                                                          [DO NOT PUBLISH]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,


                                             4
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.


                                           5
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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