Diaz Brief Appeal

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

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Diaz, Carlos Urquilla – Appellant

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Eisenberg, Susan N. – Counsel for Appellee

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Haywood, Samuel S. – Counsel for Appellee

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Harpool, David-Provost of Kaplan University

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Iowa College Acquisition – Division of Appellee University

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Kaplan Higher Education Corporation – Division of Appellee University.

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Kaplan University/Kaplan College – Appellee University

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Rosen, Andy – Appellee

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Seitz, Patricia – United States District Court Judge

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The Washington Post Company – Parent company of Kaplan University

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Wilcox, Ben – Former faculty member and dean of Kaplan University

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Williams, Jennifer Taylor – Counsel for Appellee

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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.

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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

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STATEMENT REGARDING ORAL ARGUMENT

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CERTIFICATE OF TYPE STYLE AND SIZE

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TABLE OF CONTENTS

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TABLE OF AUTHORITIES

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STATEMENT OF THE ISSUES ON APPEAL

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STATEMENT REGARDING JURISDICTION

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STATEMENT OF THE CASE

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Course of Proceedings and Disposition Below

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Statement of the Facts

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Standard of Review

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SUMMARY OF THE ARGUMENT

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ARGUMENT

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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?

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THE DISTRICT COURT IMPROPERLY REJECTED iii

SUBSTANTIAL EVIDENCE OF RETALIATORY INTENT AND ACTION

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CONCLUSION

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CERTIFICATE OF COMPLIANCE

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CERTIFICATE OF SERVICE

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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?

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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. (RADoc 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 1

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 2

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).

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McDonnell Douglas v. Green, 411 U.S. 792 (1973) 7

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 8

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 9

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 10

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) 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 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 12

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, 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). 2

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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 15

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.

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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 [email protected]

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