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McCall v. Bright House Networks, LLC

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

January 7, 2020

JACQUELINE MCCALL, Plaintiff,
v.
BRIGHT HOUSE NETWORKS, LLC, Defendant.

          ORDER

          ANNEC CONWAY UNITED STATES DISTRICT JUDGE

         This cause comes before the Court on Bright House Networks LLC's (“Bright House”) Motion for Summary Judgment. (Doc. 18). Plaintiff filed a Response in Opposition. (Doc. 23). For the foregoing reasons, Bright House's Motion will be granted.

         I. BACKGROUND

         Plaintiff's Complaint asserts claims of age discrimination pursuant to the Age Discrimination in Employment Act (“ADEA”) and the Florida Civil Rights Act (“FCRA”).[1]Plaintiff worked for Bright House from September 2002 until her termination in February 2016, at which time she was sixty-two years old. (Doc. 1 at 2). Plaintiff asserts that throughout her employment, she was subjected to age-related comments from Bright House's senior management team. (Id. at 2-3). Specifically, Plaintiff alleged in her deposition that one of Bright House's supervisors, Dan DiFiore, stated: “Our numbers aren't where they can be. We need to get their old [asses] out of here.” (Doc. 19-1 at 35). Plaintiff did not point to any other specific comments made by Mr. DiFiore in her deposition and alleged he made the comment sometime in 2014. (Id. at 36). Plaintiff alleged that based on this age discrimination, Bright House created a pretextual version of events to terminate her employment. (Doc. 1 at 2-3).

         On February 2, 2016, after her return from jury duty, Plaintiff was told that she was under investigation by Bright House's Human Resources department (“HR”) based on emails sent from three of Plaintiff's coworkers describing her as demeaning, intimidating, offensive, and creating a hostile work environment. (Doc. 18 at 5). Two of Bright House's supervisors put Plaintiff on a paid leave while the supervisors and the HR department investigated the allegations in the emails. (Id. at 7). On February 16, 2016, Bright House notified Plaintiff of her termination. (Id.).

         Plaintiff's claims assert that but-for her age she would not have been terminated. (Doc. 1 at 3). Plaintiff requests under the ADEA and FCRA compensatory and punitive damages and a declaratory judgment action regarding the violation. (Id. at 5). Bright House alleges in response, and in support of its termination, that Plaintiff had negative evaluations regarding her communication as well as negative interactions with coworkers and management. (Doc. 18 at 2-3). Bright House also points to its workplace code of conduct which prohibits harassment, “both overt and subtle” as a form of “employee misconduct that is demeaning to another person.” (Doc. 19-2 at 2).

         II. LEGAL STANDARD

         A court should grant a motion for summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The interpretation of an insurance contract is a question of law which is appropriate for disposition on summary judgment. Talat Enterprises, Inc. v. Aetna Life & Cas. Co., 952 F.Supp. 773, 776 (M.D. Fla. 1996). It is the movant who bears the initial burden of “identifying for the district court those portions of the record ‘which it believes demonstrates the absence of a genuine issue of material fact.'” Cohen v. United Am. Bank of Cent. Fla., 83 F.3d 1347, 1349 (11th Cir. 1996) (quoting Cox v. Adm'r U.S. Steel & Carnegie, 17 F.3d 1386, 1396, modified on other grounds, 30 F.3d 1347 (11th Cir. 1994)). In a case in which the non-movant bears the burden of proof at trial, the movant may carry its initial burden by either negating an essential element of the non-movant's case or by demonstrating the absence of evidence to prove a fact necessary to the non-movant's case. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115-16 (11th Cir. 1993) (citation omitted). Once the movant carries its initial burden, the non-movant may avoid summary judgment by demonstrating an issue of material fact. Id. at 1116. If the movant demonstrates the absence of evidence on a material fact for which the non-movant bears the burden of proof, then the non-movant must either show that the record contains evidence that the movant “overlooked or ignored” or “come forward with additional evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency.” Id. at 1116-17 (citation omitted). The non-movant must provide more than a “mere scintilla of evidence” supporting its position, and “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) (citation omitted).

