diaz brief appeal
TRANSCRIPT
UNITED STATES COURT OF APPEALSELEVENTH CIRCUIT
CASE NO. 09-13704-D
CARLOS URQUILLA DIAZ,
Plaintiff/Appellant,
v.
KAPLAN UNIVERSITY a/k/a IOWA COLLEGE ACQUISITION CORP., KAPLAN HIGHER EDUCATION CORP.,and ANDREW S. ROSEN,
Defendants/Appellees.
__________________________________/
____________________________________________________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF FLORIDA
____________________________________________________________
INITIAL BRIEF OF APPELLANT
CORNELL & ASSOCIATES, P.A. Attorneys for Plaintiff/Appellant 1792 Bell Tower Lane, Suite 210 Weston, FL 33326
Telephone: (954) 524-2703Facsimile: (954) 524-2706
G. WARE CORNELL, JR. Fla. Bar No. 203920
Diaz v. Kaplan University et alCase No. 09-13704-D
CERTIFICATE OF INTERESTED PERSONS AND CORP0RATE DISCLOSURE STATEMENT
Appellant, by and through her undersigned counsel and pursuant to 11th Cir. R.
26.1-1, hereby certifies that the following persons and entities have or may have an
interest in the outcome of this case:
1. Cornell, G. Ware – Counsel for the Appellant
2. Diaz, Carlos Urquilla – Appellant
3. Eisenberg, Susan N. – Counsel for Appellee
4. Haywood, Samuel S. – Counsel for Appellee
5. Harpool, David-Provost of Kaplan University
6. Iowa College Acquisition – Division of Appellee University
7. Kaplan Higher Education Corporation – Division of Appellee University.
8. Kaplan University/Kaplan College – Appellee University
9. Rosen, Andy – Appellee
10. Seitz, Patricia – United States District Court Judge
11. The Washington Post Company – Parent company of Kaplan University
12. Wilcox, Ben – Former faculty member and dean of Kaplan University
13. Williams, Jennifer Taylor – Counsel for Appellee
C-1
STATEMENT REGARDING ORAL ARGUMENT
The Appellant respectfully requests oral argument and avers that oral argument
will be helpful to this Court. The arguments raised herein lend themselves to further
development through oral presentation.
i
CERTIFICATE OF TYPE SIZE AND STYLE
Appellant’s Initial Brief is typed in 14 point Times New Roman and not
proportionally spaced.
ii
TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS AND CORPORATEDISCLOSURE STATEMENT C-1
STATEMENT REGARDING ORAL ARGUMENT i
CERTIFICATE OF TYPE STYLE AND SIZE ii
TABLE OF CONTENTS iii-iv
TABLE OF AUTHORITIES v
STATEMENT OF THE ISSUES ON APPEAL vi
STATEMENT REGARDING JURISDICTION vii
STATEMENT OF THE CASE 1-5
Course of Proceedings and Disposition Below 1-2
Statement of the Facts 2-4
Standard of Review 5
SUMMARY OF THE ARGUMENT 6
ARGUMENT 7-17
THE DISTRICT COURT ERRED IN FAILING TO CONSIDER PLAINTIFF’S CASE ON THE BASIS OF DIRECT EVIDENCE OF DISCRIMINATION OR ALTERNATIVELY TO FIND SUFFICIENT CIRCUMSTANTIAL EVIDENCE TO ESTABLISH A PRIMA FACIE CASE? 7-16
THE DISTRICT COURT IMPROPERLY REJECTED
iii
SUBSTANTIAL EVIDENCE OF RETALIATORY INTENT AND ACTION 16-17
CONCLUSION 17
CERTIFICATE OF COMPLIANCE 18
CERTIFICATE OF SERVICE 19
iv
TABLE OF AUTHORITIES
Caban-Wheeler v. Elsea, .......................................... 904 F.2d 1549 (11th Cir. 1990 7
Cooper v. Southern Company, ................................. 390 F.3d 695 (11th Cir. 2004). 9
Dunning v. National Industries, Inc. ............., 720 F. Supp. 924 (M.D.Ala. 1989) 7,8
EEOC v. Alton Packaging Corp., ..................... 901 F.2d 920 (11th Cir. Fla. 1990) 15
Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261 (11th ................. Cir 2008). 13
