order granting summary judgment - cardelle v. city of miami beach fop

UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF FLORIDA

CASE NO. 11-24273-CIV-ZLOCH

THAMYRIS CARDELLE, RAYMOND F.CHAMBERS, JAMES F. HARLEY,ANDREW J. KUNCAS, JOHN MCCABE,JAMES V. MAURO, JESS M. METZGAR,JOSEPH PREVISH, MICHAEL PRYOR, PEDRO RODRIGUEZ, BERNIE RUDER,GARFIELD TAYLOR, NEWELL WILDER,WILLIAM YOUNG, and ELISEO R.ZACARIAS,

Plaintiffs,

vs. O R D E R

MIAMI BEACH FRATERNAL ORDER OFPOLICE, WILLIAM NICHOLS LODGE,NO. 8, and CITY OF MIAMI BEACH,

Defendants. /

THIS MATTER is before the Court upon Defendant City of Miami

Beach’s Motion For Summary Judgment (DE 53) and Defendant Miami

Beach Fraternal Order Of Police, William Nichols Lodge No. 8’s

Motion For Final Summary Judgment (DE 54). The Court has carefully

reviewed said Motions, the entire court file and is otherwise fully

advised in the premises.

I. Background

Plaintiffs, current and former police officers employed by

Defendant the City of Miami Beach, who are over 40 years of age,

initiated the above-styled cause with the filing of their Complaint

(DE 1). Plaintiffs subsequently filed an Amended Complaint (DE 4).

Therein, Plaintiffs allege claims under the Age Discrimination in

Case 1:11-cv-24273-WJZ Document 114 Entered on FLSD Docket 09/30/2013 of 38

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Employment Act of 1967, 29 U.S.C. §§ 621 et seq. (hereinafter

“ADEA”), and the Florida Civil Rights Act of 1992, Florida Statutes

§§ 760 et seq. (hereinafter FCRA). The Amended Complaint (DE 4)

states claims against Defendant the City of Miami Beach, Florida

(hereinafter “CMB”) and the Miami Beach Fraternal Order of Police,

William Nichols Lodge No. 8 (hereinafter “FOP”), which is the

bargaining representative for all police trainees, police officers,

detention officers, sergeants, and lieutenants, within the City of

Miami Beach Police Department.

Specifically, Plaintiffs allege that CMB discriminated against

them on the basis of age in violation of the ADEA in two ways:

first, by not allowing them to participate in a modified version of

the Deferred Retirement Option Plan (hereinafter “DROP”), which,

under the 2009-2012 collective bargaining agreement (hereinafter

“CBA”), altered the former maximum DROP period of 36 months——prior

to September 1, 2012 (hereinafter “DROP-3")——to 60 months——on or

after September 1, 2012 (hereinafter “DROP-5"); and second, by

deducting 5% from their gross compensation for a period of 18

months, pursuant to the terms of the CBA (hereinafter “FOP-5").

The Plaintiffs make similar allegations against FOP, based on

its role in negotiating these CBA terms. Plaintiffs further allege

a separate count of disparate impact against both defendants based

on the above-listed facially neutral CBA terms. And, Plaintiffs

charge that both defendants retaliated against them for conduct


The facts in this section are taken from CMB’s Statement Of Undisputed1

Material Facts In Support Of Motion For Summary Judgment (DE 52), FOP’s StatementOf Undisputed Material Facts In Support Of Motion For Summary Judgment (DE 55),as well as from Plaintiffs’ Responses to both Defendants’ Undisputed Facts (DENos. 57 & 59), where Plaintiffs take issue with Defendants’ Statements of theFacts. Additionally, CMB filed its Reply Statement Of Undisputed Material FactsIn Support Of Motion For Summary Judgment (DE 74). While the Court refers toallegations of disputes from Plaintiffs’ Facts, in so noting, the Court does notintend to imply that any material facts are actually in dispute. The Court saysalong with Michael Dibdin’s fictional detective, Aurelio Zen, with respect to theabove-styled cause, “The facts [are] not in dispute, it [is] a question of howyou interpret[] them.” Michael Dibdin, Vendetta (1991).

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protected under the ADEA. Finally, Plaintiffs allege that the

actions of both defendants also violated the cognate provisions of

the FCRA.

