FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Orange County, Margaret H.
A. Perez, of Hogan & Hogan, P.A., Orlando, for Appellant.
A. Sugerman and Mark E. Levitt, of Allen, Norton & Blue,
PA, Winter Park, for Appellee.
Thomas Lin appeals the trial court's grant of summary
judgment in favor of Sheriff Jerry L. Demings in this age
discrimination case filed under the Florida Civil Rights Act
("FCRA"). Lin joined the Orange County Sheriff's
Department in 1988 and was assigned to the marine unit in
1993. In 2009, Lin turned fifty years old. Lin complained
that the Sheriff subjected him to several adverse employment
actions because of his age including, among other things, a
ten-hour suspension without pay and a transfer out of the
marine unit back to road patrol duties. Because disputed
issues of material fact exist on the issue of pretext, we
judgment is appropriate "if the pleadings, depositions,
answers to interrogatories, admissions, affidavits, and other
materials as would be admissible in evidence on file show
that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter
of law." Estate of Githens ex rel. Seaman v. Bon
Secours-Maria Manor Nursing Care Ctr., 928 So.2d 1272,
1274 (Fla. 2d DCA 2006) (quoting Fla. R. Civ. P. 1.510(c));
accord Koresko v. Coe, 683 So.2d 602, 603 (Fla. 2d
DCA 1996) (quoting Snyder v. Cheezem Dev. Corp., 373
So.2d 719, 720 (Fla. 2d DCA 1979)). In analyzing a motion for
summary judgment, the trial court and the appellate court are
not permitted to weigh the evidence nor may they determine
the credibility of the witnesses. Jones v.
Stoutenburgh, 91 So.2d 299, 302 (Fla. 1956) (citing
Yost v. Miami Transit Co., 66 So.2d 214 (Fla.
1953)); Alvarez-Mejia v. Bellissimo Props., LLC, 208
So.3d 797, 799 (Fla. 3d DCA 2016) (citing Hernandez v.
United Auto. Ins. Co., 730 So.2d 344, 345 (Fla. 3d DCA
burden is on the movant to demonstrate the absence of genuine
issues of material fact. See Holl v. Talcott, 191
So.2d 40, 43-44 (Fla. 1966); Taylor v. Bayview Loan
Servicing, LLC, 74 So.3d 1115, 1116-17 (Fla. 2d DCA
2011) (citing Estate of Githens, 928 So.2d at 1274).
"[I]f the record raises even the slightest doubt that an
issue might exist, that doubt must be resolved against the
moving party and summary judgment must be denied."
Taylor, 74 So.3d at 1117 (quoting Nard, Inc. v.
DeVito Contracting & Supply, Inc., 769 So.2d 1138,
1140 (Fla. 2d DCA 2000)); accord Sierra v. Shevin,
767 So.2d 524, 525 (Fla. 3d DCA 2000) (citing Hancock v.
Dep't of Corr., 585 So.2d 1068 (Fla. 1st DCA 1991)).
discrimination cases under the FCRA, the employee must
establish a prima facie case for age discrimination before
the burden of production, but not the burden of persuasion,
will shift to the employer to produce a legitimate
nondiscriminatory reason for the adverse employment action.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973); Valenzuela v. GlobeGround N. Am., LLC, 18
So.3d 17, 21 (Fla. 3d DCA 2009).The existence of a prima
facie case creates a rebuttable presumption of unlawful
discrimination. McDonnell Douglas Corp., 411 U.S. at
802-03; Valenzuela, 18 So.3d at 22. After the
employer produces a legitimate non-discriminatory reason for
the adverse employment action, the rebuttable presumption of
discrimination ceases to exist, and the employee must
demonstrate that the reasons offered by the employer were
pretextual. Texas Dep't of Cmty. Affairs v.
Burdine, 450 U.S. 248, 258 (1981); Valenzuela,
18 So.3d at 22 (citing Reeves v. Sanderson Plumbing
Prods. Inc., 530 U.S. 133, 152 (2000)). The employee
must show that the reasons given by the employer are false
and that age discrimination was the real reason for the
adverse employment action. St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 516 (1993), overruled on other
grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167,
169-70 (2009); Burdine, 450 U.S. at 258;
Valenzuela, 18 So.3d at 25.
the Sheriff presented evidence suggesting that Lin's
ten-hour suspension without pay and transfer out of the
marine unit were the result of legitimate, nondiscriminatory
reasons, and, thus, not pretextual, Lin presented conflicting
evidence that was susceptible to a reasonable inference that
the Sheriff's reasons for instituting the adverse
employment action against him were, in fact,
pretextual. As such, it was error to enter summary
judgment in this case. See Feizi v. Dep't of Mgmt.
Servs., 988 So.2d 1192, 1193 (Fla. 1st DCA 2008).
we reverse the order granting summary judgment and remand for
further proceedings consistent with this opinion.
and EDWARDS, JJ., and JACOBUS, ...