In Re Johannessen, 76 F.3d 347 (11th Cir. 1996)...................................................... 5
Jones v. Gerwens, 874 F.2d 1534 (11th Cir. 1989)……………………………….7,8
Joseph v. Publix Super Mkts., Inc., ........ 151 Fed. Appx. 760 (11th Cir. 2005) 13, 16
Laxton v. Gap, Inc., .................................................... 333 F.3d 572 (5th Cir. 2003) 9
McDonnell Douglas v. Green, ............................................ 411 U.S. 792 (1973) 7,16
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)…………………………… 8,15
Stavropoulos v. Firestone, .......................................361 F.3d 610 (11th Cir. 2004) 16
Texas Department of Cummunity Affairs v. Burdine .........., 450 U.S. 248 (1981). 16
Thompkins v. Morris Brown College ......................, 752 F.2d 558 (11th Cir. 1985) 7
Wright v. Southland ..........................................., 187 F.3d 1287 (11th Cir. 1999) 7, 8
v
STATEMENT OF THE ISSUES ON APPEAL
A. DID THE DISTRICT COURT ERR IN FAILING TO CONSIDER EVIDENCE OF RACIAL EPITHETS DIRECTED TO PLAINTIFF BY DECISION MAKERS AND SENIOR OFFICIALS AS DIRECT EVIDENCE OF DISCRIMINATION OR ALTERNATIVELY WAS THERE SUFFICIENT CIRCUMSTANTIAL EVIDENCE TO ESTABLISH A PRIMA FACIE CASE?
B. DID THE DISTRICT COURT IMPROPERLY REJECT SUBSTANTIAL EVIDENCE OF RETALIATORY INTENT AND ACTIONS?
vi
STATEMENT REGARDING JURISDICTION
This is an appeal arising from a decision of a United States District Court that is
within the jurisdiction of the Eleventh Circuit Court of Appeals. Jurisdiction of this
Court is conferred by 28 U.S.C. §1291, granting jurisdiction to the Court of Appeals
over final decisions of the district courts. The Final Judgment in favor of Defendants is
a final decision within the contemplation of this section.
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STATEMENT OF THE CASE
Course of Proceedings and Disposition Below
On March 8, 2007, in the Circuit Court of the Seventeenth Judicial Circuit
(Broward County) Carlos DIAZ, a native of El Salvador, and retired United States
Army officer who served in combat in Iraq, filed suit against his former employer
Kaplan University, its president Andrew Rosen, a related company Kaplan Higher
Education, Inc, the provost David Harpool, his dean Ben Wilcox, Christopher
Caywood, a senior administrator at Kaplan and former administrator Sheree Pace.
He asserted federal and state violations of law regarding the terms and conditions
of his employment as well as his termination in August, 2006 from Kaplan
University. An amended complaint was thereafter filed which upon service on
Kaplan, it caused the action to be removed was to the United States District( Court
for the Southern District of Florida. (RA-Doc-1).
Following removal the Plaintiff filed a motion for remand asserting that one
of the Defendants Ben Wilcox had not joined in the motion. (R-Doc-11).
On July 31, 2008, the Court denied the Plaintiff’s Motion to Remand. (RA-
Doc 56) Thereafter the Plaintiff filed a Second Amended Complaint (R 66) which
dropped Harpool. Caywood and Pace. The remaining parties conducted discovery.
The Defendant’s moved for summary judgment that the District Court granted on
June 30, 2008. (R 105)
On July 20, 2008, Diaz filed his Notice of Appeal of the Court's Final
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Judgment. (R-Doc 107)).