The DROP program allows police officers who are otherwise

eligible to retire, to take retirement status and yet continue

their employment for a specified period of time. Participating1

eligible employees continue to receive full pay and benefits, but

at the same time also collect pension benefits, which are deposited

into an interest-bearing account. CMB’s benefit retirement plan

does not dictate a mandatory retirement age. DROP retirement is

one voluntary option. Another is to retire under the normal

retirement date, when an officer reaches 50 or when the sum of the

officer’s age and creditable service equals 70. DROP provides an

incentive, which subsidizes early retirement. Under the 2009-2012

CBA, the time period for DROP participation was increased from

three years to five years. That increase, combined with the fact

that all Plaintiffs (with the exception of Plaintiff Taylor) were

already participating in the DROP-3 and not allowed to extend into


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the new DROP-5 option, forms one of the major bones of interpretive

contention motivating Plaintiffs’ claims of discrimination. When

these Plaintiffs entered DROP and were thus classified as

“retired,” they received their DROP benefits pursuant to a DROP

Agreement, which includes a Waiver and Release Agreement and an

Irrevocable Letter of Resignation in which each participating

Plaintiff agreed to resign voluntarily no later than the last day

of his DROP period. Plaintiff Taylor has not entered DROP-3 and

thus has no DROP claim.

Another key source of Plaintiffs’ dissatisfaction is a

concession CMB and FOP reached in the process of negotiating the

CBA. CMB, required to take account of a budgetary shortfall,

needed to identify ways to save additional funds. FOP believed the

FOP-5 was one of the least undesirable options. The FOP-5, the 18-

month, 5% gross compensation deduction, reduced CMB’s contributions

to the FOP Health Trust. One reason that FOP favored this

particular concession over alternative suggestions was that because

it was tied to healthcare, it was a pre-tax deduction. Naturally,

CMB agreed to some other FOP requests, of no particular

significance to this litigation.

With respect to the ratification of the 2009-2012 CBA, the

Plaintiffs and Defendants CMB and FOP are not in complete

agreement. The Court notes the slightly varying versions of these

events while stressing that such differences do not represent


The Court notes that while Plaintiffs dispute the dates on which CMB and2

FOP became aware of these charges, Plaintiffs’ explanation is not on point.Plaintiffs merely assert that both defendants were aware of the charges at anearlier date (unspecified) because of previous grievance complaints and ULPs.

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material factual distinctions. CMB and FOP assert that the FOP-5

was unintentionally left out of the CBA the FOP members voted to

ratify on August 4-6, 2010. Perhaps not surprisingly, Plaintiffs

do not believe this exclusion was inadvertent. Regardless, in

October of 2010, Plaintiffs filed unfair labor practice charges

(hereinafter “ULP(s)”) with the Public Employees Relations

Commission (hereinafter “PERC”), alleging improper ratification,

among other claims. PERC agreed with Plaintiffs as to the

ratification, so a second ratification vote was taken, and in

September of 2011, the CBA was again ratified by the FOP vote. CMB

disclaims any responsibility for any oversights which may have

occurred in this process.

The other facts relevant to Plaintiffs’ claims concern a

series of alleged affronts that Plaintiffs believe demonstrate

retaliation for ADEA-protected expression. Also, in October of

2010, they individually charged age discrimination and retaliation

to the United States Equal Employment Opportunity Commission

(hereinafter “EEOC”). CMB received these charges on December 8,

2010. FOP claims to have become aware of these charges in late

November of 2010. The complaints in these EEOC filings are, as2

in the above-styled cause, FOP-5 and the ineligibility to

participate in DROP-5. Plaintiffs’ Amended Complaint (DE 4)


The Court will only discuss allegations in the Amended Complaint (DE 4).3

The Court would have believed that pointing out the most elementary principlesof the notice-pleading rules, i.e., a Complaint or Amended Complaint must giveopposing parties notice of the charges brought against them, would betautological. Yet, since the briefing for the instant Motions For SummaryJudgment (DE Nos. 53 & 54) references supposed additions to Plaintiffs’complaint, apparently surfacing during some Plaintiffs’ depositions, the Courtnotes: “A pleading that states a claim for relief must contain: . . . (2) a shortand plain statement of the claim showing that the pleader is entitled to relief.”Fed. R. Civ. P. 8(a)(2). The rule does not describe or imply that a complaintis a foundation upon which new claims can be added at will throughout the courseof the litigation, without formal or appropriate notice being provided to theopposing parties. If Plaintiffs believed that their complaint was insufficientin stating all claims for relief, Rule 15 clearly sets forth the process ofamending, which the Plaintiffs surely realize, as they took advantage of thisprocess in amending their original complaint.

