Brown v. Lassiter-Ware, Inc.
Filing
96
ORDER granting in part and denying in part 46 Defendant Lassiter-Ware, Inc.'s Motion for Summary Judgment. a. The Motion for Summary Judgment is GRANTED as to Counts I, II, III, IV, V, VI, VII, and VIII. b. The Motion for Summary Judgment is DENIED as to Count IX. At the conclusion of this litigation, a final summary judgment will be entered in favor of Defendant Lassiter-Ware, Inc. on Counts I, II, III, IV, V, VI, VII, and VIII of the Amended Complaint. Signed by Judge Charlene Edwards Honeywell on 8/16/2013. (BGS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
L. RONALD BROWN,
Plaintiff,
v.
Case No: 6:11-cv-1074-Orl-36DAB
LASSITER-WARE, INC.,
Defendant.
ORDER
This cause comes before the Court on Defendant Lassiter-Ware, Inc.’s. (“Defendant” or
“LWI”) Motion for Summary Judgment (Doc. 46). Plaintiff L. Ronald Brown (“Plaintiff”) filed
a response in opposition to LWI’s Motion for Summary Judgment (“Response”) (Doc. 52), to
which LWI replied (Doc. 62).
Upon consideration of the parties’ submissions, including
memoranda and accompanying exhibits, and for the reasons that follow, LWI’s Motion for
Summary Judgment will be granted in part and denied in part.
I.
BACKGROUND
A.
Statement of Facts1
1.
Plaintiff’s Employment
LWI is a full-service independent insurance agency. Doc. 60, ¶ 1. On February 20,
2003, Plaintiff was hired by LWI to work in its Maitland, Florida branch office as a sales person
in the Property and Casualty Division. Id. at ¶¶ 3, 6; McClain Aff., Doc. 41, ¶ 2. Plaintiff,
whose date of birth is March 5, 1951, was 51 years old when he was hired by LWI. Id. at ¶ 4.
1
As the parties in this case submitted a Joint Stipulation of Agreed Material Facts (Doc. 60), the
Court cites this document where facts are undisputed, and otherwise determines facts based on
the parties’ submissions, affidavits, and deposition testimony.
When Plaintiff applied for his position with LWI, he indicated that he was seeking fulltime employment. Brown Dep., Doc. 49-1, 37:9–14. Christopher McClain, an employee at
LWI, recommended to the management team, Ted Ostrander and John Hahne, that LWI hire
Plaintiff. McClain Aff., Doc. 41, ¶ 2. Thereafter, McClain notified Plaintiff that the company
had made the decision to offer him a position. Brown Dep., Doc. 49-1, 38:13–21. Plaintiff
understood that this would be a full-time position. Id. at 38:22–24. At the time Plaintiff was
hired, he signed an acknowledgment of LWI’s Anti-Discrimination/Harassment policy, which
included the procedure for initiating complaints of discrimination or harassment. Id. at 39:15–
40:18; Doc. 49-3, pp. 8–10; Doc. 60, ¶ 7. Plaintiff acknowledged that he also received a copy of
LWI’s Family and Medical Leave Act (“FMLA”) Policy. Brown Dep., Doc. 49-1, 41:11–42:3;
Doc. 44, p. 11; Doc. 60, ¶ 8;.
McClain was Plaintiff’s immediate supervisor. Doc. 60, ¶ 9. Plaintiff testified that, for
the first five years of his employment, he and McClain “worked very well together.” Brown
Dep., Doc. 49-1, 47:19–48:3. Plaintiff exceeded LWI’s annual new business sales goals in the
fiscal years ending April 30, 2004 and April 30, 2006. See Doc. 49-3, p. 65. Plaintiff testified
that he twice received LWI’s “Circle of Excellence” award, which is awarded based upon annual
sales performance. Brown Aff., Doc. 53-1, ¶ 5. Plaintiff also testified that he was rewarded with
trips by LWI and its clients for his high level of production. Id. at ¶¶ 5–6.
However, Plaintiff felt that his relationship with McClain changed when McClain was
promoted to vice president of sales in 2008. Brown Dep., Doc. 49-1, 48:4–10, 49:16–18. Once
promoted, McClain began requiring employees to submit more reports and attend more frequent
and longer sales meetings, and he became more involved with the sales force. Id. at 48:11–
49:21. Plaintiff felt these changes were unfair because he was on straight commission and
2
should have been allowed to manage himself. Id. at 52:13–21. However, Plaintiff did not feel at
any time that the sales goals placed on him were unfair. Id. at 57:5–25. Plaintiff also testified
that his relationship with McClain became “very strained” because prior to McClain’s
promotion, the pair had socialized publicly and were friendly, but now it was just “strictly
business.” Id. at 49:22–50:15.
By the end of 2008, the general insurance market began collapsing together with the rest
of the economy, and LWI’s revenues dropped “precipitously.” Ostrander Dep., Doc. 37, 22:17–
21. At that time, LWI’s management and board of directors began discussing the possibility of
layoffs. Id. at 22:22–23:6.
2.
Plaintiff’s Illness
Plaintiff testified that in January or February of 2009, he began experiencing headaches,
flu-like symptoms, dizziness, and weakness “to the point of almost passing out.” Brown Dep.,
Doc. 49-1, 76:1–7, 93:1-94:5. In February 2009, Plaintiff told McClain that he was experiencing
severe fatigue. Id. at 77:14–78:5. McClain told him to go to the doctor. Id. at 78:6–8.
Plaintiff visited Lydia Marsham, a physician’s assistant, who diagnosed him with
Epstein-Barr virus. Dube Dep., Doc. 61-1, 29:1–30:3. On March 25, 2009, Marsham wrote a
doctor’s note stating that Plaintiff was being treated and should remain off work from April 1,
2009, through May 1, 2009. Id. at 47:1–10; see Doc. 49-3, p. 18. Plaintiff presented the note to
McClain. Doc. 60, ¶ 14. According to Plaintiff, McClain responded by telling him to “take a
couple of weeks and then come back to work, that [Plaintiff] could not afford to take off an
entire month, [he would] lose [his] job.” Brown Dep., Doc. 49-1, 75:2–9. Plaintiff testified that
McClain told him that if there was a recurrence of his symptoms, he should “just push through
it.” Id. at 75:20–76:16. McClain disputes this, testifying that he encouraged Plaintiff to take the
time necessary to get better. McClain Aff., Doc. 41, ¶ 8. McClain denies that his remarks to
3
Plaintiff about “push[ing] through” were directed toward Plaintiff’s medical condition,
explaining that the remarks were part of a larger, ongoing conversation with Plaintiff about
producing at a higher level:
[M]y conversations with Mr. Brown about pushing through, working harder,
being more focused, trying to attain higher sales has been an ongoing
conversation that included the term push through it, let’s get out there and make
this happen, let’s be aggressive, Ron, don’t sit back. This is not—this is not
football. We don’t get—it’s not defense; you don’t get to sit on the bench.
Ron Brown was a football player at the University of West Virginia. He and I
talked about these things all the time. Ron, this is 42-7. You don’t—you don’t
get to sit on the bench while the rest of the team is out there and you’re resting.
You got to play all the time here.
And this was conversations to Ron on an ongoing basis—not specific to this, by
any means—that, that he needed to continue to work harder because he wasn’t
making his sales goals. That was my job. I do that with every single producer we
have.
So selectively singling out that one comment for this particular time is selective,
selective memory. He—we talked about this on an ongoing basis, so, yes, that
term [“push through”] was used.
…
I indicated to Mr. Brown that leaving the sales production in a down cycle when
his sales were not up, anywhere close to being—hitting his sales goal was indeed
a bad time for any producer.
And it wasn’t necessarily Ron Brown. I’m talking about producers in general—as
a general animal; the producer can’t pull out for a month when they’re not hitting
their sales goals.
McClain Dep., Doc. 39, 111:12–113:1.
