mora v. jackson memorial initial brief final - eleventh circuit court of appeals
TRANSCRIPT
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
CASE NO.: 08-16113D
JOSEPHINE MORA, Plaintiff/Appellant, v. JACKSON MEMORIAL FOUNDATION, INC., Defendant/Appellee. __________________________________________/
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
APPELLANT’S INITIAL BRIEF
Matthew Seth Sarelson, Esq. Florida Bar No. 888281 Michael A. Shafir, Esq. Florida Bar No. 660671 Sarelson & Shafir LLP 1401 Brickell Avenue Suite 510 Miami, Florida 33131 Telephone: (305) 379-0305 Facsimile: (800) 421-9954
CERTIFICATE OF INTERESTED PERSONS
Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure,
Appellant files her Certificate of Interested Persons and Corporate Disclosure
Statement.
The following people and corporate entities are interested persons:
1. Casey III, Esq., Michael W.
2. Dimond, Esq., Alan T.
3. Epstein Becker & Green, P.C.
4. Garber, Honorable Magistrate Judge Barry
5. Jackson Memorial Foundation, Inc.
6. Lenard, Honorable Judge Joan A.
7. Mora, Josephine
8. Rodriguez, Rolando R.
9. Sarelson, Esq., Matthew S.
10. Sarelson & Shafir LLP
11. Sarelson, P.A.
12. Shafir, Esq., Michael A.
13. Vance, Esq., Kevin E.
i
STATEMENT REGARDING ORAL ARGUMENT
Mora requests oral argument to assist the Court in understanding why
genuine issues of material fact exist.
TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS…………………………………….i
TABLE OF CITATIONS………………………………………………………….iv
STATEMENT OF JURISDICTION……………………………………………….1
STATEMENT OF THE ISSUES…………………………………………………..2
STATEMENT OF THE CASE…………………………………………………….4
i) Course of Proceedings and Disposition Below……………………….7
ii) Statement of the Facts………………………………………………...8
a. Mora’s Direct Evidence – Conceded by JMF……………………..8
b. JMF’s Purported Affirmative Defense Evidence………………...11
iii) Standard of Review………………………………………………….15
SUMMARY OF ARGUMENT…………………………………………………...16
ARGUMENT……………………………………………………………………...18
I. MORA’S SUBSTANTIAL DIRECT EVIDENCE OF
DISCRIMINATION PRECLUDES SUMMARY
JUDGMENT ON JMF’S AFFIRMATIVE
DEFENSE…………………………………………………….18
ii
II. THE EEOC’S CONCLUSION THAT JMF PROBABLY
VIOLATED THE ADEA WEIGHS HEAVILY
AGAINST SUMMARY JUDGMENT……………………….26
III. JMF’S FAILURE TO PLEAD A MIXED-MOTIVE
AFFIRMATIVE DEFENSE PRECLUDES ITS USE
AT SUMMARY JUDGMENT……………………………….33
IV. THE DISTRICT COURT IMPROPERLY FAVORED
JMF’S EVIDENCE…………………………………………..35
CONCLUSION…………………………………………………………………...41
CERTIFICATE OF COMPLIANCE……………………………………………..42
CERTIFICATE OF SERVICE……………………………………………………42
iii
TABLE OF CITATIONS
CASES
Barfield v. Orange Cty., 911 F.2d 644 (11th Cir. 1990)................................. 27, 30*
Blanton v. Univ. of Fla., 273 Fed. Appx. 797 (11th Cir. 2008)............................ 27*
Brewer v. Dupree, 356 F. Supp. 2d. 1261 (M.D. Ala. 2004) ..................................22
Buckley v. Hosp. Corp. of Am., 758 F.2d 1525 (11th Cir. 1985)............... 18, 20-21*
Burnette v. Taylor, 533 F.3d 1325 (11th Cir. 2008) ................................................39
Carter v. Univ. of S. Alabama, 510 F. Supp. 2d 596 (S.D. Ala. 2007) ............ 21, 24
Clark v. Coats & Clark, Inc., 990 F.2d 1217 (11th Cir. 1993)................................40
Damon v. Fleming Supermarkets of Florida, Inc.,
196 F.3d 1354 (11th Cir. 1999) ..................................................................... 15, 35
Day v. Liberty Nat’l Life Ins. Co., 122 F.3d 1012 (11th Cir. 1997) ........................34
Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003)....................................................34
E.E.O.C. v. Alton Packaging Corp., 901 F. 2d 920 (11th Cir. 1990)......................20
E.E.O.C. v. Warfield-Rohr Casket Co., 364 F.3d 160 (4th Cir. 2004).…..25-26, 36* E.E.O.C. v. White & Son Enterprises, 881 F. 3d 1006 (11th Cir. 1989) .................34
E.E.O.C. v. Windsor Court Hotel, Inc., 1999 WL 407610 (E.D. La. 1999)............31
Earley v. Champion Int’l Corp., 907 F. 2d. 1077 (11th Cir. 1990).........................18
Glanzman v. Metro. Mgmt. Corp. 391 F.3d 506 (3d Cir. 2004)..............................20
Goldsmith v. Bagby Elevator Co., 513 F.3d 1261 (11th Cir. 2008) .......... 27-29, 31*
iv
Griffith v. City of Des Moines, 387 F. 3d 733 (8th Cir. 2004).................................21
Hemsworth, II v. Quotesmith.com, Inc., 476 F. 3d 487 (7th Cir. 2007) ........... 19, 36
Horne v. Turner Const. Co., 136 Fed. Appx. 289 (11th Cir. 2005) ............... 26, 31*
Jones v. United Space Alliance, 494 F.3d 1306 (11th Cir. 2007)………………….7 Lindsey v. American Cast Iron Pipe Co., 772 F. 2d 799 (11th Cir. 1995) ..............19
Machinchick v. PB Power, Inc., 398 F.3d 345 (5th Cir. 2005)……………..…….16 Madden v. Chattanooga City Wide Service Dep’t,
2007 WL 3120054 (E.D. Tenn. Oct. 22, 2007)....................................................22
Meacham v. Knolls Atomic Power Lab., 128 S.Ct. 2395 (Jun. 19, 2008) ...............22
N.L.R.B. v. Transp. Mgt. Co., 462 U.S. 393 (1983).................................................20
Parris v. Miami Herald Publishing Co., 216 F.3d 1298 (11th Cir.2000)….....15, 35 Plummer v. Western Int’l Hotels Co., 656 F. 2d 502 (9th Cir. 1981)......................30
Porter v. White, 483 F.3d 1294 (11th Cir. 2007).....................................................15
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)............................................. 19*
Reeves v. Sanderson Plumbing Prods, Inc., 530 U.S. 133 (2000) ....................... 19*
Smith v. City of Mobile, 2007 WL 2580516 (S.D. Ala. Sept. 5, 2007) ...................22
United States v. Torkington, 874 F.2d 1441 (11th Cir. 1989) .................................41
Voorhis v. Hillsborough Cty Bd. of Cty Comm’s,
512 F.3d 1296 (11th Cir. 2008) ................................................................... 18, 21*
Welch v. Celotex Corp., 951 F.2d 1235 (11th Cir. 1992) ........................................39
v
vi
Wright v. Southland Corp., 187 F.3d 1287 (11th Cir. 1999)…………….18, 24-25* STATUTES
28 U.S.C. § 1291........................................................................................................1
29 U.S.C. § 621................................................................................................ passim
Fla. Stat. § 760.01 ......................................................................................................7
STATEMENT OF JURISDICTION
This Court has jurisdiction over this appeal pursuant to 28 U.S.C. § 1291
because Josephine Mora, Appellant/Plaintiff, appeals a final order granting Jackson
Memorial Foundation, Inc.’s (“JMF”), Appellee/Defendant, Motion for Summary
Judgment (the “Motion”) entered by the Honorable Joan A. Lenard of the United
States District Court for the Southern District of Florida. (D.E. 62).
