EDWARDS

v.

NILES SALES & SERVICE, INC.

S.D. Fla. | 2006-06-27

No. 05-10027-CIV

K. Michael Moore

439 F. Supp. 2d 1202 District Court, S.D. Florida (2006) Positive Treatment

Also reported at: 2006 WL 1766497 · 2006 U.S. Dist. LEXIS 50088

Cited by 7 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Holding

The court adopted the Magistrate Judge's recommendation to grant summary judgment for the defendants, denying the plaintiff's request to amend his complaint.

Headnotes

[1] A party may not amend its complaint through arguments made in a brief opposing summary judgment; instead, the proper procedure is to file a motion to amend the complaint…

[2] Leave to amend a complaint under Federal Rule of Civil Procedure 15(a) may be denied if the amendment is sought after undue delay, demonstrates bad faith or dilatory moti…

Previewing 2 of 30 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

Plaintiff, a black male mechanic, was injured and received workers' compensation. He was later terminated and filed several EEOC charges. He then sued…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

Topics

Legitimate Business Reason Retaliation Under 42 U.S.C. § 1981 Overtime Pay Claim Fair Labor Standards Act (Flsa) Claim For Unpaid Overtime

Explore caselaw by topic → Browse Legitimate Business Reason cases and more on FLexlaw

Opinion of the Court

K. MICHAEL MOORE, District Judge.

..THIS CAUSE came before the Court upon Defendants’ Motion for Summary Judgment (DE # 42).

THIS MATTER was referred to the Honorable Barry L. Garber, United States Magistrate Judge (DE # 31). Magistrate Judge &#x²⁷;Garber issued a Report and Recommendation dated May²⁵, 2006 (DE # 50). Plaintiff objected to Magistrate Judge Garber’s Report and Recommendation (DE # 53), and Defendants responded to Plaintiffs objections (DE # 56): After a

de novo

review of the record, and -being otherwise fully advised in the premises, it is

ORDERED AND ADJUDGED that Magistrate Judge Garber’s careful and well-reasoned Report and Recommendation (DE # 6) is ADOPTED in its entirety as the opinion of this Court and incorporated herein. It is therefore

ORDERED AND ADJUDGED that Defendants’ Motion for Summary Judgment (DE # 42) is GRANTED. • It is further

ORDERED AND ADJUDGED that Defendants’ request for sanctions due to Plaintiffs failure to properly paginate the pages of his objections is DENIED. It is further

ORDERED AND ADJUDGED that all pending motions are DENIED AS MOOT. The Clerk of Court is directed to CLOSE this case.

REPORT AND RECOMMENDATION

GARBER, United States Magistrate Judge.

THIS CAUSE is before the Court on Defendants’ Motion for Summary Judgment (D.E.# 42), pursuant to an Order of Reference entered by the Honorable K. Michael Moore, United States District Judge. For the reasons set forth below, it is respectfully recommended that the Court GRANT Defendants’ Motion for Summary Judgment.

BACKGROUND

Plaintiff, a black male, formerly worked as an automobile and truck mechanic at Defendant Niles Sales & Service, Inc., a

*1205

General Motors/Nissan dealership which is located in Key West, Florida. Defendant Jack Niles is the secretary of Niles Sales & Service, Inc.,

see

Niles Aff. ¶ 2, and also allegedly owns that company,

see

Compl. ¶1.

On October¹⁵, 2001, Plaintiff began to work for non-party Morrison Sales & Service (“Morrison”).

See, e.g.,

Edwards Dep., at 32, 38-39, 51. Morrison paid Plaintiff $21.00 per hour when it hired him, but soon increased his pay rate to $22.00 per hour. See

Edwards Dep., at 51, 104-05. Plaintiff worked for Morrison until June²⁸, 2002, when Defendant Niles Sales & Service, Inc., bought the dealership from Morrison.

See, e.g.,

Compl. ¶7; Niles Aff. ¶ 3; Edwards Dep., at 106. During Plaintiffs entire tenure with Defendants, Defendants paid him $22.00 per hour.

On September¹⁵, 2004, Plaintiff was involved in a work-related accident in Defendants’ service garage.

See

Edwards Dep., at 137; Niles Aff. ¶ 13. Plaintiff injured his shoulder a result of that accident.

See

Plaintiffs Response (D.E.# 48), at 3-4; Niles Aff. ¶ 13; Edwards May⁵, 2006, Aff. ¶ 12; Edwards Apr.²⁵, 2006, Aff. ¶¶ 19-20. The following day, September¹⁶, 2004, Plaintiff returned to work for part of the day.

See

Edwards Dep., at 7-8, 157-58. Because of the injury, however, Plaintiff did not return to work from September¹⁷, 2004, until December¹⁸, 2004.

See id.

at 7-8, 158.

Plaintiff applied for and received workers’ compensation benefits, including payments for medical treatment and a percentage of his salary, as a result of that work-related accident and injury.

See

Niles Aff. ¶ 13; Edwards Dep., at 220. He continued to receive workers’ compensation benefits until approximately January¹⁸, 2006, when he agreed to a lump-sum settlement of his workers’ compensation claim.

See

Defendants’ Statement of Material Facts (D.E.# 43) at 8 ¶ 22; Edwards Apr.²⁵, 2006, Aff. ¶22;

cf.

Edwards Dep., at 9-11 (discussing fact that as of December²¹, 2005, Plaintiff still was receiving workers’ compensation benefits but had not obtained approval for a third surgery on his shoulder).

On December¹⁸, 2004, after Plaintiff had been out of work for approximately three months because of his shoulder injury, Defendants terminated Plaintiffs employment.

See

Edwards Dep., at 8, 127-

*1206

30; Niles Aff. ¶ 17. When Defendant Jack Niles fired Plaintiff, he informed Plaintiff that “he needed to fill the position.”

Edwards Dep., at 129;

DISCUSSION

Defendants move for summary judgment as to all three of Plaintiffs claims.

Summary judgment standard

A party seeking summary judgment must demonstrate that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c);

see Maniccia v. Brown,

171 F. 3d 1364, 1367 (11th Cir.1999);

Campbell v. Sikes,

169 F. 3d 1353, 1361 (11th Cir.1999). The movant bears the initial responsibility of informing the Court of the basis for its motion and of identifying those materials which demonstrate the absence of a genuine issue of material fact.

See Celotex Corp. v. Catrett,

477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).

In response to a properly supported motion for summary judgment, “the adverse party may not rest upon the mere allegations or denials of the adverse party’s pleadings, but ... must set forth specific facts which show a genuine issue for trial.” Fed.R.Civ.P. 56(e). If the non-moving party fails to “make a sufficient showing on an essential element of her case with respect to which she has the burden of proof,” then the. Court must enter summary judgment for the moving party.

Celotex Corp.,

477 U.S. at 323, 106 S.Ct. at 2552. The Court, however, must view the evidence and factual inferences reasonably drawn from the evidence in the light most favorable to the nonmoving party.

See Maniccia,

171 F. 3d at 1367.

“By its very terms, this standard provides that the mere existence of

some

alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no

genuine issue of material

fact.”

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (emphasis added). The Court is not to resolve factual issues, but may only determine whether factual issues exist. A material fact is one which “might affect the outcome of the suit under the governing law....”

Id.

at 248, 106 S.Ct. at 2510. The Court’s inquiry therefore is whether “there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.”

Id.

at 250, 106 S.Ct. at 2511.

*1208

Count I

In Count&#x²⁷; I, Plaintiff alleges that Defendants failed to pay him overtime wages,

in violation of the Fair Labor Standards Act (“FLSA”). Defendants move for summary judgment as to Count I on the ground that Plaintiff is subject to an exemption for FLSA overtime wages for certain mechanics “primarily engaged in selling or servicing automobiles, trucks, or&#x²⁷;&#x²⁷; farm implements ..29 U.S.C. § 213(b)(&#x²⁷;10)(A). In Response, Plaintiff abandons his overtime claim,

and therefore it is recommended that the Court grant summary judgment in Defendants’ favor as to that claim.

Although Plaintiff has abandoned his overtime claim, in his Response to Defendants’ Motion for Summary Judgment, he seeks — for &#x²⁷;the first time — leave &#x²⁷;to amend the Complaint to state a claim either for non-payment of minimum wages under FLSA, for non-payment of wages under Florida law,

or for breach of contract related to the alleged non-payment of wages.

See

D.E. # 48, at 5. Defendants object to the proposed amendment on the grounds that Plaintiff may not supplement his Complaint through argument in a brief opposing summary judgment and Plaintiff has not complied with Federal Rule of Civil Procedure 15(a) in seeking the amendment.

See

Defendants’ Reply (D.E.#49), at 4. The undersigned agrees with Defendants and therefore recommends that the Court deny Plaintiffs request to amend the Complaint.

Plaintiff “may not amend [his] complaint through argument in a brief opposing summary judgment.”

Gilmour v. Gates, Mc

*1209

Donald & Co.,

382 F. 3d 1312, 1315 (11th Cir.2004);

see also, e.g., Mahgoub v. Miami Dade Community Coll.,

No. 05-11520, 2006 WL 952278, at *2 (11th Cir. Apr.¹³, 2006);

Price v. M & H Valve Co.,

177 Fed.Appx.¹, at 11 n. 7 (11th Cir.2006);

Hurlbert v. St. Mary’s Health Care Sys., Inc.,

439 F. 3d 1286, 1297 (11th Cir.2006);

Al-Amin v. Donald,

165 Fed.Appx. 733, 740 (11th Cir.2006);

McGoy v. Ray,

164 Fed.Appx. 876, 879 n. 2 (11th Cir.2006);

Stephens v. State Bd. of Pardons & Paroles,

No. 04-15995, 2005 WL 1635264, at

n. 2 (11th Cir. June 10, 2005);

McShane v. United States Att’y Gen.,

144 Fed.Appx. 779, 788-89 (11th Cir.2005);

Cooley v. Great So. Wood Preserving,

138 Fed.Appx. 149, 153 (11th Cir.2005);

Tucker v. Union of Needletrades, Industrial and Textile Employees,

407 F. 3d 784, 788 (6th Cir.2005) (“To permit a plaintiff to do otherwise would subject defendants to unfair surprise.”);

Green Country Food Market, Inc. v. Bottling Group, LLC,

371 F. 3d 1275, 1279 (10th Cir.2004);

Shanahan v. City of Chicago,

82 F. 3d 776, 781 (7th Cir.1996);

Fisher v. Metro. Life Ins. Co.,

895 F. 2d 1073, 1078 (5th Cir.1990);

Gaffney v. Corwine,

No. 1:04CV21-SPM/AK, 2005 WL 1684436, at *3 (N.D.Fla. May¹⁶, 2005) (Report and Recommendation),

adopted by district court,

2005 WL 1684421 (N.D.Fla. June 29, 2005);

Smith-Johnson v. Thrivent Fin. for Lutherans,

No. 803CV2551T30EAJ, 2005 WL 1705471, at *6 n. 8 (M.D.Fla. July²⁰, 2005).