McClain forwarded the doctor’s note to E. Scott Bowers, LWI’s Director of Human
Resources, via email on March 26, 2009. Doc. 60, ¶¶ 13, 15; see Doc. 41, p. 8. The email
contained the following message:
Scott, I would like your thoughts on this. Ron is very ill and has been having a
very difficult time working through the week and I think this time off could be
useful but my concern is will it solve the problem as his doctor can not be sure
4
how long this will last. Ron is very concerned to be out this length of time
because he will surely loose him [sic] momentum and not make his sales goals.
He has been fighting this for the past 3 months and is willing to keep trying to
work. Have you seen this before and how was it handled or do you have any
thoughts.
Doc. 41, p. 8.
On April 14, 2009, Bowers sent to Plaintiff, via regular mail, a letter indicating that LWI
had been made aware of the possibility that Plaintiff may qualify for FMLA leave. Bowers Dep.,
Doc. 34, 30:8–34:3; see Doc. 40, p. 7. Also included in the mailing were LWI’s FMLA policy
and the Government-mandated forms, including a Notice of Eligibility and Rights &
Responsibilities which indicated that Plaintiff was deemed eligible for FMLA leave beginning
April 1, 2009, and that he was entitled to up to twelve weeks of unpaid leave. Bowers Dep.,
Doc. 34, 30:11–15; see Doc. 40, pp. 7–14. Plaintiff testified that he never received the mailing.
Brown Dep., Doc. 49-1, 84:17–85:7.
After taking two weeks off, Plaintiff returned to work on April 13, 2009. Id. at 78:13–
80:7. Shortly after his return to work, Plaintiff had a phone conversation with Bowers in which
he told Bowers that he was not taking a full month of FMLA leave because he was scared he
would lose his job. Id. at 84:1–10. Bowers told Plaintiff that he had to have a doctor’s note
stating that he could return to work, because he had only taken off two weeks rather than
Marsham’s recommendation of one month. Id. at 81:8–82:8. Plaintiff obtained a note from
Suzan Weis, a nurse practitioner, dated April 20, 2009, which stated that he could return to work
as of April 13, 2009. Id. at 78:18–79:16; see Doc. 49-3, p. 31. Plaintiff presented the note to
Bowers and resumed working. See Bowers Aff., Doc. 40, ¶ 8.
Plaintiff testified that, beginning with the onset of his illness in early 2009, he had
difficulty “keeping up” with the increased reports and meetings required by McClain. Brown
Dep., Doc. 49-1, 54:17–55:14. Plaintiff further testified that, from February 2009 through the
5
end of his employment, he was no longer working five days a week, nor was he working 40 to 50
hours a week. Id. at 70:10-71:25. Some days, he would go home for lunch, fall asleep, and not
report back to work until the next day. Id. at 70:11–14.
McClain and Denise Donelson, a business account manager in LWI’s Maitland office,
testified that Plaintiff had actually been working reduced hours since 2006 or 2007, before the
onset of his illness. See McClain Aff., Doc. 41, ¶ 6; Donelson Dep., Doc. 35, 17:10–22, 58:21–
62:11. According to them, Plaintiff would normally arrive at work around 10:00 or 10:30 a.m.,
leave for lunch around 11:30 a.m., return two to three hours later, and then leave any time from
3:30 to 5:00 p.m. See McClain Aff., Doc. 41, ¶ 6; Donelson Dep., Doc. 35, 59:22–60:2.
McClain also testified that following Plaintiff’s initial request to take off the month of April
2009, Plaintiff did not ask him for any additional leave. McClain Aff., Doc. 41, ¶ 9.
3.
Plaintiff’s Performance Review and Termination
On April 27, 2009, Plaintiff met with McClain to discuss his annual written performance
review. Doc. 60, ¶¶ 16–17; see Doc. 49-3, pp. 32–37. In the performance review, McClain
indicated that in the past Plaintiff had excelled at the selling process, but over the past three years
he had not performed to an expected level of sales and was now a “mediocre” agent. See Doc.
49-3, p. 33. McClain wrote that Plaintiff did not have the drive or desire to win, and needed to
change his attitude and “focus on a work ethic that allows him to work at this process 8 to 10
hours a day 5 days a week.” Id. The performance review made no reference to Plaintiff’s illness
or its impact on his performance. See id. Plaintiff, however, testified that he told McClain that
the reason his production was down was because of his illness. Brown Dep., Doc. 49-1, 68:5–
70:4.
Donelson testified that in the summer of 2009, Plaintiff told her that he was going back to
the doctor because he may have been experiencing a “relapse” of his chronic fatigue. Donelson
6
Dep., Doc. 35, 58:12–20, 67:19–69:3. Donelson relayed this information to McClain, who
responded that Plaintiff had not mentioned anything about a relapse to him. Id. at 68:4–24.
On November 9, 2009, Plaintiff was one of eleven LWI employees (eight support
employees and three Property and Casualty Division sales agents) who were laid off as part of
what LWI called a reduction in force (“RIF”).2 Doc. 60, ¶ 18; Bowers Aff., Doc. 40, ¶ 5;
McClain Aff., Doc. 41, ¶ 11. One day after his termination, Plaintiff again visited with Weis, the
nurse practitioner, who diagnosed him with chronic fatigue syndrome. Dube Dep., Doc. 61-1,
54:22–56:18; see Doc. 61-2, p. 19.
Ostrander, the president of LWI, testified that the layoffs were necessary to reduce costs
in response to declining revenues. Ostrander Dep., Doc. 37, 30:17–20. The RIF allowed the
company to save money because the laid-off sales agents’ books of business were transferred to
other sales agents, who earned lower commission rates on those “gifted” books than the laid-off
sales agents. See McClain Dep., Doc. 39, 100:8–102:21; Bowers Dep., Doc. 34, 63:1–64:12.
Plaintiff was 58 years old at the time of the layoffs, while Ray Lewis and Jim Morency, the other
two laid-off sales agents, were 53 and 51 years old, respectively. See Doc. 60, ¶¶ 4, 21–24.
McClain and Ostrander, who were part of the management team that made the decision to
implement the lay-offs, were both 61 years old at the time. See id. at ¶¶ 10, 12, 20; Ostrander
Dep., Doc. 37, 30:6–13.
Ostrander testified that LWI relied on its layoff policy in selecting which employees
would be included in the RIF. Ostrander Dep., Doc. 37, 34:11–25. The layoff policy consisted
of four criteria: (1) promotion potential and transferability of skills to other positions within the
company; (2) demonstrated current and past performance; (3) the needs of the company and
2
LWI had undergone a previous round of layoffs in January 2009, resulting in the termination of
eight or nine employees. See Ostrander Dep., Doc. 37, 30:1–25.
7
specific projects; and (4) length of service with the company. Doc. 38-1, p. 2. However,
Ostrander testified that for sales agents, the “determining factor” was the amount of new
business generated in the current fiscal year. Ostrander Dep., Doc. 38, 120:3–122:15. He further
testified that the management team had the following discussion in deciding to lay off Plaintiff:
[H]is new business production was extremely low, the lowest of the agency. And
the fact that he was a seasoned producer, had been in production before, you
know, gave us the sense that he was basically retiring in position and we needed
to—you know, that wasn’t helpful for us. We needed him to produce new
business.
Id. at 122:16–25.
McClain testified that he recommended Plaintiff for termination because he was one of
the lowest-performing agents in the company and had a poor work ethic. McClain Aff., Doc. 41,
¶ 11. He testified that the main criteria used to determine the lowest-performing agents was the
amount of new business they had generated during the current fiscal year beginning May 1,
2009, and that Plaintiff was ranked last among all agents in this classification. Id.; see Doc. 41,
p. 9. According to McClain, the overall size of the agents’ book of business and the length of
time they were employed by LWI were less important factors than the amount of new business
being generated. McClain Aff., Doc. 41, ¶ 11. McClain further testified that Plaintiff was failing
to meet expectations in his ability to retain existing business, as his book of business was at least
30% lower than was expected of an agent with his experience. Id.
