John C. Dixon v. Odwalla, Inc. ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-10952 ELEVENTH CIRCUIT
OCTOBER 14, 2010
Non-Argument Calendar
________________________ JOHN LEY
CLERK
D.C. Docket No. 0:08-cv-61593-MGC
JOHN C. DIXON,
Plaintiff-Appellant,
versus
ODWALLA, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 14, 2010)
Before CARNES, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
John C. Dixon appeals from the district court’s grant of summary judgment
in favor of his former employer, Odwalla, Inc., on his retaliation claim under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a). On appeal, Dixon
argues that he did not receive proper notice of how to respond to Odwalla’s
motion for summary judgment, and did not understand the nature and
consequences of summary judgment. He also argues that summary judgment was
inappropriate because he had shown that Odwalla’s proffered reasons for his
termination were pretextual, and because the district court improperly considered
hearsay evidence in granting Odwalla’s motion.
I.
We review a trial court’s grant of a motion for summary judgment de novo,
viewing the record and drawing all reasonable inferences in the light most
favorable to the non-moving party. HR Acquisition I Corp. v. Twin City Fire Ins.
Co., 547 F.3d 1309, 1313-14 (11th Cir. 2008) (citation omitted). The party
seeking summary judgment bears the initial burden of demonstrating that there are
no genuine issues of material fact. Hairston v. Gainesville Sun Pub. Co., 9 F.3d
913, 918 (11th Cir. 1993) (citation omitted). In assessing whether the movant has
met this burden, the district court views the evidence and all factual inferences in
the light most favorable to the non-moving party. Id. If the movant satisfies its
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burden, the burden then shifts to the non-movant to establish, by going beyond the
pleadings, that there are genuine issues of material facts. Id.Prior to December 2009, Rule 56 of the Federal Rules of Civil Procedure
provided that a summary judgment motion “must be served at least ten days before
the day set for the hearing.” Fed.R.Civ.P. 56(c) (2008). The rule since has been
amended to remove that temporal notice requirement. See Fed.R.Civ.P. 56(c)
(Rev. 2009).
In prior precedent, we indicated that we would raise sua sponte a district
court’s failure to adhere to the ten-day advance notice requirement. See Griffith v.
Wainwright, 772 F.2d 822, 824 (11th Cir. 1985). Under our precedent prior to the
amended Rule 56(c), it was well-established that the ten-day notice requirement
was strictly enforced. Herron v. Beck, 693 F.2d 125, 126 (11th Cir. 1982). We
have been particularly careful to ensure proper notice to pro se litigants. Id. We
have held that Rule 56(c)’s former notice provision required, at a minimum, that
an opposing party “be given express, ten-day notice of summary judgment rules,
of his right to file affidavits or other material in opposition to the motion, and of
the consequences of default.” Griffith, 772 F.2d at 825. In a case involving
counseled parties, we held that failing to give temporal notice was harmless error
when it did not deprive a party of the opportunity to present all facts or arguments
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that would have precluded summary judgment. Restigouche, Inc. v. Town of
Jupiter, 59 F.3d 1208, 1213 (11th Cir. 1995).
In this case, it appears that the district court did not give Dixon complete
notice of the summary judgment rules or his right to file affidavits or other
materials in opposition to a motion to summary judgment. However, Dixon
demonstrated his familiarity with summary judgment procedures and
consequences when he filed his own motion for summary judgment, and when he
responded to Odwalla’s motion just three days after it was filed, and that response
included interpretations of the facts, case law, legal arguments, and numerous
exhibits containing summary judgment evidence. There is nothing in the record to
indicate that Dixon would respond any differently if given a more complete
substantive notice. Thus, we do not find reversible error with reference to this
claim.
II.
We analyze Title VII retaliation cases under the McDonnell Douglas
burden-shifting framework. Brown v. Ala. Dep’t of Transp., 597 F.3d 1160, 1181
(11th Cir. 2010); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93
S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). First, the plaintiff must establish a
prima facie case, which raises a presumption that the employer’s decision was,
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more likely than not, based on an impermissible factor. Richardson v. Leeds
Police Dept., 71 F.3d 801, 805 (11th Cir. 1995). To establish a prima facie case
for retaliation under Title VII, the plaintiff must show that “(1) he engaged in
statutorily protected expression; (2) he suffered adverse employment action; and
(3) there is a causal relation between the two events.” Pennington v. City of
Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001). Once the plaintiff establishes
his prima facie case, the burden shifts to the defendant-employer to articulate a
legitimate, non-discriminatory reason for its action. Richardson, 71 F.3d at 805. If
the employer carries this burden, the plaintiff must persuade the trier of fact that
the employer’s proffered reasons are a pretext for discrimination. Id. at 806. Mere
conclusory allegations are not sufficient to show that the employer’s proffered
reasons are pretextual. Earley v. Champion Intern. Corp., 907 F.2d 1077, 1081
(11th Cir. 1990).
Inadmissible hearsay cannot be considered on a motion for summary
judgment. Macuba v. Deboer, 193 F.3d 1316, 1322 (11th Cir. 1999) (internal
quotations omitted). Federal Rule of Evidence 801(c) defines hearsay as “a
statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted.”
Fed.R.Evid. 801(c). Generally, hearsay is not admissible. Fed.R.Evid. 802.
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However, affidavits supporting summary judgment can be considered if they are
based on personal knowledge and they set forth facts that would be admissible
evidence. Fed.R.Civ.P. 56(e); Macuba, 193 F.3d at 1322-23.
Dixon has not shown that there are any disputed genuine issues of fact about
whether Odwalla’s proffered reasons for his termination are a pretext for a
retaliatory motivation. In this regard, the district court did not err in considering
the affidavits that Odwalla attached to its motion for summary judgment because
they were based on personal knowledge and set forth facts that would be
admissible at trial.
Upon review of the record and after consideration of the parties’ briefs, we
affirm.
AFFIRMED.
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