Facts
Carlos DIAZ was hired by Kaplan University and Kaplan Higher Education
for the position of Director of the School Within the School, a position he held
from April, 2005 until August 22, 2005.( R-105) Unknown to Plaintiff at a
commencement he had been observed by Andrew Rosen, President of Kaplan
University. Rosen complained about Diaz’s appearance in line at graduation and
that he was “too short.” (RA Doc 95 ex 1 Wilcox deposition p 201). Shortly after
that graduation he told Wilcox to “fire the fucking Mexican” (RA Doc 95 ex
1Wilcox deposition p. 183) Harpool and Caywood made similar demands to
Wilcox who had become Diaz’s boss when he was transferred to Wilcox’
department as a paralegal studies professor.
As a professor Diaz received good evaluations from his students, and from
his Department chair Randy Shocet who noted that unlike other instructors in the
department, Diaz had received no training, and still gave him a positive review for
the fall of 2005. (RA Doc 95 ex 5 Shochet Declaration)
Shochet was not the only one who noticed Diaz’s scores. His scores upset
administrators who were determined to fire him (RA Doc 95 ex 1 Wilcox
deposition p 127) on account of his race. Harpool told Wilcox, "Ben, we need to
fire Carlos for legitimate reasons. So we need to get complaints from students. We
need to make his teaching scores look bad. We need to find out that he is not
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performing well. We can't fire him because he's Catholic or because he's Hispanic
or because we don't like him." (RA Doc 95 ex 1Wilcox deposition p. 127)
A meeting was called and attended by Wilcox, Harpool, Caywood, and a
lawyer from Kaplan Higher Education. At that meeting it was decided that the
solution was put Diaz in smaller classes with some students who had given Diaz
lower scores. (RA Doc 95 ex 1Wilcox deposition p. 404-413)
In the meantime, Kaplan administrators played “Beat the candy out of
Carlos with a piñata bearing a “striking resemblance” to Diaz. Someone sent
Wilcox a body bag, brick and instructions on how to stuff Diaz into the bag. (RA
Doc 95 ex 1Wilcox deposition p. 269-272)
In February, 2006 Diaz filed a complaint of discrimination with human
resources. This filing provoked two voicemails from Wilcox. One stated:
“Carlos, this is Ben Wilcox, You filthy, fucking stupid Mexican. You are not going to cause me trouble. You think this is over...it ain’t over. I am going to fire your ass! You think for one damn second I’m gonna let you cause trouble for this company. Corporate is never going to let you get away with this! Gonna fire your ass! You call me when you get into the office.”
Another voice mail referred to Diaz and a “wetback” and “beaner”.(RA Doc 95 ex 2 Declaration of Diaz)
Kaplan hired a voice expert to determine if the speaker was Wilcox. Diaz
was told by company officials that it was Wilcox, (RA Doc 95 ex 5 Second
Declaration of Carlos Diaz) but no action was taken against the offender. (RA Doc
3
95 ex 4 affidavit of Wilcox) Diaz instead was assigned to be a “curriculum
developer” a position requiring “excellent communication skills” which he felt
himself unsuited because English was not his native language. (RA Doc 95 ex 3
Second Declaration of Diaz)
Diaz was terminated August 6, 2006 on the basis of his “history of poor
performance”. (RA Doc 89 ex J Harpool declaration)
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Standard of Review
A district court’s grant of summary judgment is reviewed de novo. In Re
Johannessen, 76 F.3d 347, 349 (11th Cir. 1996).
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SUMMARY OF THE ARGUMENT
The District Court erred in analyzing the Defendants’ motion for summary
judgment under McDonnell Douglas Corp. v. Green. The Plaintiff submitted direct
evidence of racial bias against the plaintiff on account of his ethnicity. This
evidence included directions from Andy Rosen, the President of Kaplan University
to senior administrations to “fire the fucking Mexican”, and substantial evidence of
the efforts of those same administrators to come up with a pretext to disguise the
termination so that their true motivations would go undetected.
The Court also erred in rejecting direct evidence of retaliatory actions by the
Defendants. When Plaintiff filed his original charge of discrimination, he was
greeted by two vile rants left on his voice mail from his dean Ben Wilcox.