1
STATEMENT OF THE ISSUES
I. Under the Age Discrimination in Employment Act, 29 U.S.C. § 621
(“ADEA”), is summary judgment on the employer’s affirmative defense that
it “would have fired employee anyway even absent any consideration of her
age” appropriate where the decision-maker told the employee during the
termination meeting that he “need[ed] someone younger I can pay less” and
then told the employee’s two supervisors that “she is too old to be working
here anyway, we need somebody younger for that position,” where the
employer concedes in its Motion that the employee has direct evidence of
discrimination, and where the Equal Employment Opportunity Commission
(“EEOC”) concludes that the employer probably violated the ADEA?
II. Under federal employment discrimination statutes that require a presuit
charge of discrimination to be filed with the EEOC, should the district court,
at the summary judgment phase, “not defer to or even make reference to” an
EEOC finding of probable cause to believe the ADEA was violated?
III. Under the ADEA, does an employer have to actually plead the affirmative
defense that it “would have fired employee even absent consideration of her
age” in its Answer in order to assert such a defense on summary judgment
and at trial, when it failed to do so and the employer’s only actual defense
2
during discovery was that the employee and her witnesses were fabricating
their respective testimony?
IV. Under the ADEA, should the district court interpret the evidence in the light
most favorable to the employer and make adverse credibility findings in
granting the employer’s motion for summary judgment on its affirmative
defense?
3
STATEMENT OF THE CASE
Josephine Mora, Appellant/Plaintiff, was 62 years old when she was fired by
her employer, Jackson Memorial Foundation, Inc. (“JMF”), Appellee/Defendant.
(D.E. 33-2, p. 5).1 Mora was fired solely by Rolando Rodriguez, JMF’s chief
executive, supreme decision-maker and the man who admits his employees refer to
him as “The King.” (D.E. 34-3, pp. 3 & 11). Prior to working for JMF, Mora had
extensive experience working on children’s health issues and superb credentials,
and was even appointed to serve on two presidential commissions by Presidents
Reagan and Bush. (D.E. 33-4). JMF, which raises money for Jackson Memorial
Hospital in Miami, Florida, never questioned Mora’s credentials either while she
was employed or during discovery. (D.E. 32-2, pp. 17-18; 34-2, p. 18).
At the meeting where Rodriguez fired Mora, he told her he “need[ed]
someone younger I can pay less” and that he “need[ed] an Elena,” referring to
Elena Quevedo, who was then 26 years old. (D.E. 33-2, p. 5). Delia Kennedy,
another JMF employee, overheard the conversation from outside Mora’s door and
she testified that Rodriguez stated: “I need someone younger that I can pay less to
do the job, you are very old, you [sic] are very inept. What you should be doing is
taking care of old people. They really need you. I need somebody younger that I
1 References to the record on appeal are identified by their district court docket entry, followed by the page number of the docket entry. For example, D.E. 33-2 is the deposition of Josephine Mora and D.E. 33-2, p. 19 is page 19 of docket entry 33-2.
4
can pay less and I can control.” (D.E. 29-2, p. 3). Rodriguez categorically denies
that Mora’s age, even indirectly, came up when he fired Mora. (D.E. 34-2, p. 16).
Immediately after firing Mora, Rodriguez had a brief meeting with Martha
Lagarde and the aforementioned Quevedo – both of whom were JMF directors at
the time, and both of whom were overseeing Mora’s work. (D.E. 31-2, p. 13).
Rodriguez told both that “she [Mora] is too old to be working here anyway, we
need somebody younger for that position.” (D.E. 31-2, p. 13). Quevedo admits
that Rodriguez compared Mora to her in that conversation as well, but denies that
Rodriguez mentioned Mora’s age. (D.E. 30-2, pp. 6-7). Rodriguez again
categorically denies that Mora’s age, even indirectly, came up when he told
Quevedo and Lagarde that he fired Mora. (D.E. 34-2, p. 16).
Prior to being fired by Rodriguez, Mora was a well-liked and valuable
employee. (D.E. 32-2, p. 26-27). Even after her termination, Mora received thank
you notes from patients and emails from prospective donors. (D.E. 45-2, ¶ 4).
Quevedo and Lagarde, who were Mora’s immediate supervisors at the time of her
termination, did not have any performance problems with Mora and were not
involved in any way with her termination. (D.E. 30-2, pp. 9-10; 31-2, p. 13; 34-2,
p. 9).
In January 2006, just over two months prior to her termination on April 5,
2006, Mora was transferred from one department to another within the
5
organization by Rodriguez. (D.E. 32-2, p. 3; 34-2, p. 19). Her original boss at
JMF suggested a new position with “golf cart privileges.” (D.E. 32-2, p. 28; 32-5,
p. 31). Jennifer Vasquez, who was 26 years old at the time, filled the position
Mora was transferred out of in January 2006. (D.E. 34-2, p. 19; 31-2, p. 21; 32-2,
p. 4; 41-4; 53-1, p. 27).
Without the assistance of counsel, Mora filed an EEOC charge and
persuaded the EEOC, which heard from both Mora and JMF, that JMF probably
violated the ADEA when it terminated her. (D.E. 41-3).
Throughout discovery, JMF’s only defense was that Mora, Kennedy and
Lagarde completely fabricated their respective testimony. Rodriguez categorically
denied making any of the statements he is alleged to have made regarding Mora’s
age. (D.E. 34-2, p. 16). Quite unexpectedly, JMF moved for summary judgment
by first conceding that Mora had “direct evidence” of discrimination, but then
asserting that, even if Rodriguez said what he said, JMF would have fired Mora
anyway for performance issues. (D.E. 23, p. 5).
The district court, without a hearing, discounted Mora’s evidence,
discounted JMF’s proper confession of Mora’s direct evidence, discounted the
EEOC’s findings, and entered judgment as a matter of law on JMF’s affirmative
defense. (D.E. 62).
6
i) Course of Proceedings and Disposition Below
Mora was terminated on April 5, 2006. (D.E. 33-2, p. 5). She dual-filed a
charge of discrimination with the Miami District Office of the EEOC on May 26,
2006. (D.E. 53-1, p. 7). On May 16, 2007, the EEOC issued a letter determination
concluding that JMF’s termination of Mora probably violated the ADEA. (D.E.
53-1, pp. 1-2). JMF declined the EEOC’s offer to conciliate, (D.E. 34-2, p. 20),
and Mora was issued a Right to Sue letter on June 6, 2007. (D.E. 53-1). Mora filed
suit in the United States District Court for the Southern District of Florida on
August 27, 2007 alleging age discrimination in violation of the ADEA and the
Florida Civil Rights Act, Fla. Stat. § 760.01, et seq. (“FCRA”).2 (D.E. 1). JMF
moved for summary judgment on June 30, 2008. (D.E. 23). The Honorable Judge
Joan Lenard granted the motion for summary judgment and entered final judgment
in favor of JMF on September 26, 2008. (D.E. 62). Mora timely filed her Notice
of Appeal on October 17, 2008. (D.E. 63). It was docketed by this Court on
October 27, 2008.
2 For purposes of the summary judgment analysis, the Court’s interpretation and application of the FCRA is identical to the ADEA. See generally Jones v. United Space Alliance, LLC, 494 F.3d 1306, 1310 (11th Cir. 2007). Accordingly, this brief will refer only to the ADEA.
7
ii) Statement of the Facts
a. Mora’s Direct Evidence – Conceded by JMF
On April 5, 2006, Mora, who was then 62 years young, was fired from JMF,
solely by Rodriguez, JMF’s chief executive. (D.E. 33-2, pp. 5 & 16). Her annual
salary was $42,000. (D.E. 49-2, p. 4). At the time of her termination Mora was
working for Lagarde and Quevedo, (D.E. 34-2, p. 9), both of whom testified that
she was performing more than adequately. (D.E. 30-2, p. 9; 31-2, p. 13). Both
admitted they had no complaints with Mora, who was their direct report. (D.E. 30-
2, pp. 9-10; 31-2, p. 13). There is no evidence either one played any role in the
decision to terminate Mora.
During the brief termination meeting between Mora and Rodriguez – which
occurred in Mora’s office – Rodriguez told Mora that he was firing her because he
“need[ed] someone younger I can pay less.” (D.E. 33-2, pp. 5 & 52). He also
told Mora he “need[ed] an Elena.” (D.E. 33-2, pp. 5 & 52). “Elena” is Elena
Quevedo, who was approximately 25 years old at the time of Mora’s termination
and whose annual salary was approximately $50,000 or more. (D.E. 30-2, pp. 11,
13).