Instead, “[a]t the summary judgment stage, the proper procedure for [Pjlain-tiff[ ] to assert a new claim is to amend the complaint in accordance with Fed.R.Civ.P. 15(a).”

Gilmour v. Gates, McDonald & Co.,

382 F. 3d 1312, 1315 (11th Cir.2004);

see also, e.g., Mahgoub v. Miami Dade Community Coll.,

No. 05-11520, 2006 WL 952278, at *2 (11th Cir. Apr.¹³, 2006). Plaintiff has not filed a Rule 15(a) motion, did not cite Rule 15(a) in the relevant portion of his Response to Defendants’ Motion for Summary Judgment, did not attempt to demonstrate compliance with Rule 15(a), and has not demonstrated compliance with Rule 15(a).

Even if Plaintiff had properly sought amendment pursuant to Rule 15(a), the undersigned would recommend that the Court deny that request. Because Defendants have filed their Answer to the Complaint, Plaintiffs may amend the Complaint “only by leave of court or by written consent of the adverse party .... ” Fed.R.Civ.P. 15(a). Upon application for leave to amend, the Court shall grant leave to do so “freely ... when justice so requires.”

Id.

The decision whether to grant Rule 15(a) leave “is within the sound discretion of the trial court.”

Jameson v. Arrow Co.,

75 F. 3d 1528, 1535 (11th Cir.1996). In exercising that discretion, the Court may deny leave to amend,

inter alia,

if Plaintiff sought the amendment after undue delay, if Plaintiff demonstrated bad faith or dilatory motive, if the amendment would cause Defendants undue prejudice, or if the amendment would be futile.

See, e.g., Foman v. Davis,

371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962);

Jameson,

75 F. 3d at 1534-35. As discussed below, Plaintiff sought the amendment to Count I after undue delay, that delay would cause Defendants undue prejudice, and it appears that at least a portion of the proposed amendment would be futile.

Several facts demonstrate both Plaintiffs undue delay in seeking the amendment and Defendants’ resulting prejudice. The discovery deadline and pre-trial motion filing deadlines have expired, and Defendants had no prior notice of Plaintiffs proposed claims. If the Court allowed the proposed amendment, Defendants could not conduct discovery or file pre-trial mo

*1210

tions related to the amendment.

Even if the Court allowed Defendants to conduct discovery and file additional pretrial motions, Defendants likely would be required to re-depose Plaintiff and/or other individuals which it has already deposed, and possibly duplicate other work which it previously performed; and the Court would be required to continue trial, which is scheduled for June¹², 2006.

Trial is only approximately thirty-eight days from the date Plaintiff first requested the amendment, approximately thirty-one days from the date Defendants filed their Reply in support of their Motion for Summary Judgment (and could have first responded to Plaintiffs request for leave to amend), approximately eighteen days from the date of this Report and Recommendation, and less than a week after objections to this Report and Recommendation are due, and therefore Defendants do not have time to adequately prepare a defense to Plaintiffs’ proposed claim.

Plaintiff proffered

reason, let alone a

legitimate

reason, why he could not have sought that amendment earlier. Despite the fact that Plaintiff contends that “discovery confirms” the basis for the amendment, Plaintiffs Response (D.E.#48), at 5,

Plaintiff was on notice of the basis of

*1211

that proposed claim by December of 2004, when he allegedly was not paid the last of the wages at issue; and even if he could only confirm the claim through discovery, he certainly did not timely request the amendment when he received whatever information he contends “confirmed” the basis for the claim.

Because Plaintiff requested leave to amend after undue delay, and because Defendants would be unduly prejudiced if the Court granted Plaintiffs request, Plaintiff is not entitled to amend the Complaint.

See, e.g., Saewitz v. Lexington Ins. Co.,

133 Fed.Appx. 695, 700 (11th Cir.2005) (“The district court did not commit a ‘clear abuse of discretion,’ ... when it denied Lexington leave to amend more than six months after the deadline so Lexington could assert a new affirmative defense and reopen discovery more than a month after the already-extended time for discovery had closed. This case is the classic example of an ‘undue delay in filing.’”) (citations omitted);

Jennings v. BIC Corp.,

181 F. 3d 1250, 1258-59 (11th Cir.1999) (“Here, the plaintiffs waited to move for leave to amend until thirty-four months after their original complaint was filed. Their motion came two months before the trial was scheduled to begin, and five months after the district court’s deadline for amending the pleadings. The motion provides no basis for the delay other than that ‘it has recently come to [Plaintiffs’] attention that certain failures and derelictions of Defendant BIC Corporation give rise to an additional cause of action,’ without any further explanation. We are unable to say that the court abused its discretion in denying leave to amend because of undue delay.”) (alteration in original); 166 F. 3d 1157, 1162 (11th Cir.1999) (“Prejudice and undue delay are inherent in an amendment asserted after the close of discovery and after dispositive motions have been filed, briefed, and decided.”);

Jameson v. Arrow Co.,

75 F. 3d 1528, 1534-35 (11th Cir.1996) (Affirming denial of motion to amend which had been based on district court’s findings that the plaintiff “sought to amend the complaint ten months after she retained counsel, discovery was closed, the complaint had been amended twice, and Arrow had filed two motions for summary judgment ...,” and holding in part: “Though we are mindful&#x²⁷;of the fact that Jameson was unable to obtain important information needed to pursue this claim until Houston Payne’s deposition in March of 1994, it appears that the basic facts giving rise to the retaliation theory were available when the second amended com

*1212

plaint was filed. The considerable delay in seeking to amend the complaint for the third time, coupled with the request to amend subsequent to the filing of the defendant’s motion for summary judgment, appears to have been unwarranted. The district court did not abuse its discretion in denying this request.”).

Although the Court could deny leave to amend solely on those grounds, the undersigned notes that Defendants could suffer additional prejudice if the Court allowed the requested amendment. If Plaintiff prevailed on the proposed FLSA claim for unpaid wages, Plaintiff would be entitled to payment of fees and costs from Defendants,

see, e.g.,

29 U.S.C. § 216(b) (“The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action.”);

Christiansburg Garment Co. v. EEOC,

434 U.S. 412, 416 & n. 5, 98 S.Ct. 694, 697 & n. 5, 54 L.Ed.2d 648 (1978) (citing § 216(b) of the FLSA as one example of a statute which “make[s] fee awards mandatory for prevailing plaintiffs”);

Kreager v. Solomon & Flanagan, P.A.,

775 F. 2d 1541, 1542 (11th Cir.1985) (“Section 216(b) of the Act makes fee awards mandatory for prevailing plaintiffs.”); and if Plaintiff prevailed on the proposed Florida law claim for unpaid wages, then Plaintiff could move for a discretionary award of fees,

see, e.g.,

Fla. Stat. § 448.08. In light of the amount of litigation which has taken place, those fees and costs could be considerable, despite the fact that the underlying claim is relatively small. Assuming the proposed claim would have merit, if Plaintiff had asserted that claim in a timely manner then Defendants likely could have ended the litigation regarding that claim by tendering an amount equal to Plaintiffs full damages, including fees and costs — • which would have been relatively low because significant litigation would not have taken place yet.

See, e.g., Dail v. George A. Arab, Inc.,

391 F. Supp. 2d 1142, 1145 (M.D.Fla.2005) (“Where a plaintiff is offered full compensation on his FLSA claim, no compromise is involved and judicial approval is not required.”);

Mackenzie v. Kindred Hosps. East, L.L.C.,

276 F. Supp. 2d 1211, 1217 (M.D.Fla.2003) (“Furthermore,

Lynn’s Food Stores [v. U.S. ex rel. Dept. of Labor,

679 F. 2d 1350 (11th Cir.1982) ] addresses judicial oversight of ‘compromises’ of FLSA claims ---- Since the plaintiff has been offered full compensation on his claim, this case does not involve a compromise. There is no need for judicial scrutiny where, as here, the defendant represents that it has offered the plaintiff more than full relief, and the plaintiff has not disputed that representation.”). Instead, because of Plaintiffs undue delay, if the proposed claim were meritorious then Defendants would face the possibility of defending against a motion for a large amount of fees and costs which it might not have had to face if Plaintiff had not unreasonably delayed seeking amendment. That prejudice might be diminished to some extent because even under the FLSA, Plaintiff would be entitled only to

reasonable

fees and costs if he prevailed, and Defendants would have a strong argument that fees and costs incurred prior to asserting the claim were not reasonably related to the claim. At a minimum, however, Defendants could be forced to litigate that issue and face the possibility that the Court would reject that argument, which is a risk Defendants would not have had to face if Plaintiff had timely sought leave to amend the Complaint.

Finally, at least a portion of the proposed amendment appears to be futile. At a minimum, as discussed below, the precise basis for the claim is unclear and at least portions of the claim appear to be based on

*1213

contradictory and/or inconsistent evidence, which are additional reasons why Defendants would have to incur significant expenses and devote significant additional time — more time than is available before trial — to properly defend against the claim.