Although the Defendant Kaplan hired a voice expert to identify Wilcox as the
speaker on the tape, and notified Plaintiff that the voice was Wilcox’s it promoted
Wilcox and moved Plaintiff to a position which he stated at the time he was
unqualified to hold. Later it fired Plaintiff asserting that he was not performing his
duties based upon his history of failing to perform his duties. This “history” was
directly effected by the Defendants’ efforts to lower his evaluations because of his
race.
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ARGUMENT
THE DISTRICT COURT ERRED IN FAILING TO CONSIDER EVIDENCE OF RACIAL EPITHETS DIRECTED TO PLAINTIFF BY
DECISIONMAKERS AND SENIOR OFFICIALS AS DIRECT EVIDENCE OF DISCRIMINATION OR ALTERNATIVELY FAILING TO CONSIDER
SUFFICIENT CIRCUMSTANTIAL EVIDENCE TO ESTABLISH A PRIMA FACIE CASE AND THE EXISTENCE OF PRETEXT?
“Direct evidence relates to actions or statements of an employer reflecting a
discriminatory or retaliatory attitude correlating to the discrimination or retaliation
complained of by the employee.” Caban-Wheeler v. Elsea, 904 F.2d 1549, 1555
(11th Cir. 1990; Thompkins v. Morris Brown College, 752 F.2d 558, 563 (11th Cir.
1985); Dunning v. National Industries, Inc., 720 F. Supp. 924, 929 n. 6 (M.D. Ala.
1989)).
When direct evidence of discrimination is present, the McDonnell Douglas
test does not apply. The burden shifts to the Defendant where it must prove that it
would have made the same decision anyway absent the discriminatory motive. See
Wright v. Southland, 187 F.3d 1287 (11th Cir. 1999); Caban-Wheeler v. Elsea, 904
F.2d 1549, 1555 (11th Cir. 1990). When an employee presents direct evidence of
the employer’s discriminatory motive, the McDonnell-Douglas1 framework is
substantially altered. Jones v. Gerwens, 874 F.2d 1534, 1539, n. 8 (11th Cir. 1989).
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1 McDonnell Douglas v. Green, 411 U.S. 792 (1973)
In such a case, the employer bears more than a mere burden of production of a
legitimate reason for the decision; the employer bears the burden of proving by a
preponderance of the evidence that it would have made the same decision even if it
had not used the proscribed criteria. See Price Waterhouse v. Hopkins, 490 U.S.
228, 109 S. Ct. 1775, 1804-05, 104 L. Ed. 2d 268 (1989) (O’Connor, J., concurring
in the judgment) (“in order to justify shifting the burden on the issue of causation
to the defendant, a disparate treatment plaintiff must show by direct evidence that
an illegitimate criterion was a substantial factor in the decision. . . . Where a
disparate treatment plaintiff has made such a showing, the burden then rests with
the employer to convince the trier of fact that it is more likely than not that the
decision would have been the same absent consideration of the illegitimate
factor.”); Jones v. Gerwens, 874 F.2d at 1539, n. 8.; Dunning v. National Industries,
Inc., 720 F. Supp. 924, 929 n. 6 (M.D.Ala. 1989)
This Circuit has defined the meaning of direct evidence in the context of an
employment discrimination case. In Wright v. Southland, 187 F.3d 1287 (11th Cir.
1999), this Circuit rejected the dictionary definition of direct evidence, which
defines such evidence as “evidence, which if believed, proves an existence of fact
in issue without inference or presumption.” Id. The Court adopted a
preponderance of the evidence definition of direct evidence. Thus in this Circuit
direct evidence is “evidence from which a trier of fact could find, more probably
than not, a causal link between an adverse employment action and a protected
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personal characteristic”. Id.
For a remark to constitute direct evidence of discrimination, it “must, first,
demonstrate discriminatory animus and, second, be made by a person primarily
responsible for the adverse employment action or by a person with influence or
leverage over the formal decisionmaker.” Laxton v. Gap, Inc., 333 F.3d 572, 583,
n.4 (5th Cir. 2003) (citations omitted).
