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 3 of 12 PageID 2954 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 A. 7 3
Case 8:10-cv-02003-MSS-TGW Document 189 Filed 04/02/15 Page 4 of 12 PageID 2955 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. A. 8 4
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RAMIREZ_Appendix_Writ_Certiorari_2_6_2017

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