Throughout 2009, LWI also hired seven sales agents, four of whom were assigned to the
Maitland, Florida branch office where Plaintiff worked. See Doc. 60, ¶¶ 25, 26, 28, 29, 31, 32,
34, 35, 37; McClain Dep., Doc. 39, 52:4–10. At the time of Plaintiff’s termination, all four
Maitland agents were already working at LWI, and their respective ages were 38, 29, 25, and 25
years old. See Doc. 60, ¶¶ 25–36. All seven newly-hired sales agents were considered “training
salesmen,” meaning that they earned a base salary while they developed a book of business,
8
whereas experienced sales agents such as Plaintiff, Lewis, and Morency were paid mostly
through commission. McClain Dep., Doc. 39, 49:12–54:20.
B.
Procedural History
Plaintiff filed a Charge of Discrimination with the U.S. Equal Employment Opportunity
Commission (“EEOC”) and the Florida Commission on Human Relations, and after receiving his
notice of right to sue from the EEOC, filed the Complaint in this action on June 28, 2011. See
Docs. 1, 1-2, 1-3. On August 29, 2011, Plaintiff filed an Amended Complaint alleging nine
causes of action: (1) disability discrimination in violation of the Americans with Disabilities Act
(“ADA”); (2) failure to accommodate in violation of the ADA; (3) retaliation in violation of the
ADA; (4) handicap discrimination in violation of the Florida Civil Rights Act (“FCRA”); (5)
failure to accommodate in violation of the FCRA; (6) retaliation in violation of the FCRA; (7)
discrimination in violation of the Age Discrimination in Employment Act (“ADEA”); (8) age
discrimination in violation of the FCRA; and (9) interference with rights under the FMLA. See
Doc. 13.
Following discovery, LWI filed its Motion for Summary Judgment on all of Plaintiff’s
claims. See Doc. 46.
II.
STANDARD OF REVIEW
Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, show there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party
bears the initial burden of stating the basis for its motion and identifying those portions of the
record demonstrating the absence of genuine issues of material fact. Celotex, 477 U.S. at 323;
Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259–60 (11th Cir. 2004). That burden can
9
be discharged if the moving party can show the court that there is “an absence of evidence to
support the nonmoving party’s case.” Celotex, 477 U.S. at 323.
When the moving party has discharged its burden, the nonmoving party must then
designate specific facts showing that there is a genuine issue of material fact. Id. at 324. Issues
of fact are “genuine only if a reasonable jury, considering the evidence present, could find for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The existence of
some factual disputes between the litigants will not defeat an otherwise properly supported
summary judgment motion; “the requirement is that there be no genuine issue of material fact.”
Id. at 248-49 (emphasis in original). A fact is “material” if it may affect the outcome of the suit
under governing law. Id. at 248. In determining whether a genuine issue of material fact exists,
the court must consider all the evidence in the light most favorable to the nonmoving party.
Celotex, 477 U.S. at 323.
III.
ANALYSIS
A.
Plaintiff’s ADA Discrimination Claim
The ADA prohibits covered employers from discriminating on the basis of known
physical or mental impairments of a qualified individual with a disability. See 42 U.S.C. §
12112. A plaintiff bringing an ADA discrimination claim must satisfy the same evidentiary
burdens demanded in a Title VII discrimination case. Hilburn v. Murata Electronics N. Am.,
Inc., 181 F.3d 1220, 1226 (11th Cir. 1999). Under this framework, the plaintiff may avoid
summary judgment through the use of either direct or circumstantial evidence of discrimination.
Bass v. Lockheed Martin Corp., 287 F. App’x 808, 810–11 (11th Cir. 2008). In this case,
Plaintiff relies on both. See Doc. 52, pp. 13–17.
10
1.
Direct Evidence
Plaintiff argues that McClain’s statement that “you don’t get to sit on the bench while the
rest of the team is out there and you’re resting” is direct evidence of discriminatory intent. See
Doc. 52, p. 14. The Court disagrees. “Direct evidence is evidence, which if believed, proves the
existence of [a] fact in issue without inference or presumption.” Tran v. Boeing Co., 190 F.
App’x 929, 932 (11th Cir. 2006) (internal citations and quotations omitted). Thus, the proffered
evidence must clearly indicate that the adverse employment action itself was motivated by
discriminatory animus. See Scott v. Suncoast Beverage Sales, Ltd., 295 F.3d 1223, 1227–28
(11th Cir. 2002); Damon v. Fleming Supermarkets of Florida, Inc., 196 F.3d 1354, 1358–59
(11th Cir. 1999). “[O]nly the most blatant remarks, whose intent could be nothing other than to
discriminate on the protected classification are direct evidence of discrimination.” Scott, 295
F.3d at 1227 (internal citations and quotations omitted). Indeed, “statements that are open to
more than one interpretation do not constitute direct evidence of . . . discrimination.” Carter v.
Three Springs Residential Treatment, 132 F.3d 635, 642 (11th Cir. 1998).
Here, McClain’s statement that “you don’t get to sit on the bench while the rest of the
team is out there and you’re resting” does not, by its terms, bear any relation to an employment
decision made by McClain. For example, McClain did not state that Plaintiff’s job would be in
jeopardy due to his illness. For this reason alone, McClain’s statement is not direct evidence of
discriminatory intent. See Scott, 295 F.3d at 1227–28; Damon, 196 F.3d at 1358–59. Moreover,
Plaintiff takes McClain’s statement completely out of context. When viewed in its broader
context, McClain’s statement is clearly open to multiple interpretations. The statement was part
of a larger block of deposition testimony which made clear that McClain had an ongoing
conversation with Plaintiff, a former football player, about working harder to produce more
sales. See McClain Dep., Doc. 39, 111:12–113:1. Thus, McClain’s statement can easily be
11
interpreted as the use of a sports analogy to motivate Plaintiff in his sales capacity, rather than a
demonstration of discriminatory animus towards Plaintiff’s illness. Accordingly, McClain’s
statement, at most, suggests discrimination, leaving the trier of fact to infer discrimination based
on the evidence. This, by definition, is circumstantial evidence, not direct evidence. See Earley
v. Champion Int’l Corp., 907 F.2d 1077, 1081–82 (11th Cir. 1990).
2.
Circumstantial Evidence
In the absence of direct evidence, Plaintiff asserts that there is sufficient circumstantial
evidence of discrimination to survive summary judgment. See Doc. 52, pp. 15–17. Where a
plaintiff offers circumstantial evidence to prove a discrimination claim, courts use the analytical
framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). See Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1331 (11th Cir. 1998). Under
this framework, the plaintiff must establish a prima facie case of discrimination. Id. The
establishment of a prima facie case creates a presumption of discrimination. Id. The employer
must then offer legitimate, nondiscriminatory reasons for the employment action to rebut the
presumption. Id. If the employer successfully rebuts the presumption, the burden shifts back to
the plaintiff to discredit the proffered nondiscriminatory reasons by showing that they are
pretextual. Id.
However, the Eleventh Circuit has adopted a variant of the McDonnell Douglas burdenshifting test for RIF cases, such as this one. See Earley, 907 F.2d at 1082. Thus, to establish a
prima facie case of discrimination in a RIF case using circumstantial evidence, a plaintiff must:
(1) show he was a member of a protected group and was adversely affected by an employment
decision; (2) prove he was qualified for his own position; and (3) produce sufficient evidence
from which a rational factfinder could conclude that the employer intended to discriminate
against him in making the discharge decision. Tran, 190 F. App’x at 932–33. If the plaintiff
12
establishes a prima facie case, the burden then shifts to the employer to offer a legitimate,
nondiscriminatory reason for the plaintiff’s termination. Id. at 933. If the employer makes this
showing, the burden then shifts back to the plaintiff to show that each reason offered by the
employer was pretext, by demonstrating “such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that
a reasonable factfinder could find them unworthy of credence.” Id. (internal citations and
quotations omitted).
a.