The proposed claim is based on three alleged failures by Defendants to pay Plaintiff minimum wages: (1) $308 (which represents fourteen hours at $22 per hour) which Defendants allegedly did not pay him for work performed on September¹⁵, 2004; (2) $300 which Defendants allegedly did not pay Plaintiff “under the Technician Pay Plan”

; and (3) “[n]on-payment of wages in the amount of $588.00 attributed to the last fraction of a week of employment [which] reduces [Plaintiffs] compensation to a rate below minimum wages.” D.E. # 48, at 5.

Plaintiff has not directed the Court to any evidentiary basis for the third proposed basis for that claim, and he has not demonstrated how he calculated the alleged $588.00 non-payment.

See Gilmour v. Gates, McDonald & Co.,

382 F. 3d 1312, 1315 (11th Cir.2004) (“Even if Gilmour were correct in her assertion that new claims may be raised by a non-movant in response to a summary judgment motion, her ‘breach of duty’ claim is without support in the record.”). With regard to the $300 allegedly unpaid pursuant to the “Technician Pay Plan,” Plaintiffs allegation and his affidavit testimony appear to contradict his deposition testimony; and Plaintiff has not explained or presented evidence to dispute Defendant’s evidence, which appears to demonstrate that Defendants paid Plaintiff the proper amount. In Plaintiff s May⁵, 2006, affidavit (but not in his April²⁵, 2006, affidavit), he testified that Defendants failed to pay the $300.

See

Edwards’s May⁵, 2006, Aff. ¶ 5. In Plaintiffs deposition, however, he appears to have conceded that he received payment for “[his] half’ of that amount on December¹⁸, 2004.

See

Plaintiffs Dep., at 129 (testifying .that on December¹⁸, 2004, Plaintiff received a check for “[his] half of the Christmas bonus”). Defendants submitted that December¹⁸, 2004, check and Defendants’ payroll records,

see

D.E. # 49, Exhs. 4-5, which, consistent with Defendant Jack Niles’s testimony, demonstrate that Plaintiff was paid more than his share of the $300 which he claims he was owed. That check represented $352.83 Defendants owed to Plaintiff

(i.e.,

more than the $300 he claims Defendants owe him), minus $27 withheld for “employee taxes” and $162.91 withheld for child support payments, resulting in a net payment to Plaintiff of $162.92. Plaintiffs signature appears on the back of that check, and he has not disputed that he received it and deposited it in his bank account, let alone presented

evidence

to that effect. He also has, not disputed, let alone presented evidence, that that check accurately represented those wages minus appropriate withholdings/deductions, and he has not disputed that the withholdings/deductions were proper. In fact, Plaintiffs deposition testimony — specifically, his testimony that he received

“my half

of the Christmás bonus Edwards Dep., at 129 (emphasis added) — suggests that he understood that after proper deductions, including a 50% deduction of the after-tax amount for

*1214

child support payments, he was entitled to a net payment of only approximately half of the amount due under the Technician Pay Plan.

It therefore is recommended that the Court grant summary judgment in Defendants’ favor as to Count I and deny Plaintiffs request to amend the Complaint.

Count II

In Count II, Plaintiff alleges race discrimination in violation of both Title VII of the Civil Rights Act of 1964 (“Title VII”) and 42 U.S.C. § 1981. Although in Count II Plaintiff explicitly contended only that he suffered “disparate and demeaning treatment based on his race ...Compl. ¶ 26, but not that he suffered retaliation in violation of Title VII and § 1981, Defendants apparently have liberally construed Plaintiffs factual allegations in earlier portions of the Complaint to indicate that Plaintiff also asserted a retaliation claim in Count II,

see

D.E. # 42, at 6 (“In Count II, Plaintiff alleges disparate treatment

and retaliation

based on his race in violation of both Title VII and 42 U.S.C. § 1981.”) (emphasis added). Consistent with Defendants’ interpretation, the Court construes Count II to include both disparate treatment claims and retaliation claims.

Disparate treatment

Disparate treatment claims brought pursuant to Title VII and § 1981 “have the same requirements of proof and use the same analytical framework.”

Embry v. Callahan Eye Found. Hosp.,

147 Fed.Appx. 819, 821 n. 1 (11th Cir.2005) (quoting

Std. v. A.B.E.L. Servs.,

161 F. 3d 1318, 1330 (11th Cir.1998)). Specifically, Plaintiff bears the initial burden of establishing a

prima facie

case of discrimination.

See, e.g., Embry,

147 Fed.Appx. at 827-28;

Silvera v. Orange County Sch. Bd.,

244 F. 3d 1253, 1258 (11th Cir.2001). If Plaintiff establishes a

prima facie

case, then Defendants must “articulate some legitimate, nondiscriminatory reason for the” adverse employment action.

Silvera,

244 F. 3d at 1258;

n. 6 (11th Cir.2003);

Road Sprinkler Fitters Local U. No. 669 v. Ind. Sprinkler Corp.,

10 F. 3d 1563, 1568 (11th Cir.1994). Even if Plaintiff were still pursuing Count II on that basis, Plaintiff has failed to establish a

prima facie

case because he has failed to direct the Court to evidence identifying any white employee, let alone a white employee similarly situated to Plaintiff in all relevant respects

(e.g.,

a white employee with similar experience and qualifications), who received a raise to more than $22.00 per hour.¹⁸

See, e.g., Knight v. Baptist Hosp. of Miami, Inc.,

330 F. 3d 1313, 1316 (11th Cir.2003).

As discussed

supra,

Plaintiffs third ground in support of Count II is that Defendants “wrote up” Plaintiff for not providing them notice of his September¹⁵, 2004, accident, despite the facts that (a) “white employees were never written up if they had not reported an accident” and (b) “in fact ... [Pjlaintiff was written up for no[t] reporting when he did in fact report the incident.” Compl. ¶ 15. Similar to the

*1222

previous ground, Plaintiff did not raise this ground in his Response to Defendants’ Motion for Summary Judgment, and therefore he has abandoned this potential basis for relief in Count II.

See, e.g., Iraola & CIA, S.A. v. Kimberly-Clark Corp.,

325 F. 3d 1274, 1284-85 & n. 6 (11th Cir.2003);

Road Sprinkler Fitters Local U. No. 669 v. Ind. Sprinkler Corp.,

10 F. 3d 1563, 1568 (11th Cir.1994).

Even if Plaintiff were still pursuing Count II on that basis, Plaintiff has failed to establish a

prima facie

case because he has failed to direct the Court to evidence identifying any white employee, let alone a white employee similarly situated to Plaintiff in all relevant respects

{e.g.,

involved in a similar accident), who was not written up when Defendants learned that that employee had failed to report an accident.

See, e.g., Knight v. Baptist Hosp. of Miami, Inc.,

330 F. 3d 1313, 1316 (11th Cir.2003). Although he identified other employees who allegedly failed to report accidents,

see

Edwards Dep., at 181-83, he conceded that he did not know whether those employees received written warnings for failing to do so,

see id.

at 183.

Additionally, although not necessary to determine that Plaintiff failed to prove a

prima facie

case, the record evidence, including Plaintiffs own testimony, demonstrates that contrary to Plaintiffs allegation in the Complaint, Plaintiff in fact failed to report the accident immediately in accordance with Defendants’ company policy, but instead reported it on a later date

and then attempted to explain why

*1223

he should not have been required to comply with company policy.

See, e.g.,

Edwards Dep., at 155-56, 161-67; Edwards Apr.²⁵, 2006, Aff. ¶¶ 18-19; Niles Aff. ¶ 14. Plaintiff also recognized that the policy existed and that by its terms, it required him to

immediately

report

any

accident, regardless of whether he suffered an injury.

See

Edwards Dep., at 126-27, 155, 184. In fact, even

immediately

after the accident Plaintiff knew not only that he had been involved in an accident, but that he had suffered an injury as a result of that accident, so that even if he believed he only had to report accidents which involved injuries, he would have been required to report his accident.

See, e.g.,

Edwards Dep., at 155 (testifying that hjs shoulder bothered him and he “felt like [he] pulled a muscle ... [r]ight when it happened”); Plaintiffs Sept.²⁷, 2004 letter to EEOC Investigator Laura Stubble-field (Exh.⁴ to Edwards Dep.), at 1 (conceding that he “felt a little pull inside [his] left shoulder an a little stiffness”). At various times, Plaintiff — perhaps contra-dieting himself — attempted to explain his failure to timely report the accident as due to the fact that he believed, he did not have to report an accident unless he were bleeding,

see

Edwards Dep., at 156; that his “arm did not hurt very much when the accident happened ....,”

see

Plaintiffs comments on Sept.²⁴, 2004, write-up (Exh.¹³ to Edwards Dep.) or that “it did not seem serious at the time and [there] was hardly any pain to speak of ...,” Plaintiffs Sept.²⁷, 2004 letter to EEOC Investigator Laura Stubblefield (Exh.⁴ to Edwards Dep.), at 1; or that Plaintiff should not have to report every time he “get[s] any cut or abras[]ion

...,” id.

Once again, even if Plaintiff disagrees with Defendants’ policy and could demonstrate that the policy constituted a poor business practice, that would not satisfy his burden to prove that the policy was discriminatory on its face or as applied to Plaintiff.

See, e.g., Cooley v. Great So. Wood Preserving,

138 Fed.Appx. 149, 157, 159 (11th Cir.2005);

Combs v. Plantation Patterns,

106 F. 3d 1519, 1543 (11th Cir.1997)

(en

banc).

*1224

Finally, Plaintiff concedes that the only allegedly adverse employment taken against him as a result of failing to timely report the accident was that a warning notice was placed in his file but that no other action was taken against him as a result of that failure.

