United States District Court, M.D. Florida, Jacksonville Division
TIMOTHY J. CORRIGAN, UNITED STATES DISTRICT JUDGE
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).
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. (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.).
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.Only one Property Field Representative
position remained in the PAO in 2015: the job held by Adams.
(Doc. 23-1 ¶ 5).
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).
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
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).
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
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).
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
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).
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).
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
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.
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 ...