RAMIREZ_Appendix_Writ_Certiorari_2_6_2017

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Case 8:10-cv-02003-MSS-TGW Document 189 Filed 04/02/15 Page 7 of 12 PageID 2958 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 A. 11 7
Case 8:10-cv-02003-MSS-TGW Document 189 Filed 04/02/15 Page 8 of 12 PageID 2959 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 A. 12 8
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RAMIREZ_Appendix_Writ_Certiorari_2_6_2017

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