The termination conversation was overheard and testified to by Kennedy, a
now-former coworker whose desk was located immediately outside Mora’s open
office door. (D.E. 29-2, p. 1). According to Kennedy, Rodriguez told Mora that,
8
“I need someone younger that I can pay less to do the job, you are very old,
you are very inept. What you should be doing is taking care of old people.
They really need you. I need somebody younger that I can pay less and I can
control.” (D.E. 29-2, p. 3). She also testified that Rodriguez told Mora that, “She
[Mora] was too old, he needed someone younger he can control, she was very
inept and didn’t know how to do her job, she needs to work with old people.
That’s who needs you is old people because you are very old. He wanted
somebody younger.” (D.E. 29-2, p. 3) (emphasis added). (Kennedy also testified
that, at a staff meeting that may or may not have been related to Mora, Rodriguez
told the staff to “find somebody younger, somebody that’s out of the university
that we can mold…”). (D.E. 29-2, p. 6).
Immediately after Rodriguez fired Mora because he wanted someone
younger, he had a brief meeting with Mora’s actual supervisors, Lagarde and
Quevedo. (D.E. 30-2, p. 6; 31-2, p. 13). At this meeting, Rodriguez told both
Lagarde and Quevedo, in each other’s presence, that he fired Mora because “she
[Mora] is too old to be working here anyway, we need somebody younger for
that position.” (emphasis added). (D.E. 31-2, p. 13).
Quevedo, who remains employed by, dependent upon and “loyal to”
Rodriguez, (D.E. 30-2, pp. 4-5), testified that Mora’s age or any reference to her
age never came up during the conversation (D.E. 30-2, p. 7) (although she admitted
9
to being present for this meeting). (D.E. 30-2, p. 6). She also admitted that
Rodriguez “did make a comparison. He [told us he] needed somebody like
myself, like Elena.” (D.E. 30-2, p. 7). (Curiously, Quevedo admits that
Rodriguez referred to her in the third-person despite being directly in front of her).
(D.E. 30-2, p. 8).
Although Quevedo denied in her deposition that Rodriguez made any age
related comments, both Mora and Kennedy testified that Quevedo later admitted to
them that Rodriguez made the discriminatory comments. (D.E. 29-2, p. 11; 33-2,
p. 6). Quevedo admits that Mora contacted her after the EEOC charge was filed
(which Quevedo knew about), (D.E. 30-2, p. 7), but Quevedo, a material witness,
said nothing to discourage Mora from proceeding and did not tell Mora that
Rodriguez never said any such comments or words to that effect. (D.E. 30-2, pp.
13-14). Her silence in the face of the accusation speaks volumes.
Prior to being transferred to the job she was ultimately fired from, Mora
worked for Maria Luisa Chea in a JMF division known as the International Kids
Fund (“IKF”). (D.E. 33-2, pp. 3-4). It was Chea who initially hired Mora. (D.E.
32-2, p. 2; 33-2, p. 4). Although Mora and Chea had their differences, Chea’s sole
written performance review of Mora was quite favorable. (D.E. 32-5, p. 18). In the
review, Chea specifically stated: “All this said, I still think it was a good review.
In all fairness she deserves the credit for being committed to the program, for being
10
good with the press, for working independently and following through on most
matters. She is also very personable and very socialable. Raising money from the
community through media appeals is a very important part of the program’s
fundraising and she has handled it successfully. I recommend a raise of a 5% in
recognition of her achievements.” (D.E. 32-5, p. 18). Upon transferring Mora out
of the IKF in January 2006, (D.E. 32-2, p. 3), Rodriguez replaced Mora with 26-
year-old Jennifer Vasquez – a “younger and more attractive employee.” (D.E. 53-
1, p. 27; 34-2, p. 19; 31-2, p. 21; 41-4).3
b. JMF’s Purported Affirmative Defense Evidence
JMF’s purported evidence supporting its affirmative defense is highly
disputed at best and contrived at worst. JMF, like virtually all employers
defending an employment discrimination lawsuit, claims it fired Mora because she
had a history of performance issues. In its Motion, it cited a few specific
performance issues. (D.E. 23). For example, sometime in late 2004 or early 2005,
Rodriguez and Chea were upset that Mora, at a patient’s mother’s request,
contacted a donor that she brought in to JMF, (D.E. 32-2, p. 6), because the mother
wanted the donor to serve as the child’s godfather. (D.E. 23, p. 10). This was a
3 Rodriguez initially stated in his sworn interrogatory responses that Mora’s original position was “eliminated.” (D.E. 49-2, p. 3). When later pressed at deposition, he conceded that Mora was actually replaced by 26-year-old Vasquez. (D.E. 34-2, p. 19). Rodriguez’s testimony was also contradicted by Chea’s testimony that Mora was replaced by 26-year-old Vasquez, and that Vasquez was then soon replaced by Francesca Sotomayor, who was then soon replaced by Dayane Nunez. (D.E. 32-2, pp. 13-14).
11
first for JMF, (D.E. 32-2, p. 6), and the donor was honored to be asked and gladly
accepted. (D.E. 32-2, p. 7; 33-2, p. 29). Mora herself was asked to be and agreed
to serve as the child’s godmother. (D.E. 32-2, p. 7). Neither Chea nor Rodriguez
has ever been asked to serve as a godparent to a patient. (D.E. 32-2, p. 6; 45-2, ¶
5). It appears that Chea was simply a jealous boss whose primary direct report was
getting too much credit for her great work. (D.E. 45-2. ¶ 5). In any event, JMF
admits Mora did not violate any policy, (D.E. 32-2, p. 8), and JMF merely wished
Mora had consulted Rodriguez or Chea because of the odd request. (D.E. 32-2, pp.
6-7). Most importantly, Mora was not terminated because of this “incident.”
Second, according to JMF, Mora apparently was occasionally late in turning
in weekly progress reports and she purportedly included too much information in
her weekly reports. (D.E. 23, p. 11; 32-2, p. 8). JMF concedes, however, that
several employees were occasionally late in turning in these reports, (D.E. 32-2,
pp. 9-10), including 25-year-old Quevedo, and none were terminated because of
the tardy reports; indeed, JMF concedes that tardy reports alone would not have
warranted termination. (D.E. 32-2, pp. 12 & 23; 45-2, ¶ 6). Most importantly,
Mora was not terminated because of this “incident.”
Third, according to JMF, Mora was essentially terminated in January 2006
and was put in a temporary position in March 2006, i.e., Mora was fired from a
temporary position which afforded her less protection. (D.E. 23, p. 12; 34-2, p. 9).
12
The only evidence of this is Rodriguez’s own testimony – he admits he has no
documentation supporting the purported temporariness of Mora’s position and he
admits he never told Mora the position was temporary. (D.E. 34-2, p. 16). Mora
testified that no one ever told her the position was temporary. (D.E. 45-2, ¶ 10).
In any event, even assuming arguendo that Mora’s position was temporary, JMF
cannot seriously argue (and in fact has not argued) that temporary employees may
be discriminated against on the basis of age.
Fourth, according to JMF, Mora purportedly prepared and sent a brochure to
a donor that had errors on it. (D.E. 23, p. 12). This is the “one incident” that
Rodriguez claims he discussed with Mora on the day he fired her, and it
supposedly served as the proverbial “nail in the coffin.” (D.E. 34-2, p. 9). (Mora,
to the contrary, testified that Rodriguez never mentioned the brochure during the
termination conversation.) (D.E. 32-2, p. 52). Mora was asked to send the
brochure via email to Southern Wine & Spirits. (D.E. 34-2, p. 12). Mora did not
prepare or create the brochure; she merely reviewed and sent it. (D.E. 29-2, p. 4;
45-2, ¶ 11). The brochure was originally prepared by Quevedo (who was never
disciplined for the purportedly error-filled brochure). (D.E. 32-2, p. 48). The
brochure that was emailed had two typographical errors that were not caught by
Mora or by the computer’s spellchecker. (D.E. 34-2, p. 12-15). Rodriguez was
supposedly upset about the typos, that the brochure lacked a “history section” and
13
that the brochure stated that the Taylor Breast Health Center treated approximately
150 women daily. (D.E. 34-2, p. 12-15).