See

Edwards Dep., at 161-63, 183-84. Title VII and § 1981 protect against actions taken “with respect to his compensation, terms, conditions, or privileges of employment,” 42 U.S.C. § 2000e-2(a)(l);

Cooley v. Great So. Wood Preserving,

138 Fed-Appx. 149, 156 (11th Cir.2005), and Defendants’ action of placing a warning notice in Plaintiffs file did not, standing alone, affect the compensation, terms, conditions, or privileges of Plaintiff’s employment,

see, e.g., Embry v. Callahan Eye Found. Hosp.,

147 Fed.Appx. 819, 828-29 (11th Cir.2005);

Cooley,

138 Fed.Appx. at 158;

Davis v. Town of Lake Park, Fla.,

245 F. 3d 1232, 1240-41 (11th Cir.2001).

In Plaintiffs Response to Defendant’s Motion for Summary Judgment and his accompanying April²⁵, 2006, and May⁵, 2006, affidavits, he raises for the first time several additional potential bases for Count II. He did not mention those bases in the Complaint and has not requested leave to amend the Complaint to assert them.

Because Plaintiff failed to move to amend the Complaint to include those bases for Count II and because he first raised them in response to Defendants’ Motion for Summary Judgment, Plaintiff is not entitled to assert those bases (which are, in effect new claims) in support of Count II.

See Gilmour v. Gates, McDonald & Co.,

382 F. 3d 1312, 1314-15 (11th Cir.2004);

see also, e.g., Mahgoub v. Miami Dade Community Coll.,

No. 05-11520, 2006 WL 952278, at *2 (11th Cir. Apr.¹³, 2006) (Affirming summary judgment in defendant’s favor as to Title VII retaliation claim, when a retaliation claim was raised in complaint but specific theory supporting retaliation claim at issue was not raised until response to summary judgment motion because, in part, plaintiff had not sought to supplement complaint to add new claim and, based on

Gilmour,

a “plaintiff may not supplement complaint through argument in brief opposing summary judgment, but must comply with requirements of Fed.R.Civ.P. 15(a).”);

id.,

2006 WL 952278, at *2 (“Plaintiff also contends that material issues of fact remain about his retaliation claim: he suggests, as he did for the first time in his response to MDCC’s motion for summary judgment, that MDCC’s denial of a raise in June 2004 was based on a false, negative performance evaluation. The district court addressed the merits of this claim. But we doubt that this claim properly is before us.”);

Price v. M & H Valve Co.,

No. 05-15205, 2006 WL 897231, at

n. 7 (11th Cir. Apr.7, 2006) (“However, because M

H Valve objected to Price raising this claim for the first time in his brief opposing summary judgment, this claim was due to be dismissed .... ”);

Hurlbert v. St. Mary’s Health Care Sys., Inc.,

439 F. 3d 1286, 1297 (11th Cir.2006) (“Having proceeded through discovery without amending (or seeking to amend) his complaint to reflect that fundamental change, Hurlbert was not entitled to raise it in the midst of summary judgment.”);

Al-Amin v. Donald,

165 Fed-Appx. 733, 740 (11th Cir.2006) (“A defendant is not required to ‘infer all possible claims that could arise out of the facts set forth in the complaint.’ ... ‘A plaintiff may not amend her complaint through argument in a brief opposing summary judgment.’ ”) (quoting, 382 F. 3d at 1315);

McGoy v. Ray,

164 Fed-Appx. 876, 879 n. 2 (11th Cir.2006) (“Furthermore, McGoy could not amend his complaint by adding his VOITIS claim in his brief opposing summary judgment, as he attempt

*1225

ed to do.”);

Stephens v. State Bd. of Pardons & Paroles,

No. 04-15995, 2005 WL 1635264, at *2 n. 2 (11th Cir. June¹⁰, 2005) (“Stephens did not include a Due Process claim in his complaint, and he never moved to amend his complaint to include it. He first argued Due Process in the district court in response to the defendants’ motion for summary judgment. That is insufficient.”);

McShane v. United States Att’y Gen.,

144 Fed.Appx. 779, 788-89 (11th Cir.2005);

Cooley v. Great So. Wood Preserving,

138 Fed.Appx. 149, 153 (11th Cir.2005);

Tucker v. Union of Needletrades, Industrial and Textile Employees,

407 F. 3d 784, 788 (6th Cir.2005) (“To permit a plaintiff to do otherwise would subject defendants to unfair surprise.”);

Green Country Food Market, Inc. v. Bottling Group, LLC,

371 F. 3d 1275, 1279 (10th Cir.2004) (cited with approval in

Gilmour,

382 F. 3d at 1315) (Affirming summary judgment for defendant on claim which plaintiff first raised in opposition to summary judgment and holding: “A plaintiff should not be prevented from pursuing a claim simply because of a failure to set forth in the complaint a theory on which the plaintiff could recover, provided that a late shift in the thrust of the case will not prejudice the other party in maintaining its defense.... The liberalized pleading rules, however, do not permit plaintiffs to wait until the last minute to ascertain and refine the theories on which they intend to build their case.... This practice, if tolerated, ‘would waste the parties’ resources, as well as judicial resources,, on discovery aimed at ultimately unavailing legal theories and would unfairly surprise defendants, requiring the court to grant further time for discovery or continuances.’ ”) (quoting

Evans v. McDonald’s Corp.,

936 F. 2d 1087, 1090-91 (10th Cir.1991));

Chavis v. Clayton County Sch. Dist.,

300 F. 3d 1288, 1291 n. 4 (11th Cir.2002) (“Chavis advanced this contention in his brief to the district court in response to the defendants’ motion for summary judgment. Chavis did not seek to amend his complaint to add. a claim based, on the asserted conduct, and the district court did not specifically address this contention.... We do not regard this kind of claim as properly before us ....”);

Shanahan v. City of Chicago,

82 F. 3d 776, 781 (7th Cir.1996) (cited with approval in

Gilmour,

382 F. 3d&#x²⁷; at 1315) (“As a final matter, Shanahan’s attempt to amend his complaint by way of a footnote in his response to defendants’ motion for summary judgment was properly denied by the district court. A plaintiff may not amend his complaint through arguments in his brief in opposition to a motion for summary judgment.”);

Fisher v. Metro. Life Ins. Co.,

895 F. 2d 1073, 1078 (5th Cir.1990) (cited with approval in

Gilmour v. Gates, McDonald & Co.,

382 F. 3d 1312, 1315 (11th Cir.2004)) (“As the district court correctly noted, this claim was not raised in Fisher’s second amended complaint but, rather, was raised in his response to the defendants’ motions for summary judgment and, as such, was not properly before the

court.”); Gaffney v. Convine,

No. 1:04CV21-SPM/AK, 2005 WL 1684436 (N.D.Fla. May¹⁶, 2005) (Report and Recommendation),

adopted by district court,

2005 WL 1684421 (N.D.Fla. June 29, 2005);

Smith-Johnson v. Thrivent Fin. for Lutherans,

No. 803CV2551T30EAJ, 2005 WL 1705471, at *6 n. 8 (M.D.Fla. July²⁰, 2005);

cf, e.g.,

also

Steger v. General Elec. Co.,

318

F. 3d 1066,

1077 & n. 11 (11th Cir.2003) (explaining that, although issues not raised in the pleadings may be treated as if they were properly raised when they either are “tried by express or implied consent of the parties,” or “are included in a pretrial order,” these exceptions are not applicable if an opposing party objects to the assertion of such a claim without the filing of a supplemental pleading).

*1226

Even if Plaintiff had requested leave pursuant to Federal Rule of Civil Procedure 15(a) to amend Count II to include those theories of discrimination, the undersigned would recommend that the Court deny that request because, for many of the same reasons discussed

supra

in relation to Plaintiffs request to amend the Complaint to include a claim for unpaid minimum wages, Plaintiff proposed those new theories in support of Count II after undue delay and Defendants would be prejudiced by those amendments at this late date,

ie.

after the close of discovery, after expiration of the pre-trial motions filing deadline, and only weeks before trial.

Additionally, several if not all of Plaintiffs new theories either are futile or, at a minimum, are based on such contradictory and/or inconsistent evidence that it would be unfair to require Defendant to defend against them at this late date. For example, Plaintiff alleges that Defendants failed to pay him $300 due under the Technician Pay Plan, but paid all white and Hispanic employees their wages due under that plan.

See

D.E. #48, at 2. As discussed

supra

in relation to Plaintiffs request to amend to add a claim for $300 in unpaid minimum wages, this proposed claim either is futile or is based on contradictory and/or inconsistent evidence.

Second, Plaintiff alleges that Defendants promised him a $5-to-$6 hourly raise if he completed training courses.

See

D.E. # 48, at 2-3. As Defendants set forth in their Reply memorandum, Plaintiff has provided apparently contradictory evidence regarding that assertion, and at least some of his testimony conflicts with other record evidence.

See

D.E. # 49, at 8. Additionally, even if Defendants promised Plaintiff that pay raise and failed to give it to him, Plaintiff has not identified any similarly-situated white employee who was promised such a pay raise and received the raise. Thus, even if Defendants engaged in improper conduct by promising but failing to give Plaintiff a raise, Plaintiff has not presented evidence from which a reasonable factfinder could concluded that Defendants acted with a racially-diserimi-natory motive in doing so. As discussed

supra,

similar rationale applies to Plaintiffs allegations regarding the $1.50 raise which he claims he was promised but did not receive.

See

D.E. # 48, at 3.

Third, Plaintiff alleges that Defendants failed to give him certain tools which he requested, and that that failure led to his accident.

See

D.E. # 48, at 3-4; Plaintiffs May⁵, 2006, Aff. ¶¶ 11-12; In Plaintiffs second affidavit, he stated: “To my knowledge, all white employees were supplied with the safety equipment they needed.” Plaintiffs May⁵, 2006, Aff. ¶¶ 12. That conclusory statement is insufficient to satisfy Plaintiffs burden as part of his

prima facie

case to specifically identify a similarly-situated white employee whom Defendants gave tools. Plaintiff has not specifically identified any white employee who requested and was given tools, let alone presented evidence that such an employee was similarly situated to Plaintiff,

e.g.,

that the requests weré made in substantially similar circumstances.

