Case: 12-14679   Date Filed: 10/22/2013   Page: 1 of 8


                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 12-14679
                            Non-Argument Calendar
                          ________________________

                   D.C. Docket No. 8:10-cv-02003-MSS-TGW

CARLOS RAMIREZ,

                                                               Plaintiff-Appellant,

                                     versus

BAUSCH & LOMB, INC.,

                                                             Defendant-Appellee.

                          ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                        ________________________

                               (October 22, 2013)

Before HULL, MARCUS and JORDAN, Circuit Judges.

PER CURIAM:

      Carlos Ramirez appeals the grant of summary judgment to Bausch & Lomb,

Inc. (“B&L”) in his suit brought pursuant to the Florida Whistleblower Act

(“FWA”), Fla. Stat. Ann. § 448.102. In his suit, Ramirez alleged that he was fired
              Case: 12-14679    Date Filed: 10/22/2013   Page: 2 of 8


after reporting various violations of B&L’s standard operating procedures

(“SOPs”) and applicable federal regulations issued by the U.S. Food and Drug

Administration. Ramirez, a quality control inspector for B&L, alleged a number of

different incidents that occurred from March to July 2008 as protected activity.

Ramirez took leave under the Family Medical Leave Act (“FMLA”) in August and

returned to work on November 3, 2008. On that date, he had a meeting with his

direct supervisor and a representative from human resources, in which Ramirez

complained both of various perceived SOP and regulatory violations and that he

had been placed on a black list for whistleblowers.       On November 4, 2008,

Ramirez refused to start a manufacturing line because he had not been retrained on

the applicable SOPs, as he believed the SOPs and regulations required. B&L fired

him for insubordination based on this incident. Ramirez sued, and the district court

granted B&L’s motion for summary judgment, concluding that Ramirez had not

established a prima facie case of retaliation. On appeal, Ramirez argues that the

district court erred by granting summary judgment to B&L because: (1) he had

presented other evidence to establish a causal connection -- that he was on FMLA

leave during the relevant three months -- and had not relied solely on the temporal

proximity between his protected activity and his termination; (2) he had engaged in

protected activity under the FWA; and (3) the district court erroneously relied on




                                         2
              Case: 12-14679    Date Filed: 10/22/2013   Page: 3 of 8


an affidavit submitted by B&L’s Director of Quality Assurance. After thorough

review, we vacate and remand for further consideration in light of this opinion.

      We review de novo a grant of summary judgment and view the evidence in

the light most favorable to the nonmoving party. Crawford v. City of Fairburn,

Ga., 

, 1308 (11th Cir. 2007).         We can affirm on any ground

supported by the record. Cuddeback v. Fla. Bd. of Educ., 

, 1235-36

(11th Cir. 2004). Summary judgment is proper where there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.

Crawford, 482 F.3d at 1308; Fed.R.Civ.P. 56(a).

      We apply the state’s substantive law in cases involving diversity jurisdiction.

Sierminski v. Transouth Fin. Corp., 

, 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 burden-shifting analysis established in

McDonnell Douglas Corp. v. Green, 

 (1973). Brown v. Ala. Dep’t of

Transp., 

, 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




                                         3
                 Case: 12-14679         Date Filed: 10/22/2013        Page: 4 of 8


v. Carroll, 

, 970 (11th Cir. 2008). 1 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, 

, 1342 (11th Cir. 2002) (quotation omitted).

1
        The FWA provides that a form of expression is statutorily protected if an employee (1)
disclosed or threatened to disclose to a governmental agency that the employer’s activity, policy,
or practice was “in violation of a law, rule, or regulation”; (2) provided information to a
government agency investigating an alleged violation of a law, rule, or regulation by the
employer; or (3) “[o]bjected to, or refused to participate in, any activity, policy, or practice of the
employer which is in violation of a law, rule, or regulation.” Fla. Stat. Ann. § 448.102. The
FWA defines “law, rule, or regulation” as “any statute or ordinance or any rule or regulation
adopted pursuant to any federal, state, or local statute or ordinance applicable to the employer
and pertaining to the business.” Id. § 448.101(4). Florida courts have determined that the
following are insufficient to sustain a FWA claim: the Federal Communications Commission’s
(“FCC”) “news distortion policy,” which was based on a series of administrative opinions issued
in response to complaints filed with the FCC; federal injunctions and a mandatory executive
order issued by the state governor; and a letter in which the plaintiff failed to identify the
relevant law, rule, or regulation in question. New World Commc’ns of Tampa, Inc. v. Akre, 

, 1233 34 (Fla. 2d Dist. Ct. App. 2003) (FCC policy); Tyson v. Viacom, Inc., 

, 277 (Fla. 4th Dist. Ct. App. 2000) (injunction); Gillyard v. Delta Heath Grp., Inc.,

, 602-03 (Fla. 5th Dist. Ct. App. 2000) (mandatory evacuation order); Schultz v.
Tampa Elec. Co., 

, 606 (Fla. 2d Dist. Ct. App. 1997) (letter). In contrast, Florida
courts have determined that both regulations promulgated by the Occupational Safety and Health
Administration (“OSHA”) and Florida statutes requiring hospitals to establish various procedures
can constitute a law, rule, or regulation under the FWA. Diaz v. Impex of Doral, Inc., 

, 594-95 (Fla. 3d Dist. Ct. App. 2009) (OSHA regulations); Taylor v. Mem’l Health Sys.,
Inc., 

, 753-54 (Fla. 5th Dist. Ct. App. 2000) (Florida statutes forbidding sexual
misconduct in the practice of medicine).