This Court has held “direct evidence is evidence which itself proves the
existence of discrimination and does not require inference or interpretation, as for
example a frank admission from a manager that he refused to hire an applicant
because he was black or because she was female. As would be expected, such
direct evidence is encountered only infrequently, since direct evidence is composed
of only the most blatant remarks, whose intent could be nothing other than to
discriminate on the basis of some impermissible factor (citation and internal
quotation marks omitted).” Cooper v. Southern Company, 390 F.3d 695, n.15 (11th
Cir. 2004).
The direct evidence of racial animus directed to Plaintiff and presented to
the district Court in this case was overwhelming. Wilcox’s testimony was not
directly challenged by Defendants and went largely without contradiction. Wilcox,
it should be remembered was a senior administrator at Kaplan and had regular
access to Rosen and other senior officials. As was set forth in Plaintiff’s response
to the Defendants’’ Motion for Summary Judgment Wilcox’s filed deposition (RA
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Doc 95 Ex1) as well as other record evidence includes:
oRepeated references by the most senior officials of the Defendant
to Carlos DIAZ, a native of El Salvador and a retired combat
tested United States Army infantry officer as a “fucking
Mexican”. (RA Doc 95 Ex1Wilcox deposition pp. 99, 110, 126,
153, 174,175,177,178, 179, 181, 182, 183,185, 190, 222, 246,
247, 248, 256, 259, 264, 280, 331, 369, 389,413, 417, 419)
oThe instructions given to Wilcox beginning n September 2005
from Andy Rosen and David Harpool before Plaintiff had even
begun to teach as a professor in the School of Paralegal Studies
to “fire the fucking Mexican”. (RA Doc 95 Ex1Wilcox
deposition pp 99, 110, 126, 153, 174,175,177,178, 179, 181, 182,
183,185, 190, 222, 246, 247, 248, 256, 259, 264, 280, 331, 369,
389,413, 417, 419).
oThe failure of Kaplan University to provide sufficient training to
DIAZ DIAZ prior to giving him four classes to teach (RA Doc
95 Ex5 Shochet Declaration)
oThe reaction of senior administrators to DIAZ’ good teaching
scores which prevented them from firing DIAZ. (RA Doc 95 Ex1
Wilcox deposition pp 404-413)
oTwo racist phone messages from Dean Ben Wilcox left on DIAZ’s
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voicemail referring to him a a “wetback,” “a beaner” and a
“fucking Mexican.” (RA Doc 95 Ex2 DIAZ First Declaration)
oAn investigation of the voicemails which concluded that Dean
Wilcox left them on DIAZ’s voicemail-box but not only failed to
take disciplinary action against him but instead promoted him.
(RA Doc 95 Ex2 DIAZ First Declaration)
oA game called “beat the candy out of Carlos” participated in by
Wilcox, Sheree Pace and members of David Harpool’s
administrative staff. This “game” featured a piñata-a“Frito
bandito” character (RA Doc 95 Ex1Wilcox deposition Wilcox
deposition p269) who bore a “striking resemblance to Carlos
[DIAZ]” (RA Doc 95 Ex1Wilcox deposition p 272).
oThe gathering of senior administrators for the purpose of “set[ting]
up Carlos to fail” without making it appear it was being done
because se “he was a Mexican”. This group consisted of Wilcox,
Rosen, Harpool, Caywood and Harold Levy, Kaplan’s General
Counsel . (RA Doc 95 Ex1Wilcox deposition page 327-330)
oDavid Harpool, the provost of Kaplan University and Andy
Rosen , the President of the University, instructed Wilcox in
September 2005 to “Fire the fucking Mexican” (RA Doc 95 Ex1
Wilcox deposition p. 109)
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oThe delivery of Vietnam style body bag to Wilcox’s office with a
large brick and instructions how to place Carlos in it. (RA Doc 95
Ex1 Wilxox deposition page 308) The accompanying card to the
body bag was signed by members of David Harpool’s
administrative staff, (RA Doc 95 Ex1 Wilcox deposition p 309).