See, e.g., Embry v. Callahan Eye Found. Hosp.,

147 Fed.Appx. 819, 827-29 (11th Cir.2005);

Cooley v. Great So. Wood Preserving,

138 Fed.Appx. 149, 157 (11th Cir.2005);

Wilson v. B/E Aerospace, Inc.,

376 F. 3d 1079, 1087, 1091 (11th Cir.2004);

Knight v. Baptist Hosp. of Miami, Inc.,

330 F. 3d 1313, 1316 (11th Cir.2003);

Silvera v. Orange County Sch. Bd.,

244 F. 3d 1253, 1259 (11th Cir.2001).

It therefore is recommended that the Court grant Defendant’s Motion for Summary Judgment as to Plaintiffs disparate treatment claims contained in Count II.

*1227

Retaliation

In Plaintiffs Complaint, he contends that in violation of Title VII and 42 U.S.C. § 1981, Defendants retaliated against Plaintiff for filing his first EEOC charge when they gave him a written warning for failing to report the September¹⁵, 2004, accident.

See

Compl. ¶ 15. Defendants move for summary judgment as to that portion of Count II.

In Plaintiffs Response to Defendants’ Motion for Summary Judgment, he did not address that claim or Defendants’ arguments regarding that claim, and the Court therefore concludes that Plaintiff has abandoned that claim.

See, e.g., Iraola & CIA S.A. v. Kimberly-Clark Corp.,

325 F. 3d 1274, 1284-85

n. 6 (11th Cir.2003);

Road Sprinkler Fitters Local U. No. 669 v. Ind. Sprinkler Corp.,

10 F. 3d 1563, 1568 (11th Cir.1994).

Even assuming Plaintiff had not abandoned that portion of Count II, Defendants would be entitled to summary judgment regarding it. As a preliminary matter, in the Eleventh Circuit it is unsettled whether the elements of a Title VII retaliation claim are identical to the elements of a § 1981 retaliation claim.

See, e.g., Tucker v. Talladega City Sch.,

No. 05-11562, 2006 WL 688967, at *4, *6 (11th Cir. Mar.²⁰, 2006);

Bass v. Bd. of County Comm’rs,

256 F. 3d 1095, 1120 n. 10 (11th Cir.2001);

Andrews v. Lakeshore Rehab. Hosp.,

140 F. 3d 1405, 1412-13 (11th Cir.1998). Plaintiff, however, has not disputed Defendants’ assertion that for purposes of this action, the elements of Title VII and § 1981 retaliation claims are identical. For purposes of this Report and Recommendation, therefore, the Court will analyze Plaintiffs Title VII and § 1981 retaliation claims “using the analytical framework for a Title VII retaliation claim.”

Tucker v. Talladega City Sch.,

2006 WL 688967, at *6.

Plaintiff must first establish a

prima facie

case of retaliation by showing that: (1) he engaged in statutorily protected expression; (2) he suffered an adverse employment action, and (3) the adverse action was causally related to his protected expression.

See, e.g., Tucker v. Talladega City Sch.,

No. 05-11562, 2006 WL 688967, at *6 (11th Cir. Mar.²⁰, 2006);

Wideman v. Wal-Mart Stores, Inc.,

141 F. 3d 1453, 1454 (11th Cir.1998). If Plaintiff establishes a

prima facie

case of retaliation, then the burden shifts to Defendant to produce one or more legitimate reasons for the adverse employment action.

See, e.g., Tucker,

2006 WL 688967, at *6;

Johnson v. Booker T. Washington Broadcasting Serv.,

234 F. 3d 501, 507 n. 6 (11th Cir.2000). If Defendants proffer legitimate reasons, then Plaintiff has the ultimate burden to demonstrate that those reasons were pretext for retaliation.

See, e.g., Tucker,

2006 WL 688967, at *6;

Johnson,

234 F. 3d at 507 n. 6.

Plaintiff has not presented evidence sufficient to establish two of the three elements of his

prima facie

case. As discussed

supra,

Plaintiff concedes that the only allegedly adverse employment action taken against him because of his failure to timely report the accident was that Defendants placed a warning notice in his employment file.

See

Edwards Dep., at 161— 6, 183-84. Defendants’ action of placing a warning notice in Plaintiffs file was not, standing alone, an “adverse employment action” which affected the compensation, terms, conditions, or privileges of Plaintiffs employment,

see, e.g., Embry v. Callahan Eye Found. Hosp.,

147 Fed.Appx. 819, 828-29 (11th Cir.2005);

Cooley,

138 Fed.Appx. at 158;

Davis v. Town of Lake Park, Fla.,

245 F. 3d 1232, 1240-41 (11th Cir.2001). Additionally, the only record evidence regarding Defendants’ basis for giving Plaintiff the warning letter belies any connection to Plaintiffs filing of his

*1228

first EEOC charge.

As discussed

swpra,

contrary to Plaintiffs allegation in the Complaint, Plaintiff admittedly failed to report the accident immediately in accordance with Defendants’ company policy, but instead reported it at least one day later. See, e.g.,

Edwards Dep., at 155-56, 161-67; Edwards Apr.²⁵, 2006, Aff. ¶¶ 18-19; Niles Aff. ¶ 14. The undisputed evidence establishes that Plaintiff received the warning letter because he failed to comply with Defendants’ policy regarding timely reporting of accidents, not because Plaintiff filed an EEOC charge. Once again, even if Plaintiff disagrees with Defendants’ policy and could demonstrate that the policy constituted a poor business practice, those facts would not satisfy his burden to prove that the policy was racially discriminatory on its face or as applied to him.

See, e.g., Cooley v. Great So. Wood Preserving,

138 Fed.Appx. 149, 157, 159 (11th Cir.2005);

Combs v. Plantation Patterns,

106 F. 3d 1519, 1543 (11th Cir.1997)

(en

banc).

It therefore is recommended that the Court grant Defendants’ Motion for Summary Judgment as to Count II in its entirety.

Count III

In Count III, Plaintiff claims that Defendants fired him in retaliation for filing a workers’ compensation claim, in violation of Florida Statute § 440.205.

See

Compl. ¶29. That statute provides: “No employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee’s valid claim for compensation or attempt to claim compensation under the Workers’ Compensation Law.” Fla. Stat. § 440.205. That statute

only prohibits the retaliatory discharge of an employee “by reason of’ the filing of a workers’ compensation claim. The statute cannot be interpreted to prohibit the discharge of an employee for any reason once the employee has filed or pursued a workers’ compensation claim. Employers still retain their traditional right to terminate employees for legitimate business reasons, such as unsatisfactory job performance or excessive absenteeism.

Pericich v. Climatrol, Inc.,

523 So. 2d 684, 685 (Fla. 3d DCA 1988).

Similar to a Title VII claim, Plaintiff must first establish a

prima facie

case of § 440.205 retaliation by demonstrating: (1) a statutorily protected expression; (2) an adverse employment action; and (3) a causal connection between the protected expression and the adverse action.

See Russell v. KSL Hotel Corp.,

887 So. 2d 372, 379 (Fla. 3d DCA 2004). “In order to satisfy the ‘causal connection’ prong of a

prima facie

retaliation case, a plaintiff must, at a minimum, generally establish that the defendant was actually aware of the protected expression at the time the defendant took the adverse employment action.”

Id.

Additionally, “while awareness of protected expression may be premised upon circumstantial evidence, the plaintiff must show a defendant’s awareness with more evidence than mere curious timing coupled with speculative possibilities.”

Id.

Once a plaintiff establishes a

prima foLcie

case by proving only that the

*1229

protected activity and the negative employment action are not completely unrelated, the burden then shifts to the defendant to proffer a legitimate reason for the adverse employment action. The burden then shifts back to the plaintiff to prove by a preponderance of the evidence that the “legitimate reason” was merely a pretext for the prohibited, retaliatory conduct.

Russell,

887 So. 2d at 379-80.

Although awareness of the protected activity at the time a defendant took adverse employment action is

necessary

to establish the “causal connection” element of a plaintiffs

prima facie

case, such awareness is not always

sufficient

to establish such a connection. Notably, the Third District Court of Appeal explicitly wrote that a plaintiff must establish that fact

“at a minimum

.... ”

Russell,

887 So. 2d at 379. Additionally, in setting forth that “causal connection” standard (as well as other standards related to the

prima facie

case and to the entire § 440.205 cause of action), the Third District Court of Appeal exclusively relied on and quoted numerous Eleventh Circuit decisions regarding Title VII and related federal-law retaliation claims, which strongly suggests that the same standards for establishing a causal connection for purposes of a Title VII retaliation claim apply to a § 440.205 claim.

See Russell,

887 So. 2d at 379 (citing

Sierminski v. Transouth Fin. Corp.,

216 F. 3d 945, 950 (11th Cir.2000);

Gupta v. Fla. Bd. of Regents,

212 F. 3d 571, 587 (11th Cir.2000);

Farley v. Nationwide Mut. Ins.,

197 F. 3d 1322, 1336 (11th Cir.1999);

Raney v. Vinson Guard Serv., Inc.,

120 F. 3d 1192, 1196-97 (11th Cir.1997);

Hairston v. Gainesville Sun Publishing Co.,

Goldsmith v. City of Atmore,

996 F. 2d 1155, 1163 (11th Cir.1993)).

Pursuant to that standard, proof of an employer’s knowledge of the protected activity at the time the employer took the adverse employment action is not always sufficient to establish the requisite causal connection for purposes of proving a

pri-ma facie

case. For example, if the time period between the protected activity and the adverse employment action is sufficiently long and the employee presents no evidence of causation other than the employer’s knowledge of the protected activity at the time of the adverse employment action, the employee has not proven the causation element of his or her

prima facie

case.

