Doc_173_11thCircuit_VACATED_REMANDED_ORDER_10-22-13

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Case 8:10-cv-02003-MSS-TGW Document 173 Filed 10/22/13 Page 2 of 9 PageID 2884 Case: 12-14679 Date Filed: 10/22/2013 Page: 2 of 8 after reporting various violations of B&L’s standard operating procedures (“SOPs”) and applicable federal regulations issued by the U.S. Food and Drug Administration. Ramirez, a quality control inspector for B&L, alleged a number of different incidents that occurred from March to July 2008 as protected activity. Ramirez took leave under the Family Medical Leave Act (“FMLA”) in August and returned to work on November 3, 2008. On that date, he had a meeting with his direct supervisor and a representative from human resources, in which Ramirez complained both of various perceived SOP and regulatory violations and that he had been placed on a black list for whistleblowers. On November 4, 2008, Ramirez refused to start a manufacturing line because he had not been retrained on the applicable SOPs, as he believed the SOPs and regulations required. B&L fired him for insubordination based on this incident. Ramirez sued, and the district court granted B&L’s motion for summary judgment, concluding that Ramirez had not established a prima facie case of retaliation. On appeal, Ramirez argues that the district court erred by granting summary judgment to B&L because: (1) he had presented other evidence to establish a causal connection -- that he was on FMLA leave during the relevant three months -- and had not relied solely on the temporal proximity between his protected activity and his termination; (2) he had engaged in protected activity under the FWA; and (3) the district court erroneously relied on 2
Case 8:10-cv-02003-MSS-TGW Document 173 Filed 10/22/13 Page 3 of 9 PageID 2885 Case: 12-14679 Date Filed: 10/22/2013 Page: 3 of 8 an affidavit submitted by B&L’s Director of Quality Assurance. After thorough review, we vacate and remand for further consideration in light of this opinion. We review de novo a grant of summary judgment and view the evidence in the light most favorable to the nonmoving party. Crawford v. City of Fairburn, Ga., 482 F.3d 1305, 1308 (11th Cir. 2007). We can affirm on any ground supported by the record. Cuddeback v. Fla. Bd. of Educ., 381 F.3d 1230, 1235-36 (11th Cir. 2004). Summary judgment is proper where there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Crawford, 482 F.3d at 1308; Fed.R.Civ.P. 56(a). 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 burden-shifting 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 3
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