United States District Court, M.D. Florida, Orlando Division
CONWAY UNITED STATES DISTRICT JUDGE
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.
Complaint asserts claims of age discrimination pursuant to
the Age Discrimination in Employment Act (“ADEA”)
and the Florida Civil Rights Act
(“FCRA”).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).
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.
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).
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
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
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.
Buckley v. Hosp. Corp. of Am., 758 F.2d 1525, 1529
(11th Cir. 1985).
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.
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,
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.
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
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.”
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 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).
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.
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”).
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.
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)(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 state that they