Ada Ramirez Initial Brief Eleventh Circuit

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Date Filed: 05/07/2012
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IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT CASE NO.: 12-11535-BB
ADA RAMIREZ, Plaintiff/Appellant, v. MIAMI-DADE COUNTY, Defendant/Appellee. __________________________________________/
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
APPELLANTS INITIAL BRIEF
Matthew Seth Sarelson, Esq. Florida Bar No. 888281 Sarelson Law Firm, P.A. 1200 Brickell Avenue Suite 1440 Miami, Florida 33131 Telephone: (305) 379-0305 Facsimile: (800) 421-9954
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CERTIFICATE OF INTERESTED PERSONS Ramirez v. Miami-Dade County, No. 12-11535-BB
Pursuant to Eleventh Circuit Rule 26.1, Appellant certifies that the following people and corporate entities are interested: 1. Kraftchick, Lee Alan 2. Miami-Dade County 3. Miami-Dade County Attorneys Office 4. Moore, United States District Judge K. Michael 5. Nelson, Maxwell Miller 6. Ramirez, Ada 7. Sarelson, Matthew Seth 8. Sarelson Law Firm P.A. 9. Torres, United States Magistrate Judge Edwin G.
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STATEMENT REGARDING ORAL ARGUMENT Ramirez requests oral argument to assist the Court in understanding that there is sufficient evidence in the record precluding the granting of summary judgment for the County as to Ramirez retaliation claim. Ramirez also requests oral argument to assist the Court in understanding why Ramirez was denied an opportunity to complete discovery. Ramirez
recognizes that discovery disputes are subject to an abuse of discretion standard and are not generally the subject of Eleventh Circuit opinions. This case, however, does present a discovery dispute worthy of special attention.
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TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS.i STATEMENT REGARDING ORAL ARGUMENT...ii TABLE OF CONTENTS.....iii TABLE OF AUTHORITIES.v STATEMENT OF JURISDICTION.1 STATEMENT OF THE ISSUES..2 STATEMENT OF THE CASE.3 i) ii) iii) Course of Proceedings and Dispositions in the Court Below...3 Statement of Facts.5 Standard of Review....14
SUMMARY OF ARGUMENT...15 ARGUMENT...18 I. The Countys Retaliation Against Ramirez for Submitting an Internal Complaint is Supported by Substantial Evidence.18 i) ii) iii) Protected Activity.....19 Adverse Employment Action...26 There was Some Causal Connection Between the Protected Activity and the Adverse Employment Action.27
II. The EEOCs Determination Letter is Admissible...30
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III. Summary Judgment was Entered While Significant Discovery Issues Remained Outstanding34 IV. The County did not Appear at Its Rule 30(b)(6) Deposition and May Have Destroyed Evidence.38 i) Permanent Deletion of Electronic Evidence Knowing Litigation was Likely....39 Non-Appearance at the Countys Rule 30(b)(6) Deposition..........................................................43
ii)
CONCLUSION...49 CERTIFICATE OF COMPLIANCE...50 CERTIFICATE OF SERVICE50
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TABLE OF AUTHORITIES CASES Alexander v. F.B.I., 186 F.R.D. 148, 152 (D.D.C. 1999) ........................................45 Alexander v. Wisc. Dept. of Heath & Family Servs., 263 F. 3d 673 (7th Cir. 2001) ...............................................................................27 *Alvarez v. Royal Atlantic Developers, Inc., 610 F.3d 1253 (11th Cir. 2010) ......................................................... 18, 19, 20, 29 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505 (1986).................14 Barfield v. Orange Cty., 911 F.2d 644 (11th Cir. 1990)................................... 31, 32 Black Horse Lane Assoc., L.P. v. Dow Chem. Corp., 228 F. 3d 275 (3d Cir. 2000) ................................................................................46 Blanton v. Univ. of Fla., 273 F. Appx 797 (11th Cir. 2008) ..................... 30, 31, 33 Bonaventure v. Butler, 593 F.2d 625 (5th Cir. 1979) ..............................................48 Brauchle v. Southern Sports Grill, Inc., 2008 WL 4753707 (S.D. Fla. 2008) ........48 Bruno v. Monroe County, 2008 WL 4276532 (S.D. Fla. 2008) ................. 24, 25, 26 Burlington N. & Sante Fe Ry. Co. v. White, 548 U.S. 53, 126 S. Ct. 2405 (2006) ....................................................................26 Buycks-Roberson v. Citibank Fed. Sav. Bank,162 F.R.D. 338 (N.D. Ill. 1995)......46 Castle v. Sangamo Weston, Inc., 744 F.2d 1464 (11th Cir. 1984) ..........................31 Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548 (1986) .............................34
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Contintental Cas. Co. v. First Fin. Empl. Leasing, Inc., 716 F. Supp. 2d 1176 (M.D. Fla. 2010) ...............................................................46 Cowan v. J.C. Penney Co., Inc., 790 F.2d 1529 (11th Cir. 1986) ...........................35 Crable v. State Farm Mut. Auto. Ins. Co., 2011 WL 5525361 (M.D. Fla. Nov. 14, 2011).............................................. 45, 46 Crawford v. Carroll, 529 F.3d 961 (11th Cir. 2008) ........................................ 26, 27 Dean v. Barber, 951 F.2d 1210 (11th Cir. 1992) ....................................................35 Doe v. Miami-Dade County, 797 F. Supp. 2d 1296 (S.D. Fla. 2011) .............. 40, 41 Fernandez v. Bankers Natl Life Ins. Co., 906 F.2d 559 (11th Cir. 1990) ..............34 Flury v. Daimler Chrysler Corp., 427 F.3d 939 (11th Cir. 2005) .................... 39, 41 Fox v. Morris Jupiter Assocs., 2007 WL 2819525 (S.D. Fla. 2007) .......................46 Friends of the Everglades v. South Fla. Water Mgt. Dist., --- F.3d ---, 2012 WL 1468484 (11th Cir. Apr. 30, 2012) ............................ 33, 34 *Goldsmith v. Bagby Elevator Co., 513 F.3d 1261 (11th Cir. 2008) ......... 31, 32, 33 Goldsmith v. City of Atmore, 996 F.2d 1155 (11th Cir. 1993)............27 Hemsworth, II v. Quotesmith.com, Inc., 476 F. 3d 487 (7th Cir. 2007) ..................29 Horne v. Turner Const. Co., 136 F. Appx. 289 (11th Cir. 2005) ...........................30 Hoshemi v. Campaigner Publications, Inc., 737 F.2d 1538 (11th Cir. 1984) .........48 Kendall Lakes Towers Condo. Assoc., Inc. v. Pacific Ins. Co., Ltd., 2011 WL 6190160 (S.D. Fla. Dec. 2, 2011) ........................................................45
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King v. Pratt & Whitney, 161 F.R.D. 475 (S.D. Fla. 1995).....................................46 *Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d 1183 (11th Cir. 2001) ..................................................................... 20, 21 Marker v. Union Fidelity Life Ins. Co., 125 F.R.D. 121 (M.D.N.C. 1989)46 McNely v. Ocala Star-Banner Corp., 99 F.3d 1068 (11th Cir. 1996) .....................27 Morro v. City of Birmingham, 117 F.3d 508 (11th Cir. 1997) ................................33 Porter v. White, 483 F.3d 1294 (11th Cir. 2007) .....................................................14 Protective Natl Ins. v. Commonwealth Ins., 137 F.R.D. 267 (D. Neb. 1989) ............................................................................45 Resolution Trust Corp. v. So. Union Co., Inc., 985 F.2d 196 (5th Cir. 1993) .........46 Shawmut Boston Intl Banking Corp. v. Duque-Pena, 767 F.2d 1504 (11th Cir. 1985) ............................................................................48 Smith v. Universal Servs., Inc., 454 F.2d 154 (5th Cir.1972) ..................................32 Snook v. Trust Co. of Ga. Bank of Savannah, N.A., 859 F.2d 865 (11th Cir. 1988) ....................................................................... 34, 35 Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554 (11th Cir. 1987) ..................26 Sullivan v. Natl R.R. Passenger Corp., 170 F.3d 1056 (11th Cir. 1999) ........ 21, 22 Taylor v. Runyon, 175 F.3d 861 (11th Cir. 1999)............................................. 21, 27 Thompson v. North Am. Stainless, LP, 131 S.Ct. 863 (2011)..................................19
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United States v. $239,500, 764 F.2d 771 (11th Cir. 1985)..48 United States v. Aikens, 460 U.S. 711, 103 S. Ct. 1478 (1983)...............................14 United States v. Rosario-Camacho, 697 F. Supp. 2d 244 (D.P.R. 2010) ................33 United States v. Taylor, 166 F.R.D. 356, 361 (M.D.N.C. 1996) .............................45 Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453 (11th Cir. 1998) ......................27 Wright v. Southland Corp., 187 F.3d 1287 (11th Cir. 1999) ...................................14 STATUTES AND OTHER AUTHORITIES 28 U.S.C. 1291 ........................................................................................................1 28 U.S.C. 1331 ........................................................................................................1 42 U.S.C. 2000e, et seq.. ............................................................................... passim Fla. Stats., Ch. 119 ...................................................................................................41 Fed. R. Civ. P. 26(f) ............................................................................................ 3, 35 Fed. R. Civ. P. 30(b)(6).................................................................................... passim Fed. R. Civ. P. 37 .....................................................................................................47 Fed. R. Civ. P. 54 .......................................................................................................5 S.D. Fla. L.R. 7.5 .......................................................................................................5 S.D. Fla. L.R. 16.1 ...................................................................................................42 Eleventh Cir. Pattern Jury Instructions (Civil), 1.10.3 (2005) ......................... 20, 27
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STATEMENT OF JURISDICTION This district court had federal question subject matter jurisdiction in this Title VII employment discrimination matter. 28 U.S.C. 1331. This Court has jurisdiction over this appeal pursuant to 28 U.S.C. 1291 because Ada Ramirez, Appellant/Plaintiff, appeals a February 17, 2012 order granting Miami-Dade Countys, Appellee/Defendant, Motion for Summary Judgment. (D.E. 41). No separate Final Judgment was entered. Pursuant to Fed. R. App. P. 4, Ramirez filed her Notice of Appeal on March 18, 2012, within 30 days of the entry of the February 17, 2012 Order. (D.E. 43). This brief is timely filed following a seven day extension granted by the Clerk pursuant to Eleventh Circuit Rule 31-2(a) extending the times in Fed. R. App. 31 and Eleventh Circuit Rule 12-1, which require that the brief be filed within 40 days after the record was filed on March 26, 2012.