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charges a list of grievances with various decisions that affected

Plaintiffs’ employment. Plaintiffs charge these allegedly

retaliatory actions against both Defendants. FOP argues that it

had no control over some of these decisions, as will be discussed

below.

The Court will briefly summarize the conduct Plaintiffs list

in their operative Complaint (DE 4). First, Plaintiffs articulate3

various “[v]erbal threats” and negative comments made to them by

both CMB employees and either FOP membership or FOP contract

negotiation committee members, regarding how they would vote on the

CBA ratification. Plaintiffs claim they were called “deadwood,”

the “old guys,” the “Group of 20,” “greedy,” and “bad guys” by CMB

employees and FOP membership. Plaintiffs allege that FOP

President, Alejandro Bello, threatened to countersue them for

objecting to FOP practices and proposals for the CBA. Plaintiff

Zacarias alleges that Mr. Bello also told him that the new CBA was

an attempt to get senior officers out of the police force and give


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younger officers promotional opportunities. Plaintiffs also object

to some articles they were sent by Mr. Bello and Sergeant Wayne

Jones, which they believe were intended to chill their protected

speech. The Plaintiffs who were already retired at the time that

the CBA was re-ratified were not allowed to vote. Most of the

other allegedly retaliatory conduct consists of unfavorable

assignments or instances when CMB did not grant Plaintiffs various

privileges, which Plaintiffs believe they should have received.

Plaintiff Harley believes he was denied a Master Sergeant

designation. Plaintiffs Harley, Cardelle, and Metzgar believe they

were subjected to drugs tests, which though ostensibly random, were

in fact targeted. Plaintiffs Cardelle, Metzgar, Mauro, and Taylor

maintain they were assigned disciplinary posts. Plaintiff Metzgar

was denied training on November 11, 2011, because he would be

separating by August 31, 2012. Plaintiff Rodriguez was also denied

training. Plaintiff Cardelle was removed from a Field Training

Position, which he had held for 14 years. Plaintiff Pryor

underwent an “overtime audit.” Plaintiff Ruder’s position was

reclassified as civilian. Plaintiffs Mauro and Metzgar were not

allowed a reassignment to undercover capacities that they

requested. Plaintiffs Cardelle, Chambers, Metzgar, and Taylor were

given foot and bike patrol. Plaintiffs Taylor and Cardelle were

not given breaks. Plaintiffs further fault the CMB for not taking

disciplinary action against other employees who made derogatory


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remarks.

II. Standard of Review

Under Federal Rule of Civil Procedure 56, summary judgment is

appropriate

if the pleadings, the discovery and disclosure materialson file, and any affidavits show that there is no genuineissue as to any material fact and that the movant isentitled to a judgment as a matter of law.

Fed. R. Civ. P. 56(c); see also Eberhardt v. Waters, 901 F.2d 1578,

1580 (11th Cir. 1990). The party seeking summary judgment “always

bears the initial responsibility of informing the district court of

the basis for its motion, and identifying those portions of the

pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, which it believes

demonstrate the absence of a genuine issue of material fact.”

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)(quotation

omitted). Indeed,

the moving party bears the initial burden to show thedistrict court, by reference to materials on file, thatthere are no genuine issues of material fact that shouldbe decided at trial. Only when that burden has been metdoes the burden shift to the non-moving party todemonstrate that there is indeed a material issue of factthat precludes summary judgment.

Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991);

Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991).

The moving party is entitled to “judgment as a matter of law”

when the non-moving party fails to make a sufficient showing of an

essential element of the case to which the non-moving party has the


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burden of proof. Celotex Corp., 477 U.S. at 322; Everett v.

Napper, 833 F.2d 1507, 1510 (11th Cir. 1987). Further, the

evidence of the non-movant is to be believed, and all justifiable

inferences are to be drawn in his favor. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986).

