Bray v. Paetec Communications, Inc. et al

Filing 49

ORDER re 48 Response filed by Windstream Communications, Inc., Paetec Communications, Inc. Defendants' Request to the Court to Correct Motion for Summary Judgment 48 is GRANTED. For the same reasons stated in the Court's previous Order, 47 , summary judgment is GRANTED with regard to all claims brought pursuant to the Age Discrimination and Employment Act of 1967, the Civil Rights Act of 1991, and Chapter 760 of the Florida Statutes, and Florida common law. The Clerk is directed to enter judgment, deny all pending motions as moot, and CLOSE the file. Signed by Judge Sheri Polster Chappell on 1/24/2014. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

STEVEN BRAY,
Plaintiff,
v.

Case No: 2:12-cv-282-FtM-38UAM

PAETEC COMMUNICATIONS, INC.
and WINDSTREAM
COMMUNICATIONS, INC.,
Defendants.
/
ORDER1
This matter comes before the Court on review of the docket. On May 21, 2012,
Plaintiff filed a two count complaint against Defendants for age discrimination and
retaliation. (Doc. #1). The Complaint broadly alleges Defendants discriminated and
retaliated against him pursuant to the Age Discrimination in Employment Act of 1967
(hereinafter “ADEA”), the Civil Rights Act of 1991, and Chapter 760 of the Florida
Statutes, and Florida common law. (Doc. #1). Defendants filed a motion for summary
judgment to the extent Plaintiff brought the age discrimination and retaliation claim
pursuant to the ADEA. (Doc. #39). The Court granted the motion. (Doc. #47). In addition,
the court, directed the Parties to brief whether the Complaint should remain with regard
to Chapter 760 of the Florida Statutes and the Civil Rights Act of 1991 in light of the

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Court’s Order granting summary judgment pursuant to the ADEA claim. The Parties were
given a deadline of January 23, 2014 to comply with the Order.
On January 10, 2014, Defendants filed a response to the Court’s order requesting
to correct its motion for summary judgment. (Doc. #48). The response indicated
Defendants intended to bring the motion for summary judgment pursuant to the Florida
Civil Rights Act, Chapter 760, Florida Statutes (“FCRA”) as well. Defendants further
provided a written argument with appropriate case law contending that the summary
judgment should be granted in relation to the FCRA claims. For example, Defendants rely
on Carlson v. WPLG/TV-10, City of Hollywood v. Hogan, and Florida Dep’t of Comm.
Affairs v. Bryant to assert that courts analyze claims pursuant to the FCRA and the ADEA
identically. Carlson v. WPLG/TV-10, 956 F.Supp. 994, 1005 (S.D. Fla. 1996) (“Both
federal and state law hold that a prima facie case can be established under the Florida
Civil Rights Act of 1992 (“FCRA”) in the same manner as under the ADEA.”) (citations
omitted); City of Hollywood v. Hogan, 986 So.2d 634, 641 (Fla. 4th DCA 2008) (“The
Florida Civil Rights Act of 1992 (FCRA) prohibits age discrimination in the workplace. See
§ 760.10(1)(a), Fla. Stat. (2007). It follows federal law, which prohibits age discrimination
through the Age Discrimination in Employment Act (ADEA). 29 U.S.C. § 623. Federal
case law interpreting Title VII and the ADEA applies to cases arising under the FCRA.”);
Florida Dep’t of Com. Affairs v. Bryant, 586 So.2d 1205, 1209 (Fla. 1st DCA 1991). Having
found that Plaintiff’s ADEA and FCRA claims are based upon the same operative facts
and governed by the same standard of proof, the Court finds summary judgment is due
to be granted with relation to the FCRA claims based upon the same analysis under the
ADEA. (See Doc. #47).

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Defendants’ response and request, however, did not address whether this case as
it relates to the Civil Rights Act of 1991 should also be dismissed in light of the Court’s
analysis pursuant to the ADEA. In addition, although given the opportunity, Plaintiff did
not respond to the Court’s order. Although not given guidance by the Parties, the Court
finds that Plaintiff brought this claim pursuant to the Civil Rights Act of 1991 to the extent
that it amended the ADEA. That is, the Civil Rights Act of 1991 requires a plaintiff to file
a complaint in court within the ninety days of receipt of the Notice of Right to Sue.
Browning v. AT&T Paradyne Corp., 838 F.Supp. 1568, 1573 (M.D. Fla. 1993). Here,
Plaintiff complied with filing the Complaint within 90 days of the Notice of Right to Sue.
(See Doc. #1; Doc. #1-1). This portion of the Civil Rights Act of 1991 does not alter the
Court’s summary judgment analysis. Therefore, to the extent the Complaint was brought
pursuant to the Civil Rights Act of 1991, the Court finds summary judgment is due to be
granted.
Accordingly, it is now
ORDERED:
1. Defendants' Request to the Court to Correct Motion for Summary Judgment
(Doc. #48) is GRANTED.
2. For the same reasons stated in the Court’s previous Order, (Doc. #47),
summary judgment is GRANTED with regard to all claims brought pursuant to
the Age Discrimination and Employment Act of 1967, the Civil Rights Act of
1991, and Chapter 760 of the Florida Statutes, and Florida common law.
3. The Clerk is directed to enter judgment, deny all pending motions as moot, and
CLOSE the file.

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DONE and ORDERED in Fort Myers, Florida this 24th day of January, 2014.

Copies: All Parties of Record

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