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STATEMENT OF THE ISSUES I. Under the anti-retaliation provision of Title VII of the 1964 Civil Rights Act,
does an employee have evidence of retaliation when (i) she is shunned by supervisors after being ordered to file an internal complaint of sexual harassment, (ii) she is terminated a few weeks after filing the complaint, (iii) the employer concedes that her performance was stellar, and most importantly (iv) the decision maker admits that he did in fact take her internal complaint of sexual harassment into consideration when he terminated her? II. Under federal anti-retaliation statutes that require a presuit administrative
filing with the Equal Employment Opportunity Commission, may a district court categorically disregard an EEOC finding in favor of the employee in light of this Courts repeated holdings that EEOC findings are admissible in a jury trial and must be taken into consideration at the summary judgment phase? III. Does a district court have discretion to deny an Agreed Motion for a 60-day
Continuance and Motion to Preserve Discovery Issues, without meaningful explanation, when it effectively precluded the plaintiff from obtaining material discovery prior to the Courts ruling on a motion for summary judgment? IV. Does a district court have discretion to deny, without meaningful
explanation, a motion for sanctions premised upon a Defendants failure to appear at a properly noticed Rule 30(b)(6) deposition?
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STATEMENT OF THE CASE (i) Course of Proceedings and Dispositions in the Court Below
The EEOC determined that Appellant Ada Ramirez was harassed and retaliated against during her employment with Miami-Dade County in violation of Title VII on May 16, 2011. (D.E. 19-5 at 51-53). On July 25, 2011, Ramirez filed a three-count Complaint alleging gender discrimination, retaliation, and hostile work environment. (D.E. 1). The County filed its Answer and Affirmative
Defenses on August 31, 2011. (D.E. 8). The parties September 15, 2011 Joint Scheduling Report requested a discovery deadline of March 30, 2012. (D.E. 9). On September 16, 2011, the district court set a discovery deadline of January 16, 2012 and set trial for the period beginning on March 26, 2012. (D.E. 10). The parties promptly served discovery requests in September 2011 after the mandatory Rule 26(f) conference. (D.E. 27-7; D.E. 36-3). Ramirez served her mandatory initial disclosures on
October 31, 2011. The County never served its mandatory initial disclosures. On December 28, 2011, Ramirez filed an Agreed Motion for a Sixty Day Continuance of dates listed in the September 16, 2011 Scheduling Order, explaining that there was insufficient time to complete discovery. (D.E. 14). The Agreed Motion was denied on December 29, 2011 by paperless order. (D.E. 15).
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On January 4, 2012, Ramirez filed a Motion to Preserve Various Discovery Issues, seeking an order preserving the right to seek electronic discovery from the County given that the discovery deadline was approaching and the County had not yet located responsive e-mails. (D.E. 16). The County filed a Response to
Plaintiffs Motion to Preserve Various Discovery Issues on January 18, 2012. (D.E. 20). Ramirez filed her reply brief on January 28, 2012. (D.E. 28). This Motion was denied by paperless order on February 17, 2012 as untimely and moot following the entry of summary judgment for the County. (D.E. 42). The deposition of the County pursuant to Rule 30(b)(6) occurred on January 10, 2012. (D.E. 27-1; 27-3; 33-2). The County refused to produce a witness for many of topics designated but did not file any objections or a motion for protective order. (D.E. 27-3; D.E. 27-4; D.E. 27-5 at 6; D.E. 27-6). Ramirez filed a Motion for Default Judgment or Lesser Sanction for Non-Appearance at Deposition and Other Discovery Violations on January 27, 2012. (D.E. 27). The County filed its Response to the Motion for Default Judgment or Lesser Sanction on February 6, 2012. (D.E. 35; D.E. 36). Ramirez filed her reply brief on February 16, 2012. (D.E. 40). The district court denied Ramirez motion for sanctions as untimely and moot following summary judgment by paperless order on February 17, 2012. (D.E. 42).
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The County filed its Motion for Summary Judgment and Statement of Material Facts on January 11, 2012. (D.E. 17, 18, 19). Ramirez filed her
Response in Opposition to Defendants Motion for Summary Judgment, Response to Defendants Statement of Material Facts, and Additional Facts that Support the Denial of Summary Judgment on February 3, 2012. (D.E. 32, 33, 34).1 The County never responded to Ramirez additional undisputed facts (D.E. 33 at 1319) in violation of Local Rule 7.5. On February 9, 2012, the County filed its reply brief. (D.E. 39). The district court granted Defendants Motion for Summary Judgment on February 17, 2012 prior to ruling on the pending discovery motions. (D.E. 41). No final judgment pursuant to Rule 54 was entered. Ramirez filed a Notice of Appeal on March 18, 2012, indicating her intent to appeal the four orders mentioned in the four previous paragraphs. (D.E. 43). (ii) Statement of Facts
Ada Ramirez was hired by Miami-Dade County in May 2008 as a Personnel Specialist 2 for the Countys Fire Department. (D.E. 19-1 at 13-14; D.E. 33-11). Ramirez was selected out of a pool of 175 applicants. (D.E. D.E. 33-9). Ramirez had previously performed a similar role as a Finance Manager with the U.S. Army,
The Complaint pled three counts hostile work environment, discrimination and retaliation. At the summary judgment phase, Ramirez withdrew the hostile work environment and discrimination counts because the retaliation count was extraordinarily strong and because there are no damages uniquely attributable to the hostile work environment or discrimination count.
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where she achieved the rank of Captain during her seven years of service. (D.E. 19-1 at 15-20; D.E. 33-10; D.E. 33-11). Ramirez received multiple awards for her service in the U.S. Army. (D.E. 19-1 at 15-20; D.E. 33-10). As a new employee, Ramirez was to serve a one year probationary term and was subject to dismissal without cause and without the right to appeal so long as reasons for dismissal were given. (D.E. 19-1 at 22; D.E. 19-5 at 2-14). This contrasts with permanent County employees, who can only be terminated for cause and may appeal. (D.E. 19-1 at 22; D.E. 19-5 at 2-14). As a Personnel Specialist 2, Ramirez primary
responsibilities included overseeing the Fire Departments payroll functions, supervising several personnel technicians, implementing a new employee performance evaluation system, implementing a paperless payroll system called ePARS, and handling various employee payroll issues and disputes. (D.E. 19-1 at 27; D.E. 33-13). Neither Ramirez nor her supervisors ever received any
complaints about her competency or work product during her employment. (D.E. 33-2 at 31-32, 39-40; D.E. 33-4 at 38). Ramirez consistently received praise from co-workers. (D.E. 33-14). In September 2008, Captain Gregory Rubin began working with Ramirez on a personnel project. (D.E. 19-5 at 20-22). In October 2008, Rubin began making unwanted sexual advances in private one-on-one situations with Ramirez. (D.E. 19-1 at 49-50, 119-20; D.E. 19-5 at 20-22). Rubin is a 13 year veteran with the
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Fire Department who was promoted to Division Chief in 2010. (D.E. 33-6 at 4-7). In October 2008, Rubin remarked to Ramirez, if I was running with you, I would run behind you because its a better view. (D.E. 19-1 at 49-50, 119-120; D.E. 195 at 20-22). Ramirez understood this comment as an offer of sex, and responded to Rubin, were not going there. (D.E. 19-1 at 49-50, 119-120; D.E. 19-5 at 2022). Also in October 2008, Ramirez caught Rubin obviously staring up and down her body in a parking lot, and on another occasion, Rubin crept behind Ramirez at work, forcing Ramirez to squirm away to avoid physical contact. (D.E. 19-1 at 5153; D.E. 19-5 at 20-22). In November 2008, Rubin told Ramirez, you should go far in the Fire Department because youre attractive and seemingly competent. (D.E. 19-1 at 54-56; D.E. 19-5 at 20-22). This offended Ramirez, who wanted to be known and evaluated for her work and professionalism. (D.E. 19-1 at 54-56; D.E. 19-5 at 20-22). In December 2008, Rubin asked Ramirez if she had a
boyfriend and Ramirez said no. (D.E. 19-1 at 57-58; D.E. 19-5 at 20-22). Rubin replied, youll have one soon, especially working in this department with so many men. (D.E. 19-1 at 57-58; D.E. 19-5 at 20-22). Ramirez took this as harassment because Rubins aggressive tone and prior conduct. (D.E. 19-1 at 57-58). At a work meeting, Rubin once told Ramirez to shut the fuck up. (D.E. 19-1 at 115116). After a work meeting in February 2009, Rubin approached Ramirez and told her that she looked a little on edge and asked, do you need a boyfriend? (D.E.