III. Analysis

By its instant Motion (DE 53), CMB asserts that all Plaintiffs

who were participating in the former DROP program, DROP-3,

knowingly and voluntarily waived their rights under the ADEA in

waivers which fully comply with the requirements of the Older

Workers Benefit Protection Act, 29 U.S.C. § 626(f)(1)(A)-(H), an

amendment to the ADEA (hereinafter “OWBPA”), which sets forth

requirements for a waiver of an employee’s rights under the ADEA.

With respect to Plaintiffs’ objections as to both their inability

to participate in the revised DROP program, DROP-5, and the 5%

gross compensation deduction, FOP-5, CMB further argues that

Plaintiffs have failed to state a discrimination claim under either

a theory of disparate treatment or a theory of disparate impact.

Under the disparate treatment theory, CMB asserts that it took no

adverse employment action against Plaintiffs, on the basis of their

age, in the implementation of either DROP-5 or FOP-5.

Additionally, CMB claims any decisions relevant to these terms of

the CBA were based on a “reasonable factor other than age”

(hereinafter “RFOA”), expressly provided for in the ADEA, 29 U.S.C.


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§ 623(f)(1) and 29 C.F.R. § 1625.7. Pension status, rather than

age, is a RFOA, which CMB claims motivated certain limitations of

which Plaintiffs complain. Under the disparate impact theory, CMB

raises similar objections, in addition to the lack of relevant

statistical data to support Plaintiffs’ allegations. CMB argues

that Plaintiffs cannot set forth a prima facie case of age-based

retaliation because they suffered no adverse employment actions

which were caused by their engaging in ADEA-protected expression.

CMB maintains that Plaintiffs’ belief that any of CMB’s decisions

were unlawful is not reasonable. CMB notes that FCRA claims should

be analyzed under the same law and standards as the federal claims.

FOP, charged in similar counts, for the same DROP-5 and FOP-5

provisions of the CBA, makes similar arguments in its instant

Motion For Summary Judgment (DE 54). In addition, FOP articulates

ways in which a labor union can be found to be discriminating in

violation of the ADEA, arguing that it has undertaken none of the

prohibited conduct. FOP also asserts that some of the alleged

incidents of retaliation involve employer decisions over which the

bargaining unit has no control.

Both CMB and FOP urge the Court to take note of its recent

prior ruling in Lerman v. City of Fort Lauderdale, No. 02-60967-

CIV-ZLOCH, 2008 WL 5378127 (S.D. Fla. Dec. 23, 2008), aff’d, 346

Fed. App’x 500 (11th Cir. 2009). In Lerman, this Court held, in

short, that DROP waivers, strikingly similar to those at issue in


See DE 50-13, pp. 40-42 (Cardelle’s Waiver); DE 50-13, pp. 47-494

(Chambers’s Waiver); DE 50-14, pp. 4-6 (Harley’s Waiver); DE 50-14, pp. 11-13(Kuncas’s Waiver); DE 50-14, pp. 18-20 (McCabe’s Waiver); DE 50-14, pp. 25-27(Mauro’s Waiver); DE 50-14, pp. 32-34 (Metzgar’s Waiver); DE 50-14, pp. 39-41(Prevish’s Waiver); DE 50-14, pp. 46-48 (Pryor’s Waiver); DE 50-15, pp. 3-5(Rodriguez’s Waiver); DE 50-15, pp. 10-12 (Ruder’s Waiver); DE 50-15, pp. 17-19(Wilder’s Waiver); DE 50-15, pp. 24-26 (Young’s Waiver); and DE 50-15, pp. 31-33(Zacarias’s Waiver).

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this case, were valid. Thus, in that case, summary judgment was

entered in favor of the defendant.

A. Waiver of Plaintiffs’ DROP-5 Claims

All Plaintiffs except Plaintiff Taylor, who never entered

DROP-3, executed a document entitled “City of Miami Beach Deferred

Retirement Option Program (“DROP”) Acknowledgment, Waiver and

Release Agreement” (hereinafter the “Waiver”) upon deciding to

enter DROP. Each waiver includes, in pertinent part, the4

following language:

