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 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 Given the unequivocal evidence 4 “Although an unpublished opinion is not binding on this court, it is persuasive authority.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). A. 15 11
Case 8:10-cv-02003-MSS-TGW Document 189 Filed 04/02/15 Page 12 of 12 PageID 2963 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 A. 16 12
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RAMIREZ_Appendix_Writ_Certiorari_2_6_2017

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