         Federal courts cannot weigh credibility at the summary judgment stage. See Feliciano v. City of Miami Beach, 707 F.3d 1244, 1252 (11th Cir. 2013) (“Even if a district court believes that the evidence presented by one side is of doubtful veracity, it is not proper to grant summary judgment on the basis of credibility choices.” (citation omitted). Therefore, the Court will “make no credibility determinations or choose between conflicting testimony, but instead [will] accept [the non-moving party's] version of the facts drawing all justifiable inferences in [the non-movant's] favor.” Burnette v. Taylor, 533 F.3d 1325, 1330 (11th Cir. 2008). Notwithstanding this inference, “[t]here is [still] no genuine issue for trial unless the non-moving party establishes, through the record presented to the court, that it is able to prove evidence sufficient for a jury to return a verdict in its favor.” Cohen, 83 F.3d at 1349.

         III. ANALYSIS

         A. ADEA Framework

         The ADEA prohibits an employer from discriminating against any employee regarding compensation, terms of employment, or privileges “because of such individual's age, ” if the employee is at least 40 years of age. 29 U.S.C. §§ 623(a)(1), 631(a). In Gross v. FBL Financial Services, Inc., 557 U.S. 167, 176 (2009), the Supreme Court held that the language “because of” in the ADEA requires a plaintiff to prove that discrimination was the “but-for” cause of the adverse employment action. See Id. (explaining that the claim “cannot succeed unless the employee's protected trait actually played a role in [the employer's decision-making] process and had a determinative influence on the outcome”) (citing Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 1706, 123 L.Ed.2d 338 (1993)). A prima facie case of age discrimination can be made out in at least three ways:

First, a plaintiff may produce evidence proving all prongs of the test established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and Price v. Maryland Casualty Co., 561 F.2d 609 (5th Cir. 1977) . . . Second, a plaintiff can make out a prima facie case by direct evidence of discriminatory intent. Third, a prima facie case may be established by statistical proof of a pattern of discrimination.[2]

Buckley v. Hosp. Corp. of Am., 758 F.2d 1525, 1529 (11th Cir. 1985).

         A plaintiff can demonstrate direct evidence of discriminatory intent by providing evidence which, if believed, would “prove the existence of a fact without inference or presumption.” Castle v. Sangamo Weston, Inc., 837 F.2d 1550, 1558 n. 13 (11th Cir. 1988). The ADEA requires that there be direct evidence that age was the reason the employer acted. Gross, 129 S.Ct. at 2350.

         More often, a plaintiff presents circumstantial evidence of age discrimination. Courts evaluate claims involving circumstantial evidence under the burden-shifting framework set forth in McDonnell Douglas. 411 U.S. at 802. Under the McDonnell Douglas framework, a plaintiff must first establish a prima facie case of discrimination. Chapman, 229 F.3d at 1024. To make out a prima facie case of age discrimination, a plaintiff must show (1) “that she was a member of the protected group of persons between the ages of forty and seventy”; (2) “that she was subject to adverse employment action”; (3) “that a substantially younger person filled the position that she sought or from which she was discharged”; and (4) “that she was qualified to do the job for which she was rejected.” Kragor v. Takeda Pharmaceuticals America, Inc., 702 F.3d 1304, 1308 (2012).[3]

         Next, the defendant must articulate a legitimate, non-discriminatory reason for the challenged employment action. Id. If the defendant articulates one or more such reasons, the plaintiff is afforded an opportunity to show that the employer's stated reason is pretext for discrimination. See Kragor, 702 F.3d at 1307 (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825. Because the burden is one of production, not persuasion, the defendant meets its burden by presenting evidence that “raises a genuine issue of fact as to whether” the legitimate, non-discriminatory reason was the true reason for the adverse employment action. Kragor, 702 F.3d at 1308.

         B. Direct Evidence

         Plaintiff alleges, and Bright House disputes, that there is direct evidence of age discrimination which led to Plaintiff's termination. Bright House argues that the evidence is circumstantial.