In fact, Rodriguez’s own testimony indicates that his concerns over the
brochure were misplaced. (D.E. 34-2, p. 12-15). For example, he admits he was
more concerned about the brochure’s marketing appeal than its accuracy (D.E. 34-
2, p. 12-15), he admits that he had different information regarding the number of
patients the center sees a day but cannot identify the source of the information and
does not agree with the center’s own email stating that it treats approximately 134
women daily (D.E. 34-2, p. 12-15), he admits that Mora was not the reason why
the donor did not partner with JMF (D.E. 34-2, p. 12-15), he admits that he had
absolutely no communication with the donor regarding the proposal or regarding
JMF in general (D.E. 34-2, p. 12-15), he admits that he has absolutely no evidence
that the donor even received the email containing the brochure (D.E. 34-2, p. 12-
15), he admits that he did not ask anyone at JMF to follow up with the donor (D.E.
34-2, p. 12-15), he admits that he did not ask anyone at JMF to resend the brochure
to the donor with additional corrections and he admits that JMF was not affected in
any way by the purported incident. (D.E. 34-2, p. 12-15).
Simply put, the donor “incident” is much ado about nothing considering
Rodriguez’s nonchalant attitude, and is merely being used as a cover by an overtly
discriminatory chief executive. Even assuming Rodriguez was sincere about the
14
brochure, those purported concerns were trivial compared to the overt
discriminatory statements he made to Mora, Kennedy, Lagarde and Quevedo.4
iii) Standard of Review
This Court reviews a grant of summary judgment de novo. See Porter v.
White, 483 F.3d 1294 (11th Cir. 2007). This Court “must examine the evidence in
the light most favorable to the nonmoving party.” Parris v. Miami Herald
Publishing Co., 216 F.3d 1298, 1301 (11th Cir. 2000) (reversing district court
order granting summary judgment in favor of employer in FMLA action).
“Summary judgment is appropriate where there is no genuine issue of material fact
[when viewing the evidence and facts in the light most favorable to the non-
moving party] and the moving party is entitled to judgment as a matter of law.”
Damon v. Fleming Supermarkets of Florida, Inc., 196 F.3d 1354, 1358 (11th Cir.
1999) (reversing district court order granting summary judgment in ADEA case
because material facts were in genuine dispute). “A factual dispute is genuine if
the evidence is such that a reasonable jury could return a verdict for the non-
moving party.” Id.
4 The district court raised other supposed performance issues that JMF itself did not raise.
15
SUMMARY OF ARGUMENT
Mora was fired by JMF because of her age because JMF’s chief executive
and decision-maker told her he was firing her because of her age. Mora’s
immediate supervisors, Lagarde and Quevedo, testified that she was performing
well and both had no complaints. Kennedy, a co-worker, overheard Rodriguez
telling Mora she was being fired because of her age. Rodriguez then told two other
managing directors that he had just fired Mora because of her age. Despite
properly conceding Mora’s direct evidence, JMF moved for summary judgment on
its affirmative defense that it would have terminated her even if her age was not
taken into consideration. Without a hearing, the district court granted JMF’s
motion because “there can be no reasonable doubt that [JMF] would have
terminated [Mora] based on her unsatisfactory performance and conduct even
absent any considerations of her age.” (D.E. 62, p. 18). In light of Mora’s
overwhelming direct evidence of age discrimination, a reasonable jury could return
a verdict in Mora’s favor notwithstanding JMF’s non-frivolous but ultimately
meritless assertions that it had performance issues with her. 5
5 There appears to be some confusion regarding the proper wording of the affirmative defense. The Fifth Circuit recently noted that, although a “mixed-motives theory” is used by plaintiffs in direct evidence cases, the actual affirmative defense that must be proved at trial by the employer is that “the employment decision would have been made even absent discrimination on the employer.” Machinchick v. PB Power, Inc., 398 F. 3d 345, n. 33 (5th Cir. 2005) (reversing summary judgment for employer and noting the confusion). Thus, the phrase “mixed-motives affirmative defense” is a bit of misnomer, but one that is generally used for convenience purposes.
16
The district court’s order granting summary judgment should be reversed for
four reasons:
First, whether JMF will prevail on its affirmative defense (where it carries
the burden of proof) is for a jury to decide in light of Mora’s substantial true direct
evidence of age discrimination.
Second, the EEOC found probable cause to believe JMF’s termination of
Mora violated the ADEA, but the district court tersely concluded that it “need not
defer to or even make reference to the EEOC’s conclusory written determination
that there was reasonable cause to believe Plaintiff was fired because of her age.”
(D.E. 62, p. 18, n.5).
Third, JMF raised the affirmative defense that it ultimately prevailed on for
the first time in its Motion for Summary Judgment. Mora discovered and
prosecuted the case based upon JMF’s assertion that Mora and her witnesses were
lying, i.e., a blanket denial. Mora did not and could not know that JMF would be
relying on the specific affirmative defense that it eventually raised. Whether JMF
would have fired Mora anyway is a distinct argument from JMF’s argument that
Mora and her witnesses are simply fabricating a story.
Fourth and finally, the district court improperly construed the evidence in
the light most favorable to JMF and made improper credibility determinations
about Mora and her witnesses.
17
ARGUMENT
I. MORA’S SUBSTANTIAL DIRECT EVIDENCE OF DISCRIMINATION PRECLUDES SUMMARY JUDGMENT ON JMF’S AFFIRMATIVE DEFENSE Summary judgment on an employer’s affirmative defense, where it has the
burden of proof at trial, in an age discrimination case premised upon true direct
evidence of discrimination, is almost never appropriate. “Direct evidence of
employment discrimination is evidence from which a trier of fact could conclude,
based upon a preponderance of the evidence, that an adverse employment action
was taken against the plaintiff on the basis of a protective personal characteristic.”
Wright v. Southland Corp., 187 F.3d 1287, 1288 (11th Cir. 1999) (reversing order
granting summary judgment in favor of employer).6
The most blatant remarks, such as a management memorandum stating “Fire
[plaintiff] – he is too old,” constitute direct evidence of discrimination “whose
intent could be nothing other than to discriminate on the basis of age.” See Earley
v. Champion Int’l Corp., 907 F. 2d. 1077, 1081 (11th Cir. 1990) (noting the rarity
of true direct evidence cases); see also Voorhis v. Hillsborough Cty Bd. of Cty
6 Mora purposefully refers to “true” direct evidence because the actual decision-maker expressly stated during the termination meeting that she was being terminated because of her age. To the contrary, less obvious but still direct evidence would be stray remarks that tend to refer to an employee’s age indirectly, such as a statement that the employer needed “new blood” or that the employee had been working for the employer for decades. See, e.g., Buckley v. Hosp. Corp. of Am., 758 F.2d 1525 (11th Cir. 1985). Here, Mora’s case is premised upon the former, more expressed and true direct evidence, rather than the latter, implied direct evidence.
18
Comm’s, 512 F.3d 1296, 1300 (11th Cir. 2008) (reversing summary judgment
because the decision-maker’s statement that he “didn’t want to hire an old pilot” is
“direct evidence of age discrimination. The import [of which] could be nothing
other than to discriminate on the basis of age.”); Hemsworth, II v. Quotesmith.com,
Inc., 476 F. 3d 487, 490 (7th Cir. 2007) (noting that “You’re too old to work here”
is a “near-admission” of liability).
To survive a motion for summary judgment, Mora merely has to present
evidence from which a jury could conclude that she was fired, in part, because of
her age. See Reeves v. Sanderson Plumbing Prods, Inc., 530 U.S. 133, 141 (2000)
(affirming jury verdict in favor of employee). Indeed, “[i]n order to recover under
the [ADEA], [Mora] only had to show that age was a determinative factor” in the
decision to terminate her. Lindsey v. American Cast Iron Pipe Co., 772 F. 2d 799,
801 (11th Cir. 1995) (reversing a directed verdict in favor of employer and
reinstating jury verdict in favor of employee).