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19-1 at 60). Ramirez understood this as an offer of sex and quickly removed herself from the situation. (D.E. 19-1 at 117). Ramirez told her subordinate and confidant Lourdes Maribona about all of these incidents and how they made her feel, right after they happened. (D.E. 19-11 at 66-67, 127). On March 6, 2009, Ramirez orally informed her direct supervisor Madeleine Clodfelter about the escalating sexual harassment by Rubin. (D.E. 19-5 at 35). Ramirez had only previously complained to Maribona, and this was her first complaint to a supervisor because she wanted to keep a low profile given her probationary status. (D.E. 19-1 at 82; D.E. 19-5 at 20-22). Upon receiving the oral complaint, Clodfelter directed Ramirez, her subordinate, to file a formal, written internal sexual harassment complaint and Ramirez complied. (D.E. 19-1 at 80-84; D.E. 33-2 at 28-34). Clodfelter knew that Ramirez feared for her job and also knew that because the harassment occurred without eyewitnesses, the complaint would likely not be sustained based on lack of evidence. (D.E. 33-2 at 28-34). When Clodfelter gave Ramirez the instruction to file the formal complaint, Clodfelter was under the mistaken impression that County employees must report harassment, even though the actual policy advocated permissive reporting. (D.E.19-5 at 16-18; D.E. 33-2 at 27).2
On March 6, 2009, HR Manager Tarlesha Smith told Ramirez that she was a talented and valued employee, but that two subordinates had complained about her management style, and Rubin had complained that she was out of control. (D.E.
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The following Monday, March 9, 2009, Ramirez submitted her formal written internal sexual harassment complaint. (D.E. 19-1 at 85-95; D.E. 19-5 at 20-22). Sergeant Rivas from Miami-Dade Police Internal Affairs was assigned to investigate. (D.E. 19-5 at 31-37). During the investigation, Rubin denied the allegations and complained about Ramirez work performance at a particular meeting. (D.E. 19-5 at 33-34). Maribona (Ramirez co-worker) confirmed that Ramirez complained about the harassment to her as it was occurring, thus confirming that Ramirez sexual harassment complaint was not a recent fabrication. (D.E. 19-5 at 34-35). Two other witnesses stated that they did not notice that Ramirez performed badly or acted out of character at the meeting referenced by Rubin. (D.E. 19-5 at 36). During the week of March 9, 2009, HR Coordinator Pepe Fernandez told Ramirez that he believed her and that another female in the fire department had raised an informal, verbal complaint about Rubin
19-1 at 77-78; D.E. 33-4 at 34-35). This was not a counseling session and Smith did not discipline or formally write up Ramirez. (D.E. 19-1 at 77-78; D.E. 33-2 at 40-41). County policy dictated that a written record would have been kept of any such meeting, yet no such records exist. (D.E. 19-1 at 77-78; D.E. 33-2 at 40-41). As his supervisor, Ramirez had previously spoken with subordinate Hector Mesa about respecting her authority after he was loud and disrespectful to her in a staff meeting. (D.E. 19-1 at 32-33, 90-91, 125) Ramirez had also formally counseled another subordinate Amy McBride about an unexcused absence at the direction of Ms. Smith. (D.E. 19-1 at 30-32, 71, 90-91, 125). Smith told Ramirez that Rubin thought Ramirez was out of control, even though Smith cannot recall Rubin ever complaining to her about Ramirez, and Rubin cannot recall why he complained about Ramirez. (D.E. 33-4 at 58; D.E. 33-6 at 25-26).
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that involved similar accusations.
(D.E. 19-1 at 119-120).
Rubin would go
fishing by making inappropriate, private comments to female co-workers to try to hook them into having sex with him. (D.E. 19-1 at 119-120). On March 13, 2009, four days after Ramirez complaint was submitted, Sergeant Rivas concluded that Ramirez complaint was not sustained. (D.E. 195 at 31-37). The County later testified that all he said / she said complaints are deemed not sustained absent physical evidence. (D.E. 33-2 at 29-30). On March 16, 2009, Ramirez supervisors Clodfelter and Smith suddenly and without explanation decided to exclude Ramirez from important work meetings that Ramirez previously attended prior to the submission of her sexual harassment complaint. (D.E. 33-15). Smiths treatment of Ramirez turned cold after
Ramirez submitted the complaint. (D.E. 19-1 at 120-121). Prior to its submission, Smith consistently praised Ramirez and gave her important projects, but this quickly came to an end following the internal complaint. (D.E. 19-1 at 120-121). HR Manager Smith sent a May 7, 2009 memo to Fire Chief Lorenzo, recommending that Ramirez be terminated effective immediately, and that Ramirez was not suitable for rehire with the County. (D.E. 19-5 at 24-25). That same day, without meeting in person with Smith or independently looking into reasons for termination, Fire Chief Lorenzo approved Smiths recommendation and drafted a letter succinctly notifying Ramirez that she had not met the
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requirements of probationary employment with Miami-Dade County. (D.E. 33-4 at 49; D.E. 33-7 at 14, 23; D.E. 33-8). Ramirez received the notification and was terminated on Friday, May 8, 2009 at about 4:45 p.m. (D.E. 28-1; D.E. 33-8). Ramirez was told to back up her belongings and leave, immediately, under the supervision of HR personnel. (D.E. 28-1). Ramirez had no time to back up her emails and electronic data. (D.E. 28-1). Ramirez one year probationary period would have ended on or about May 19, 2009. (D.E. 19-3 at 1; D.E 19-5 at 49). Although County policy requires that terminated probationary employees are given reasons why they are being terminated, Smith merely told Ramirez that she was not a good fit. (D.E. 19-5 at 8; D.E. 33-16). On May 20, 2009, Ramirez emailed her former supervisor Clodfelter and requested that the County lift the not eligible for rehire determination so that it would not harm her job search. (D.E. 33-16). Clodfelter replied that the decision was made personally by Chief
Lorenzo, not Smith. (D.E. 33-16). Ms. Smith, however, testified that she, not Chief Lorenzo, made the decision. (D.E. 33-4 at 50-52). Chief Lorenzo eventually overruled Smith and removed the not eligible for rehire classification. (D.E. 3316; D.E. 33-17). When Smith learned that Chief Lorenzo had overruled her and that Ramirez status would be changed to will rehire, her reaction in an email was, Riiiiiight! In exchange for what? (D.E. 33-17). Ms. Feuer responded, nothing, and Smith persisted, BUT, in exchange for what? (D.E. 33-17).
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Smith had originally recommended that Ramirez be deemed not eligible for rehire and was offended by the decision to change her eligibility status. (D.E. 195 at 24-35; D.E. 33-4 at 50-52; D.E. 33-17). Ms. Feuer, another one of Ramirez supervisors, decided how to spin this to Ramirez: I prefer to say it [the not eligible for rehire determination] was an admin. error and thanks for bringing it to our attention. (D.E. 33-17). In sum, Ramirez supervisors went out of their way to intentionally hurt her for filing an internal complaint of sexual harassment by deeming her ineligible to be rehired, and, when they were overruled by Chief Lorenzo, they conspired to cover up the circumstances of her termination by calling an intentional decision an administrative error. Ramirez was never disciplined, put on a performance improvement plan or warned that her job was in jeopardy during her employment with the County. (D.E. 19-1 at 112, 125). There is absolutely no documentary evidence of Ramirez ever being counseled, disciplined or having any job performance issues, despite the Countys policy requiring a written record of such matters. (D.E. 33-2 at 40-41; D.E. 33-4 at 27, 72). On May 20, 2009, less than two weeks after Ramirez termination, her direct supervisor, Personnel Manager Annetta Nelson, wrote Ramirez a sterling letter of recommendation. (D.E. 33-18). At a meeting
immediately following Ramirez termination, Ramirez asked why she had been terminated and the ultimate decision maker, Fire Chief Lorenzo, could not
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articulate any reasons why. (D.E. 19-1 at 96). At their depositions, Chief Lorenzo and Captain Rubin testified that Ramirez was terminated due to work performance issues, even though the County has consistently argued in this litigation that Ramirez was terminated solely due to her attitude and management style. (D.E. 17; D.E. 33-6 at 30; D.E. 33-7 at 14, 23). Chief Lorenzo also testified that the County took Ramirez internal sexual harassment complaint into account when deciding to terminate her because her complaint came subsequent to the March 6, 2009 meeting in which Ramirez learned that Rubin was raising spurious complaints about her to Smith. (D.E. 33-7 at 39-40). I.e., Chief Lorenzo admits that Ramirez written sexual harassment complaint was taken into consideration when the County terminated her. On May 12, 2009, Ramirez filed an EEOC charge, alleging sexual harassment, discrimination and retaliation in violation of Title VII. (D.E. 19-5 at 49). On May 16, 2011, the EEOC issued its Letter of Determination, concluding that the Countys proffered reasons for terminating Ramirez were pretextual and that Ramirez was harassed and retaliated against as alleged [in] violation of Title VII. (D.E. 19-5 at 51-53). The Complaint was filed on July 25, 2011. (D.E. 1).
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(iii)
Standard of Review
Summary judgment is reviewed de novo. See Porter v. White, 483 F.3d 1294 (11th Cir. 2007).3 The Court is familiar with the summary judgment
standards. Discovery orders are reviewed under an abuse of discretion standard. See Castle v. Sangamo Weston, Inc., 744 F.2d 1464, 1466 (11th Cir. 1984).
Summary judgment in employment cases, where intent, credibility and other subjective feelings play dominant roles, should be granted only with great caution. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513 (1986) (Neither do we suggest that the trial courts should act other than with caution in granting summary judgment or that the trial court may not deny summary judgment in a case where there is reason to believe that the better course would be to proceed to a full trial.); United States v. Aikens, 460 U.S. 711, 716, 103 S. Ct. 1478, 1482 (1983) (vacating bench verdict for employer and noting All courts have recognized that the question facing triers of fact in discrimination cases is both sensitive and difficult.) (emphasis added); (internal citations omitted); Alexander v. Wisc. Dept. of Heath & Family Servs., 263 F. 3d 673, 68081 (7th Cir. 2001) (noting that summary judgment in employment cases requires added vigor due to the nature of the claim, the role that witness credibility plays and the statutory right to trial by jury); Wright v. Southland Corp., 187 F.3d 1287, 1290 (11th Cir. 1999) (A discrimination suit . . . puts the plaintiff in the difficult position of having to prove the state of mind of the person making the employment decision.)