Plaintiff’s Prima Facie Case
LWI does not dispute that the first prong of Plaintiff’s prima facie case is met, i.e., that
Plaintiff has a disability. See Doc. 46, p. 10. LWI does, however, argue that the second and
third prongs are not met, contending that Plaintiff has not demonstrated he was qualified for his
position and has not produced sufficient evidence from which a rational factfinder could
conclude that LWI intended to discriminate against him in terminating his employment. See id.
at 10–12.
The Court first addresses the second prong. Under the ADA, a “qualified individual with
a disability” is an “individual with a disability who, with or without reasonable accommodation,
can perform the essential functions of the employment position that such individual holds. . . .”
Davis v. Fla. Power & Light Co., 205 F.3d 1301, 1305 (11th Cir. 2000) (quoting 42 U.S.C. §
12111(8)). The Eleventh Circuit has held that essential functions are the “fundamental job duties
of a position that an individual with a disability is actually required to perform.” Holly v.
Clairson Indus., L.L.C., 492 F.3d 1247, 1257 (11th Cir. 2007). Moreover, “consideration shall
be given to the employer’s judgment as to what functions of the job are essential. . . .” Id.
(quoting 42 U.S.C. § 12111(8)). LWI argues that working a full-time schedule and meeting sales
expectations are “essential functions” of a sales agent position. See Doc. 46, pp. 10–11. LWI
13
contends that Plaintiff was unable to perform these functions, with or without accommodation,
and therefore he cannot show that he was a qualified individual with a disability. See id.
In support of its argument that working a full-time schedule is an essential function of a
sales agent position, LWI points to Plaintiff’s acknowledgment in his deposition testimony that
the company hired him with the expectation that he would be working a full-time schedule. See
id. (citing Brown Dep., Doc. 49-1, 38:22–24). While LWI’s view that working a full-time
schedule is an essential function of being a sales agent “is entitled to substantial weight in the
calculus, this factor alone may not be conclusive.” Holly, 492 F.3d at 1258. Indeed, “[w]hether
a function is essential is evaluated on a case-by-case basis by examining a number of factors.”
Id. Thus, when considering LWI’s judgment regarding essential functions, the Court may
consider not only the company’s “official position,” but also testimony from Plaintiff’s
supervisor. See id. at 1257. Here, McClain stated in his affidavit that Plaintiff was expected to
work a full-time schedule. McClain Aff., Doc. 41, ¶ 6. However, in the very same affidavit,
McClain acknowledged that Plaintiff had been working a significantly reduced schedule since
“around 2006.” Id. Donelson also testified that Plaintiff had been working a reduced schedule
since 2007 or 2008, and that she had regular discussions with McClain about the time that
Plaintiff spent in the office. Donelson Dep., Doc. 35, 58:21–62:11. Therefore, it is clear that
LWI knew that Plaintiff was working far less than full-time for two to three years prior to the
onset of his illness, but kept him employed in his sales position despite this knowledge.
Accordingly, there is, at the very least, a genuine issue of material fact as to whether a full-time
schedule was an essential function of a sales agent position at LWI. See Holly, 492 F.3d at
1258–61 (holding that a genuine issue of material fact existed as to whether punctuality was an
14
essential function of plaintiff’s job where supervisors testified to the contrary and there was no
evidence that punctuality would cause the employer serious problems).
Similarly, the evidence does not support LWI’s argument that meeting sales expectations
was an essential function of the job. Indeed, the evidence shows that Plaintiff failed to meet his
new business goals in the 2005, 2007, and 2008 fiscal years, and was able to remain in his job.
See Doc. 49-3, p. 65. Moreover, the evidence shows that other agents who fell short of sales
expectations also kept their jobs. See Doc. 38-1, p. 20; Doc. 41, p. 9. Therefore, at the very
least, there is a genuine issue of material fact as to whether meeting sales expectations was an
essential function of being a sales agent at LWI. As a result, Plaintiff has satisfied his burden
with respect to the second prong of his prima facie case.
Turning to the third prong of Plaintiff’s prima facie case, LWI argues that Plaintiff has
not produced sufficient circumstantial evidence from which a rational factfinder could conclude
that LWI intended to discriminate against him in terminating his employment. See Doc. 46, pp.
11–12. The Court agrees. Plaintiff’s opinion that he was discriminated against, without more, is
insufficient to establish a prima facie case. See Holifield v. Reno, 115 F.3d 1555, 1564 (11th Cir.
1997). Moreover, the sole piece of circumstantial evidence which Plaintiff uses in support of his
ADA discrimination claim is McClain’s statement that “you don’t get to sit on the bench while
the rest of the team is out there and you’re resting.”3 See Doc. 52, pp. 15–17. As the Court has
explained in Part III.A.1, supra, Plaintiff takes this remark completely out of context. When
viewed in its proper context, it is clear that McClain’s remark was part of a sports analogy,
3
In his Response, Plaintiff jumbles his ADA and ADEA discrimination/retaliation arguments
together, making it difficult for the Court to discern which arguments apply to which claims. See
Doc. 52, pp. 15–17. However, most of the evidence he discusses in these arguments appears to
apply toward his retaliation claims. See id. To the extent that his temporal proximity argument
is applicable to his ADA discrimination claim, rather than his ADA retaliation claim, it is
rejected for the reasons discussed in Part III.C, infra.
15
which McClain used on an ongoing basis to motivate Plaintiff and other sales agents to produce
more sales. “[A] conversation fragment, devoid of any meaningful context, is simply too vague
to prove even generalized discriminatory animus.” Standard, 161 F.3d at 1329. No reasonable
factfinder could conclude, based on McClain’s remark alone, that LWI intended to discriminate
against Plaintiff on the basis of his disability by terminating him. As a result, Plaintiff has failed
to establish a prima facie case of ADA discrimination.
b.
LWI’s Legitimate, Nondiscriminatory Reason
Even assuming arguendo that Plaintiff established a prima facie case of discrimination,
that would merely shift the burden to LWI to proffer a legitimate, nondiscriminatory reason for
terminating him. This intermediate burden is “exceedingly light.” Holifield, 115 F.3d at 1564.
In addressing this burden, LWI submits that Plaintiff was terminated as part of a RIF because he
was not fulfilling his sales goals and was the lowest producing sales agent at the company. See
Doc. 46, p. 13. The evidence substantially supports LWI’s position. Indeed, the evidence shows
that LWI underwent two rounds of layoffs in 2009, and during the second round of layoffs
eleven employees (including Plaintiff and two other sales agents) were terminated. McClain
Aff., Doc. 41, ¶ 11; Ostrander Dep., Doc. 37, 30:1–25. LWI submitted evidence that the layoffs
were a cost-cutting measure to address declining revenues. Ostrander Dep., Doc. 37, 30:17–20.
McClain stated that the main criteria used to determine who would be laid off was the amount of
new business generated during the current fiscal year, and that Plaintiff was ranked last among
all agents in this classification. McClain Aff., Doc. 41, ¶ 11; see Doc. 41, p. 9. McClain further
explained that Plaintiff was failing to meet expectations in his ability to retain existing business,
as his book of business was at least 30% lower than was expected of an agent with his
experience. McClain Aff., Doc. 41, ¶ 11. The Eleventh Circuit has repeatedly recognized that
an employer in a discrimination case satisfies its burden by presenting evidence supporting the
16
proposition that the employee was terminated as part of a RIF. See, e.g., Bass, 287 F. App’x at
811–12; Watkins v. Sverdrup Tech. Inc., 153 F.3d 1308, 1315 (11th Cir. 1998). Accordingly, the
Court finds that LWI has satisfied its burden of articulating a legitimate, nondiscriminatory
reason for terminating Plaintiff.
c.