In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Supreme Court
held that once a plaintiff provides direct evidence of discrimination (which JMF
properly conceded in its Motion), the burden shifts to the employer to prove by a
preponderance of the evidence that it would have terminated the plaintiff for
legitimate reasons even if it had not considered the protected characteristic (in this
case, age). JMF’s burden is one of persuasion, not merely production. This is
19
wholly distinct from the employer’s exceedingly light burden of production under
the familiar McDonnell-Douglas test used in circumstantial evidence cases. See
E.E.O.C. v. Alton Packaging Corp., 901 F. 2d 920, 924-45 (11th Cir. 1990) (noting
that employers have to prove at trial, not merely produce at summary judgment,
evidence of its affirmative defense when faced with direct evidence). But, as JMF
conceded in its Motion, “this is a high burden on a motion for summary judgment
because [JMF] must leave no doubt that a rational jury would find that [JMF]
would have fired [Mora] even if it had not been for the discriminatory statement.”
Glanzman v. Metro. Mgmt. Corp. 391 F.3d 506, 514 (3d Cir. 2004) (emphasis
added); see also N.L.R.B. v. Transp. Mgt. Co., 462 U.S. 393, 400 (1983) (noting
that employer must prove to the factfinder that it would have fired the employee
anyway by a preponderance of the evidence).
This Court has expressly held, at least twice, that summary judgment is not
appropriate under the ADEA once the plaintiff establishes direct evidence of age
discrimination, and that the question of whether the employer would have taken the
same adverse employment action notwithstanding plaintiff’s age is a jury question.
First, this Court held in Buckley that because the employee “presented evidence
from which the jury could find that plaintiff established a prima facie case by
direct evidence of discriminatory intent . . . defendant's evidence merely creates a
jury question as to whether defendants have proved by a preponderance of the
20
evidence that the decision would have been reached even in the absence of age
discrimination.” 758 F.2d at 1530 (reversing directed verdict for employer and
reinstating jury verdict for the employee) (emphasis added). Second, and quite
recently, this Court held in Voorhis that the employee “presented evidence that the
decision-maker for [employer] rejected [employee’s] application because the
decision-maker, in his own words, ‘didn’t want to hire an old pilot.’ Because
[employee] presented direct evidence of discrimination on the basis of age . . . the
district court erred when it granted summary judgment….” 512 F.3d at 1297.
Several cases outside the Eleventh Circuit and within the Eleventh Circuit’s
appellate jurisdiction have similarly held that whether JMF has proven its
affirmative defense by a preponderance of the evidence is a jury question, and is
not appropriate for summary judgment. See, e.g., Griffith v. City of Des Moines,
387 F. 3d 733, 735 (8th Cir. 2004) (“At the summary judgment stage, the issue is
whether the plaintiff has sufficient evidence that unlawful discrimination was a
motivating factor in the defendant's adverse employment action. If so, the presence
of additional legitimate motives will not entitle the defendant to summary
judgment. Therefore, evidence of additional motives, and the question whether the
presence of mixed motives defeats all or some part of plaintiff's claim, are trial
issues, not summary judgment issues.”); Carter v. Univ. of S. Alabama, 510 F.
Supp. 2d 596, 615 (S.D. Ala. 2007) (“In a last-ditch effort to claim summary
21
judgment on the Title VII retaliation cause of action, defendants invoke the mixed-
motive defense . . . [But] there are obvious, glaring issues of material fact as to
whether the Hospital would have passed over Carter for hire in the absence of any
retaliatory motive. For that reason, the Hospital's request for summary judgment on
its affirmative defense is denied.”); Brewer v. Dupree, 356 F. Supp. 2d. 1261, 1268
(M.D. Ala. 2004) (denying summary judgment on mixed-motive affirmative
defense because the employer had not shown that no rational jury would find in
employee’s favor); Madden v. Chattanooga City Wide Service Dep’t, 2007 WL
3120054, n.2 (E.D. Tenn. Oct. 22, 2007) (denying summary judgment in Title VII
action and noting that “[i]t is difficult for a Court to ever grant summary judgment
on an affirmative defense raised by the party carrying the burden of proof.”); Smith
v. City of Mobile, 2007 WL 2580516, *13 (S.D. Ala. Sept. 5, 2007) (denying
summary judgment in USERRA discrimination action because “[t]he evidence
[was] insufficient for the court to grant summary judgment to the defendant on the
basis of that [mixed-motive] affirmative defense.”).
In fact, the Supreme Court, in its most recent opinion concerning the
ADEA’s affirmative defenses (albeit not a direct evidence discrimination case),
acknowledged that the Act essentially requires the employer to defend its own
hiring and firing decisions with proof at trial. See Meacham v. Knolls Atomic
Power Lab., 128 S.Ct. 2395, 2406 (Jun. 19, 2008) (“there is no denying that
22
putting employers to the work of persuading factfinders that their choices are
reasonable makes it harder and costlier to defend than if employers merely bore the
burden of production; nor do we doubt that this will sometimes affect the way
employers do business with their employees.”).
Here, Mora has presented direct evidence that she was terminated because of
her age – JMF does not dispute that. Instead, JMF has presented various incidents
that purportedly show that she had performance issues and that it would have
terminated Mora anyway. But the fact remains that Mora was not terminated for
any of the purported “incidents” and that she was not terminated until Rodriguez
purportedly expressed his dissatisfaction with Mora and told her she was being
terminated because of her age. He terminated Mora without consulting her two
supervisors – both of whom testified that she was performing well and that they
had no complaints. Furthermore, Rodriguez told Mora that he needed someone
younger who he could pay less, like Quevedo – except that Quevedo was both
substantially younger than Mora and had a higher salary than her. Even Quevedo
admits Rodriguez compared Mora to her.
Finally, if a jury believes Mora and her witnesses, which it should, then it
also must believe, automatically, that Rodriguez lied about what was said during
the conversation. A jury cannot believe Mora’s version, i.e., that Rodriguez told
her he was firing her because of age, and Rodriguez’s version, i.e., that he never
23
said anything of the sort. Accordingly, if the jury believes Mora, then it also
believes that Rodriguez lied about what happened, and a jury could reasonably
conclude that Rodriguez’s lie is evidence that Mora’s age did indeed play a role in
her termination and that she would not have been otherwise terminated.7 In fact,
one of the underlying themes of Mora’s case (and one that is well-supported by
evidence) is that Rodriguez is lying about what was said and what occurred and
that his right-hand employee, Quevedo, is actively participating in the cover-up.8
Mora’s case is most analogous to, and indistinguishable from, Wright v.
Southland Corp., 187 F. 3d 1287 (11th Cir. 1999) (reversing summary judgment).
In Wright, the employee had direct evidence of age discrimination – specifically,
evidence that a regional manager said he “was looking for younger store
managers” and another manager said the employee was “getting too old.” Id. at
1303-04. This Court concluded that “based on this evidence, a jury could
reasonably conclude that, more probably than not, age discrimination was the
7 Similarly, the district court in Carter v. Univ. of S. Alabama, 510 F. Supp. 2d 596, 615, n. 31 (S.D. Ala. 2007) denied summary judgment on the employer’s mixed-motive affirmative defense, in part, because the actual decision-maker was the individual who made the biased comments. Id. (“the final decisionmaker is the very employee as to whom plaintiff's evidence creates genuine issues of bias.”). Here, like in Carter, Rodriguez is both the actual decision-maker who terminated Mora and the individual who made the biased comments. 8 Quevedo’s salary was approximately $50,000 at the time of Mora’s termination. (D.E. 30:2, p. 4). She started as a receptionist in November 2003 at $28,000. (D.E. 30:2, p. 3) It was raised to $70,000 in 2007, to $85,000 in January 2008, and again to $97,000 in April 2008. (D.E. 30:2, p. 4). Quevedo is now director of real estate development for JMF despite her admission that she has no background of any kind in real estate development. (D.E. 30:2, p. 5). Despite a poor overall economy, a tax-exempt non-profit that relies exclusively on donations has been able to raise Quevedo’s salary 21.4% and then another 14.1% in just a single year.
