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Adams v. Holland

United States District Court, M.D. Florida, Jacksonville Division

September 17, 2019

DAVID ADAMS, Plaintiff,
v.
JERRY HOLLAND, as property appraiser of Duval County, Florida and THE CONSOLIDATED CITY OF JACKSONVILLE, Defendants.

          ORDER

          TIMOTHY J. CORRIGAN, UNITED STATES DISTRICT JUDGE

         This ADEA case is before the Court on Defendants The Consolidated City of Jacksonville, and Jerry Holland, as property appraiser of Duval County, Florida's Motion for Summary Judgment. (Doc. 23). Plaintiff David Adams filed a response. (Doc. 24). With the Court's permission, Defendants filed a reply (Doc. 28), and Adams filed a sur-reply (Doc. 32). Defendants also submitted Lewis v. City of Union City, Ga., 918 F.3d 1213 (11th Cir. 2019) as supplemental authority. (Doc. 34).

         I. BACKGROUND

         Plaintiff David Adams began working for the Duval County Property Appraiser's Office (“PAO”) as a Civil Service employee in 1986. (Doc. 23-2 at 7:13-15). The PAO is part of the consolidated government of the City of Jacksonville, which has both Civil Service and appointed employees.[1] (Doc. 23-1 ¶ 4). Adams chose to remain a Civil Service employee throughout his entire career with the PAO because of the employment protections afforded by such status; in his words, he did not want to be subject to the “whim of elected officials.” (Doc. 23-2 at 10:2-11:6). By contrast, appointed employees have limited employment protection and serve at the will of the authority who appoints them. (Doc. 23-1 ¶ 2). Under the Charter and Civil Service Rules and Regulations, Civil Service employees who accept appointed positions retain the right to revert to their Civil Service position or a comparable position. (Id. ¶ 3). If the Civil Service position is occupied, the appointed employee has the right to displace or “bump” the employee who occupies that position, but only if the appointed employee has greater seniority than the Civil Service employee. (Id.). When calculating an appointed employee's seniority, all the time spent in appointed positions counts as if it had been spent in the Civil Service position to which the employee would revert. (Id.).

         On October 19, 2015, Property Appraiser Jerry Holland sent a memorandum to Kurt Kraft, an appointed field appraiser with the PAO, notifying Kraft that he would not be retained in his appointed position. (Doc. 23-3 at 9:6-23; Doc. 23-1 at 35). Because Kraft had held Civil Service status in the past, he was entitled to revert back to the same or comparable Civil Service position he held before becoming appointed, which was Appraiser II. (Doc. 23-1 at 35). This meant that Kraft had seniority to be reverted to a Property Field Representative position, which was comparable to an Appraiser II position.[2]Only one Property Field Representative position remained in the PAO in 2015: the job held by Adams. (Doc. 23-1 ¶ 5).

         Tracey Bolton, the manager of personnel services over the HR business partner and recruiting group for the City, calculated Kraft's and Adams's seniority and determined that Kraft had more seniority than Adams and could thus displace Adams from his position if he wanted. (Doc. 23-5 at 33:19-34:21). Ultimately, Kraft elected to displace Adams. (Doc. 23-3 at 31:21-32:8).

         On November 3, 2015, Adams met with Kay Ehas, Chief Administrative Officer with the PAO, and Diane Moser, Director of Employee Services for the City, where he received a written Layoff Notification. (Doc. 23-1 at 40-41; Doc. 23-6 at 28:1-4). The Layoff Notification stated that “due to an appointed employee reversion back to a civil service position, there will be a reduction in force within the Property Appraiser's Office. You are identified to be laid off from your position of Property Field Representative effective close of business October 30, 2015.” (Doc. 23-1 at 40). Moser testified that the City uses the terms “reduction in force” and “layoff” interchangeably to refer to a situation where an employee loses his position. (Doc. 23-6 at 35:10-15) (“A reduction in force is basically a layoff. We within employee services use the term interchangeably, but in this instance, the reversion of Kurt Kraft triggered a layoff to David Adams.”).