In consideration for allowing me to participate in andderive the benefits of the DROP, to which I acknowledgeI would not otherwise be entitled and which I have freelyand voluntarily elected, I hereby release and dischargethe City of Miami Beach, Florida, Miami Beach EmployeesRetirement Plan in the City of Miami Beach, [or, in somewaivers substitute: the City Pension Fund forFirefighters and Police Officers in the City of MiamiBeach] and any and all of their agents, officers, oremployees, in both their official and individualcapacities, from all claims liabilities, demands andcauses of action, whether known or unknown, fixed orcontingent, which I may have or claim to have against[repeat same parties as above] arising out of my electionto participate in the DROP and to voluntarily resign andretire on the dates specified above and in my letter ofresignation (hereinafter referred to as “DROP claims”) .. . . With respect to DROP claims, this Waiver includes,but is not limited to, claims and liability . . . as wellas claims I may have under employment discrimination lawssuch as the Age Discrimination in Employment Act of 1967,(29 U.S.C. 621, et seq.) . . . the Older Worker’s


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Benefits Protection Act . . . the Florida Civil RightsAct of 1992 . . . and any other federal or state law orlocal ordinance dealing with employment discriminationsuch as age, sex, race, color, national origin,citizenship, religion, disability/handicap, marital orfamilial status, and family leave . . . .

Waiver, ¶ 1. Thus, the terms of the Waiver, if valid, expressly

bar Plaintiffs’ claims against CMB with respect to DROP-5 in this

case. Further, while prohibited employer practices are described

in 29 U.S.C. § 623(a), the prohibited practices of labor

organizations, such as FOP, are separately described in the ADEA in

the following section:

It shall be unlawful for a labor organization——

(1) to exclude or to expel from its membership, orotherwise to discriminate against, any individual becauseof his age;(2) to limit, segregate, or classify its membership, orto classify or fail or refuse to refer for employment anyindividual, in any way which would deprive or tend todeprive any individual of employment opportunities, orwould limit such employment opportunities or otherwiseadversely affect his status as an employee or as anapplicant for employment, because of such individual’sage; (3) to cause or attempt to cause an employer todiscriminate against an individual in violation of thissection.

§ 623(c)(1)-(3). Therefore while the discussion of the waiver

relates to both Defendants because Plaintiffs charge both with

discrimination under the ADEA, with respect to the DROP-5

alteration, FOP clearly engaged in no labor organization conduct

prohibited under the statute, or with respect to CMB, for which the

waiver would not also apply. FOP did not violate the ADEA in its


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representation of Plaintiffs already participating in the DROP-3,

if the waivers were valid, because age was not the but for cause,

as required, of Plaintiffs’ ineligibility for DROP-5. See Gross v.

FBL Fin. Serv., Inc., 557 U.S. 167, 176 (2009) (“Thus, the ordinary

meaning of the ADEA’s requirement that an employer took adverse

action ‘because of’ age is that age was the ‘reason’ that the

employer decided to act.”) (quoting Hazen Paper Co. v. Biggins, 507

U.S. 604, 610 (1993) (The claim “cannot succeed unless the

employee’s protected trait actually played a role in [the

employer’s decisionmaking] process and had a determinative

influence on the outcome.” (emphasis added)). See also Sims v.

MVM, Inc., 704 F.3d 1327, 1331-1332 (11th Cir. 2013).

While waivers like the one quoted above are permissible, by

its enactment of the OWBPA, “Congress [has] imposed specific duties

on employers who seek releases of certain claims created by [the

ADEA].” Oubre v. Entergy Operations, Inc., 522 U.S. 422, 427

(1998). Under the OWBPA, an employee may not waive his or her

rights under the ADEA unless the waiver is given knowingly and

voluntarily. With respect to the requirements for a waiver to be

deemed knowing and voluntary, the OWBPA provides, in pertinent

part, that “at a minimum”:

(A) the waiver is part of an agreement between theindividual and the employer that is written in a mannercalculated to be understood by such individual, or by theaverage individual eligible to participate;

(B) the waiver specifically refers to rights or claims


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arising under this chapter;

(C) the individual does not waive rights or claims thatmay arise after the date the waiver is executed;

(D) the individual waives rights or claims only inexchange for consideration in addition to anything ofvalue to which the individual already is entitled;

(E) the individual is advised in writing to consult withan attorney prior to executing the agreement;

(F)(i) the individual is given a period of at least 21days within which to consider the agreement; or

(ii) if a waiver is requested in connection with an exitincentive or other employment termination program offeredto a group or class of employees, the individual is givena period of at least 45 days within which to consider theagreement;