24
cause of Wright’s termination.” Id. This Court then noted that the employer still
had “substantial evidence to support its position that Wright was fired because of
[legitimate, non-discriminatory reasons.]”). Id. In reversing for trial, this Court
concluded:
In sum, [employee] has presented direct evidence of age discrimination. Consequently, there is a genuine issue of material fact as to the cause of [employee’s] termination, an issue that turns largely on whether [employee’s] witnesses or [employer’s] witnesses are to be believed. Such a credibility determination can be made only after trial, and the entry of summary judgment on [employee’s] ADEA claim was therefore inappropriate.
Id. at 1305. Mora’s claim against JMF is virtually identical to the situation in
Wright, and summary judgment was likewise inappropriate.
A nearly identical fact-pattern emerged in the Fourth Circuit’s decision in
E.E.O.C. v. Warfield-Rohr Casket Co., 364 F.3d 160 (4th Cir. 2004), where the
court reversed summary judgment because, “viewing the present facts in the light
most favorable to the EEOC, [decision-maker’s] alleged statements to [employee]
that he was getting too old and that [replacement employee] – a much younger
employee – could give [employer] more years clearly reflect [decision-maker’s]
reliance on [employee’s] age as one of the reasons for his termination. Id. at 163.
There, the district court improperly concluded that, notwithstanding the
employee’s direct evidence of age discrimination, “no rational factfinder could
reasonably conclude that [employee] was terminated because of his age.” Id. The
25
Fourth Circuit reversed and correctly concluded that, given the employee’s direct
evidence of age discrimination, summary judgment on the employer’s “we would
have fired him anyway” affirmative defense was inappropriate. Id. at 165. Here,
the district court reached the same incorrect conclusion as the district court in
Warfield-Rohr.
To the contrary, summary judgment would only be appropriate if Mora had
no evidence to dispute the affirmative defense. Here, JMF concedes that Mora has
presented direct evidence, i.e., evidence from which a rational jury could conclude
that she was terminated for discriminatory reasons without inference or
circumstance. Plaintiff’s direct evidence creates a genuine issue of material fact.
Despite this concession, the district court improperly held that no rational jury
could conclude that Mora was fired for discriminatory reasons.
II. THE EEOC’S CONCLUSION THAT JMF PROBABLY VIOLATED THE ADEA WEIGHS HEAVILY AGAINST SUMMARY JUDGMENT Without the assistance of counsel, Mora persuaded the EEOC that JMF
probably violated the ADEA. (D.E. 41-3). The EEOC’s conclusion, especially
when combined with Mora’s substantial direct evidence, makes summary
judgment inappropriate. See Horne v. Turner Const. Co., 136 Fed. Appx. 289, 292
(11th Cir. 2005) (reversing order granting summary judgment and concluding that
“[t]he EEOC's finding that there was reasonable cause to believe that
26
discrimination occurred bolsters our conclusion. We previously have held that such
an EEOC finding is admissible evidence in a bench trial, and the district court
should have taken it into consideration in this summary judgment proceeding as
well. The district court erred in failing to do so.”) (internal citations omitted).
“EEOC determinations are generally admissible . . . unless the sources of
information or other circumstances indicate lack of trustworthiness sufficient to
justify exclusion from evidence.” Blanton v. Univ. of Fla., 273 Fed. Appx. 797,
804 (11th Cir. 2008) (internal citations omitted) (affirming district court’s
admission of EEOC determination in jury trial). “[A] district court does not abuse
its discretion in admitting an EEOC determination that concerns the same
discrimination claim as that before the jury, where sufficient evidence was adduced
at trial to place the determination in its proper context, and the district court
instructed the jury as to the appropriate use of the determination by explaining that
it is not an adjudication of rights and liability.” Id.
Even in a jury trial, an EEOC determination is “ordinarily admissible,”
Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1288 (11th Cir. 2008) (affirming
admission of EEOC letter), and is “highly probative.” Barfield v. Orange Cty., 911
F.2d 644, 649 (11th Cir. 1990) (same). This Court, in affirming the district court’s
decision to admit an EEOC probable cause finding, recently explained at length
that:
27
Our precedents explain that an EEOC determination is ordinarily admissible. In Barfield v. Orange County, we considered whether an EEOC determination and report can be excluded from evidence in a jury trial under either Rule 403 or Rule 803(8)(C), and we concluded that this determination was best left to the sound discretion of the district court. 911 F.2d 644, 650-51 (11th Cir.1990). We explained, “A finding of intentional racial discrimination ... is a finding of fact. Rule 803(8)(C) explicitly makes such evaluative reports admissible, regardless whether they contain factual opinions or conclusions.” Id. at 651 n. 8 (citations omitted). We long ago stated that the probative value of an EEOC determination ordinarily outweighs any possible prejudice to the defendant in a bench trail, Smith v. Universal Servs., Inc., 454 F.2d 154, 157 (5th Cir.1972), although we more recently recognized in Barfield that there may be some circumstances in which the probative value of an EEOC determination is trumped by the “danger of creating unfair prejudice in the minds of a jury,” 911 F.2d at 650. Both Goldsmith and Bagby Elevator presented ample evidence at trial to place the EEOC determination in its proper context. Bagby Elevator elicited testimony at trial from Hunter Bagby that there was no factual support in the EEOC determination. Goldsmith elicited testimony from Hunter Bagby that Bagby Elevator had supplied documents to the EEOC during its investigation of the charges of discrimination filed by Peoples, Jemison, and Goldsmith. Steber also wrote a letter to the EEOC before it issued the cause determination, and this letter was admitted as an exhibit at trial and provided factual support for the cause determination. Bagby Elevator complains that the EEOC determination was tainted by an untruthful affidavit of union representative Larry Gardner, which stated that Bagby Elevator had not hired any black employees for the field department of Bagby Elevator operations. Again, we disagree. Bagby Elevator corrected this assertion at trial when Gardner admitted during direct examination that Bagby Elevator had hired one black person for the field in his 13 years as the union representative. The district court instructed the jury to guard against the improper use of this evidence. The district court explained what an EEOC
28
determination was and emphasized that it was not an adjudication of rights that was binding on the employer: “Now, as I have previously stated to you, the plaintiff sued the defendant for violation of his rights under Title VII of the Civil Rights Act of 1964. Pursuant to that Act, an individual who believes his rights have been infringed upon must first file a “Charge of Discrimination” with the Equal Employment Opportunity Commission, or the EEOC as it is called, before he or she may bring a lawsuit. Upon receiving that charge, the EEOC must investigate the allegation. After investigation, the EEOC may either determine that there is not reasonable cause to believe the charge is true and dismiss the charge or determine that there is reasonable cause to believe that charge is true. Whether or not the EEOC determines cause, the person who alleges to be aggrieved may file a lawsuit. The EEOC's reasonable cause determination is not an adjudication of rights and liabilities. Indeed, it is a nonadversary proceeding designed to notify the employer of the EEOC's findings, which is not reviewable in court and not binding on the employer.” This instruction correctly explained the purpose and character of an EEOC determination and it did not adjudicate rights and liabilities. In the light of this instruction, we cannot conclude that the district court abused its discretion when it admitted the EEOC determination. See Morro v. City of Birmingham, 117 F.3d 508, 517 (11th Cir.1997).
Bagby Elevator, 513 F.3d at 1288-89.
The relevant facts here are virtually identical to Bagby Elevator, except there
the employer alleged that the EEOC process was “tainted.” Id. (although the court
ultimately rejected the employer’s “tainted” EEOC argument.) Here, JMF does not
like the EEOC’s finding, but it raises absolutely no issue with the process the
EEOC used to make its determination. This is not surprising because the evidence
29
discovered and produced in this matter is the identical evidence discovered and
produced during the EEOC investigation. See also Barfield, 911 F. 2d at 651
(“Apart from bare allegations that admission of the [EEOC] report would cause
unfair prejudice and delay, [appellant] offers no evidence that the EEOC materials
admitted here suffer from any defects in trustworthiness.”).9
The Ninth Circuit, albeit merely persuasive, has gone a step further and held
that EEOC findings of probable cause are always admitted, even in a jury trial:
A civil rights plaintiff has a difficult burden of proof, and should not be deprived of what may be persuasive evidence. We therefore hold that the plaintiff has a right to introduce an EEOC probable cause determination in a Title VII lawsuit, regardless of what other claims are asserted, or whether the case is tried before a judge or jury. The district court erred in excluding the EEOC determination, and we reverse and remand [for a new trial.]