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SUMMARY OF ARGUMENT Ada Ramirez was terminated by the Miami-Dade County Fire Department because, at the request of a female supervisor, she filed an internal written report of sexual harassment against a male supervisor. At the time, she was a probationary employee and he was a Captain. Over a period of several months, the Captain had made unwelcome sexual advances, including offers of sex. A few weeks after the County closed its investigation into her complaint (which was dismissed), and a few days before her one year probationary period would have ended, she was terminated for reasons that the County admits it cannot explain. The County concedes she was a stellar employee who had no performance issues. What makes this case especially odd is the fact that the Fire Chief testified under questioning by his own counsel that the County did, in fact, take Ms. Ramirez sexual harassment complaint into consideration when it terminated her. The County fired her, at least in part, because it believed that she filed a baseless sexual harassment complaint. The Countys action, and its warped explanation for its action, is fundamentally inconsistent with Title VIIs broad anti-retaliation provision, which is designed to protect employees like Ms. Ramirez when they report sexual harassment. But for her sexual harassment complaint, Ms. Ramirez would not have been terminated days shy of her probationary period ending and would have
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enjoyed years of government employment with health care benefits for her and her young daughter. In addition to substantial evidence (if not an outright admission) of retaliation, Ms. Ramirez received a favorable determination from the Equal Employment Opportunity Commission that concluded after hearing from both Ms. Ramirez and the County that Miami-Dade County violated Title VII and gave a pretextual explanation for her termination. Despite this evidence and favorable EEOC finding, the district court granted summary judgment on the mistaken belief that as a matter of law, Ms. Ramirez could not have been retaliated against because the underlying sexual harassment complaint did not constitute protected activity because it was not independently actionable sexual harassment. Numerous cases from this Court, as well as a recent unanimous decision from the Supreme Court, confirm that protected activity under the anti-retaliation provision of Title VII requires only a good faith reasonable belief of sexual harassment, not an independently actionable violation of Title VII. This Court has also held, repeatedly, that EEOC decisions are admissible in a jury trial and are especially relevant at summary judgment. For these reasons, the summary judgment order must be reversed. There are several smaller but important discovery disputes that warrant special attention by the Court. First, the district court abused its discretion when it
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denied Ramirez agreed motion for a two month continuance of the discovery deadline. The County needed additional time to produce electronically stored information (and the depositions that would follow) and it agreed, quite reasonably, to Ramirez request for an additional two months of discovery. The district court immediately denied the agreed motion by paperless order. Second, Ramirez filed a motion to preserve various discovery issues in light of the denied continuance, the quickly approaching discovery deadline, and the outstanding discovery from the County. In filing this motion, Ramirez wanted to avoid waiving discovery issues due to the Countys delayed document production. While that motion was pending, the district court granted summary judgment. The motion to preserve was then denied as moot in light of the summary judgment order. Finally, Ramirez was reluctantly forced to file a motion for sanctions due to apparent destruction of electronic evidence by the County and due to the Countys non-appearance at its properly noticed Rule 30(b)(6) deposition. After the County knew that litigation was highly likely, it permanently deleted Ms. Ramirez entire email account. The County also expressly refused to produce a witness to discuss various Rule 30(b)(6) topics (including Ramirez termination) and produced two witnesses who had virtually no knowledge of their designated topics. The motion for sanctions was filed within days of the Rule 30(b)(6) deposition, but it too was
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denied in a paperless order as both untimely and moot in light of the summary judgment order. Ramirez recognizes that discovery orders are generally not overturned in light of the highly deferential abuse of discretion standard. But every discovery order under review was denied by paperless order without explanation. The lack of an explanation and, in some cases, outright refusal to reach the merits of the motion, precludes any, much less meaningful, appellate view. Ramirez requests that, upon remand, the district court be instructed to reconsider each of the discovery issues on the merits. ARGUMENT I. THE COUNTYS RETALIATION AGAINST RAMIREZ FOR SUBMITTING AN INTERNAL COMPLAINT IS SUPPORTED BY SUBSTANTIAL EVIDENCE Ramirez has evidence supporting each element of retaliation, and it was error for the district court to grant summary judgment in the Countys favor. To prove Title VII retaliation, a plaintiff must demonstrate that (i) she engaged in an activity protected by Title VII; (ii) she suffered an adverse employment action; and (iii) there is some causal connection between the protected activity and the adverse employment decision. See Alvarez v. Royal Atlantic Developers, Inc., 610 F.3d 1253, 1268 (11th Cir. 2010).
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Title VIIs anti-retaliation provision must be construed to cover a broad range of employer conduct. Thompson v. North Am. Stainless, LP, 131 S.Ct. 863, 868 (2011) (Scalia, J.) (unanimously reinstating retaliation lawsuit). The Act
prohibits any employer action that well might have dissuaded a reasonable worker from making or supporting a charge of discrimination. Id. Here, Ramirez was instructed by her supervisor to make a written formal complaint after she made an informal verbal complaint. That written complaint got her fired. The Countys actions would dissuade a reasonable worker from making such a complaint, thus implicating the anti-retaliation provision of Title VII and warranting reversal. (i) Protected Activity Ramirez engaged in protected activity by submitting an internal complaint while she had an objectively reasonable belief that she was being sexually harassed by Captain Rubin. The submission of an internal formal complaint constitutes statutorily protected conduct. See Alvarez, 610 F.3d at 1268 (summarily
concluding that employee engaged in protected activity by sending letter to CEO complaining that CFO planned to fire employee because she was Cuban). Here, Ramirez orally informed direct supervisor Madeleine Clodfelter about the sexual harassment on March 6, 2009. (D.E. 19-5 at 35). Clodfelter immediately directed Ramirez to file a formal sexual harassment complaint and Ramirez complied. (D.E. 19-1 at 80-84; D.E. 33-2 at 28-34). When Clodfelter gave Ramirez this
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instruction, Clodfelter was under the impression that County employees must report any type of harassment, even though the actual policy advocated permissive reporting. (D.E.19-5 at 16-18; 33-2 at 27). The following Monday, March 9, 2009, Ramirez submitted her formal sexual harassment complaint and Sergeant Rivas from Internal Affairs was assigned to the investigation. (D.E. 19-1 at 85-85; D.E. 19-5 at 20-22). This written internal complaint was submitted at the direction of a supervisor, through the appropriate channels to internal affairs, and detailed several inappropriate sexual advances by Rubin, explicitly notifying the employer of an alleged hostile work environment. (D.E. 19-5 at 20-22). By submitting it, Ramirez engaged in statutorily protected conduct. See Alvarez, 610 F.3d at 1268. All that is necessary is that Ramirez had a good faith, reasonable belief that she was the victim of sexual harassment, and that this belief led to the submission of the internal complaint.4 See Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d 1183, 1187 (11th Cir. 2001). In Lipphardt, a female employee alleged that her supervisor, a persistent ex-boyfriend, sexually harassed her and that she The model jury instructions confirm this: So, even if a complaint of discrimination against an employer is later found to be invalid or without merit, the employee cannot be penalized in retaliation for having made such a complaint if you find that the employee made the complaint as a means of seeking to enforce what the employee believed in good faith to be [his] [her] lawful rights. To establish good faith, however, it is insufficient for the Plaintiff to merely allege that [his] [her] belief in this regard was honest and bona fide; the allegations and the record must also establish that the belief, though perhaps mistaken, was objectively reasonable. Eleventh Cir. Pattern Jury Instructions (Civil), 1.10.3 at 205 (2005).
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was terminated for complaining about it. Id. at 1185. The jury found for the employer on the hostile work environment claim, and for the employee on the retaliation claim, but the district court granted the employers judgment as a matter of law as to the retaliation claim, reasoning that the harassment was based on their previous relationship, not the employees status as a female. Id. at 1184-88. This Court re-instated the jury verdict because the employee was not required to prove that the [ex-boyfriend supervisors] behavior legally constituted harassment in order to recover for retaliation. Id. at 1187. It further explained that it was irrelevant that the jury found for the employer on the hostile work environment claim. Id. at 1187, n.5. On a claim for retaliation, the standard is not whether there is a valid hostile work environment claim, but whether [the employee] had a good-faith reasonable belief that she was the victim of such harassment. Reasonable minds could
disagree on this issue, which makes it an inappropriate candidate for judgment as a matter of law. Id. at 1188; see also Taylor v. Runyon, 175 F.3d 861, 868-69 (11th Cir. 1999) (reversing district court that reasoned that there could be no retaliation because there was no discrimination, because all that is required is that the employee have a good faith belief that discrimination existed); Sullivan v. Natl R.R. Passenger Corp., 170 F.3d 1056, 1058-59 (11th Cir. 1999) (finding an
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argument that there can be no retaliation where there is no sexual harassment totally meritless). Ramirez supervisor, Captain Rubin, made numerous comments to her about her lack of a sex life and how she would not be able to remain single in such a male dominated environmentRamirez subjectively understood that when Rubin, inter alia, stated he wanted a better view of her posterior and asked, do you need a boyfriend? he was offering sex. (D.E. 19-1 at 49-60, 117-120; D.E. 19-5 at 20-22). Rubin, who has since been promoted to Division Chief, has denied making any such comments but agrees that they would be inappropriate at the workplace. (D.E. 33-6 at 27-31). Upon learning of Ramirez complaints, HR Coordinator Pepe Fernandez told Ramirez that he believed her allegations and that another employee had raised a verbal complaint about Rubin that fit the modus operandi. (D.E. 19-1 at 119-20). Rubin would go fishing by making inappropriate comments in one-on-one situations to see if co-workers would have sex with him. (D.E. 19-1 at 119-20). A jury may infer that Captain Rubins wholesale denial is a lie. The conduct at issue here clears the low hurdle that Ramirez had a reasonable good faith belief, and is more analogous to cases in which there was a finding of a hostile work environment. In October 2008, when the two were alone in a car together, Rubin told Ramirez, If I were running with you, I would run
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behind you because its a better view.
