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ELEVENTH CIRCUIT
Plaintiff/Appellant,
v.
Defendants/Appellees.
__________________________________/
____________________________________________________________________
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
12. Wilcox, Ben – Former faculty member and dean of Kaplan University
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
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
TABLE OF AUTHORITIES v
Standard of Review 5
ARGUMENT 7-17
iii
SUBSTANTIAL EVIDENCE OF RETALIATORY
INTENT AND ACTION 16-17
CONCLUSION 17
CERTIFICATE OF COMPLIANCE 18
CERTIFICATE OF SERVICE 19
iv
TABLE OF AUTHORITIES
Cooper v. Southern Company, 390 F.3d 695 (11th Cir. 2004). .................................9
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
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
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
v
STATEMENT OF THE ISSUES ON APPEAL
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
over final decisions of the district courts. The Final Judgment in favor of Defendants is
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STATEMENT OF THE CASE
(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
He asserted federal and state violations of law regarding the terms and conditions
Kaplan, it caused the action to be removed was to the United States District( Court
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
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
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
Wilcox who had become Diaz’s boss when he was transferred to Wilcox’
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
Shochet was not the only one who noticed Diaz’s scores. His scores upset
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
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
Wilcox a body bag, brick and instructions on how to stuff Diaz into the bag. (RA
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.”
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
himself unsuited because English was not his native language. (RA Doc 95 ex 3
Diaz was terminated August 6, 2006 on the basis of his “history of poor
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Standard of Review
5
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
the efforts of those same administrators to come up with a pretext to disguise the
The Court also erred in rejecting direct evidence of retaliatory actions by the
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
(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)).
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
substantially altered. Jones v. Gerwens, 874 F.2d 1534, 1539, n. 8 (11th Cir. 1989).
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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
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,
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
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.
leverage over the formal decisionmaker.” Laxton v. Gap, Inc., 333 F.3d 572, 583,
This Court has held “direct evidence is evidence which itself proves the
because he was black or because she was female. As would be expected, such
of only the most blatant remarks, whose intent could be nothing other than to
quotation marks omitted).” Cooper v. Southern Company, 390 F.3d 695, n.15 (11th
Cir. 2004).
the district Court in this case was overwhelming. Wilcox’s testimony was not
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:
247, 248, 256, 259, 264, 280, 331, 369, 389,413, 417, 419)
from Andy Rosen and David Harpool before Plaintiff had even
183,185, 190, 222, 246, 247, 248, 256, 259, 264, 280, 331, 369,
DIAZ DIAZ prior to giving him four classes to teach (RA Doc
scores which prevented them from firing DIAZ. (RA Doc 95 Ex1
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
11
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
deposition p 404
scores which read, “Ben, you need some more flexibility, some
In granting the Defendants’ motion for summary judgment the district court
concluded that David Harpool and Chris Caywood were the decisionmakers who
She held that Harpool’s directions to “fire the fucking Mexican” were made
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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
As to Caywood, the district court was silent except to credit what Caywood
emails directing Wilcox on how to lower Diaz’s student evaluation scores, nor the
lawyer for Kaplan who sole purpose was to design a process to terminate Diaz
deposition p. 404-413).
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
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
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
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”
thusly.
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,"
statement that if it were his company he would not hire blacks does not fall
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)
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
2005, the strong student evaluations and the deliberate efforts to lower those scores
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).
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)
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
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
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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
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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.
BY: ________________________
G. WARE CORNELL, JR.
Florida Bar No. 203920
warecornell@gmail.com
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