Plummer v. Western Int’l Hotels Co., 656 F. 2d 502, 505 (9th Cir. 1981) (“An
EEOC determination, prepared by professional investigators on behalf of an
impartial agency, has been held to be a highly probative evaluation of an
individual’s discrimination complaint.”) (emphasis added).
EEOC probable cause findings, like the one here, are extremely rare. In
fiscal year 2007, the EEOC received 19,103 charges of age discrimination. Only
625, or 3.27%, resulted in “probable cause” findings.10 As the Ninth Circuit has
9 Mora filed the entire EEOC file with the district court. (D.E. 53-1). 10 See ADEA Charges/Statistics, available at http://www.eeoc.gov/stats/adea.html (last viewed Aug. 13, 2008).
30
intimated, the fact that a professional investigator trained in reviewing and
weeding out frivolous or meritless claims (constituting over 96% of all claims
filed) concluded, after an investigation and after hearing from both parties, that the
evidence showed that JMF probably violated the ADEA is highly probative.
The EEOC Letter of Determination that was improperly not considered by
the district court in Horne is virtually identical to the EEOC Letter of
Determination issued to Mora here. (D.E. 53-2). The same is true of the EEOC
Letters of Determination that were properly admitted by the district court in Bagby
Elevator. (D.E. 53-3). All EEOC Letters of Determination are short, concise,
conclusory (based upon the evidence provided to it by the parties) and virtually
identical. They are not detailed opinions or findings of fact and conclusions of
law. In fact, documents indicating exactly how the EEOC came to its conclusion
are prohibited from being disclosed pursuant to the deliberative process exception
to the Freedom of Information Act, 5 U.S.C. § 552(b)(5). See generally E.E.O.C.
v. Windsor Court Hotel, Inc., 1999 WL 407610 (E.D. La. 1999) (noting that
documents pertaining to how the EEOC reached its conclusion are exempt from a
FOIA request). What matters is that the EEOC heard from both Mora and JMF,
and it concluded that the ADEA was probably violated.11
11 To be clear, Mora is not suggesting that EEOC decisions should have a res judicata effect on subsequent litigation. Rather, due to the EEOC’s specialized knowledge and training, the district courts should give significant, but not dispositive, weight to an EEOC probable cause
31
Limited deference to the EEOC by district courts is also good public policy.
If litigants know that EEOC findings are taken into consideration by district courts,
parties (and their counsel) will be far more likely to actively and meaningfully
participate in the EEOC process (including mediation and conciliation). (Here,
JMF refused the EEOC’s offer of conciliation after it found cause). In meritorious
cases, terminated employees will be more likely to be reinstated or compensated
for their economic damages – which satisfies the remedial goals of federal anti-
discrimination statutes. It will simultaneously decrease the number of employment
lawsuits filed in the district courts by promoting presuit or early settlement.
Congress created the EEOC to, inter alia, facilitate the speedy resolution of
employment disputes in an effort to avoid excessive and protracted employment
litigation. If district courts categorically refuse to even consider EEOC findings,
then the EEOC is nothing more than a federal reporting agency whose only value
is maintaining statistics and forcing victims of illegal discrimination to wait six
months before they can seek any redress.
Mora’s favorable finding by the EEOC, especially when paired with
substantial direct evidence of discrimination, raises genuine issues of material fact
regarding why she was terminated, and thus makes summary judgment
inappropriate.
finding. Here, the district court categorically discounted the EEOC process at the summary judgment phase, which is inappropriate.
32
III. JMF’S FAILURE TO PLEAD A MIXED-MOTIVE AFFIRMATIVE DEFENSE PRECLUDES ITS USE AT SUMMARY JUDGMENT In its summary judgment motion, JMF argued, for the first time, that
“Rodriguez would have made the same decision absent any consideration of
Plaintiff’s age.” (D.E. 23, pp. 2 & 4). JMF’s Answer did not plead a “mixed
motives” defense; indeed, JMF did not even allude to the defense (that is, there is
no allegation in the Answer that JMF would have fired Mora anyway). (D.E. 3).
In fact, JMF’s only asserted defense is that Rodriguez did not tell Mora, or anyone
else, that Mora was “too old” to work at JMF, or that he “needed someone
younger” – i.e., JMF believes that Mora and her witnesses “fabricated” their
respective testimony. (D.E. 23, p. 10). This constitutes a blanket denial, not an
“admission and avoidance.”
Significantly, Mora is prejudiced by JMF’s failure to properly plead a
mixed-motives affirmative defense, only to assert it for the first time at the
summary judgment stage, because Mora has not taken any evidence regarding the
specific issue of whether Mora’s alleged performance issues would have, standing
alone, resulted in her termination. Instead, Mora discovered and prosecuted this
case based on the defenses set forth in JMF’s Answer – specifically, that JMF
denied that Rodriguez made any statements regarding Mora’s age. On that basis,
and in light of JMF’s proper concession that Mora had direct evidence of
33
discrimination, Mora did not inquire, at depositions or in written discovery, as to
whether Mora would have been terminated even absent the alleged discrimination.
The district court rejected Mora’s waiver argument because it concluded that
Mora was on notice through discovery that JMF had issues with Mora’s
performance. (D.E. 62). Even if true, this is irrelevant. The issue is not whether
Mora was aware of JMF’s purported “performance issues” with Mora; indeed,
virtually every employer defending an employment suit cries foul regarding the
employee’s “performance.” The issue is whether Mora knew that JMF was
relying upon these purported “performance issues” in its defense and whether JMF
would have fired Mora for her performance issues even absent the discriminatory
motive. Had JMF properly pled a mixed-motives affirmative defense, Mora would
have taken far more extensive discovery on this discrete issue.
It is well settled that a mixed-motives defense must be pled specifically as an
affirmative defense pursuant to Fed. R. Civ. P. 8(c), and JMF’s failure to so plead
constitutes an irreversible waiver of the defense. See, e.g., Desert Palace, Inc. v.
Costa, 539 U.S. 90, 92-93 (2003) (holding that a “mixed motive defense” is an
affirmative defense that must be proved by the employer); Day v. Liberty Nat’l
Life Ins. Co., 122 F.3d 1012, 1015 (11th Cir. 1997) (“an affirmative defense []
must be specifically pled.”); E.E.O.C. v. White & Son Enterprises, 881 F. 3d 1006,
34
1009 (11th Cir. 1989) (holding that an affirmative defense can never be raised for
the first time in a dispositive motion).
Because of the prejudice to Mora, JMF’s purported mixed motive
affirmative defense was irreversibly waived and JMF’s summary judgment motion,
which was exclusively premised on the mixed-motive defense, should have been
denied.
IV. THE DISTRICT COURT IMPROPERLY FAVORED JMF’S EVIDENCE
It is axiomatic that, when ruling on a motion for summary judgment, the
district court must review the evidence in the light most favorable to, and must
resolve factual disputes, ambiguities and doubts in favor of, the non-moving party.
See generally Parris, 216 F.3d at 1301 (reversing same district court granting
employer summary judgment in FMLA action); Damon, 196 F.3d at 1358
(reversing same district court granting employer summary judgment in similar
ADEA claim). Here, the district court did the opposite.
First, the district court expressed at length its doubt as to whether “you’re
too old to work here” constitutes direct evidence of discrimination, despite JMF’s
concession that Mora presented direct evidence. (D.E. 62, p. 14, n.3) (“Despite
Defendant’s concession, the Court wonders whether such statements in fact
amount to more than circumstantial evidence.”). Evidence that a CEO told a
subordinate that he fired her because she is “too old to work here” is a “near
35
admission of liability.” Hemsworth, 476 F. 3d at 490 (noting that “You’re too old
to work here” is a “near-admission” of liability); see also Warfield-Rohr, 364 F.3d
at 164 (reversing for trial because “There is no question that [employer’s] alleged
statement to [employee] that he was ‘getting too … old; and that [employer] was
retaining [younger employee] because he ‘could give [employer] more years’
would support a jury finding that [employee’s] age was a motivation factor
[employer’s] decision to terminate him.”) (citations omitted). Mora and JMF both
agreed and recognized that this is a classic direct evidence case, but the district
court, without convening a hearing or requesting additional briefing, suggested
otherwise.