(D.E. 19-5 at 20-22).
Ramirez
immediately rejected the advance and firmly told Rubin, were not going there. Id. That same month, even though Ramirez had told Rubin to cease his advances, he inappropriately stared up and down Ramirez body when the two were alone in the parking lot, Ramirez was offended, flustered and removed herself from the situation. (D.E. 19-5 at 20-22). Again in the same month, Rubin approached Ramirez and pulled up a chair until his chair was touching Ramirez; Ramirez had to lean away to avoid contact and the invasion of her personal space made her feel uncomfortable. (D.E. 19-1 at 51-53; D.E. 19-5 at 20-22). Then, in November 2008, Rubin commented, dont worry, you should go far in the Fire Department because youre attractive and seemingly competent. (D.E. 19-1 at 54-56; D.E. 195 at 20-22). This comment suggested that attractive women receive preferential treatment and bothered Ramirez because she understandably wanted to be known for her work product and professionalism, not her physical appearance. (D.E. 19-1 at 55-56). In December 2008, despite being clearly rejected during previous
months, Rubin asked Ramirez if she had a boyfriend, she responded no, and he replied, youll have one soon, especially working in the department with so many men. (D.E. 19-1 at 57-58; D.E. 19-5 at 20-22). Confirming that this was not a harmless question about dating status, Rubin later told Ramirez that she seemed on edge when the two were alone after a meeting and followed up, Do you need
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a boyfriend? (D.E. 19-1 at 60; D.E. 19-5 at 20-22). Ramirez understood this to be an offer of sex. (D.E. 19-1 at 117-120). Following Rubins spurned advances, he complained to mutual HR supervisor Tarlesha Smith about Ramirez work performancebut Rubin cannot recall what he complained about. (D.E. 33-4 at 58; D.E. 33-6 at 25-26). A jury could reasonably infer that Rubin attempted to disrupt Ramirez relationship with her employer because she would not have sex with him. Ramirez, who wisely did not want to make waves during her
probationary period, told her supervisor Ms. Clodfelter about the harassment as soon as she became aware of Rubins false complaints about her. (D.E. 19-1 at 82, 118; D.E. 19-5 at 35). The facts here in line with those in Bruno v. Monroe County, 2008 WL 4276532 (S.D. Fla. 2008) (affirmed at 383 F. Appx 845, 848 (11th Cir. 2010) ([W]e conclude that the district court did not err in finding that a reasonable person could conclude, based on the evidence presented, that [the mayors] conduct was sufficiently severe or pervasive to constitute a hostile work environment based on sexual harassment.)). In Bruno, a woman applied for, and filled, an opening to serve as an administrative assistant to the mayor of Monroe County even though she was well aware that he was a known womanizer. Id. at *1. During the employment, the mayor bragged about his various sexual exploits, complimented plaintiffs body, asked her what color her underwear was, asked her
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about her sex life, and belittled her by commenting, youre cute when youre upset. Id. at *2. The district court denied summary judgment for the employer even though the mayors comments were not particularly vulgar and most comments concerned women other than plaintiff. Id. at *2. Recognizing that words not tell the whole story, the district court noted that Examination of the precise words, however, should not completely overshadow the content of what is being communicated. See id. at * 4-5. Context, and the way that words are said matters, and Ramirez did not view Rubins comments as harmless inquiries into her dating status and compliments about her appearanceshe viewed them as inappropriate sexual advances and offers of sex from senior supervisor who had more power in the Department. Indeed, the facts supporting a hostile work
environment here surpass those in Bruno: Rubins sexually-charged comments were directed at Ramirez and Ramirez alone, in one-on-one situations in a parking lot, in a car and after a meeting; additionally, there was no evidence in Bruno that plaintiff told the mayor to stop whereas here, Ramirez did so immediately and would remove herself from situations that she felt constituted harassment. As in Bruno, Rubins comments made it difficult [for her] to concentrate on work. See id. at *5. The mayors comment, youre cute when youre upset, is remarkably similar to Rubins similarly condescending and sexist comment to Ramirez that she
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would go far in the Department because she is attractive and seemingly competent. Compare id. at *2 with D.E. 19-5 at 20-22. The facts here are also similar to those in Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554, 1556-61 (11th Cir. 1987). In Sparks, this Court reversed summary judgment in favor of the employer where plaintiffs supervisor asked if she had a boyfriend, inquired as to her personal life and threatened her employment with comments like your fate is in my hands. Id. at 1556. Similar to the facts here, there was no direct sexual touching, but the comments, combined with the power imbalance, led plaintiff to fear for her job security and were therefore sufficiently severe and pervasive. See id. at 1561. Ms. Ramirez had a good faith, objectively reasonable belief that she was the victim of sexual harassment. Her written complaint, filed at the request of her supervisor after making an informal verbal request, constitutes protected activity within the meaning of Title VIIs anti-retaliation provision. (ii) Adverse Employment Action In the retaliation context, all that is necessary is that the conduct had a materially adverse effect on the plaintiff, irrespective of whether it is employment or workplace-related. See Crawford v. Carroll, 529 F.3d 961, 973-74 (11th Cir. 2008) (citing the liberal definition expounded in Burlington N. & Sante Fe Ry. Co. v. White, 548 U.S. 53, 63-70, 126 S. Ct. 2405, 2412-16 (2006)). Even a poor
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performance review is an adverse employment action. See Crawford, 529 F.3d at 974. Ramirez suffered an adverse employment action when she was terminated on May 8, 2009, D.E. 33-8. See, e.g., Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456 (11th Cir. 1998) (holding that termination is an adverse employment action). (iii) There was Some Causal Connection Between the Protected Activity and Adverse Employment Action The undisputed evidence demonstrates some causal connection between the internal sexual harassment complaint (D.E. 19-5 at 20-22) and Ramirez termination, satisfying the third element. (D.E. 36-4 at 39-40). It is not necessary that the protected activity is the sole or even primary cause of the adverse action; rather, the element is satisfied if the two are not wholly unrelated.5 See Taylor, 175 F.3d at 868 (citing Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993)); see also McNely v. Ocala Star-Banner Corp., 99 F.3d 1068, 1075 (11th Cir. 1996) (reversing for improperly instructing the jury on sole cause.). At a minimum, a plaintiff must generally establish that the employer was actually aware of the protected expression at the time it took adverse employment action. See Goldsmith, 996 F.2d at 1163. There is no doubt that the County was aware of On the other hand, it is not necessary for the Plaintiff to prove that the Plaintiffs [protected activity] was the sole or exclusive reason for the Defendants decision. It is sufficient if the Plaintiff proves that [the protected activity] as a determinative consideration that made a difference in the Defendants decision. Eleventh Cir. Pattern Jury Instructions (Civil), 1.10.3 at 207 (2005).
