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Thomas E. Sims v. Department of Veterans' Affairs

February 17, 2012


The opinion of the court was delivered by: Richard Smoak United States District Judge


Before me is Defendant's Motion for Summary Judgment (Doc. 22), Plaintiff's Response (Doc. 33), and Defendant's Reply (Doc. 45).


The basic issue before the court on a motion for summary judgment is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S. Ct. 2505, 2512 (1986). The moving party has the burden of showing the absence of a genuine issue as to any material fact, and in deciding whether the movant has met this burden, the court must view the movant's evidence and all factual inferences arising from it in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970); Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993).

Thus, if reasonable minds could differ on the inferences arising from undisputed facts, then a court should deny summary judgment. Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (citing Mercantile Bank & Trust v. Fidelity & Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985)). However, a mere 'scintilla' of evidence supporting the nonmoving party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party. Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 251).


I accept the facts in the light most favorable to Plaintiff. See Galvez v. Bruce, 552 F.3d 1238, 1239 (11th Cir. 2008) (citing Vinyard v. Wilson, 311 F.3d 1340, 1343 n.1 (11th Cir. 2002)). " 'All reasonable doubts about the facts should be resolved in favor of the non-movant.' " Id. (quoting Burton v. City of Belle Glade, 178 F.3d 1175, 1187 (11th Cir. 1999); Clemons v. Dougherty County, 684 F.2d 1365, 1368-69 (11th Cir. 1982).

Plaintiff, a sixty-three year old male, was employed by Defendant, the Department of Veterans Affairs of the State of Florida, from January 2004 to March 2010 as a purchasing agent. He worked at Clifford Chester Sims nursing home in Springfield, Florida. Plaintiff was under the chain of command of FDVA's Division of Administration. Christina Porter was the Division's Director, and Ken Dirmitt was Plaintiff's direct supervisor. Both were located in Largo, Florida. Renee Claudia Day was the Director of the FDVA Homes Program Division at the nursing home, and Florence Wegst was the home's Administrator. Neither Day not Wegst were Plaintiff's supervisors in his chain of command, but they were the supervisors at the nursing home where Plaintiff worked. Plaintiff believed that Wegst was his on-site supervisor.

It is Plaintiff's contention that Wegst was hostile towards him throughout his employment because of his gender and age. Plaintiff alleges that Wegst treated males poorly. According to Plaintiff, Wegst made derogatory comments about men such as "men are stupid and that's why I don't have one," "that stupid man," and "you men." (Doc. 33). Wegst also commented on Plaintiff's age by telling him that he was getting old, making comments about his gray hair, and saying that he needed to get on the Alzheimer's ward. Id.

In July 2009, Defendant enacted a meal plan that allowed employees and residents' families to purchase food made by the nursing home staff. According to the policy, if an employee wished to eat the food, it would have to be purchased for $3.50 per plate and $0.50 for a cup of soup. In January 2010, the dietary department held a staff meeting, with Wegst in attendance, where it was reported that some employees, including Plaintiff, were getting food without paying for it.

Plaintiff argues that he only received leftover food from the kitchen and never asked for it. He also states that it was a common occurrence for food leftovers to be eaten by the employees and staff without purchase. A few employees of the nursing home estimated that eighty-five to ninety percent of the staff received free food from the kitchen.

Based on the report from the staff meeting, Wegst initiated an Inspector General ("IG") investigation against Plaintiff. As a result of the investigation, Wegst gave Plaintiff a termination letter signed by Earl Daniell, the Chief of Staff at the nursing home. After receiving the letter, Plaintiff spoke to Dirmitt, his supervisor, who was unaware of Plaintiff's termination. Dirmitt made it possible for Plaintiff to resign instead of being terminated. Plaintiff resigned on March 15, 2010. Several other employees were investigated for food theft, but Plaintiff was the only person terminated. The others were simply reprimanded.


"To make out a prima facie case of age [and gender] discrimination, a plaintiff must demonstrate 'facts sufficient for a reasonable jury to infer that discrimination has occurred.' Such an inference is generally established by proving that the plaintiff 1) belongs to the statutorily protected [] group; 2) was qualified for the job; 3) was discharged; and 4) was replaced by a person outside the protected [] group." Anderson v. Savage Laboratories, Inc., 675 F.2d 1221, 1223-24 (11th Cir. 1982)(internal citation omitted). To survive a motion for summary judgment, plaintiff must show either (1) direct evidence of discriminatory intent, (2) circumstantial evidence that complies with the test set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), ...

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