nonconforming units in the batch records, during the November 3, 

2008 meeting. Ramirez’s objection at this meeting was not simply a renewed “stale” 

objection because there is no evidence that Ramirez objected at the time that he was 

allegedly instructed by Gordon to record the incorrect information. Rather, Ramirez 

testified that at the time of the incident he followed his supervisor’s orders and did not 

make any kind of report regarding the incident. (Dkt. 77-1 at P. 51, 58-59) 

A very close temporal proximity between the employer’s knowledge of a protected 

activity and an adverse employment action is sufficient to meet the causal connection 

prong to establish a prima facie case of retaliation. Ramirez, 546 F. App’x at 832 (citing 

Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007)). Here, Ramirez’s 

protected activity was the voicing of his issues with his employer’s alleged unlawful action, 

which occurred in the meeting on November 3, 2008. Ramirez was terminated just eight 

days later, on November 11, 2008. (Dkt. 77-20) Thus, Ramirez has presented 

evidence demonstrating a close temporal proximity between his employer’s knowledge of 

his protected activity and his termination, which is sufficient to satisfy the causal 

connection prong. See Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004) (stating 

that “as much as one month between the protected expression and the adverse action is 

not too protracted” to establish a causal connection). Accordingly, Ramirez has 

presented enough evidence to establish a prima facie case of retaliation under the FWA 

according to the McDonnell-Douglas burden-shifting analysis. 

b. Pretext and “But For” Causation 

Because Ramirez has established a prima facie case of retaliation, the burden now 

shifts to B&L to articulate a legitimate, non-retaliatory reason for the challenged 

employment action. Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008). B&L 

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contends that Ramirez was terminated for an incident of insubordination that occurred on 

November 4, 2008. (Dkt. 77-21) During the meeting on November 3, 2008, Mujagic 

gave Ramirez a list of SOP’s to read. (Dkt. 77-1 at P. 66; Dkt. 86-9) Pursuant to SOP 

80-010, Ramirez was required to review only current revisions of certain SOP’s upon his 

return to work. (Dkt. 77-1 at P. 28) Ramirez reviewed seven SOP’s on November 3, 

2008 and seven SOP’s on November 4, 2008. (Dkt. 86-12) On November 4, 2008, 

Ramirez was asked to start up line 8. (Dkt. 77-1 at P. 26) Ramirez refused to start up 

the line and would not give any explanation for his refusal. (Dkt. 77-1 at P. 26-27; Dkt. 

77-18; Dkt. 86-15; Dkt. 86-15; Dkt. 88-2 at P. 8) Mujagic and Callejas were notified 

regarding the incident. (Dkt. 77-18, 77-19) Ramirez did not explain his reasoning for 

refusing to start up the line until he met with Callejas the next day. At that meeting, 

Ramirez told Callejas that he refused to start up the line because he had not completed 

reading all of the SOP’s on the list that Mujagic had given to him at the meeting on 

November 3, 2008. (Dkt. 88-2 at P. 4-5; Dkt. 86-7) Callejas subsequently investigated 

the incident and determined that prior to being asked to start up line 8, Ramirez had read 

all of the SOP’s required for him to be able to start up the line. (Dkt. 88-2 at P. 5) 

B&L’s disciplinary records indicate that Ramirez was terminated for 

insubordination. (Dkt. 77-21) Callejas testified that he made the ultimate decision to 

terminate Ramirez and that this decision was solely based on Ramirez’s insubordinate 

action of refusing to carry out an order of a supervisor. (Dkt 77-20 at P. 4, 7-8) Mujagic 

also testified that Ramirez was terminated for his act of insubordination on November 4, 

2008. (Dkt. 88-6 at P. 2) According to B&L’s Corrective Action Policy, “insubordination 

is cause for immediate discharge without using the progressive discipline approach.” 

9


(Dkt. 77-21) Thus, B&L has articulated a legitimate, non-retaliatory reason for Ramirez’s 

termination. 