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the complaint -- it immediately tasked Sergeant Rivas to conduct an internal investigation. (D.E. 19-5 at 31-37). Evidence of causation is also found in the strained working conditions that followed Ramirez complaint. HR Manager Smiths treatment of Ramirez turned cold after this internal complaint was submitted, and Smith would eventually draft the memo recommending that Ramirez be terminated effective immediately. (D.E. 19-1 at 120-21; D.E. 19-5 at 24-25). Ramirez was deemed not eligible for rehire based on Smiths recommendation, but the County changed its mind when Ramirez pointed out that no reason was given for her termination. (D.E. 33-16; D.E. 33-17). Smith reacted with disbelief and took the change to will rehire personally: Riiiiiight! In exchange for what? (D.E. 33-17). Clodfelter told Ramirez that not eligible for rehire was Chief Lorenzos decision, when it was actually Smiths. (D.E. 33-16). Then, Ramirez supervisor, Ms. Feuer, emailed Smith that Ramirez should be told that not eligible for rehire was just an administrative error. (D.E. 33-17). A jury could conclude that the way that these employees lied to Ramirez about her termination and status is evidence that they were concealing the true reason: she submitted a sexual harassment complaint that accused a veteran Captain of wrongdoing. There is no reason to spin the truth. Finally, and most importantly, the County admitted that there was a causal connection between Ramirez complaint and termination. The ultimate decision-
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maker, Chief Lorenzo, was asked by his own attorney [i]n making your decision, did you consider at all the fact that shed filed previously a sexual harassment claim? He replied, [y]es, we did. (D.E. 33-7 at pp. 39-40.) A decisionmakers admission that he took an internal complaint into consideration when making the decision to terminate an employee is a near-admission of liability. Hemsworth, II v. Quotesmith.com, Inc., 476 F. 3d 487, 490 (7th Cir. 2007) (noting that Youre too old to work here is a near-admission of liability). A jury is free to take Chief Lorenzo at his word. The County is free to argue at trial that it was permissible to terminate Ramirez for filing an internal complaint because her allegations came subsequent to her counseling for her work habits and behavior, and were therefore unbelievable. (D.E. 36-4 at 39-40). I.e., it can argue that the Countys true motivation was benevolent or that Ramirez is a liar. Neither of these, however, are summary judgment arguments. The admission by Lorenzo at the very least raises a jury question about whether Ramirez was fired, in part, because of the internal complaint. See Alvarez, 610 F.3d 1253 (11th Cir. 2010). In Alvarez, the employer conceded that it
terminated the employee sooner because of an internal complaint, but that the actual termination was nevertheless not caused by the internal complaint. Id. at 1258. This Court reversed and noted that the case should have sail[ed] past summary judgment given this admission. Id. The Countys admission that it took
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Ramirez internal complaint into account is strong, perhaps the best possible, evidence of causation, and summary judgment should be reversed. II. THE EEOCS DETERMINATION LETTER IS ADMISSIBLE On May 16, 2011, the EEOC issued its Letter of Determination, concluding that the Countys proffered reasons for terminating Ramirez were pretextual and that Ramirez was harassed and retaliated against as alleged [in] violation of Title VII. (D.E. 19-5 at 51-53). Although Ramirez incorporated this in her summary judgment response brief, the district court did not consider it in granting summary judgment for the County. (D.E. 41). But the EEOCs conclusion, especially when combined with Ramirez evidence of retaliation, warrants reversal. See Horne v. Turner Const. Co., 136 F. Appx. 289, 292 (11th Cir. 2005) (reversing order granting summary judgment and concluding that [t]he EEOCs finding that there was reasonable cause to believe that discrimination occurred bolsters our conclusion. We previously have held that such an EEOC finding is admissible evidence in a bench trial, and the district court should have taken it into consideration in this summary judgment proceeding as well. The district court erred in failing to do so.) (internal citations omitted). EEOC determinations are generally admissible . . . unless the sources of information or other circumstances indicate lack of trustworthiness sufficient to justify exclusion from evidence. Blanton v. Univ. of Fla., 273 F. Appx 797, 804
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(11th Cir. 2008) (internal citations omitted) (affirming district courts admission of EEOC determination in jury trial). [A] district court does not abuse its discretion in admitting an EEOC determination that concerns the same discrimination claim as that before the jury, where sufficient evidence was adduced at trial to place the determination in its proper context, and the district court instructed the jury as to the appropriate use of the determination by explaining that it is not an adjudication of rights and liability. Id. Even in a jury trial, an EEOC determination is ordinarily admissible, Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1288 (11th Cir. 2008) (affirming admission of EEOC letter), and is highly probative. Barfield v. Orange Cty., 911 F.2d 644, 649 (11th Cir. 1990) (same). Mere disagreement with the EEOCs ultimate finding is not enough to warrant omitting the evidence since every employer disagrees with an EEOC finding in favor of the employee. Below, the County disagreed with the EEOCs finding, but presented no evidence that the EEOC process was tainted. This Court explained at length that: Our precedents explain that an EEOC determination is ordinarily admissible. In Barfield v. Orange County, we considered whether an EEOC determination and report can be excluded from evidence in a jury trial under either Rule 403 or Rule 803(8)(C), and we concluded that this determination was best left to the sound discretion of the district court. 911 F.2d 644, 650-51 (11th Cir.1990). We explained, A finding of intentional racial discrimination ... is a finding of fact. Rule 803(8)(C) explicitly makes such evaluative reports admissible,
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regardless whether they contain factual opinions or conclusions. Id. at 651 n. 8 (citations omitted). We long ago stated that the probative value of an EEOC determination ordinarily outweighs any possible prejudice to the defendant in a bench trail, Smith v. Universal Servs., Inc., 454 F.2d 154, 157 (5th Cir.1972), although we more recently recognized in Barfield that there may be some circumstances in which the probative value of an EEOC determination is trumped by the danger of creating unfair prejudice in the minds of a jury, 911 F.2d at 650. Both Goldsmith and Bagby Elevator presented ample evidence at trial to place the EEOC determination in its proper context. Bagby Elevator elicited testimony at trial from Hunter Bagby that there was no factual support in the EEOC determination. Goldsmith elicited testimony from Hunter Bagby that Bagby Elevator had supplied documents to the EEOC during its investigation of the charges of discrimination filed by Peoples, Jemison, and Goldsmith. Steber also wrote a letter to the EEOC before it issued the cause determination, and this letter was admitted as an exhibit at trial and provided factual support for the cause determination. Bagby Elevator complains that the EEOC determination was tainted by an untruthful affidavit of union representative Larry Gardner, which stated that Bagby Elevator had not hired any black employees for the field department of Bagby Elevator operations. Again, we disagree. Bagby Elevator corrected this assertion at trial when Gardner admitted during direct examination that Bagby Elevator had hired one black person for the field in his 13 years as the union representative. The district court instructed the jury to guard against the improper use of this evidence. The district court explained what an EEOC determination was and emphasized that it was not an adjudication of rights that was binding on the employer: Now, as I have previously stated to you, the plaintiff sued the defendant for violation of his rights under Title VII of the Civil Rights Act of 1964. Pursuant to that Act, an individual who believes his rights have been infringed upon must first file a Charge of Discrimination with the Equal Employment Opportunity
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Commission, or the EEOC as it is called, before he or she may bring a lawsuit. Upon receiving that charge, the EEOC must investigate the allegation. After investigation, the EEOC may either determine that there is not reasonable cause to believe the charge is true and dismiss the charge or determine that there is reasonable cause to believe that charge is true. Whether or not the EEOC determines cause, the person who alleges to be aggrieved may file a lawsuit. The EEOC's reasonable cause determination is not an adjudication of rights and liabilities. Indeed, it is a nonadversary proceeding designed to notify the employer of the EEOC's findings, which is not reviewable in court and not binding on the employer. This instruction correctly explained the purpose and character of an EEOC determination and it did not adjudicate rights and liabilities. In the light of this instruction, we cannot conclude that the district court abused its discretion when it admitted the EEOC determination. See Morro v. City of Birmingham, 117 F.3d 508, 517 (11th Cir.1997). Bagby Elevator, 513 F.3d at 1288-89.6 Ramirez is not suggesting that an EEOC letter determination is a free pass to avoid summary judgment. But a district court is not free to categorically disregard an EEOC letter either. The district court abused its discretion when, in light of this Courts overwhelming case law favoring admission of the EEOC finding, the lack of explanation precludes meaningful appellate review. See Friends of the
Ramirez is confident that the letter can be placed in the proper context, as required by Blanton, 273 F. Appx. at 804. Jurors are not stupid. United States v. Rosario-Camacho, 697 F. Supp. 2d 244, 249 (D.P.R. 2010).
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Everglades v. South Fla. Water Mgt. Dist., --- F.3d ---, 2012 WL 1468484, *1 (11th Cir. Apr. 30, 2012).7 On remand, it should be admitted into evidence. III. SUMMARY JUDGMENT WAS ENTERED WHILE SIGNIFICANT DISCOVERY ISSUES REMAINED OUTSTANDING The district court should not have considered, much less granted, the Countys motion for summary judgment while material discovery issues remained outstanding. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552-53 (1986) (holding that summary judgment may only be entered if the parties are given adequate time to engage in discovery); see also Fernandez v. Bankers Natl Life Ins. Co., 906 F.2d 559, 570-71 (11th Cir. 1990) (reversing summary judgment where district court denied request for additional relevant discovery as moot following entry of summary judgment); Snook v. Trust Co. of Ga. Bank of Savannah, N.A., 859 F.2d 865, 870 (11th Cir. 1988) (Generally summary
Limited deference to the EEOC by district courts is also good public policy. If litigants know that EEOC findings are taken into consideration by district courts, parties (and their counsel) will be far more likely to actively and meaningfully participate in the EEOC process (including mediation and conciliation). In meritorious cases, terminated employees will be more likely to be reinstated or compensated for their economic damages which satisfies the remedial goals of federal anti-discrimination statutes. It will simultaneously decrease the number of employment lawsuits filed in the district courts by promoting presuit or early settlement. Congress created the EEOC to facilitate the speedy resolution of employment disputes in an effort to avoid excessive and protracted employment litigation. If district courts categorically refuse to even consider EEOC findings, then the EEOC is nothing more than a federal reporting agency whose only value is maintaining statistics and forcing victims of illegal discrimination to wait six months before they can seek any redress.