Plaintiff’s Burden of Showing Pretext
Because LWI has satisfied its burden, the burden shifts back to Plaintiff to provide
sufficient evidence showing that the legitimate reasons offered by LWI were a pretext for
discrimination. See Bass, 287 F. App’x at 811. Plaintiff must show pretext “either directly by
persuading the court that a discriminatory reason more likely motivated [LWI] or indirectly by
showing that [LWI’s] proffered explanation is unworthy of credence. [Plaintiff] must meet the
proffered reason head on and rebut it . . . he cannot succeed by simply quarreling with the
wisdom of that reason.” Id. at 812 (internal citations and quotations omitted).
Plaintiff has failed to persuade the Court that LWI was more likely motivated by
discriminatory animus.
The only piece of evidence, direct or circumstantial, that Plaintiff
pointed to in support of his ADA discrimination claim was McClain’s remark that “you don’t get
to sit on the bench while the rest of the team is out there and you’re resting.” See Doc. 52, p. 13–
17. For the same reasons discussed in Parts III.A.1 and III.A.2.a, supra, this statement is not
sufficient to show discriminatory intent. Thus, the Court cannot say that it is more likely that
LWI was motivated by a discriminatory animus.
Nor has Plaintiff shown that LWI’s proffered justifications are unworthy of credence. In
his Response, Plaintiff first attempts to cast doubt on LWI’s claim that his layoff was part of a
legitimate RIF due to declining revenues. See Doc. 52, p. 18. In support, he points to evidence
that LWI hired seven new sales agents in 2009 and paid the newly-hired agents a base salary.
See id. He argues that these personnel moves show that economic factors were not the true cause
17
of his termination. See id. Plaintiff’s argument is misplaced. The mere fact that the new sales
agents were paid a base salary, while Plaintiff was not, does not support his contention that
LWI’s economic justification was pretextual. To the contrary, the new sales agents were paid a
base salary because they had little experience and small books of business. McClain Dep., Doc.
39, 49:12–52:3; Ostrander Dep., Doc. 37, 65:4–22. The base salary would guarantee the new
agents a stream of income as they grew their books of business. Once the new agents’ sales
exceeded their salaries, they would have the opportunity to earn commissions. Ostrander Dep.,
Doc. 37, 65:4–22. Experienced agents like Plaintiff, on the other hand, had larger books of
business, and could earn more money through increasing commission rates. See McClain Dep.,
Doc. 39, 48:7–49:6. The RIF allowed the company to save money because the laid-off sales
agents’ books of business were transferred to other sales agents, who earned lower commission
rates on those “gifted” books than the laid-off sales agents. See McClain Dep., Doc. 39, 100:8–
102:21; Bowers Dep., Doc. 34, 63:1–64:12.
Therefore, LWI’s management team believed that layoffs were an appropriate method of
cutting costs in response to declining revenues.
See Ostrander Dep., Doc. 37, 30:17–20.
Whether LWI’s reallocation of labor costs among its sales agents was, in hindsight,
economically prudent is not a decision for this Court to make.
See Chavez v. URS Fed.
Technical Servs., Inc., 504 F. App’x 819, 821 (11th Cir. 2013) (“Whether an employment
decision was prudent or fair is irrelevant, because an employer is free to choose whatever means
it wants, so long as it is not discriminatory, in responding to bad economic conditions.”).
Accordingly, LWI’s hiring of the new sales agents is not sufficient evidence to show that its
proffered economic justification is pretext and that discriminatory animus was the true
motivating factor.
18
Plaintiff next attacks LWI’s assertion that he was chosen for termination because he
failed to generate enough new business during the current fiscal year. See Doc. 52, p. 19.
Plaintiff argues that LWI did not follow its own layoff policy in determining who would be
included in the RIF because it failed to consider past performance and length of service, and that
this is evidence that LWI’s proffered justification was pretextual. See id.
However, even if LWI strayed from its layoff policy, deviation from company policy,
standing alone, does not demonstrate discriminatory animus. Mitchell v. USBI Co., 186 F.3d
1352, 1355–56 (11th Cir. 1999). In any event, the evidence indicates that LWI did follow its
layoff policy and did consider past performance and length of service when it selected Plaintiff
for the RIF. See Ostrander Dep., Doc. 37, 34:11–25, Doc. 38, 120:6–122:15.4 Accordingly,
Plaintiff has failed to establish that LWI’s proffered justification was pretext.
Plaintiff has failed to persuade the Court that a discriminatory reason more likely
motivated LWI’s decision or that the proffered explanations are unworthy of credence.5 As a
result, LWI is entitled to summary judgment on Plaintiff’s ADA discrimination claim. See Bass,
287 F. App’x at 812.
4
In his deposition, Ostrander testified that past performance was considered going back to May
2009—the start of LWI’s new fiscal year—and strictly limited to new business because “that’s
what [LWI] needed.” Ostrander Dep., Doc. 38, 120:6–25. He testified that length of service was
taken into account when “everything else was equal.” Id. at 121:1–10. Transferability of skills
was not relevant to sales agents because “[p]roducing staff had one job and that was sales.” Id.
at 121:11–122:1. As to the last factor, Ostrander testified that “the needs of the company, very
clearly, were new revenue.” Id. at 122:2–15.
5
In his Response, Plaintiff argues that LWI’s “lack of new sales” justification is pretext because
his performance issues were a direct result of the company’s failure to provide him with
sufficient leave time to recover from his illness. See Doc. 52, pp. 19–20. To the extent that this
argument is applicable to his ADA discrimination claim, rather than his ADA failure to
accommodate claim, it is rejected for the reasons discussed in Part III.B, infra. Cf. Stewart v.
Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1287 (11th Cir. 1997) (“In our view, the
acts [the plaintiff] describes relate directly to her ‘reasonable accommodation’ discrimination
claim, not her retaliation claim, and accordingly provide no basis for denying summary judgment
on this issue.”).
19
B.
Plaintiff’s ADA Failure to Accommodate Claim
Plaintiff contends that LWI discriminated against him by denying him a reasonable
accommodation of the one-month leave of absence he requested in March 2009. See Doc. 52,
pp. 7–13. LWI disputes this, arguing that it did not deny his request. See Doc. 46, pp. 15–17.
Under the ADA, an employer’s failure to provide a reasonable accommodation can be a
form of discrimination. See Holly, 492 F.3d at 1262. Indeed, under the ADA, “the term
‘discriminate against a qualified individual on the basis of a disability’ includes . . . not making
reasonable accommodations to the known physical . . . limitations of an otherwise qualified
individual with a disability who is an . . . employee, unless such covered entity can demonstrate
that the accommodation would impose an undue hardship on the operation of the business . . . .”
42 U.S.C. § 12112(b)(5)(A).
“Thus, an employer’s failure to reasonably accommodate a
disabled individual itself constitutes discrimination under the ADA, so long as that individual is
‘otherwise qualified,’ and unless the employer can show undue hardship.” Holly, 492 F.3d at
1262.
To establish a prima facie claim for failure to accommodate, the plaintiff must show that:
(1) he is disabled; (2) he is a qualified individual; and (3) he was discriminated against by way of
the defendant’s failure to provide a reasonable accommodation. McKane v. UBS Fin. Servs.,
Inc., 363 F. App’x 679, 681 (11th Cir. 2010). “[T]he burden of identifying an accommodation
that would allow a qualified individual to perform the job rests with that individual, as does the
ultimate burden of persuasion with respect to demonstrating that such an accommodation is
reasonable. Once the plaintiff has met her burden of proving that reasonable accommodations
exist, the defendant-employer may present evidence that the plaintiff’s requested accommodation
imposes an undue hardship on the employer.” Terrell v. USAir, 132 F.3d 621, 624 (11th Cir.
1998).