oThe method of lowering of DIAZ’s student evaluation scores from
high to failing was done by placing him in smaller 200-level
classes with students who had already expressed a dislike for
DIAZ. As Wilcox testified “It worked.” (RA Doc 95 Ex1, Wilcox
deposition p 404
oChris Caywood’s (a senior administrator of Kaplan) email to
Wilcox concerning methods to lower Diaz’s student evaluation
scores which read, “Ben, you need some more flexibility, some
more subjectivity in the review so you can lower the score
score." (RA Doc 95 Ex1 Wilcox deposition pp. 329-330)
In granting the Defendants’ motion for summary judgment the district court
concluded that David Harpool and Chris Caywood were the decisionmakers who
terminated plaintiff. (R-105)
She held that Harpool’s directions to “fire the fucking Mexican” were made
“months before” (R-105)The question of temporal proximity to a racial slur
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appears in only one case in this Circuit, Joseph v. Publix Super Mkts., Inc., 151
Fed. Appx. 760, (11th Cir. 2005). In that case the racial slurs were extremely
remote in time and were not uttered by the same supervisor who fired the Plaintiff.
As such the slurs relevancy was outweighed by its potential unfair prejudice and it
was not relevant under Rule 403, Federal Rules of Evidence. Other cases
addressing racial slurs are silent on the question of temporal proximity. See, e.g.
Goldsmith v. Bagby Elevator, 513 F.3d 1261 (11th Cir 2008). Racial slurs likewise
have never had a numerousity requirement to be considered reklevant.
As to Caywood, the district court was silent except to credit what Caywood
asserted in an affidavit were the circumstances which led him to recommend
Plaintiff’s termination. The District Judge appears to have overlooked Caywood’s
emails directing Wilcox on how to lower Diaz’s student evaluation scores, nor the
effect of his participation in a meeting with Harpool, Wilcox and an in-house
lawyer for Kaplan who sole purpose was to design a process to terminate Diaz
without making it appear it for an illegal motive (RA Doc 95 ex 1Wilcox
deposition p. 404-413).
Given that the reasons asserted for termination Diaz’s “historical”
performance and the efforts made by Caywood and Harpool to create that history
by rigging his class assignments to put Diaz in smaller classes with those who did
not like him, the admission that the termination was influenced by the history
should have precluded summary judgment, and not sustained it.
13
Regarding Andrew Rosen, once again the district court misapplied the law.2
The evidence presented in opposition to the Defendants motion does support the
conclusion that Rosen “was not a decision maker nor involved in the decision to
terminate plaintiff” (R 105)
To the contrary the evidence shows that Rosen directed Wilcox and other
senior officials to “fire the fucking Mexican”. The record reflects efforts to follow
that order and the problems which prevented its immediate implementation-such as
the good student evaluations Diaz received and the effect of the two voicemails left
on Diaz’s machine by Wilcox. The District Judge appears to have accepted the
Defendants argument as set for in their motion where they asserted that such
direction to subordinates was irrelevant and constituted “stray comments”: (RA 87
Defendants Motion For Summary Judgment page 4).
Direct orders to subordinates should never be considered “stray comments”
when there is evidence in the record that the subordinates acted upon the orders.
This Circuit has addressed the meaning of Justice O’Connor’s “stray comments”
observations concurring in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)
thusly.
Price Waterhouse does not define direct evidence. In her concurrence,
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2 One reason reason for granting Rosen’s summary judgment is the asserted failure of Plaintiff to file a State of Disputed Facts under the Local Rules. (R-105) The District Judge apparently overlooked Diaz’s “Second Declaration Under Penalty of Perjury and Response to Statement of Undisputed Facts” (emphasis added) (RA-95 Ex 3).
however, Justice O'Connor stated that "stray remarks in the workplace,"
"statements by nondecisionmakers," and "statements by decisionmakers
unrelated to the decisional process itself" do not "justify requiring the
employer to prove that its hiring or promotion decisions were based on
legitimate criteria." Price Waterhouse, 109 S. Ct. at 1804. Raymond's
statement that if it were his company he would not hire blacks does not fall
into any of these categories. Raymond was a decisionmaker, and he made
the remark in reference to hiring. Diesen's statement is the kind of stray
remark contemplated by Justice O'Connor, but does not affect the
outcome. Raymond's statement constituted direct evidence of
discrimination which Alton was required to rebut by a preponderance of
the evidence. The district court erred when it failed to place this burden on
Alton.