         The PAO had no other Civil Service positions, so the City tried to find another Civil Service job for Adams outside the PAO. However, Adams said he was not interested in the available Civil Service code enforcement officer position that the City identified. (Doc. 23-6 at 19:11-20). Although there were open Field Appraiser positions at the PAO, they were appointed positions, not Civil Service positions, so Bolton and Moser did not discuss those with him. (Doc. 23-6 at 21:9-25; Doc. 23-5 at 31:10-32:6). Moser testified that appointed positions were open, but any discussion of them was not up to her because she is responsible for administering the Civil Service rules in her role as division chief reporting to the director of employee services. Appointed positions are considered higher level positions, and thus outside her purview. (Doc. 23-6 at 21:16-22:12). Bolton testified that she was unaware that the PAO was advertising for property appraiser positions at the time of Adams's layoff. (Doc. 23-5 at 22:31-17).

         Adams states that no one told him about the appointed Field Appraiser jobs, and that he “would obviously prefer having an appointed Field Appraiser job as compared to being terminated and unemployed, and at no time did [he] ever indicate otherwise.” (Doc. 25-1 at 2). However, Adams did not apply for any appointed positions at the PAO, testifying that his application has been on file with the City and the PAO since 1986, and that he “figured that if there was work in funding . . .[he] made [himself] available that they could pick up the phone and say, come back to work.” (Doc. 23-6 at 28:9-18; Doc. 23-2 at 40:5-41:18, 43:14-24).

         The PAO offered Adams a settlement agreement, akin to a severance proposal, that would allow Adams to be at full retirement at age 55 with 30 years of service; in other words, the agreement would have allowed Adams to run out his leave. (Doc. 23-6 at 8:15-21; Doc. 23-2 at 94:8-96:6). The agreement required Adams to sign a release of liability, so he did not accept it. (Doc. 23-6 at 8:22-24, 11:3-4).

         Following Adams's layoff, the PAO filled some appointed Field Appraiser positions with applicants from outside the protected age class. (Doc. 25-1 at 8). Notably, the PAO also hired Robert William Rawls into an appointed Field Evaluator position after Adams's layoff; Rawls is older than Adams. (Id.; Doc. 28 at 4). Adams testified that had Kraft not exercised his right to revert to Adams's position, Adams would still have been working at the PAO. (Doc. 23-2 at 79:17-24).

         At the time Kraft displaced Adams from his Civil Service position, he was 56 years old, and Adams was 54 years old. (Doc. 24-2 at 4:15-16; Doc. 23-2 at 56:2). Thus, Kraft is older than Adams. (Doc. 23-2 at 15:18-16:6).

         Adams filed a grievance with the Civil Service Board (“CSB”), contesting the accuracy of the calculation of seniority in connection with his layoff. (Doc. 23-1 at 43-48). The CSB held a hearing on June 16, 2016 to address the grievance. On July 5, 2016, the CSB issued an Order Denying Grievance, explaining that the City followed the applicable rules and regulations in the layoff and reduction in force process. Adams did not appeal the CSB's Order to the state circuit court or otherwise. (Doc. 23-2 at 23:20-23).

         In March 2016, Adams filed a Charge of Discrimination with the Equal Employment Opportunity Commission based on the foregoing events. (Doc. 23-2 at 30:5-9). The EEOC issued a Dismissal and Notice of Rights on March 31, 2017, stating that following its investigation, it was unable to conclude a violation of the Age Discrimination in Employment Act (“ADEA”) or Florida law had occurred. (Doc. 23-2 at 125).

         On June 27, 2017, Adams filed a pro se complaint in this court, alleging age discrimination in violation of the ADEA, 29 U.S.C. § 621, et seq. (Doc. 1). On March 8, 2018, represented by counsel, Adams filed an amended complaint against the Consolidated City of Jacksonville and Jerry Holland, as Property Appraiser of Duval County, Florida (“Defendants”), alleging age discrimination under the ADEA and the Florida Civil Rights Act of 1992 (“FCRA”), Fla. Stat. § 760, et. seq. (Doc. 19).

         II. LEGAL STANDARD[3]

         The purpose of the ADEA is to “prohibit arbitrary age discrimination in employment, ” 29 U.S.C. § 621(b), and, relevant here, the statute “prohibits employers from firing employees who are forty years or older because of their age, ” Liebman, 808 F.3d at 1298 (citing 29 U.S.C. § 623(a)(1)). “To assert an action under the ADEA, an employee must establish that his age was the ‘but- for' cause of the adverse employment action[, ]” which can be done using direct or circumstantial evidence. Id. (citing Gross ...


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