20
In this case, LWI does not dispute that Plaintiff is disabled, and the Court has already
found that he has satisfied his burden of showing that he was a “qualified individual” under the
ADA. See supra, Part III.A.2.a. Thus, the first two prongs of Plaintiff’s prima facie case are
established. LWI argues that the third prong is not met because it never denied Plaintiff’s
request for a one-month leave of absence, and in fact granted his request, but that he came back
two weeks early. See Doc. 46, pp. 15–17.
After reviewing the evidence, the Court finds that Plaintiff has failed to demonstrate that
LWI did not accommodate his request for a one-month leave of absence. The evidence shows
that in late March 2009, Plaintiff presented McClain with a doctor’s note stating that he was
being treated and should remain off work from April 1, 2009, through May 1, 2009. Doc. 60, ¶
14. After taking two weeks off, Plaintiff returned to work on April 13, 2009. Brown Dep., Doc.
49-1, 78:13–80:7. Shortly thereafter, Plaintiff had a phone conversation with Bowers in which
he told Bowers that he was not taking a full month of FMLA leave. Id. at 84:1–10. At Bowers’
request, Plaintiff obtained a doctor’s note stating he could return to work as of April 13, 2009.
Id. at 81:8–82:8; Bowers Aff., Doc. 40, ¶ 8. Therefore, the evidence shows that LWI attempted
to accommodate Plaintiff by granting him leave, but that he returned to work, thereby signaling
to the company that he no longer needed the accommodation. “Liability simply cannot arise
under the ADA when an employer does not obstruct an informal interactive process; makes
reasonable efforts to communicate with the employee and provide accommodations based on the
information it possesses; and the employee’s actions cause a breakdown in the interactive
process.” Stewart, 117 F.3d at 1287.
Plaintiff argues that the only reason that he returned to work early was because he feared
that he would be fired if he took a full month off, due to McClain’s “push through” remarks.
21
Doc. 52, pp. 9–10. However, Plaintiff’s subjective belief that he would be fired for taking leave
is insufficient evidence to survive summary judgment. See Webb v. R & B Holding Co., Inc.,
992 F. Supp. 1382, 1388 (S.D. Fla. 1998). No reasonable factfinder could conclude from
McClain’s statement that LWI was refusing to provide the accommodation requested by
Plaintiff.
See supra, Part III.A.2.a.
As Plaintiff has failed to establish any request for
accommodation that LWI refused to provide, summary judgment is warranted on his ADA
failure to accommodate claim.6 See Carper v. TWC Servs., Inc., 820 F. Supp. 2d 1339, 1356
(S.D. Fla. 2011) (summary judgment granted on the plaintiff’s failure to accommodate claim
where the evidence showed that he requested and was granted a leave of absence to undergo
surgery, and that he returned from that leave with a note from his treating physician which
indicated “no restrictions”).
C.
Plaintiff’s ADA Retaliation Claim
The ADA provides that “[n]o person shall discriminate against any individual because
such individual has opposed any act or practice made unlawful by [the ADA] or because such
individual made a charge . . . under [the ADA].” 42 U.S.C. § 12203(a). “This provision creates
a prohibition on retaliation under the ADA that is similar to Title VII’s prohibition on
retaliation.” Stewart, 117 F.3d at 1287. Accordingly, ADA retaliation claims are assessed under
the same framework employed for retaliation claims under Title VII. Id. As with an ADA
discrimination claim, the plaintiff in an ADA retaliation claim can advance past the summary
judgment stage by either introducing direct evidence of retaliation or by making a prima facie
6
Plaintiff does not point to any requests for accommodation other than his March 2009 request
for a month off. See Doc. 52, pp. 9–11. Although he told Donelson later that summer that he
was going back to the doctor due to a possible “relapse” of his chronic fatigue, there is no
evidence that he discussed this with McClain or that he requested a further accommodation. See
Donelson Dep., Doc. 35, 58:12–20, 67:19–69:3. “[T]he duty to provide a reasonable
accommodation is not triggered unless a specific demand for an accommodation has been made.”
Gaston v. Bellingrath Gardens & Home, Inc., 167 F.3d 1361, 1363 (11th Cir. 1999).
22
case using circumstantial evidence. See De La Cruz v. Children’s Trust of Miami-Dade County,
843 F. Supp. 2d 1273, 1281 (S.D. Fla. 2012).
Plaintiff argues that McClain’s “sit on the bench” remark is direct evidence of retaliatory
intent.
See Doc. 52, p. 14.
For the reasons discussed with respect to Plaintiff’s ADA
discrimination claim, the Court concludes that this remark does not rise to the level of direct
evidence, and instead treats it as circumstantial evidence of retaliatory intent. See De La Cruz,
843 F. Supp. 2d at 1281 (“For a supervisor’s comment or demeanor to constitute direct evidence
of retaliation, the comment or action must conclusively show bias that caused the adverse result
in the workplace.”).
Because Plaintiff has no direct evidence of retaliatory intent, he must use circumstantial
evidence to establish a prima facie case of ADA retaliation. To do this, he must show: (1) he
engaged in statutorily protected activity; (2) he suffered an adverse employment action; and (3) a
causal link between the protected activity and the adverse action.
Wofsy v. Palmshores
Retirement Community, 285 F. App’x 631, 634 (11th Cir. 2008). If Plaintiff establishes his
prima facie case, the burden of production shifts to LWI to articulate a legitimate, non-retaliatory
reason for the challenged action.
Id.
If LWI meets its burden, Plaintiff “must introduce
significantly probative evidence showing that the asserted reason is merely a pretext for
discrimination to avoid summary judgment.” Id. (internal citations and quotations omitted).
LWI does not dispute that the first prong of Plaintiff’s prima facie case is met, i.e., that
Plaintiff engaged in protected activity under the ADA by requesting a one-month leave of
absence as a reasonable accommodation. See Doc. 46, p. 17. Nor does LWI dispute that
23
Plaintiff suffered an adverse employment action when he was terminated.7 See id. Rather, LWI
contends that Plaintiff has not established the causal link required under the third prong of his
prima facie case. See id. at 17–18.
The causal link prong is “construed broadly so that a plaintiff merely has to prove that the
protected activity and the negative employment action are not completely unrelated.” Criswell v.
Intellirisk Mgmt. Corp., Inc., 286 F. App’x 660, 664 (11th Cir. 2008). In an effort to establish a
causal link, Plaintiff offers two pieces of circumstantial evidence. First, he points to McClain’s
“sit on the bench” statement. See Doc. 52, p. 17. For the same reasons that this remark, standing
alone, is insufficient evidence of discriminatory intent, the Court finds that it is also insufficient
evidence of retaliatory intent. See supra, Part III.A.2.a.
Second, he contends that the temporal proximity between his March 2009 conversation
with McClain, in which he requested a month off, and his termination in November 2009 is
adequate circumstantial evidence of retaliatory motive. See Doc. 52, p. 17. The Eleventh Circuit
has recognized that, “[i]n some cases, a close temporal proximity between the protected activity
and the adverse action may be sufficient to show that the two were not wholly unrelated.”
Criswell, 286 F. App’x at 664. However, the temporal proximity must be “very close.” Id.
(quoting Clark County School Dist. v. Breeden, 532 U.S. 268, 273 (2001)). Indeed, the Eleventh
7
While there is no dispute that Plaintiff’s termination was an adverse employment action,
Plaintiff appears to argue in his Response that his negative performance evaluation in April 2009
was also an adverse employment action because it “precipitated his ultimate discharge.” See
Doc. 52, p. 17. However, in his Amended Complaint, Plaintiff does not describe the
performance evaluation as an adverse employment action. See Doc. 13, pp. 9–10. In any event,
the Court finds that the performance evaluation was not an adverse employment action because
there is no evidence that the evaluation, in and of itself, had any effect on his employment. See
Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1261 (11th Cir. 2001) (“Negative performance
evaluations, standing alone, do not constitute adverse employment action sufficient to satisfy the
second element of a prima facie case of retaliation under the ADA.”). Therefore, the Court will
treat only Plaintiff’s termination in November 2009, and not the performance evaluation, as an
adverse action.