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judgment is inappropriate when the party opposing the motion has been unable to obtain responses to his discovery requests.); Cowan v. J.C. Penney Co., Inc., 790 F.2d 1529 (11th Cir. 1986). Ramirez was due a complete production of all relevant and discoverable information. See Dean v. Barber, 951 F.2d 1210, 1213-14 (11th Cir. 1992) (vacating summary judgment in favor of defendants because although [defendant] responded to [plaintiffs] interrogatories, we cannot say from the record that the responses were complete or that [plaintiff] had an adequate opportunity to discover the facts necessary to justify his opposition to [defendants] motion for summary judgment). The parties held their mandatory Rule 26(f) conference and served written discovery in September 2011 regardless of the date of the Complaint or the Answer, discovery is expressly forbidden by rule until the Rule 26(f) conference. (E.g. D.E. 27-7). On September 15, 2011, aware of the multitude of fact witnesses and complexities on the horizon, the parties requested a discovery deadline of March 30, 2012 (D.E. 9) but the district court set a deadline of January 16, 2012 (D.E. 10). In its October 31, 2011 discovery responses, the County announced that Ramirez employee e-mail account was deleted following her termination but would be re-constructed and produced to the extent retrievable and identified several important fact witnesses. (D.E. 27-2 at 5). Importantly, the County did not object to producing the requested documents, it merely indicated that it needed
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additional time to locate and produce them. Accordingly, there was no reason for a premature motion to compel. Following the identification of key witnesses,
Captain Rubin, Ramirez, HR Manager Tarlesha Smith and Fire Chief Lorenzo were deposed in November and December 2011. (D.E. 19-1; D.E. 33-4; D.E. 336; D.E. 33-7). After this round of depositions, the parties agreed that more time was needed to complete discovery (especially to obtain the requested electronic discovery), and filed an Agreed Motion for a Sixty Day Continuance of discovery on December 28, 2011. (D.E. 14). The parties drew attention to the need to take additional depositions and the fact that the County was still searching for relevant emails and electronic discovery, a process which took longer than anticipated given the deletion of Ramirez employee emails. (D.E. 14). The next day, on December 29, 2011, the district court denied the Agreed Motion by paperless order. (D.E. 15). Following denial of the Agreed Motion, Ramirez filed a Motion to Preserve Various Discovery Issues on January 4, 2012. (D.E. 16). In it, Ramirez argued that her right to file a substantive discovery motion should be preserved until the County completed its document production and provided a witness to testify about the Countys search for and production of electronic documents. The County began producing relevant emails on the same day the motion was filed and produced thousands of pages in the days following the motion. Ramirez explicitly argued that the motion was being filed to preserve
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due process rights. (D.E. 16 at 3). The County, in its January 18, 2012 response, stated that it produced all available electronic documents the motion seeks, not all relevant, requested, discoverable electronic documents that Ramirez was entitled to in order to prove her case. (D.E. 20, emphasis added). The County also clarified that the outstanding unavailable documents were indeed public records, but that it was acceptable to delete them because Ramirez should have backed them up herself. (D.E. 20 at 6). On February 17, 2012, the Motion to Preserve was denied as untimely and moot following entry of summary judgment, by paperless order. (D.E. 42).8 Denying Ramirez an opportunity to complete discovery creates a presumption of prejudice. Electronic discovery is critical here. Ramirez, an office worker and payroll supervisor, regularly communicated with co-workers via email, and received positive evaluations and praise via email. (D.E. 16; D.E. 27-12; D.E. 33-14). (Notably, other than Smiths recommendation that Ramirez be
terminated, there is not a single document electronic or paper critical of Ramirez. Smith even concedes that negative performance issues or counseling sessions must be documented, but none exist). Below, the County argued that
The Motion to Preserve was denied as untimely because it was not filed prior to the discovery cutoff. (D.E. 42). But it was filed on January 4, 2012, immediately after it became necessary and well within the January 16 deadline.
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Ramirez was terminated because she mistreated and disrespected her co-workers and that they complained about her where then are the emails that support this? Summary judgment should be vacated because material discovery disputes remained outstanding. On remand, the district court should afford Ramirez sufficient time to complete discovery. IV. THE COUNTY DID NOT APPEAR AT ITS RULE 30(B)(6) DEPOSITION AND MAY HAVE DESTROYED EVIDENCE Following the entry of summary judgment, the district court denied Ramirez Motion for Default Judgment or Lesser Sanction for Non-Appearance at Deposition and Other Discovery Violations as moot and untimely. (D.E. 42). Ramirez requested a default judgment or at least an extension of the discovery deadline as a remedy for the Countys discovery conduct. (D.E. 27; D.E. 40). Ramirez was prejudiced when the district court denied her Motion without considering the merits. (D.E. 42). Ramirez focuses on two aspects: i) the
Countys permanent deletion of Ramirez email account after she filed an internal sexual harassment complaint, after she was terminated because of the complaint and after she filed her EEOC Charge; and b) the Countys refusal to produce a knowledgeable representative for its Rule 30(b)(6) deposition.
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(i)
Permanent Deletion of Electronic Evidence Knowing Litigation was Likely
The County should not have permanently deleted Ramirez employee email account which held probative and publicly accessible information while aware that litigation was imminent. See Flury v. Daimler Chrysler Corp., 427 F.3d 939, 94345 (11th Cir. 2005) (reversing jury verdict for motorist in manufacturing defect suit where motorist failed to preserve vehicle for manufacturers inspection). Ramirez requested all emails to or from her account to demonstrate that she received positive emails from supervisor. The County responded that Plaintiffs e-mail account was removed from the system before she filed this action. Documents related to Ramirez sent to or from other county employees will be produced to the extent retrievable. (D.E. 27-2 at 5). Because the County noted its intent to attempt to re-create Ramirez e-mails through her co-workers, counsel sent the County a list of employees whom Ramirez interacted with so that their accounts could be searched. (D.E. 27-13). The County responded, you cant be serious and requested that Ramirez narrow her list, which she did by identifying eight key individuals. (D.E. 27-13). The County was able to locate documents related to Ramirez in only four of the eight requested accounts, and stated that no e-mails were found in the accounts of Ms. Feuer, Sergeant Rivas, and Chiefs Lorenzo and Suarez. (D.E. 27-10). This made no sense to Ramirez, who recalled sending electronic communications to these individuals. (D.E. 27-12). It also
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made no sense in light of the Countys Rule 30(b)(6) representatives testimony that relevant e-mails were found within the four supposedly empty accounts (including the accounts belonging to Feuer, Lorenzo and Suarez) as well as from additional accounts in searches that occurred months ago, but were never produced. (D.E. 27-3 at 46-50). The County permanently deleted Ramirez
employee e-mail account, which, as a matter of law, are public records, three months after her May 8, 2009 separation, and its attempts to re-create it fell flat. (D.E. 27-8; D.E. 27-3 at 12). This deletion occurred well after the County was aware that litigation was likely. Ramirez raised her internal complaint on March 9, 2009, she was fired because of it on May 8, 2009 and filed her EEOC charge on or around May 12, 2009. (D.E. 19-5 at 20-22; D.E. 19-5 at 49). A reasonable employer would know that an employee terminated after and because of an internal sexual harassment complaint would likely commence litigation. The EEOC charge she filed days after her termination should have left no doubt. All necessary elements of spoliation are met, and the County is subject to sanctions. To establish spoliation, the requesting party must prove that the missing evidence existed at one time, that the spoliator had a duty to preserve the evidence and that the evidence was crucial to the requesting partys ability to prove its prima facie case. See, e.g., Doe v. Miami-Dade County, 797 F. Supp. 2d 1296, 1303 (S.D. Fla. 2011); Flury, 427 F.3d at 943-45. The key to unlocking sanctions is a
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finding of bad faith, and if direct evidence of bad faith is unavailable, it can be supported by circumstantial evidence where 1) evidence once existed that could fairly be supposed to have been material to the proof of defenses of a claim at issue in the case; 2) the spoliating party engaged in an affirmative act causing the evidence to be lost; 3) the spoliating party did so while it knew or should have known of its duty to preserve the evidence; and 4) the affirmative act causing the loss cannot be credibly explained as not involving bad faith by the reason proffered by the spoliator. See Doe, 797 F. Supp. 2d at 1303. Sanctions for spoliation exist to insure the integrity of the discovery process and prevent unfair prejudice to litigants. See Flury, 427 F.3d at 944. The missing evidence existed at one time, is material to the issues of this litigation, and was deleted via affirmative act. (D.E. 27-2 at 5; D.E. 27-8).
Ironically, the County had a preexisting duty to preserve this evidence under Chapter 119 of the Florida Statutes, which requires preservation of public records. The County agrees that Ramirez e-mails were indeed public records. (D.E. 20). The likelihood that crucial evidence was deleted is exacerbated by the fact that County employees can unilaterally delete their own e-mails notwithstanding state public records laws. (D.E. 27-3 at 13-19). Assuming arguendo that there was some smoking gun e-mail from Rubin to Smith stating that you should fire Ada Ramirez because she will not have sex with me and she complains about sexual
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harassment too much, Rubin and Smith could have simply permanently deleted this e-mail after being notified that Ms. Ramirez filed suit. The Countys Rule 30(b)(6) representative explained this document retention policy and explained that County employees get to make the decision whether [they are] going to delete something or not . . . . (D.E. 27-3 at 13-19). Bad faith could also be inferred from its incomplete e-mail production days before the discovery deadline even though discovery requests were propounded, and the search of relevant e-mails occurred, many months prior. (D.E. 27-3 at 35-42). The motion for sanctions was improperly denied as untimely and moot following entry of summary judgment. (D.E. 42). Assuming, arguendo, that the motion for sanctions was a discovery motion, Local Rule 16.1(h) requires that discovery motions be filed thirty days after the occurrence of grounds for the motion. There is no rule requiring them to be filed prior to the discovery cutoff deadline. (Such a rule would make no sense because it would preclude timely filing a motion premised upon a discovery dispute that arose toward the very end of the discovery period). Similarly, a district court does not have the discretion to prematurely grant a summary judgment motion and then rule that an outstanding motion directed at the destruction of evidence is moot. Ramirez requests that this issue be remanded for the district court to make a ruling on the merits.
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(ii)
Non-Appearance at the Countys Rule 30(b)(6) Deposition
The County neglected to produce witnesses able to competently and knowledgably testify on behalf of the County as to the topics listed in the Rule (30)(b)(6) notice. (D.E. 27-1). By doing so, it failed to appear. Ramirez properly noticed 14 topics to be covered at the Rule 30(b)(6) deposition. (D.E. 27-1). On January 4, 2012, the County sent a letter objecting to the notice because individuals who would ordinarily be produced in a corporate capacity had already been deposed in their individual capacity (and would not be made available for the Rule 30(b)(6) deposition), and information related to the topics were provided in written discovery and produced documents. (D.E. 27-4). The County never filed a motion for a protective order. At the January 10, 2012 deposition, the individual
designated to testify on topic one, the preservation and search for documents, was inadequate and could not testify to basic information known to the County.9 (D.E.