         A plaintiff may establish a prima facie case of age discrimination by providing direct evidence of defendant's discriminatory intent. Sims v. MVM, Inc., 704 F.3d 1327, 1332 (11th Cir. 2013). This is a rigorous standard. Id. Direct evidence of discrimination reflects “a discriminatory or retaliatory attitude correlating to the discrimination or retaliation complained of by the employee.” Van Voorhis v. Hillsborough County Bd. of County Comm'rs, 512 F.3d 1296, 1300 (11th Cir. 2008). “[O]nly the most blatant remarks, whose intent could be nothing other than to discriminate on the basis of age . . . constitute direct evidence of discrimination.” Id.

         In an ADEA case, the burden of persuasion always remains on the plaintiff to proffer evidence sufficient to permit a reasonable fact finder to conclude that the discriminatory animus was the “but-for” cause of the adverse employment action. See Gross, 557 U.S. at 173. Plaintiff claimed the following is direct evidence that she was improperly terminated based on her age: discriminatory remark by Dan DiFiore that “our numbers aren't where they can be. We need to get their old [asses] out of here” (Doc. 19-1 at 35); and remarks by another director[4] that leadership needed to “get older employees out of here.” (Doc. 23 at 5-6). In support, Plaintiff presented affidavits from two coworkers. One stated that they witnessed Mr. DiFiore making “public, discriminatory remarks against older employees” in work-related meetings. (Doc. 24-12 at 2). The other attested that Mr. DiFiore made comments that “the older employees are not keeping up” and that the company needed to “get these old people out of here.” (Doc. 24-13 at 2).

         Bright House disputes that such evidence is direct or that it proves that age was the but-for cause of Plaintiff's termination. Bright House argues that Mr. DiFiore's comments are not probative because they were too far removed from the decision to terminate Plaintiff.

         The Eleventh Circuit has found that comments refusing to hire “old” applicants could be considered direct evidence of discrimination. See Van Voorhis, 512 F.3d at 1299 (holding that a statement from a county official who “didn't want to hire any old pilots” was direct evidence of discrimination); see also Mora v. Jackson Mem'l Found., Inc., 597 F.3d 1201, 1205 (11th Cir. 2010) (vacating a judgment of a district court grant of summary judgment in favor of an employer based on comments that an employee was “too old”); Lindsey v. Am. Cast Iron Pipe Co., 772 F.2d 799, 802 (11th Cir. 1985) (holding that testimony that a company “wanted a younger person to fill the position” . . . constituted “sufficient direct evidence”).

         However, in the cited cases, the comments were made much closer in time to the adverse employment action. In Van Voorhis, the age related comment was made in direct connection with the hiring process. 512 F.3d at 1298; accord Lindsey, 772 F.2d at 802. In Mora, the supervisor called the plaintiff into their office to be terminated and told her that the company needed someone younger who could be paid less. 597 F.3d at 1203. A second employee also heard the supervisor say to the plaintiff that she was “very old” in the same termination meeting. Id. Plaintiff relies on this case in arguing that Bright House's motion must fail due to the existence of similar direct evidence in her case. But the plaintiff in Mora had direct evidence of age discrimination because the discriminatory comments were made during her termination. Id.

         Further, remarks “unrelated to the decision-making process itself are not direct evidence of discrimination. Barsorian v. Grossman Roth, P.A., 572 Fed.Appx. 864, 868 (11th Cir. 2014)[5](citing Standard v. A.B.E.L. Servs., 161 F.3d 1318, 1330 (11th Cir. 1998)). As an analogy to similar cases, the Eleventh Circuit has found that a five-month lapse between a protected employment activity and retaliation under Title VII and the ADEA was too attenuated to establish causation. Bailey v. City of Huntsville, 517 Fed.Appx. 857, 861 (11th Cir. 2013). Here, the comment allegedly made by Mr. DiFiore, specifically that “[o]ur numbers aren't where they can be. We need to get their old [asses] out of here, ” was made, according to Plaintiff, as far back as 2014 and did not specifically relate to her. (Doc. 19-1 at 35-36). Although the declarations of Plaintiff's coworkers[6] state that they ...


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