EEOC v. Alton Packaging Corp., 901 F.2d 920, 924 (11th Cir. Fla. 1990)
Likewise Rosen and Harpool’s repeated directions to “Fire the fucking
Mexican” constitutes direct evidence of discrimination which the Defendants
complete failed to rebut.
Finally, assuming arguendo, that this evidence does not qualify as direct
evidence, it is powerful circumstantial evidence that Diaz’s race was a factor in his
termination. The district court based its McDonnell Douglas burden shifting
analysis on a finding that Plaintiff was not qualified for any position he held at
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Kaplan. However as noted above the court overlooked Shochet’s positive
evaluation (RA Doc 95 ex 5 Shochet Declaration), of his teaching in the fall of
2005, the strong student evaluations and the deliberate efforts to lower those scores
to justify Diaz’s termination. McDonnell Douglas was never meant to be applied
mechanically or inflexibly. Accord, Texas Department of Cummunity Affairs v. Burdine,
450 U.S. 248 (1981).
THE DISTRICT COURT IMPROPERLY REJECTED SUBSTANTIAL EVIDENCE OF RETALIATORY INTENT AND ACTIONS
In order to establish a prima facie case of retaliation, a plaintiff must show
that he (1) engaged in protected activity, (2) suffered an adverse employment
action, and (3) there was a causal link between the protected activity and the
adverse employment action. Stavropoulos v. Firestone, 361 F.3d 610, 616 (11th
Cir. 2004); Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261 (11th Cir 2008).
However, the Defendants attempt to compartmentalize this protected activity
which included an email to Evans complaining of discrimination a week before he
was fired, by claiming she did not know of the filing of the EEOC a month earlier
or the February, 2006 internal complaint which produced Wilcox’s racist telephone
diatribe.
In Bagby this circuit reiterated that the causal link element merely requires
that the plaintiff establish that the protected activity and the adverse action were
16
“not wholly unrelated”.
In the face of such powerful efforts to terminate Diaz on account of his race,
it is still possible that he was the victim of retaliation. When Diaz filed his internal
complaints of harassment, he was greeted not only with a racist diatribe, but also
specific retaliatory threats-“if you think you are going to cause trouble for this
company…going to fire your ass” (RA- Doc 95 Ex2 First Declaration of Diaz)
Given the strange investigation which ensued-the hiring of a voice expert to
determine if it was Wilcox, the conclusion it was Wilcox, the reassignment of Diaz
over his objection, and the promotion of Wilcox. (RA Doc 95 Ex2 First
Declaration of Diaz ) A jury could rationally find that in addition to being
discriminatory, Diaz’s termination was retaliatory.
CONCLUSION
Because of the foregoing, Diaz respectfully requests that this Court reverse
the District Court's Final Judgment in the Defendants’ favor and remand the action
for a full trial on the merits.
17
CERTIFICATE OF COMPLIANCE Counsel for the Appellant hereby certifies that this brief complies with the
type-volume limitation set forth in FRAP 32 (a)(7)(B). This brief uses 14-point
New Times Roman typeface and contains ____4095___ words.
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was
furnished by mail to Susan Nadler Eisenberg and Jennifer Taylor Williams,
Akerman Senterfitt, Suntrust International Center, 1 SE 3rd Avenue 25th Floor, Miami ,
FL 33131-1714 this 14th Day of September, 2009.
CORNELL & ASSOCIATES, P.A.Attorneys for the Plaintiff
1792 Bell Tower Lane Suite 210 Weston, FL 33326 Telephone: (954)524-2703 Facsimile: (954) 524-2706
BY: ________________________ G. WARE CORNELL, JR. Florida Bar No. 203920
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