final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; David A. Haimes, Judge; L.T. Case No.
Ware Cornell, Jr. of Cornell & Associates, P.A., Weston,
Rodriguez of the Law Offices of Carmen Rodriguez, P.A.,
Palmetto Bay, for appellee.
sued the Broward County Sheriff for disability and age
discrimination after he was demoted from his position as a
child protective investigator with the Sheriff's office.
The trial court granted summary judgment in favor of the
sheriff on both claims. While we agree that summary judgment
on appellant's disability discrimination claim was
correct based upon the deposition testimony of appellant
which contradicted the allegations of his complaint, we
reverse the summary judgment on appellant's age
review a trial court's grant of summary judgment de novo.
Soncoast Cmty. Church of Boca Raton, Inc. v. Travis
Boating Ctr. of Fla., Inc., 981 So.2d 654, 655 (Fla. 4th
[A] party moving for summary judgment must show conclusively
the absence of any genuine issue of material fact, and the
court must draw every possible inference in favor of the
party against whom a summary judgment is sought. A summary
judgment should not be granted unless the facts are so
crystalized that nothing remains but questions of law.
Id. (quoting Craven v. TRG-Boynton Beach,
Ltd., 925 So.2d 476, 479-80 (Fla. 4th DCA 2006)).
"Summary judgment is proper if there is no genuine issue
of material fact and if the moving party is entitled to a
judgment as a matter of law." Volusia Cty. v.
Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.
case of age discrimination, the plaintiff must first make a
showing of discriminatory treatment. He or she does that by
proving: 1) the plaintiff is a member of a protected class,
i.e., at least forty years of age; 2) the plaintiff is
otherwise qualified for the position; 3) the plaintiff was
discharged (or demoted) from the position; and 4) the
position was filled by a person who was substantially younger
than the plaintiff. Reeves v. Sanderson Plumbing Prod.,
Inc., 530 U.S. 133, 142 (2000); City of Hollywood v.
Hogan, 986 So.2d 634, 641 (Fla. 4th DCA 2008). This may
also be accomplished by showing direct evidence of
discrimination such as a discriminatory statement by the
decision-maker. Damon v. Fleming Supermarkets of Fla.,
Inc., 196 F.3d 1354, 1359 (11th Cir.1999).
plaintiff establishes a prima facie case, there is a
rebuttable presumption of unlawful discrimination. Lin v.
Demings, 219 So.3d 124, 125 (Fla. 5th DCA 2017). The
burden of production then shifts "to the employer to
produce a legitimate nondiscriminatory reason for the adverse
employment action." Id. If the employer does
so, then to survive summary judgment the employee must
demonstrate that there is a genuine issue of material fact
that the employer's nondiscriminatory reasons were
pretextual. Id. In short, the plaintiff must present
evidence that the employer's nondiscriminatory
"reasons articulated were false and that the
discrimination was the real reason for the defendant's
actions." See City of Miami v. Hervis, 65 So.3d
1110, 1117 (Fla. 3d DCA 2011) (emphasis in original).
"[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."
Lin, 219 So.3d at 125.
case, appellant's complaint alleged the necessary
elements of age discrimination. He was sixty-two years old
and qualified for his position; the BSO discharged him; and
younger persons were hired to fill his position. A rebuttable
presumption of age discrimination arose. BSO then proffered a
legitimate nondiscriminatory reason for his discharge. BSO
first pointed to his unfitness for the job based upon
doctor's examinations. However, BSO required him to
attend four different examinations before one doctor
concluded he was unfit as a precautionary measure, from which
it could be inferred that BSO was searching for a reason to
let him go. In this litigation, BSO relied on poor work
performance as a reason for their action, although this was
never raised at the time of his demotion. Even assuming these
were legitimate non-discriminatory reasons for his discharge,
appellant offered evidence that they were pretextual. He
testified that a BSO Major told him that BSO had to demote
him to use his salary to pay new child protective
investigators. Appellant also testified that other older
employees' positions were filled by a new, younger group
this evidence raised at least a slight doubt as to the reason
for appellant's demotion, the court erred in granting
summary judgment on the age discrimination claim. See
Lin, 219 So.3d at 125. We, therefore, affirm
the dismissal of the disability ...