See, e.g., Clark County Sch. Dist. v. Breeden,

532 U.S. 268, 273, 121 S.Ct. 1508, 1511, 149 L.Ed.2d 509 (2001) (“The cases that accept mere temporal proximity between an employer’s knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a

prima facie

case uniformly hold that the temporal proximity must be ‘very close,’ ....”);

Embry v. Callahan Eye Found. Hosp.,

147 Fed.Appx. 819, 830-31 (11th Cir.2005);

Higdon v. Jackson,

393 F. 3d 1211, 1220-21 (11th Cir.2004); Was

cura v. S. Miami,

257 F. 3d 1238, 1248 (11th Cir.2001) (“In light of the other evidence in the record, the three and one-half month temporal proximity is insufficient to create a jury issue on causation.”).

Plaintiff has established the first two elements of his

prima facie

case: he engaged in statutorily protected expression,

i.e.

filing his workers’ compensation claim; and he suffered an adverse employment action,

i.e.

Defendants terminated his employment. Regarding the third element of Plaintiffs

prima facie

case — a causal connection between filing the worker’s compensation claim and the termination of Plaintiffs employment — it appears to be undisputed that Defendants were aware of Plaintiffs worker’s compensation claim at the time they terminated Plaintiffs em

*1230

ployment. Nevertheless, as discussed

infra,

the Court concludes that Plaintiff has failed to establish a causal connection, and therefore a

prima facie

case, pursuant to Florida Statute § 440.205.

Assuming for a moment, however, that Plaintiff had established a

prima facie

case, the burden would shift to Defendants “to proffer a legitimate reason for the adverse employment action.”

Russell,

887 So. 2d at 379-80. Defendant has proffered at least two legitimate, non-retaliatory reasons for terminating Plaintiffs employment. First, Defendants claim that they fired Plaintiff because he was unable to work.

See

D.E. # 42, at 13 (“Plaintiff was discharged because he could not work, a legitimate reason to discharge an employee under Florida law.”). Second, Defendants claim that they fired Plaintiff because Defendants’ employee manual provides for firing an employee who has been absent from work due to a medical condition for more than twelve weeks or ninety days per year. See

D.E. # 42, at 13. Without question, these are legitimate reasons to fire an employee, and Plaintiff therefore would have “[t]he burden ... to prove by a preponderance of the evidence that the ‘legitimate reason’ was merely a pretext for the prohibited, retaliatory conduct.”

Russell,

887 So. 2d at 379-80.

“In order for a reason to be proven to be a ‘pretext for [prohibited, retaliatory conduct]’ it must be shown

both

that the reason articulated was false,

and

that discrimination was the real reason for the discharge.”

Gray v. Russell Corp.,

681 So. 2d 310, 312 n. 1 (Fla. 1st DCA 1996). Additionally, in order to demonstrate pretext, a plaintiff may not merely disprove

one

of the employer’s proffered legitimate reasons but instead must “produce sufficient evidence for a reasonable factfinder to conclude that

each of

the employer’s proffered ... reasons is pretextual.”

Chapman v. AI Transport,

229 F. 3d 1012, 1037 (11th Cir.2000)

(en

banc) (emphasis added);

see also, e.g., Embry v. Callahan Eye Found. Hosp.,

147 Fed.Appx. 819, 821 n. 1 (11th Cir.2005);

Combs v. Plantation Patterns,

106 F. 3d 1519, 1543 (11th Cir.1997)

(en

banc) (requiring a plaintiff to rebut “all of the defendant’s proffered nondiscriminatory reasons for its actions” to avoid judgment as a matter of law).

Much of the same discussion

infra

regarding evidence which demonstrates that Plaintiff cannot prove the “causal connection” element of his

prima facie

case also demonstrates that Plaintiff has not presented evidence from which a reasonable factfinder could find that either of Defendants’ proffered reasons for firing Plaintiff was pretext for Defendants’ alleged retaliatory motive,

ie.

firing Plaintiff because he filed a workers’ compensation claim; and many of the reasons why the evidence does not demonstrate pretext are also relevant to demonstrate that Plaintiff cannot prove the “causal connection” element of his

prima facie

case. The Court therefore will analyze in the same discussion both of those defects in Plaintiffs

prima facie

case.

The undisputed evidence establishes not only that Plaintiff was unable to work from two days after the accident — September¹⁷, 2004- — until he was fired approximately three months later, but also that there was no reasonable possibility that he would be able to return to work in the near future,

ie.

anytime close to ninety days after he became unable to work because of the accident. In fact, Plaintiff still would have been unable to return to work for Defendants on the date of his deposition, December²¹, 2005, more than

one year

after he was fired and more than

fifteen months

after his accident.

See

Edwards Dep., at 8-9, 12, 245-46. Additionally, it is undis

*1231

puted that when Defendant Jack Niles fired Plaintiff, he informed Plaintiff that “he needed to fill the position.” Edwards Dep., at 129;

RECOMMENDATION

Based upon the foregoing, it is respectfully recommended that the Court GRANT Defendants’ Motion for Summary Judgment (D.E.# 42).

The parties have until June⁵, 2006, to file written objections, if any, with the Honorable K. Michael Moore, United States District Judge.

See

28 U.S.C. § 636; Fed.R.Civ.P. 72. Failure to file timely objections may bar the parties from attacking on appeal the factual findings contained herein.

See LoConte v. Dugger, 847 F. 2d 745, 750 (11th Cir.1988).

Footnotes

1 Late in Plaintiff's deposition, Plaintiff testified that he injured both shoulders in the accident. See Edwards Dep., at 229, 232-33. There is no evidence that Plaintiff claimed an inability to work, or sought workers' compensation benefits, as a result of any injury to the second shoulder. The question of whether or to what extent he injured that second shoulder, however, is irrelevant to consideration of this Motion for Summary Judgment.

2 In Plaintiff’s Response to Defendants' Motion for Summary Judgment, he argues that although he learned of his termination on December 18, 2004, the effective date of his termination was December 10, 2004. See Plaintiff’s Response (D.E.# 48). Plaintiff, however, has not directed the Court to any evidence supporting that assertion, and in fact the uncontroverted evidence — most notably Plaintiff's own testimony in both his deposition and in the affidavits which he submitted as attachments to support his Response to Defendants' Motion for Summary Judgment — ■ demonstrates that Plaintiff was fired on December 18, 2004, not on December 10, 2004. See Edwards Dep., at 8 ("The last day I was employed was December 18, 2004.”); id. at 127-29; Edwards May 5, 2006, Aff. ¶ 14 ("I was terminated on or about December 18, 2005.”); Edwards Apr. 25, 2006, Aff. ¶20 ("As of December 18, the date of my termi- . nation”); see also Compl. ¶ 7 ("From October 15, 2001 through December 18, 2004, Plaintiff was employed by Defendants.”); Plaintiff's December 20, 2004, EEOC charge (Exh. 16 to Plaintiffs' Deposition) (Listing December 18, 2004, as "date(s) discrimination took place” and stating, "On or about Decern- *1206 ber 18, 2004, my employment was terminated.”) Although one of counsel's questions at Plaintiff's deposition suggested that one document lists Plaintiff's separation date as December 10, 2004, not December 18, 2004 (Plaintiff has not supplied the Court with a copy of that document and has not directed the Court to its location anywhere in the record), a lawyer’s question does not constitute evidence which may be used to defeat summary judgment. See, e.g., Cargill v. Turpin, 120 F. 3d 1366, 1385 (11th Cir.1997) (Holding that prosecutor's improper comments did not render criminal sentencing proceeding fundamentally unfair because, inter alia, "the [state trial] court clearly instructed the jury that lawyers’ comments did not comprise evidence.”); United States v. Brown, 546 F. 2d 166, 174 (5th Cir.1977); Broadway v. City of Montgomety, Ala., 530 F. 2d 657, 661 (5th Cir.1976) ("Evidence inadmissible at trial cannot be used to avoid summary judgment.”); Lopez v. Ingram Micro, Inc., No. 95-2004-Civ-Nesbitt, 1997 WL 401585, at *7 (S.D.Fla. Mar.18, 1997) (J. Nesbitt) (holding that a plaintiff may not rely on evidence which would be inadmissible at trial to defeat summary judgment). More importantly, when Plaintiff was asked about the December 10 date on that document, he affirmatively testified that that date was inaccurate and that he was fired on December 18, not December 10, see Edwards Dep., at 128 (Q: "Is that an inaccurate date?” A: “Yes, it is.”), and he repeated that December 18, 2004, date in his two recent affidavits, despite his awareness that he had been asked about that potential discrepancy in his deposition and despite the fact that he is now trying to make an issue out of that potential discrepancy, see Edwards May 5, 2006, Aff. ¶ 14; Edwards Apr. 25, 2006, Aff. ¶ 20. Finally, even if the Court accepted as true Plaintiff's unsupported assertion that Defendants fired him on December 18, 2004, but attempted to make December 10, 2004, the effective date of his termination, that would not change the fact that he actually was fired on December 18, 2004.

3 At other times in Plaintiff’s deposition and in his December 20, 2004, EEOC charge, Plaintiff testified that Defendants did not give Plaintiff any reason for his termination. See, e.g., Edwards Dep., at 188, 219-20, Exh. 16. On different occasions when Defendants confronted Plaintiff with the discrepancy between that statement and Plaintiffs statement that Jack Niles explicitly told Plaintiff that he was terminating Plaintiff because "he needed to fill the position,” Plaintiff offered different explanations for the discrepancy. For example, at one point in his deposition he stated that Jack Niles's reason was unimportant because it was not in writing, see id. at 187-89, and at another point in his deposition he stated that he did not believe that reason, see id. at 219-20. Although the Court will not consider Plaintiff's credibility in its consideration of Defendants' Motion for Summary Judgment, Plaintiff's inconsistent and evasive answers certainly would call into question his credibility and/or motivations if this case proceeded to trial.

