RAMIREZ_Appendix_Writ_Certiorari_2_6_2017

Case 8:10-cv-02003-MSS-TGW Document 189 Filed 04/02/15 Page 11 of 12 PageID 2962
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“Although an unpublished opinion is not binding on this court, it is persuasive authority.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).
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