       Under the statute, termination is a “retaliatory personnel action.” Fla Stat. Ann. §
448.101(5). To bring action based on a violation of this statute, the employee must notify the
employer about the illegal activity, policy, or practice. Id. §§ 448.102(1), 448.103(1)(c).
                                                  4
              Case: 12-14679     Date Filed: 10/22/2013   Page: 5 of 8


      Here, the district court determined that Ramirez had not established a prima

facie case of retaliation because he had not submitted evidence demonstrating a

causal connection between his alleged protected activity and his termination. The

district court refused to consider Ramirez’s protected activity that occurred before

his FMLA leave, as it believed that it could only consider protected activity within

the three months preceding his termination. The district court also determined that

Ramirez’s refusal to start the line on November 4 was not protected activity since

requiring Ramirez to start the line was not a violation of any SOP or regulation.

      Thus, causation is at issue in this case. We’ve said that a plaintiff may be

able to rely solely on the temporal proximity between an employer’s knowledge of

protected activity and an adverse employment action as sufficient evidence of

causality, but the temporal proximity must be “very close.” Thomas v. Cooper

Lighting, Inc., 

, 1364 (11th Cir. 2007) (citing with approval non-

binding cases rejecting three- to four-month gaps between the allegedly protected

activity and the alleged retaliation). Nevertheless, where a plaintiff can establish a

causal connection through “other evidence tending to show causation,” a delay

between the allegedly protected activity and the adverse activity is not fatal. See

id.; see also Wascura v. City of S. Miami, 

, 1248 (11th Cir. 2001)

(emphasizing that a plaintiff had introduced “virtually no evidence of a causal

connection” aside from the temporal proximity).


                                          5
              Case: 12-14679     Date Filed: 10/22/2013   Page: 6 of 8


      Applying the case law, we are compelled to vacate and remand the district

court’s decision so that the district court may perform a new causation analysis.

As we see it, the district court’s prima-facie causation analysis improperly failed to

include all of the events proffered by Ramirez to establish a causal connection

between the allegedly protected activity and his termination. For instance, the

district court did not consider the November 3 meeting Ramirez attended, which

occurred only one day prior to the incident that led to his termination. In that

meeting, Ramirez expressed his concerns that B&L was not in compliance with

various SOPs and Good Manufacturing Practices (“GMPs”), and his belief that he

was on a black list for whistleblowers. The district court should have considered if

these remarks constituted protected activity that was sufficiently close in time to

Ramirez’s termination to meet the causal connection prong.

      It should also consider that even if the incidents solely within the three

months prior to Ramirez’s termination did not sufficiently establish a causal

connection, Ramirez did not rely on temporal proximity alone to establish

causation. Rather, he presented other evidence that the district court should have

considered, including: (1) Ramirez’s work journal and the e-mail from the

manufacturing manager stating that Human Resources needed to become involved

because the manager could no longer tolerate Ramirez’s interruptions to the line;

(2) the fact that Ramirez was on FMLA leave for the three months immediately


                                          6
                Case: 12-14679        Date Filed: 10/22/2013       Page: 7 of 8


prior to his termination, (3) the multiple instances of allegedly protected activity

both prior to and immediately after his return to work at B&L, and (3) his

termination nearly immediately after returning to work. Indeed, because Ramirez

did not rely solely on temporal proximity, the district court could have considered

the allegedly protected activity that occurred before Ramirez went on FMLA leave

as evidence of causality. See Thomas, 506 F.3d at 1364.

       In short, the district court failed to consider relevant evidence that could

support Ramirez’s claim of causality. Accordingly, we vacate and remand, which

will allow the district court the opportunity to determine in the first instance if

Ramirez’s additional evidence and the other incidents of alleged protected activity

are sufficient to establish the causal connection prong. 2                 Finally, we do not

consider Ramirez’s argument about the district court’s consideration of the




       2
        We also note that the United States Supreme Court recently has said that a plaintiff must
demonstrate “but for” causation when making a Title VII retaliation claim:

       Title VII retaliation claims must be proved according to traditional principles of but-for
       causation . . . . This requires proof that the unlawful retaliation would not have occurred
       in the absence of the alleged wrongful action or actions of the employer.

Univ. of Tex. Southwestern Med. Ctr. v. Nassar, 

, 2533 (2013). However, the
Court did not clarify the role of “but for” causation in a plaintiff’s prima facie case. Thus, when
considering the expanded group of allegedly protected activity on remand, the district court may
need to consider whether Ramirez has sufficiently satisfied “but for” causation in this case. See
Nassar, 133 S. Ct. at 2533. Moreover, now that the district court will consider the additional
incidents of alleged protected activity (and not just events occurring within a narrow three-month
window that largely was comprised of Ramirez’s protected FMLA leave), it may need to
determine if that activity was indeed protected.
                                                7
             Case: 12-14679    Date Filed: 10/22/2013   Page: 8 of 8


affidavit because that issue has been rendered moot by our decision to vacate and

remand the summary judgment order.

      VACATED AND REMANDED.




                                       8