24
Circuit has held that, in the absence of other evidence showing causation, even a three-month
period of time between the statutorily-protected activity and the adverse employment action is
insufficient to create a jury issue on causation. Id. (citing Drago v. Jenne, 453 F.3d 1301, 1308
(11th Cir. 2006)). Given the absence of other evidence tending to show causation, the Court
finds that the eight-month lapse between Plaintiff’s request for an accommodation in March
2009 and his discharge in November 2009 is insufficient to establish a causal link. See Gray v.
City of Jacksonville, Fla., 492 F. App’x 1, 10 (11th Cir. 2012) (holding that eight- and ninemonth intervals constitute a substantial delay insufficient to establish causation). Accordingly,
Plaintiff has failed to present a prima facie case of ADA retaliation.
Even if Plaintiff had established a prima facie case, the burden would merely shift to
LWI to offer a legitimate, non-retaliatory reason for the adverse employment action. LWI has
adequately done this, presenting evidence that Plaintiff was terminated as part of a RIF because
he was the lowest-ranking sales agent in terms of new business generation. See supra, Part
III.A.2.b. Thus, the burden would shift to Plaintiff to “introduce significantly probative evidence
showing that the asserted reason is merely a pretext for discrimination to avoid summary
judgment.” Wofsy, 285 F. App’x at 634 (internal citations and quotations omitted). Plaintiff is
unable to do so, as he merely offers the same evidence of pretext for his ADA retaliation claim
that the Court has already rejected for his ADA discrimination claim. See supra, Part III.A.2.c.
Accordingly, LWI is entitled to summary judgment on Plaintiff’s ADA retaliation claim.
D.
Plaintiff’s FCRA Disability Claims
Counts IV, V, and VI of Plaintiff’s Amended Complaint are claims for relief under the
FCRA for handicap discrimination, failure to accommodate, and retaliation, respectively. See
Doc. 13, pp. 10–13. Disability claims under the FCRA are analyzed under the same framework
as ADA claims. See Sicilia v. United Parcel Serv., Inc., 279 F. App’x 936, 939 n.6 (11th Cir.
25
2008); Albra v. Advan, Inc., 490 F.3d 826, 834 (11th Cir. 2007); Matthews v. Vill. Ctr. Cmty.
Dev. Dist., No. 5:05-cv-344, 2006 WL 3422416, at * 7 (M.D. Fla. Nov. 28, 2006). Accordingly,
the Court’s conclusion that LWI is entitled to summary judgment on Plaintiff’s three ADA
claims means that it is also entitled to summary judgment on his parallel FCRA claims.
E.
Plaintiff’s ADEA Discrimination Claim
The ADEA prohibits employers from taking an adverse employment action against an
employee who is at least 40 years of age because of that employee’s age. 29 U.S.C. §§ 623(a),
631(a). In Gross v. FBL Financial Services, Inc., the Supreme Court held that a plaintiff
bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of
the evidence, that age was the “but-for” cause of the adverse employment action. 557 U.S. 167,
180 (2009). A plaintiff can establish age discrimination through either direct or circumstantial
evidence. Sims v. MVM, Inc., 704 F.3d 1327, 1332 (11th Cir. 2013). In this case, Plaintiff relies
on both. See Doc. 52, pp. 13–17.
1.
Direct Evidence
Plaintiff argues that Ostrander’s statement that Plaintiff “was basically retiring in [his]
position” is direct evidence of age discrimination. See Doc. 52, pp. 14–15. The Court disagrees.
Direct evidence of age discrimination is “evidence, which if believed, proves existence of [a] fact
in issue without inference or presumption. Evidence that only suggests discrimination, or that is
subject to more than one interpretation, does not constitute direct evidence.” Roberts v. Design
& Mfg. Servs., Inc., 167 F. App’x 82, 84–85 (11th Cir. 2006) (internal punctuation and
quotations omitted). Indeed, “[o]nly the most blatant remarks, whose intent could be nothing
other than to discriminate[,] constitute direct evidence of discrimination.”
Id. (internal
quotations omitted). Thus, “[i]n an age discrimination context, the quintessential example of
26
direct evidence would be a management memorandum saying, ‘Fire Earley—he is too old.’” Id.
(internal quotations omitted).
Ostrander’s statement that Plaintiff “was basically retiring in [his] position” falls far short
of this demanding standard. Therefore, even on its own, the statement is not direct evidence of
age discrimination.
When viewed in its proper context, it becomes even clearer that the
statement is open to multiple interpretations. Ostrander made the statement during his deposition
while explaining the management team’s decision-making process in discharging Plaintiff.
Ostrander testified that the fact that Plaintiff was an experienced producer, but still the lowest
producer of new business in the company, “gave us the sense that he was basically retiring in
position and we needed to—you know, that wasn’t helpful for us. We needed him to produce
new business.” Ostrander Dep., Doc. 38, 122:16–25. There is no doubt that one could interpret
this remark as directed toward Plaintiff’s performance, rather than his age.
Accordingly,
Ostrander’s statement, at most, suggests discrimination, leaving the trier of fact to infer
discrimination based on the evidence. This, by definition, is circumstantial evidence, not direct
evidence. See Earley, 907 F.2d at 1081–82.
2.
Circumstantial Evidence
In the absence of direct evidence, Plaintiff asserts that there is sufficient circumstantial
evidence of age discrimination to survive summary judgment. See Doc. 52, pp. 15–17. Even
after the Supreme Court’s decision in Gross, the Eleventh Circuit has continued to evaluate
ADEA claims based on circumstantial evidence under the McDonnell Douglas burden-shifting
framework. See Mitchell v. City of LaFayette, 504 F. App’x 867, 869 (11th Cir. 2013); Sims,
704 F.3d at 1332–33. Under this framework, a plaintiff may establish a prima facie case of
ADEA discrimination in a RIF case by showing that: (1) he was in a protected age group; (2) he
was adversely affected by an employment decision; (3) he was qualified for his current position
27
or to assume another position at the time of discharge; and (4) the evidence could lead a
factfinder reasonably to conclude that the employer intended to discriminate on the basis of age.
Mitchell, 504 F. App’x at 870.
Once a plaintiff establishes a prima facie case of age
discrimination, the employer may rebut the resulting presumption of discrimination by
articulating at least one legitimate, nondiscriminatory reason for its action. Id. Upon this
showing, the burden shifts back to the plaintiff to produce evidence that the employer’s proffered
reason is a pretext for discrimination. Id. Importantly, though, “the burden of persuasion always
remains on the plaintiff in an ADEA case to proffer evidence sufficient to permit a reasonable
fact finder to conclude that the discriminatory animus was the ‘but-for’ cause of the adverse
employment action.” Sims, 704 F.3d at 1332.
It is undisputed that Plaintiff, who was 58 years old at the time of his termination, was in
a protected age group under the ADEA and that he suffered an adverse employment action. In
addition, the Court has already determined that Plaintiff was qualified for his position. See
supra, Part III.A.2.a. Therefore, to establish his prima facie case, Plaintiff must present evidence
that could lead a factfinder reasonably to conclude that LWI intended to discriminate on the basis
of his age.
Plaintiff first points to Ostrander’s statement that Plaintiff “was basically retiring in [his]
position.”
See Doc. 52, pp. 14–15.
However, “a conversation fragment, devoid of any
meaningful context, is simply too vague to prove even generalized discriminatory animus.”
Standard, 161 F.3d at 1329. As the Court has explained, Ostrander’s statement, put in its proper
context, clearly illustrates that Plaintiff was being selected for the RIF because of his inability to
produce new business. See supra, Part III.E.1. No juror could reasonably conclude, based on
this statement, that LWI intended to discriminate against Plaintiff based on his age.
