Ofelia Canals v. Archdiocese of Miami, Inc.

Filing 920060802


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[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS No. 05-13158 Non-Argument Calendar ________________________ D. C. Docket No. 03-22252-CV-JEM OFELIA CANALS, Plaintiff-Appellant, versus CENTRO MATER, INC., et al., Defendants, ARCHDIOCESE OF MIAMI, INC., CATHOLIC CHARITIES OF THE ARCHDIOCESE OF MIAMI, INC., MIRIAM ROMAN, LUCIA VICENCIO, TERESA REVUELTA, MAYDELYN RODRIGUEZ. SYLVIA SANTIAGO, Defendants-Appellees. ________________________ Appeal from the United States District Court for the Southern District of Florida _________________________ (August 2, 2006) ELEVENTH CIRCUIT AUG 2, 2006 THOMAS K. KAHN CLERK Before DUBINA, HULL and MARCUS, Circuit Judges. PER CURIAM: Ofelia Canals appeals the order granting judgment as a matter of law, pursuant to Rule 50(b) of the Federal Rules of Civil Procedure, in favor of Catholic Charities of the Archdiocese of Miami, Inc. ("Catholic Charities") on Canals's claim alleging Catholic Charities violated the Florida Whistle Blower Protection Act ("FWBPA"), Fla. Stat. 448.101 et seq.1 We affirm. We review the district court's entry of judgment as a matter of law de novo. See Mendoza v. Borden, Inc., 195 F.3d 1238, 1244 (11th Cir. 1999). This court reviews the district court's grant of relief under Fed. R. Civ. P. 50(b) by considering the evidence in the light most favorable to the nonmoving party. See Pulte Home Corp., v. Osmose Wood Preserving, Inc., 60 F.3d 734, 739 (11th Cir. 1995). Judgment as a matter of law for the defendant is proper when there is insufficient evidence to prove an element of the claim, which means that no jury reasonably could have reached a verdict for the plaintiff on that claim. Collado v. UPS, 419 F.3d 1143, 1149 (11th Cir. 2005) (citations omitted). We discern no error in the entry of judgment as a matter of law on Canals's other claims under Florida law. As for Canals's claim alleging violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 21 U.S.C. 621 et seq., the jury found in favor of Catholic Charities on that claim. On appeal, Canals has not raised any arguments concerning the ADEA claim and, accordingly, has abandoned any issue relating to that claim. See Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1322 (11th Cir. 2001) (holding that issues not clearly raised in initial briefs are considered abandoned). 2 1 See Canals alleged Catholic Charities violated the FWBPA, which provides the following: "[a]n employer may not take any retaliatory personnel action against an employee because the employee has . . . [o]bjected to, or refused to participate in, any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation." Fla. Stat. 448.102. Canals asserted that she was terminated after she refused to commit perjury, in violation of Fla. Stat. 837.012, 837.02. In its order, the district court outlined the elements of a perjury claim under Florida law and concluded that Canals's FWBPA claim failed because she presented no evidence on the "under oath in an official proceeding" element of a perjury claim. Accordingly, the district court set aside the jury's verdict and entered judgment in favor of Catholic Charities. From our own review of the record, we too can find no evidence that Canals made a false statement "under oath in an official proceeding," an element of a perjury claim under Florida law. Therefore, the district court properly entered judgment as a matter of law, based on Canals's failure to present any evidence on one of the elements of her FWBPA claim. Collado, 419 F.3d at 1149. In short, the district court carefully considered all of the arguments Canals raises in this appeal, including her untimely assertion that the underlying violation of law that supported 3 her FWBPA was conspiracy to commit perjury. Based upon the district court's well-reasoned analysis, we affirm, after a de novo review of the record. AFFIRMED. 4

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