Second, the district court failed to address all of the relevant testimony from
Mora, Kennedy, Lagarde and Quevedo and failed to interpret the evidence in the
light most favorable to Mora. There are numerous examples of this. First, the
court did not acknowledge at all the undisputed evidence that Mora was initially
replaced by 26 year old Jennifer Vasquez in January 2006. (D.E. 62). Instead, the
district court found it “significant” that Mora has no direct evidence that Chea
discriminated against her or that Rodriguez discriminated against her in January
2006. (D.E. 62, p. 5). This is wholly irrelevant because Chea did not terminate
Mora and Rodriguez did not fire Mora until April 2006. The district court also
failed to acknowledge that Rodriguez fired Mora despite testimony from Mora’s
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two actual supervisors that she was doing well and that they had no complaints.
This alone is a genuine issue of material fact – Mora’s supervisors did not have
performance issues with her, only Rodriguez did and only he is alleged to have
made age related comments during the termination conversation.
Next, the district court noted that Mora does not deny contacting a donor
without first consulting Chea, but failed to acknowledge at all that JMF admits that
this did not violate any policy and that it resulted in the donor serving as godfather
and Mora serving as godmother to a child-patient. (D.E. 62, p. 3). This was a
beautiful event that JMF unsuccessfully attempted to turn into a black eye for
Mora. Additionally, the district court noted that Mora does not deny failing to
provide timely weekly reports on occasion, but failed to acknowledge at all that
several employees did the same thing, including Quevedo, but none were
terminated. (D.E. 62, p. 3).
Further, the district court viewed a performance evaluation prepared by Chea
for Rodriguez concerning Mora as being mostly negative, despite the
memorandum’s conclusion that “in all fairness, Mora deserves credit for being
committed to the program, for being good with the press, for working
independently and following through on most matters” and its recommendation of
a 5% raise for Mora. (D.E. 62, p. 4). The district court also noted that Mora
“called in sick twice to work, without explaining the reasons to Rodriguez,” but
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failed to acknowledge that Rodriguez admitted that Mora was entitled to her sick
leave and that she did not violate any policy. (D.E. 62, p. 5).12 Finally, the district
court failed to acknowledge that Mora’s two supervisors, Lagarde and Quevedo,
were not consulted prior to Mora’s termination and that both testified that she was
performing adequately when Rodriguez fired her. Most importantly, at no point
did the district court acknowledge that Mora was not terminated for any of these
purported performance issues. It was not until Rodriguez actually fired Mora that
he made any reference to her age. In other words, JMF purportedly had
performance issues with Mora but did not terminate her. Instead, the immediate
performance issue that supposedly led to her termination (which is disputed by
Mora) was coupled with Rodriguez’s overt discriminatory statements made
directly to her during the termination conversation.
Third, the district court made improper adverse credibility determinations
regarding various witnesses. The two most serious examples are located on page 7
of the Order where the district court noted that Kennedy “was fired by Defendant
on August 11, 2006, and [] is close friends with Plaintiff” and at footnote 1, where
the court noted that “Lagarde was also terminated by Defendant, and, like
Kennedy, is close friends with Plaintiff.” (D.E. 62). Discounting the testimony of
two fact witnesses because they have personal relationships with Mora and because
12 This “issue” was not even raised in JMF’s Motion – the district court raised it sua sponte.
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they both were later terminated by JMF is not appropriate when ruling on summary
judgment. See generally Burnette v. Taylor, 533 F.3d 1325, 1330 (11th Cir. 2008)
(“[W]e make no credibility determinations or choose between conflicting
testimony, but instead accept Plaintiff's version of the facts drawing all justifiable
inferences in Plaintiff's favor.”); Welch v. Celotex Corp., 951 F.2d 1235, 1237
(11th Cir. 1992) (on summary judgment, district courts “must avoid weighing
conflicting evidence for probity or making credibility determinations.”). These are
classic bias arguments reserved exclusively for the jury. While questioning
Lagarde and Kennedy’s veracity and motivation, the district court said nothing of
Quevedo’s obvious bias, motivation and suspect testimony.13 Rodriguez’s self-
serving testimony is obvious – no chief executive is going to admit that he
terminated an employee because of her age and expect to remain a chief executive.
And Chea, who was not even supervising Mora at the time of her termination, gave
testimony that permeates with envy and bitterness toward Mora.14
13 Although Quevedo’s rapid professional advancement from receptionist to director of real estate development is dependent upon remaining in Rodriguez’s good graces, in fairness, Mora did not extensively argue Quevedo’s credibility problem in opposing JMF’s Motion because Mora recognizes its limited use at the summary judgment phase. To the contrary, Mora’s lack of credibility and that of her witnesses is JMF’s entire case and was the predominant theme in its Motion. (D.E. 23, p. 8-10). 14 The first question asked of Chea at her deposition was, “what one word best describes Josephine Mora,” to which Chea tersely responded, “liar.” (D.E. 32-2, p. 1). Two questions later she was asked how she knows that Mora was lying, to which she responded “Actually, I really don’t. So I guess that I don’t know that this is not true.” (D.E. 32-2, p. 2).
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Mora concedes that JMF has some evidence concerning her performance
(albeit weak, incomplete and, to some extent, irrelevant to the ultimate issue) and
that JMF has a non-frivolous (albeit meritless) argument that she was terminated
for performance reasons, but the district court’s conclusion that JMF’s evidence
was overwhelming is unsupported. Even if the district court, at this juncture, finds
JMF’s evidence to be superior, or even overwhelming, it does not change the fact
that JMF’s key evidence is highly disputed with contradictory evidence that must
be reviewed in Mora’s favor, the most obvious of which is Rodriguez’s own
statements to Mora, Kennedy, Lagarde and Quevedo that he fired Mora because
she was too old to work at JMF.
With due respect to the district court, Mora has a reasonable apprehension
that the district court is biased against her, or at least against her claims, and thus
requests that this Court remand the case for trial before a different trial judge. The
district court has made adverse credibility decisions (not merely legal conclusions)
that may affect motions in limine,15 trial objections, and post-trial motions. Under
the circumstances, Mora requests reassignment of the trial judge on remand. See
generally Clark v. Coats & Clark, Inc., 990 F.2d 1217, 1229-30 (11th Cir. 1993)
(ordering reassignment because “the original judge would have difficulty putting 15 For example, the district court has already discounted the EEOC probable cause finding, which reasonably lends to the conclusion that the district court will not even entertain a pretrial motion concerning the admissibility of the probable cause finding during the jury trial. This runs contrary to this Court’s precedent that presumes the admissibility of EEOC letter determinations in jury trials unless a party can show unfair prejudice.
40
his previous views and findings aside.”); United States v. Torkington, 874 F.2d
1441, 1446-47 (11th Cir. 1989) (reassigning case on remand, in order to preserve
the appearance of impartiality, where district court had expressed doubts about the
merits of the prosecution).
CONCLUSION
For the reasons stated above, Mora requests that this Court reverse the
district court’s Order granting summary judgment in favor of Defendant, Jackson
Memorial Foundation, Inc., remand this case for trial, and grant any further relief
deemed just and proper.
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CERTIFICATE OF COMPLIANCE WITH RULE 32(a)
1) This brief complies with the type-volume limitation of Fed. R.App. P.
32(a)(7)(B) because this brief contains 9,899 words, excluding the parts of the
brief exempted by Fed. R.App. P. 32(a)(7)(B)(iii).
2) This brief complies with the typeface requirements of Fed. R.App. P.
32(a)(5) and the type style requirements of Fed. R.App. P. 32(a)(6) because this
brief has been prepared in a proportionally spaced typeface using Microsoft Word
Version 12.1.3 with Times New Roman 14-point font.
CERTIFICATE OF SERVICE
I certifY that on December 15,2008, I mailed a copy of this brief via Federal
Express Next Day to the Clerk of this Court and via first class U.S. Mail to counsel
for the Appellee, Kevin Vance, Esq., Epstein Becker & Green, PC, Wacha
Financial Center, Suite 4300, 200 S. Biscayne Blvd., Miami, Florida 3313
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