28
See
Standard, 161 F.3d at 1329 (statement that “older people have more go wrong” is insufficient
evidence from which a juror could reasonably find a discriminatory animus where the broader
context does not show discrimination).
The only other piece of circumstantial evidence that Plaintiff attempts to use in making
his prima facie case is his assertion that he was replaced with younger sales agents. See Doc. 52,
p. 16. It is true that in 2009, the year that Plaintiff was discharged, LWI hired four new sales
agents for its Maitland office, and that they were 38, 29, 25, and 25 years old at the time of his
discharge. See Doc. 60, ¶¶ 25–36. However, each of those agents was already working for LWI
months before Plaintiff was discharged. See id. at ¶¶ 25, 28, 31, 34. This belies the argument
that Plaintiff was “replaced” by these agents. Moreover, Plaintiff cannot make the showing that
he was “replaced” by younger sales agents, because the RIF’s purpose was to reallocate LWI’s
costs by hiring agents paid by salary rather than commission. See Mitchell, 504 F. App’x at 871
(“Although [the plaintiff] is correct that he could establish a prima facie case in the traditional
manner of showing that he was replaced by a younger individual, he is unable to make that
showing, as the purpose of the RIF was to reallocate labor resources following a position
elimination.”). As explained previously, the new sales agents were paid a base salary because
they were inexperienced and had small books of business, while Plaintiff and other experienced
agents had larger books of business and were paid by commissions. See supra, Part III.A.2.c.
Plaintiff has not presented any evidence that he was replaced by another commissioned sales
agent. Accordingly, he has failed to produce sufficient evidence to establish a prima facie case
of age discrimination.
Even if Plaintiff had satisfied his burden of establishing a prima facie case, LWI has
offered the RIF and Plaintiff’s lack of new business production as legitimate, nondiscriminatory
29
justifications for terminating him. See supra, Part III.A.2.b. As a result, the burden shifts back
to Plaintiff to produce evidence that LWI’s proffered reasons are pretext for discrimination. See
Mitchell, 504 F. App’x at 870. Plaintiff may satisfy his burden “either directly by establishing
that a discriminatory reason more likely than not motivated the employer, or indirectly by
showing that the proffered reason is unworthy of credence. Under the latter approach, [he] must
demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions
in the proffered reason that a reasonable factfinder could conclude that it is unworthy of credit.”
Id. at 871 (internal citations omitted).
Plaintiff has not carried his burden here. He again points to the fact that LWI hired
younger sales agents in his attempt to show that the RIF was pretextual. See Doc. 52, p. 18–19.
However, “the fact [that] a company eliminates some positions in a RIF while simultaneously
hiring younger workers in other positions is not sufficient to show that the RIF was pretextual. A
plaintiff must also show that the new positions were similarly situated to those that were
eliminated in the RIF.” Beaver v. Rayonier, Inc., 200 F.3d 723, 728 (11th Cir. 1999). As
explained previously, Plaintiff has not made this showing. Beyond this, Plaintiff has rehashed
the same arguments rejected by the Court previously. See Doc. 52, pp. 18–20. In sum, he has
presented insufficient evidence that a discriminatory reason more likely than not motivated LWI,
or that its proffered justifications are unworthy of credence. As a result, Plaintiff has failed to
demonstrate pretext, and LWI is entitled to summary judgment on his ADEA discrimination
claim.
F.
Plaintiff’s FCRA Age Discrimination Claim
In Count VIII, Plaintiff alleges a claim for age discrimination under the FCRA. See Doc.
13, pp. 14–15.
Age discrimination claims under the FCRA are analyzed under the same
framework as ADEA claims. Brillinger v. City of Lake Worth, 317 F. App’x 871, 875 n.3 (11th
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Cir. 2008). Accordingly, the Court’s conclusion that LWI is entitled to summary judgment on
Plaintiff’s ADEA claim means that it is also entitled to summary judgment on his FCRA age
discrimination claim.
G.
Plaintiff’s FMLA Interference Claim
The FMLA grants eligible employees the right to take up to 12 workweeks of unpaid
leave annually “[b]ecause of a serious health condition that makes the employee unable to
perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D); Hurlbert v.
St. Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1293. The FMLA creates a private right of
action to seek equitable relief and money damages against employers who “interfere with,
restrain, or deny the exercise of or the attempt to exercise” FMLA rights. Hurlbert, 439 F.3d at
1293 (citing 29 U.S.C. §§ 2615(a)(1), 2617(a)). To establish an FMLA interference claim,
Plaintiff must demonstrate, by a preponderance of evidence, that he was denied a benefit to
which he was entitled under the FMLA. Id. Plaintiff “need not allege that [LWI] intended to
deny the benefit—the employer’s motives are irrelevant.” Id. (internal citations and quotations
omitted). Alternatively, Plaintiff may demonstrate that LWI interfered with the FMLA benefit.
Lowery v. Strength, 356 F. App’x 332, 334 (11th Cir. 2009). “Interfering with the exercise of an
employee’s rights would include, for example, not only refusing to authorize FMLA leave, but
discouraging an employee from using such leave.” Id. (quoting 29 C.F.R. § 825.220(b)).
Plaintiff argues that LWI wrongfully denied his FMLA leave request or, alternatively,
that it interfered with his FMLA rights by discouraging him from taking a full month. See Doc.
52, pp. 8–11. For the reasons discussed with respect to Plaintiff’s ADA failure to accommodate
claim, the Court finds that LWI did not deny his request for a month-long leave of absence.
Rather, LWI granted his request and Plaintiff went back to work two weeks after beginning his
leave, thereby terminating the leave period on his own. See supra, Part III.B.
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The Court does, however, find merit in Plaintiff’s argument that LWI discouraged him
from taking a one-month leave of absence. While McClain’s suggestion to “push through” does
not rise to the level of denying Plaintiff’s request for a reasonable accommodation or FMLA
leave, a reasonable juror could interpret the remarks as discouraging Plaintiff from taking the
leave. See Lynch v. City of Largo, Fla., No. 8:10-cv-1064, 2011 WL 4634020, at *8 (M.D. Fla.
Oct. 5, 2011) (finding a genuine issue of material fact as to whether the employer discouraged
the plaintiff from taking further FMLA leave where, after the plaintiff took a period of leave, her
supervisor asked her why she was missing so much work and what was wrong with her).
Accordingly, there is a genuine issue of material fact as to whether LWI discouraged Plaintiff
from taking the leave, and the Court will deny LWI summary judgment on Plaintiff’s FMLA
interference claim.
IV.
CONCLUSION
For the aforementioned reasons, LWI’s Motion for Summary Judgment will be granted in
part and denied in part. As no genuine issues of material fact exist, LWI is entitled to a judgment
in its favor on Counts I, II, III, IV, V, VI, VII, and VIII of the Amended Complaint. Because a
genuine issue of material fact exists as to Count IX, Defendant’s Motion for Summary Judgment
will be denied as to Plaintiff’s FMLA interference claim and it will proceed to trial.
Accordingly, it is hereby ORDERED and ADJUDGED:
1.
Defendant Lassiter-Ware, Inc.’s Motion for Summary Judgment (Doc. 46) is
GRANTED in part and DENIED in part.
a.
The Motion for Summary Judgment is granted as to Counts I, II, III, IV,
V, VI, VII, and VIII.
b.
The Motion for Summary Judgment is denied as to Count IX.
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2.
At the conclusion of this litigation, a final summary judgment will be entered in
favor of Defendant Lassiter-Ware, Inc. on Counts I, II, III, IV, V, VI, VII, and VIII of the
Amended Complaint.
DONE and ORDERED in Orlando, Florida on August 16, 2013.
Copies furnished to:
Counsel of Record
Unrepresented Parties
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