Ms. Seff, the designated representative, testified that she had more knowledge on this topic than anyone else in the Department. (D.E. 27-3 at 6). However, she was unable to answer questions concerning whether e-mails that are deleted by employees are somehow backed up and preserved. Id. at 14 (I cant answer that question.). She was unable to answer questions about whether, and what type of, training or written materials employees receive concerning the preservation of e-mails and electronic information for the purposes of public record and litigation discovery requests. Id. at 15-16. She did not know whether a litigation hold memo was ever issued to County employees that may have had responsive documents in their possession; to explain why she did not know, she admitted that she did not prepare for the deposition on behalf of the County and
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27-3). Later during the same deposition, the County announced on the record that certain topics (5, 6, 7, 11 and 13) would not be covered at all. (D.E. 27-5 at 5-6).10 Ms. Clodfelter, another of Ramirez supervisors, would cover topics 8, 9, 10, 11 and 12 but only to the extent that they were not covered through other witnesses or sources. (D.E. 27-5 at 5-6). Rule 30(b)(6) required the County to designate someone to testify about information known or reasonably available to the organization responsive to the topics listed on the notice. This prevents individual officers [from] disclaim[ing]
was instead relying on personal knowledge. Id. at 25-26 (I dont know . . . I dont have any knowledge about anything that happened before I got there [the latter part of 2011].). She was unable to testify concerning the mechanics of the actual email search or what key words were used, and, when asked if someone else would know, Ms. Seff stated, I have no idea. Id. at 31-33. She did not know who directed the search for responsive documents, and whether there would be any documentary proof showing when the search occurred, and who directed it. Id. at 35-36. Concerning chain of custody and the search process, she did not know how the documents that were eventually produced came into her possession for attorney review from Denise Vidal, who collected the responsive documents and is MDFRs public records coordinator. Id. at at 39-40. She did not know how or when the people who searched their own e-mail accounts for responsive documents did so, or who directed the searches: I cant tell you that theres a person who did that. Theres nobody, like, in charge that gives instructions. Id. at 42. She also did not know whether there would be some other way to know, through a document or other witness, how and when the search happened. Id. at 42-43. Her lack of knowledge concerning the search is confirmed by a mistaken belief that a) Ms. Ramirez was able to, and did, download many of her own her own e-mails before she was terminated; and b) that responsive documents from Chief Lorenzo, Chief Suarez and Ms. Jane Feuer were searched for and produced. Id. at 47-50. 10 Topic 7 was Plaintiffs termination. (D.E. 27-1 at 3). One would think that an employer being sued for wrongful termination would not refuse to produce a witness concerning the Plaintiffs termination.
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knowledge of facts clearly known to the [organization]. See United States v. Taylor, 166 F.R.D. 356, 361 (M.D.N.C. 1996). To prevent this practice, the deponent has a duty to be knowledgeable about the subject matter identified as the area of inquiry. See Crable v. State Farm Mut. Auto. Ins. Co., 2011 WL 5525361, *9 (M.D. Fla. Nov. 14, 2011); see also Kendall Lakes Towers Condo. Assoc., Inc. v. Pacific Ins. Co., Ltd., 2011 WL 6190160, *8 (S.D. Fla. Dec. 2, 2011). The designated party does not need to have personal, firsthand knowledge of the topic but the designating party has a duty to prepare the witness to testify on matters not only known by the witness, but those that should be reasonably known by the designating party. See Crable, 2011 WL 5525361 at *9 (emphasis added). This is because the function and purpose of a Rule 30(b)(6) deposition is to get answers on the subject matter described with reasonable particularity by the noticing party, not to simply get answers limited to what the deponent happens to know. Alexander v. F.B.I., 186 F.R.D. 148, 152 (D.D.C. 1999); see also Fed. R. Civ. P. 30(b)(6); Kendall Lakes Towers Condo. Assoc., Inc., 2011 WL 6190160 at *8; Protective Natl Ins. v. Commonwealth Ins., 137 F.R.D. 267, 277-78 (D. Neb. 1989); Crable, 2011 WL 5525361 at *9. When the designating party cannot designate a single person who can testify with information known to the organization responsive to the listed topics, it has a duty to designate more than one witness; if this becomes apparent during the deposition of the single person,
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the designating party has a duty to substitute an appropriate deponent when it becomes apparent the previous deponent is unable to respond to certain relevant areas of inquiry. Crable, 2011 WL 5525361 at *9; Buycks-Roberson v. Citibank Fed. Sav. Bank, 162 F.R.D. 338, 343 (N.D. Ill. 1995); Marker v. Union Fidelity Life Ins. Co., 125 F.R.D. 121, 126 (M.D.N.C. 1989). If the designated witness is not knowledgeable about relevant facts, and the principal has failed to designate an available, knowledgeable, and readily identifiable witness, then the appearance is, for all practical purposes, no appearance at all. See Resolution Trust Corp. v. So. Union Co., Inc., 985 F.2d 196, 197 (5th Cir. 1993); Black Horse Lane Assoc., L.P. v. Dow Chem. Corp., 228 F. 3d 275, 304 (3d Cir. 2000) (holding that when a 30(b)(6) witness is not able to testify to useful and relevant information, he is not present); Contintental Cas. Co. v. First Fin. Empl. Leasing, Inc., 716 F. Supp. 2d 1176, 1189 (M.D. Fla. 2010) (If the designated deponent cannot answer questions regarding the subject matter as to which he is designated, then the corporation has failed to comply with its Rule 30(b)(6) obligations and may be subject to sanctions.); Fox v. Morris Jupiter Assocs., 2007 WL 2819525, *2 (S.D. Fla. 2007) (same). When a designated Rule 30(b)(6) representative is unable to answer questions, this counts as nonappearance, subjecting the organization to sanctions. See King v. Pratt &
Whitney, 161 F.R.D. 475, 476 (S.D. Fla. 1995); Fox, 2007 WL 2819525 at *2.
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The County designated two witnesses, Ms. Clodfelter, and Ms. Seff. Ms. Seff was unable to testify concerning information known or reasonably available to the organization and the County admitted that Ms. Clodfelter would not testify fully on the remaining topics. (D.E. 27-4; D.E. 27-5 at 6). The County thought it would suffice to identify individuals who were previously deposed and to essentially back designate depositions. Instead of complying with its duty to find a better Rule 30(b)(6) witness on topic one, the County attempted to rehabilitate its witness on cross-examination, only to reveal that she mistakenly thought that Ms. Ramirez had downloaded all of the e-mails that she wanted prior to termination, and that documents in the accounts of Ms. Feuer, and Chiefs Lorenzo and Suarez were produced (even though they were not). (D.E. 27-3 at 4750). Back designating depositions is not permitted under Rule 30(b)(6), even when it results in a person being deposed twice in an individual and then representative capacity. The County did not appear. Various sanctions are warranted in the event of non-appearance, including: prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence, and rendering a default judgment against the disobedient party. Fed. R. Civ. P. 37(d)(3); 37(b)(2).
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The County deleted relevant evidence, knowingly failed to produce prepared Rule 30(b)(6) representatives, delayed in producing documents until just after the Rule 30(b)(6) notice was served (even though the search, albeit incomplete, occurred months ago), and has provided no reason for [its] failure to appear at the Rule 30(b)(6) deposition. See Brauchle v. Southern Sports Grill, Inc., 2008 WL 4753707, *3 (S.D. Fla. 2008) (issuing default judgment for failure to appear at deposition and violating court order). The sanction should be commensurate with the offense, and the sanction of dismissal or default is proper for failure to attend a deposition. See United States v. $239,500, 764 F.2d 771 (11th Cir. 1985);
Shawmut Boston Intl Banking Corp. v. Duque-Pena, 767 F.2d 1504 (11th Cir. 1985); Hoshemi v. Campaigner Publications, Inc., 737 F.2d 1538 (11th Cir. 1984); Bonaventure v. Butler, 593 F.2d 625 (5th Cir. 1979). As with the spoliation issue, the district court improperly denied Ramirez motion for sanctions for nonappearance as untimely and moot, rather than reaching the merits. On remand, the district court should reconsider the motion on the merits.
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CONCLUSION For the reasons stated above, Ramirez requests that this Court reverse the district courts order granting the Countys motion for summary judgment. Ramirez also requests that the district court be instructed to provide her with additional, sufficient time to complete discovery and to reconsider the motion for sanctions on the merits.
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CERTIFICATE OF COMPLIANCE WITH RULE 32(a) 1) This brief complies with the type-volume limitation of Fed. R.App. P.
32(a)(7)(B) because this brief contains 13,293 words, excluding the parts of the brief exempted by Fed. R.App. P. 32(a)(7)(B)(iii). 2) This brief complies with the typeface requirements of Fed. R.App. P.
32(a)(5) and the type style requirements of Fed. R.App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word Version 12.1.3 with Times New Roman 14-point font.
CERTIFICATE OF SERVICE I certify that on May __, 2012, I mailed a copy of this brief via Federal Express Next Day to the Clerk of this Court for the United States Court of Appeals for the Eleventh Circuit at 56 Forsyth St. NW, Atlanta, GA 30303 and via first class U.S. Mail to counsel for the Appellee, Lee Kratchick, Esq., Miami Dade County Attorneys Office, 111 NW 1st St., Ste. 2810, Miami, FL 33128.
________________________ Matthew Seth Sarelson, Esq.
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Ada Ramirez Initial Brief Eleventh Circuit

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Ada Ramirez Initial Brief Eleventh Circuit

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Case: 12-11535

Date Filed: 05/07/2012

ADA RAMIREZ, Plaintiff/Appellant, v. MIAMI-DADE COUNTY, Defendant/Appellee. __________________________________________/

APPELLANTS INITIAL BRIEF

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CERTIFICATE OF INTERESTED PERSONS Ramirez v. Miami-Dade County, No. 12-11535-BB

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II. The EEOCs Determination Letter is Admissible...30

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CONCLUSION...49 CERTIFICATE OF COMPLIANCE...50 CERTIFICATE OF SERVICE50

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that involved similar accusations.

(D.E. 19-1 at 119-120).

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behind you because its a better view.

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Permanent Deletion of Electronic Evidence Knowing Litigation was Likely

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Non-Appearance at the Countys Rule 30(b)(6) Deposition