4 Incredibly, Plaintiff sought from Defendants overtime wages which have accrued since April 21, 2000, despite the fact that he did not even work for Morrison until almost one and one-half years after that date (i.e., October 15, 2001), and did not work for Defendants until more than two years after that date (i.e., June 28, 2002). See Plaintiff's Supplemental Answers to Defendants' Initial Interrogatories (Exh. 11 to Edwards Dep.), Answer to Interrogatory 3; Edwards Dep., at 197-98. Perhaps more incredibly, when Defendants' counsel pointed out that discrepancy to Plaintiff, Plaintiff continued to argue that he was entitled to overtime pay beginning on April 21, 2000. See Edwards Dep., at 197-99. Plaintiff's unconvincing explanation as to why he would be entitled to overtime for that period before he even began to work for Morrison or Defendants was: "Because they hired us to work overtime.” Id. at 197.

5 Although Plaintiff abandoned his overtime claim, he implied that he might have a legitimate basis to argue that the relevant exemption does not apply to him. See Plaintiff's Response (D.E.# 48), at 5 ("While this exemption can be denied where 20% or more of the Plaintiff's work was for non-exempt tasks, Plaintiff elects not to pursue this avenue.”). Plaintiff did not, however, direct the Court to any evidence which suggests that he had a non-frivolous basis to support that argument, and he explicitly recognized that the exemption may apply to him. See id. at 1 ("Defendant may have an exemption from paying Plaintiff his overtime”).

6 Plaintiff cites Florida Statute § 448.08 as the basis for that proposed Florida law claim. Section 448.08 does not, however, .create or otherwise provide for a cause of action for back wages, but instead relates only to payment of attorneys' fees to a prevailing party in an action for back wages brought pursuant to some other law. See, e.g., Fla. Stat. § 448.08 ("The court may award to the prevailing party in an action for unpaid wages costs of the action and a reasonable attorney’s fee.”); Ocean Club Community Ass’n, Inc. v. Curtis; 935 So. 2d 513, 515, 2006 WL 861180, at *1 (Fla. 3d DCA Apr.5, 2006). It appears that the appropriate basis for Plaintiff's proposed claim would be Florida common law. See, e.g., McRae v. Douglas, 644 So. 2d 1368, 1371 n. 1 (Fla. 5th DCA 1994) ("McRae concedes that Count I was a common law action for recovery of unpaid wages”). The Court construes Plaintiff's request as one to bring such a claim pursuant to Florida common law or, in the alternative, whatever statute other than § 448.08 actually does create such a cause of action.

7 At Plaintiffs deposition, even Plaintiffs counsel appeared to recognize the prejudice which could result to Defendants if Plaintiff amended the basis for his claims after the deposition and Defendants were unable to depose Plaintiff again. See Edwards Dep., at 278-79.

8 In violation of Local Rule 5.1.A.4, Plaintiff failed to paginate his Response to Defendants’ Motion for Summary Judgment and at least one other document he filed with the Court. See D.E. # 38. In all future filings before this Court, Plaintiff and his counsel shall strictly comply with this Court’s Local Rules. A future failure to comply with those Rules may result in a recommendation that the Court impose sanctions, possibly including but not limited to the striking of non-conforming documents. Additionally, Plaintiff failed to cite legal authority in support of almost all, if not all, of his legal arguments. Plaintiff cited only one legal decision in his Response, and it was to support the uncontested (by Defendants) and non-controversial proposition that Florida Statute § 440.205 provides a cause of action for retaliatory discharge for pursuing a workers' compensation case. See D.E. # 48, at 6 n. 13 (citing Smith v. Piezo Technology of Professional Administrators, 427 So. 2d 182 (Fla. 1983)). Although the question of whether Florida Statute § 440.205 provides a cause of action for retaliatory discharge for pursuing a workers’ compensation case may have been a disputed issue prior to the Supreme Court of Florida's 1983 decision in Smith, now — twenty-three years later — that is an unassailable proposition, which most if not all appellate and federal courts in Florida have explicitly recognized. See, e.g., Borque v. Trugreen, Inc., 389 F. 3d 1354, 1357 (11th Cir.2004) ("If an employer violates this section, the employee has a cause of action for retaliatory discharge.”); Northern Ins. Co. of N.Y. v. Pelican Point Harbor, Inc., No. 3:05cv184/MCR/MD, 2006 WL 1285078, at *8 (N.D.Fla. May 5, 2006); Branche v. Airtran Airways, Inc., 314 F. Supp. 2d 1194, 1197 n. 3 (M.D.Fla.2004); Scott v. Otis Elevator Co., 572 So. 2d 902, 903 (Fla.1990); Chase v. Walgreen Co., 750 So. 2d 93, 95-96 (Fla. 5th DCA 1999); Anderson v. TBA Partnership, Ltd., 733 So. 2d 1032, 1033 (Fla. 2d DCA) (J. Altenbernd, dissenting), review dismissed, 727 So. 2d 902 (Fla. 1998) (Table); Montes de Oca v. Orkin Exterminating Co., 692 So. 2d 257, 259 (Fla. 3d DCA 1997); Williams v. City of Ft. Walton Beach, 691 So. 2d 580, 583 (Fla. 1st DCA 1997); Notarian v. Plantation AMC Jeep, Inc., 567 So. 2d 1034, 1035-36 (Fla. 4th DCA 1990); Otis Elevator v. Scott, 551 So. 2d 489 (Fla. 4th DCA 1989), approved, 572 So. 2d 902 (Fla.1990). It is puzzling that Plaintiff chose to cite authority for an undisputed, non-controversial proposition, yet failed to cite authority regarding any relevant, disputed issues and failed to assist the Court (as well as to assist Defendants in understanding Plaintiff's arguments) by failing to cite authority in support of his arguments in opposition to summary judgment. In fact, Plaintiff provided an incomplete and inaccurate citation to the only decision he *1211 did cite. That decision, Smith v. Piezo, appears in volume 427, not volume 425 (as Plaintiff wrote), of the So. 2d reporter; and Plaintiff failed to specify the page of any volume of that reporter — even the incorrect volume he cited — on which he believed Smith appears.

9 Plaintiff has not disclosed what evidence he obtained through discovery which allegedly confirmed the basis of the proposed claim, let alone the date he received that evidence or any reason he was not aware of the basis of the proposed claim before he received that evidence. The only evidence he has cited in support of the proposed claim is his own affidavit which he executed on May 5, 2006. See D.E. # 48, at 1, 5; Edwards May 5, 2006, Aff. ¶¶ 3-5. In fact, no such evidence exists in Plaintiffs first affidavit, which he executed only ten days earlier, on April 25, 2006, and he has not explained how he acquired that knowledge between April 25, 2006, and May 5, 2006. Because Plaintiff failed to clarify those and other issues, the only conclusion the Court can draw is that Plaintiff merely decided to amend his claim when it became clear to him that Defendants were entitled to summary judgment as to Count I, although the Court actually does not need to rely on such an inference regarding Plaintiffs intent to conclude that Plaintiff engaged in undue delay, that Defendants were prejudiced by that delay, and that the court should deny Plaintiff's request to amend Count I.

10 Pursuant to that plan, Defendants withheld twenty-five cents per hour from each employee's wages, then matched that amount and paid the entire fifty-cents per hour to the employee in December. See, e.g., D.E. # 48, at 2 ¶ 2.a. That payment sometimes was referred to as a Christmas bonus. See Defendants' Reply (D.E.# 49), Exh. 2 (written “Technician Pay Plan,” which describes the December payment pursuant to the plan as the “Christmas bonus").

11 Some evidence suggests, if not proves, that Defendants hired the relevant employee, Keith Estep, in 2003, not 2002. The question of whether Defendants hired Estep in 2002 or in 2003 is not, however, relevant to this Court’s analysis.

12 Niles's affidavit contains two paragraphed numbered 6 and 7, one set on pages two to three and a second set contained entirely on page three.

13 The only "evidence” Plaintiff submitted in an attempt to rebut those facts is his unsupported, conclusory statement that "Estep could not have been working at a GM dealership without any GM or ASE Certifications at all." Edwards Apr. 25, 2006, Aff. ¶ 12. First, to the extent that statement could be interpreted to imply that Estep had no GM dealership experience, it contradicts Plaintiff’s own statements and representations that Estep had ten years of such experience. Also, even if that were admissible evidence, it would be irrelevant to the question of whether Estep had eighteen years GM experience because Plaintiff has not alleged, let alone presented evidence, that Estep lacked those qualifications at the time he allegedly worked at GM dealerships. Even if the Court accepted as true Plaintiff's conclusory, eleventh-hour affidavit testimony, that testimony implies that Estep did have those certifications at one time but subsequently lost them. See id. ¶ maintain his GM Master Certification because he was not working for a GM dealership.... In the time that Estep was employed by Niles, about a year and a half, he did not regain his GM Master Certification or ASE Master Certification.”) (emphasis added). Plaintiff's deposition testimony and September 16, 2004, letter to EEOC Investigator Laura Stubblefield confirm that even Plaintiff believes that Estep did have those certifications at some point. See Edwards Dep., at 260 (testifying that Estep’s credentials had expired); Edwards Dep., Exh. 18, at 1-2 ("The records will show at the time Keith was hired, his General Motors (GM) training certifications had elapsed along with his Automotive Service Excellence (ASE) certifications.”).

14 This is particularly true in light of the fact that Plaintiff has not alleged, let alone presented. evidence, that Defendants required verification of the certifications of non-white applicants for Estep's position but failed to verify the certifications of white applicants for that position.

15 If Plaintiff alleged that employment rules were applied differently to Estep and Plaintiff, as opposed to arguing that Estep' and Plaintiff were paid at different rates, then the fact that they performed different jobs might not be relevant to the Court's analysis. See Lathem v. Dep’t of Children & Youth Servs., 172 F. 3d 786, 793 (11th Cir.1999).

16 To the extent Plaintiff testified that Estep's position was a "lower” position than Plaintiff’s, he did so in a wholly conclusoiy manner *1218 based on his subjective belief, similar to the Cooper plaintiff. See Edwards Dep., at 192-93.

17 Once again, this is particularly true in light of the fact that Plaintiff has not alleged, let alone presented evidence, that Defendants required verification of the certifications of nonwhite applicants for Estep’s position but failed to verify the certifications of white applicants for that position.