Ramirez argues that his termination due to insubordination was neither legitimate 

nor non-retaliatory because his refusal to start up the line on November 4, 2008 was 

actually protected activity under the FWA because he was refusing to participate in a 

violation of SOP 80-010. (Dkt. 77-1 at P. 12) However, as determined by this Court in 

the original Order on B&L’s Motion for Summary Judgment, requiring Ramirez to start up 

line 8 was not an actual violation of any SOP or GMP. 3 (Dkt 155 at P. 10-12) It is 

undisputed that Ramirez had read all of the applicable SOP’s in accordance with SOP 

80-010 required for him to start up line 8. (Dkt. 77-1 at P. 66-67; Dkt. 77-4) The fact 

that Ramirez mistakenly believed that starting up the line would be a violation of the law 

does not make his refusal protected activity, nor does it make B&L’s termination of him 

for insubordination based on this incident retaliatory. See White, 369 F. Supp. 2d at 

1337. Furthermore, it is also undisputed that Ramirez refused to start up the line and 

that he refused to give his supervisor a reason for his refusal. (Dkt. 77-1 at P. 26-27; 

Dkt. 77-18; Dkt. 86-15; Dkt. 86-15; Dkt. 88-2 at P. 8) Either the refusal to start up the 

line after having read the requisite number of SOP’s or the refusal to explain the refusal 

to start up the line is a legitimate, non-retaliatory reason for termination. 

Because B&L has advanced a legitimate, non-retaliatory reason for Ramirez’s 

termination, the burden shifts back to Ramirez to establish by a preponderance of the 

3 

Ramirez contends that the Circuit Court overturned this determination, but the Court disagrees. The 

Circuit Court did not determine that Ramirez’s refusal to start up the line was protected activity, nor 

did it direct the Court to reconsider its determination. If the Circuit Court had determined that 

Ramirez’s refusal to start up the line was in fact protected activity under the FWA, that finding alone 

would have been enough to meet the causal connection prong and there would be no need for this 

Court to perform a new causation analysis. 

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evidence that B&L’s reason is merely pretext. Crawford, 529 F.3d at 970. To establish 

pretext, Ramirez must rebut B&L’s proffered reason for terminating him by demonstrating 

that “the proffered reason was not the true reason for the employment decision.” 

Jackson v. Ala. State Tenure Comm'n, 405 F.3d 1276, 1289 (11th Cir. 2005). 

Additionally, under the Supreme Court’s holding in University of Texas Southwestern 

Medical Center v. Nassar, 133 S.Ct. 2517 (2013), Ramirez has the ultimate burden of 

proving that “but for” his protected activity he would not have been terminated. See 

Ramirez, 546 F. App’x at 833, n. 2 (indicating that Ramirez’s FWA retaliation claim is 

subject to the “but for” standard articulated in Nassar, but also noting that the Supreme 

Court did not “clarify the role of ‘but for’ causation in a plaintiff's prima facie case.”); see 

also Mealing v. Georgia Dep't of Juvenile Justice, 564 F. App'x 421, 427 (11th Cir. 2014) 4 

cert. denied, No. 14-7401, 2015 WL 232052 (U.S. Jan. 20, 2015) (analyzing “but for” 

causation at the same stage as pretext). 

The only argument Ramirez has made to rebut B&L’s proffered reason is his 

argument that insubordination was not a truly legitimate reason for his termination 

because his refusal to start the line on November 4, 2008 was actually protected activity. 

(Dkt. 95 at P. 21-22) For the reasons stated above, that argument fails and therefore 

Ramirez has failed to prove by a preponderance of the evidence that B&L’s termination 

of him for insubordination was pretext. Furthermore, even considering all of the evidence 

offered by Ramirez to establish his prima facie case, Ramirez’s claim still fails under the 

heightened causation standard established in Nassar. Given the unequivocal evidence 

4 

“Although an unpublished opinion is not binding on this court, it is persuasive authority. See 11th 

Cir. R. 36-2.” United States v. Futrell, 209 F.3d 1286, 1289 (11th Cir. 2000). 

11


on the record establishing that B&L terminated Ramirez in accordance with its Corrective 

Action Policy for his insubordinate action of refusing to start up line 8 on November 4, 

2008, an action that Ramirez has admitted occurred, the Court finds that Ramirez has 

failed to prove that his comments made at the November 3, 2008 meeting termination 

were the cause in fact of his termination. 

IV. 

CONCLUSION 

Based on the foregoing, Ramirez has failed to establish that B&L’s proffered 

reason for his termination was pretext or that his termination would not have occurred 

“but for” his alleged protected activity. Therefore, his claim for retaliation under the FWA 

fails as a matter of law, and B&L’s renewed request for summary judgment is accordingly 

GRANTED. The CLERK is DIRECTED to enter judgment in favor of B&L and CLOSE 

this case. 

DONE and ORDERED in Tampa, Florida, this 2nd day of April 2015. 

Copies furnished to: 

Counsel of Record 

Any Unrepresented Person 

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