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UNITED STATES COURT OF APPEALS

ELEVENTH 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 COURT


SOUTHERN 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) 524-2703
Facsimile: (954) 524-2706
G. WARE CORNELL, JR.
Fla. Bar No. 203920
Diaz v. Kaplan University et al
Case 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.

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TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE


DISCLOSURE 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

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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

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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?

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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

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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-Douglas 1 framework is

substantially altered. Jones v. Gerwens, 874 F.2d 1534, 1539, n. 8 (11th Cir. 1989).

1 McDonnell Douglas v. Green, 411 U.S. 792 (1973)

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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.

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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,

2One 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).

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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

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“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.

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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
warecornell@gmail.com

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