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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA Case No. 98cv6149 EDMONDSON vs. OLD DOMINION FREIGHT LINE, INC. Order Granting In Part Defendant Old Dominion’s Motion For Summary Judgment And Denying Motion To Strike THIS MATTER is before the Court on Defendant’s Motion for Summary Judgment [DE 24], and Defendant’s Motion to Strike Plaintiff’s Response in Opposition [DE 38]. The Court has considered the above referenced Motions and the pertinent portions of the record and is otherwise fully advised. A party moving for summary judgment bears the burden of “identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). An issue of fact is “material” if it is an element of the claim, such that its presence or absence might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). It is “genuine” if the record, taken as a whole, could lead a reasonable jury to find for the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Once the movant establishes its initial burden, summary judgment is appropriate as a matter of law against a nonmovant “who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. In making a sufficient showing, the nonmoving party must “go beyond the pleadings and by … affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ Id. at 324 (quoting Fed. R. Civ. P. 56(e)); see also Earley v. Champion Int’l Corp., 907 F.2d 1077, 1080 (11th Cir. 1990). In opposing summary judgment, the nonmoving party may avail himself of all facts and justifiable inferences in the record taken as a whole. See Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997). Bearing in mind this standard, the Court has viewed the evidence and all factual inferences there from in the light most favorable to the Plaintiff Edmondson. Id. The issue in this case is whether the Defendant terminated the Plaintiff’s employment in retaliation for his reporting alleged incidents of sexual harassment. [FOOTNOTE 1]Notwithstanding the facts supporting the Defendant’s offered legitimate, non-discriminatory reason for Plaintiffs termination, the record reveals disputed facts relating to the reason for Plaintiff’s termination. To establish a prima facie case of retaliation, Mr. Edmondson must establish: (1) statutorily protected expression; (2) adverse employment action; and (3) a causal link between the protected expression and the adverse action. See, e.g., Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456-57 (11th Cir. 1998). To survive summary judgment, Mr. Edmondson must offer evidence that the employer’s proffered reasons for taking adverse actions were actually a pretext for prohibited retaliatory conduct. See Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997), cert. denied, 118 S.Ct. 685 (1998). To meet this burden, Mr. Edmondson must put forth evidence that the Defendant’s reasons should not be believed, or that, in light of all of the evidence, retaliatory reasons more likely motivated the decision than the proffered reasons. See Mayfield v. Patterson Pump Co., 101 F.3d 1371, 1376 (11th Cir. 1996). In light of evidence in the record, the Court finds that there are genuine issues of material fact in dispute as to Defendant’s motivation for Plaintiff’s termination. Therefore, the moving party is not entitled to judgment as a matter of law. Accordingly, it is hereby ORDERED that Defendant’s Motion for Summary Judgment [DE 24] is GRANTED IN PART. Summary judgment is hereby entered in favor of Defendant Old Dominion Freight Line, Inc., and against Plaintiff Edmondson on his FCRA claim. The Title VII claim of retaliation shall proceed to trial. It is further ORDERED that Defendant’s Motion to Strike Plaintiff’s Response in Opposition [DE 38] is DENIED. Plaintiff’s response to Defendant’s Motion for Summary Judgment was originally due on February 19, 1999. After a series of motions seeking extensions and enlargements of time, the Plaintiff filed his Response on March 18, 1999. The delay resulting from the enlargements was not such that the Court should punish the Plaintiff by entering summary judgment. However, the Court cautions Plaintiff’s counsel to avoid this practice in the future and expects that Plaintiff’s counsel will meet all Court ordered deadlines from this point forward. It is further ORDERED that Plaintiff’s counsel shall show Defendant’s counsel the computer assisted demonstrative evidence, or any evidence he wishes to use at trial through the computer, on or before Friday, September 3, 1999, at 5:00 p.m. The Court will hear argument on Plaintiff’s Motion to Use Computers at the Pretrial Conference on September 7, 1999. DONE AND ORDERED in Miami, Florida, this 30th day of August, 1999. ::::FOOTNOTE:::: FN1In addition to the substantive motion on Plaintiff’s retaliation claim, Defendant moves for summary judgment on Plaintiff’s Florida Civil Rights Act (“FCRA”) claim of retaliation on procedural grounds. The FCRA is modeled on and is a counterpart to Title VII. See Malewski v. NationsBank of Fla., NA., 978 F. Supp. 1095, 1104 (S.D. Fla. 1997); see also Brand. Florida Power Corp., 633 So.2d 504, 509 (Fla. 1st DCA 1994). Federal case law dealing with Title VII is applicable to claims of violations of the FCRA. See Florida Dept. of Community Affairs v. Bryant, 586 So.2d 1205, 1209 (Fla. 1st DCA 1991). In short, there is one factual claim in this matter, i.e. retaliation resulting in termination for reporting discriminatory conduct. If Mr. Edmondson is successful on all of his claims, he would be faced with electing Title VII or FCRA because the sole cause of action is retaliation. Defendant argues that Plaintiff’s FCRA claim is barred procedurally because the charge of discrimination was not filed with the Florida Commission on Human Relations, or that plaintiff failed to “check the box” on the charge filed with the EEOC and Broward County Human Rights Division on April 17, 1996. Further, Defendant argues that Plaintiff failed to file a timely civil claim and his complaint alleges discrimination outside the scope of the charge. The Court will grant Defendant’s Motion for Summary Judgment as it relates to the FCRA claims on the procedural grounds asserted in the motion. � 2001 Juritas.com. All Rights Reserved.

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