18 Although Plaintiff alleges that Keith Estep was paid more than $22.00 per hour, Plaintiff has not alleged or presented evidence that Estep received a raise to that level, as opposed to being hired at that level, and as the Court discussed supra, Estep was not similarly situated to Plaintiff.

19 Plaintiff has made contradictory statements as to when he reported the accident. At one point during his deposition, he testified that, consistent with his allegations in the Complaint, he reported the accident on the "same day” it occurred, i.e., September 15, 2004. Edwards Dep., at 165. When Defendants’ counsel pointed out the discrepancy between that statement and Plaintiff’s other statements that he first reported the accident on later dates, Plaintiff claimed that he reported the fact that the fuel tank fell — but not the fact that it fell on or almost on him, or the fact that he sustained an injury — on September 15. See id. In other portions of Plaintiff's deposition, he testified that he reported the accident and his shoulder injury the next day, i.e., September 16, 2004. See Edwards Dep., at 251; see also id. at 157. Additionally, in Plaintiff's interrogatory answers he wrote that September 16, 2004, was "the first time [Plaintiff] said anything to the service manager about the accident .... ” Plaintiff's Answers to Defendants' Initial Interrogatories (Exh. 10 to Edwards Dep.) ¶ 10, which is inconsistent with Plaintiff's testimony on page 165 of his deposition that he reported the accident but not the injury on September 15, 2004. Similarly, in Plaintiff's comments on his September 24, 2004, write-up — only eight to nine days after the events in question — he wrote that he "did not say anything on Wednesday when it happened .... ” Plaintiff's comments on Sept. 24, 2004, write-up (Exh. 13 to Edwards Dep.). On September 27, 2004, shortly after the events in question and the first time in the record that Plaintiff explicitly wrote or testified regarding when he did report the accident, Plaintiff provided a third possible date when he first reported the accident: Monday, September 20, 2004. See Plaintiff's September 27, 2004, letter to EEOC Investigator Laura Stubblefield (part of Exh. 18 to Edwards Dep., at 1 ("I did not tell Robert Oul-ette about the accident until Monday, September 20th, 2004.”)). In Plaintiff's next letter in record to Stub-blefield — dated December 3, 2004 — Plaintiff disputed Defendants’ representation that he did not tell Oulette about that accident until September 20, 2004 {i.e., the date Plaintiff had cited in his September 27 letter), but contended instead that Oulette knew about the accident on September 16, 2004, one day after the accident. See Plaintiff's September 27, 2004, letter to EEOC Investigator Laura Stubblefield (part of Exh. 18 to Edwards Dep.), at 1 ¶ 3 ("Respondent] stated I went in on September 20, 2004 to tell Bob what had happened and where I had been since leaving work on September 15, 2004. That statement is false. Bob knew on Thursday morning September 16, 2004 that I thought that I had pulled a muscle in my arm ...."). *1223 When confronted with the discrepancy between Plaintiff's representations regarding the September 16 date and the September 20 date (as well as Plaintiff’s explicit references to "Thursday” and "Monday” in describing those dates), Plaintiff testified that his reference to the September 20 date was a typographical error. See Edwards Dep., at 253-56. When Defendants' counsel confronted Plaintiff with another inconsistency between another interrogatory answer and Plaintiff's deposition testimony, Plaintiff again testified that that interrogatory answer contained a typographical error. See Edwards Dep., at 271-73, 275-76. Although the Court will not consider Plaintiff's credibility in order to resolve Defendants' Motion for Summary Judgment, those inconsistencies and Plaintiff’s explanations for the inconsistencies would certainly be relevant to Plaintiff's credibility if this action proceeded to trial.

20 In fact, Plaintiff understood that the requirement to report the accident immediately or "ASAP” meant that he had to report the accident "right now, as soon as possible.” Edwards Dep., at 165.

21 This action actually demonstrates precisely why Defendants' policy regarding the immediate reporting of all accidents, regardless of whether they involve injury and regardless of the severity of any injury, is a sound business policy. On the date of the accident, Plaintiff drastically underestimated the severity of his injury. If Defendants allowed employees to exercise discretion in deciding whether to report accidents, Defendants could be faced with numerous situations — such as Plaintiff's — when employees failed to report an accident but later learned that their injuries were much more serious than first predicted, which in turn could affect, inter alia, Defendants' insurance obligations, Defendants’ ability to timely correct safety problems, and even Defendants' ability to correctly anticipate its needs for substitute and/or additional employees to fill in for or to replace injured employees.

22 This is particularly true in light of the fact that approximately three months — from June 29, 2004, until September 24, 2004 — passed between Plaintiff's filing of the EEOC charge and Defendants’ issuance of the warning letter. Higdon v. Jackson, 393 F. 3d 1211, 1220-21 (11th Cir.2004) (Holding that a three-month period between the protected activity and the adverse employment action, in the absence of other evidence of causation, was insufficient to establishing a prima facie case of Title VII retaliation).

23 Plaintiff actually submitted those affidavits in support of his Response to Defendants' Motion for Summary Judgment, the same response in which he claims that he was fired on December 10, not December 18.

24 Plaintiff has not supplied the Court with a copy of that document and has not directed the Court to its location anywhere in the record, and the Court cannot find it in the record.

25 Even if the Court accepted as true Plaintiff's unsupported assertion that Plaintiff's fired him on December 18, 2004, but attempted to make December 10, 2004, the effective date of his termination, that would not change the fact that he actually was fired on December 18, 2004.

26 As the Court discussed supra in relation to Plaintiff's request to amend the Complaint to include a claim for unpaid minimum wages, the undisputed evidence demonstrates that Defendants paid Plaintiff the portion of the Christmas bonus which Plaintiff was entitled to receive.

27 This is not a case in which Plaintiff engaged in protected activity, continued to work after engaging in the protected activity, and then was fired sometime later, allegedly for having engaged in the protected activity. Instead, Plaintiff did not return to work from the date he engaged in the protected activity (z.e., filing a claim for workers' compensation benefits) until he was fired on December 18, 2004. Therefore, one of Defendants' proffered legitimate reasons — Plaintiff's inability to work — is more easily recognizable as true (even if it turns out not to have been Defendants' actual motivation) in this action than it might be in other types of retaliation claims.

28 Plaintiffs statements that Brooks told him "that he was paid by Associated the workers' compensation carrier, "for any hours he missed up to 40 per week” and that "[t]his can be verified through Associated ...,” Edwards Apr. 25, 2006, Aff. ¶24, also are based on inadmissible hearsay, although the relevance of those statement to any of Plaintiff's arguments is unclear.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

Hornfischer v. Manatee Cnty. Sheriff's Off., 136 So. 3d 703 (Fla. 2d DCA 2014)

…px. 250, 252-53 (11th Cir.2005); Davis v. Jim Quinlan Ford, Lincoln-Mercury, Inc., 932 F.Supp. 1389, 1392-93 (M.D.Fla.1996). But see, e.g., Pericich v. Climatrol, Inc., 523 So. 2d 684, 685-86 (Fla. 3d DCA 1988), Edwards v. Niles Sales & Serv., Inc., 439 F. Supp. 2d 1202, 1228-37 (S.D.Fla. 2006); Humphrey v. Sears, Roebuck, & Co., 192 F. Supp. 2d 1371, 1374-75 (S.D.Fla.2002).…
Atha v. Allen P. VAN Overbeke, D.M.D., P.A., 213 So. 3d 1073 (Fla. 2d DCA 2017)

…n in itself might be sufficient to establish a causal connection, but the temporal proximity must be “close.” Ortega, 30 So. 3d at 529 (quoting Higdon v. Jackson, 393 F. 3d 1211, 1220 (11th Cir. 2004)); see also Edwards v. Niles Sales & Serv., Inc., 439 F. Supp. 2d 1202, 1229 (S.D. Fla. 2006) (“The cases that accept mere temporal proximity between an employer’s knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima fade case uniformly hold that the…
Vega v. T-Mobile USA, Inc., 564 F.3d 1256 (11th Cir. 2009)

…tion of Florida’s labor statutes that provides for the payment of attorneys’ fees and costs to prevailing parties in actions for unpaid wages but that does not, itself, create an independent cause of action. See Edwards v. Niles Sales & Serv., Inc., 439 F. Supp. 2d 1202, 1208 n. 6 (S.D.Fla.2006) (noting that an action for unpaid or back wages, for which § 448.08 may permit recovery of fees and costs, must be “brought pursuant to some other law”). Vega responds that his unpaid wages claim “is based on a breach of th…

Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited (64 total)

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (U.S. 1986)
Celotex Corp. v. Catrett, 477 U.S. 317 (U.S. 1986)
Foman v. Davis, 371 U.S. 178 (U.S. 1962)
Christiansburg Garment Co. v. Equal Emp. Opportunity Comm'n, 434 U.S. 412 (U.S. 1978)
Hairston v. The Gainesville SUN Publ'g Co., 9 F.3d 913 (11th Cir. 1993)
Chapman v. AI Transp., 229 F.3d 1012 (11th Cir. 2000)
Combs v. Plantation Patterns, 106 F.3d 1519 (11th Cir. 1997)
O'Neal v. Am. Shaman Franchise Sys., Inc., 679 F. 2d 1350 (11th Cir. 2026)
LoCONTE v. Dugger, 847 F.2d 745 (11th Cir. 1988)
Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322 (11th Cir. 1999)

View all 64 cited authorities →

Full citator, related cases, and AI research tools

Open in FLexlaw

EDWARDS v. NILES SALES & SERVICE, INC.

K. MICHAEL MOORE, District Judge.

REPORT AND RECOMMENDATION

BACKGROUND

DISCUSSION

n. 2 (11th Cir. June 10, 2005);

n. 6 (11th Cir.2003);

n. 7 (11th Cir. Apr.7, 2006) (“However, because M

F. 3d 1066,

n. 6 (11th Cir.2003);

RECOMMENDATION

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

Authorities Cited (64 total)

EDWARDS

v.

NILES SALES & SERVICE, INC.