(G) the agreement provides that for a period of at least7 days following the execution of such agreement, theindividual may revoke the agreement, and the agreementshall not become effective or enforceable until therevocation period has expired;

(H) if a waiver is requested in connection with an exitincentive or other employment termination program offeredto a group or class of employees, the employer (at thecommencement of the period specified in subparagraph (F))informs the individual in writing in a manner calculatedto be understood by the average individual eligible toparticipate, as to——

(i) any class, unit, or group of individuals covered bysuch program, any eligibility factors for such program,and any time limits applicable to such program; and

(ii) the job titles and ages of all individuals eligibleor selected for the program, and the ages of allindividuals in the same job classification ororganizational unit who are not eligible or selected forthe program.

29 U.S.C. § 626(f)(1)(A)-(H). This provision makes clear that an

employee may waive his rights under the ADEA, and this principle


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has been reaffirmed by courts on numerous occasions. See, e.g.,

Lerman v. City of Fort Lauderdale, 346 Fed. App’x 500, 502 (citing

Oubre, 522 U.S. at 426-27; Lloyd v. Brunswick Corp., 180 F.3d 893,

895 (7th Cir. 1999) (“Employees are free to waive their ADEA

rights.”) (citation omitted)).

Plaintiffs do not argue that the Waiver is invalid. The

Waiver comprises a mere three pages. These pages include ten

paragraphs, and each paragraph addresses a single topic. Each page

is signed by the respective Plaintiff, and these signatures are

notarized. The language used in the Waiver is not complicated. It

is written in plain English and does not use legalese. Also,

notably, in the next to last paragraph, the Waiver states “I have

read and I fully understand this Waiver.” Waiver, ¶ 9.

Accordingly, the Court finds that the Waiver is written in language

calculated to be understood by the average police officer. The

Waiver satisfies Section (A) of the OWBPA waiver requirements. The

Waiver satisfies all of the other requirements as well, for the

reasons that follow.

The Waiver complies with § (B) because it refers to the rights

and claims under the ADEA in ¶ 2. Paragraph 2 clearly references

the rights or claims that may arise after the date the waiver is

executed in answer to § (C). The DROP benefits for which the

waiver is executed are additional in value, and participants are

not entitled to these benefits until they elect to participate and


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comply with all requirements, including the signing of the waiver.

Thus, § (D) is met. As to § (E), the participant is advised in ¶

6 to consult an attorney before executing. Each individual is

given the 45 days to consider that is required for exit incentives,

such as DROP programs, so § (F)(ii) is satisfied. Paragraphs 2 and

8 clearly reference § (G)’s required period of permissible

revocation. Paragraph 7 references the fact that DROP program

participants were provided with the necessary information outlined

in § (H)(i)-(ii).

Plaintiffs’ sole argument about why the Waiver does not cover

the DROP-related claims in the above-styled case is that, as in the

Lerman case previously before this Court, Plaintiffs argue that

their present DROP claims arose after they signed the Wavier. This

argument was rejected by this Court in Lerman. Lerman, 2008 WL

5378127, at *7, aff’d, 346 Fed. App’x 500 (11th Cir. 2009). The

Court recalls its prior ruling and applies the same legal

principles to the slightly, but not materially, different factual

situation in the above-styled cause.

A waiver will not satisfy the OWBPA if it attempts to waive

claims arising after it is signed. Plaintiffs argue that their

claims arose after they signed the Waiver because Plaintiffs

believe that their claims arose under the subsequent 2009-2012 CBA,

which extended the three-year period of the DROP-3 to the DROP-5's

additional two years. Plaintiffs are incorrect.


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As in Lerman, to answer the question before the Court, it is

not proper to focus on the time of the allegedly discriminatory

action——when the new DROP-5 program became a part of the

subsequently ratified CBA——but, rather the time at which Plaintiffs

“knew or should have known of [their] injury and its cause.” White

v. Mercury Marine, Div. of Brunswick, Inc., 129 F.3d 1428, 1435

(11th Cir. 1997). “A claim accrues in a federal cause of action as

soon as a potential claimant either is aware, or should be aware,

of the existence of and source of an injury.” Oshiver v. Levin,

Fishbein, Sedran & Berman, 38 F.3d 1380, 1386 (3d Cir. 1994); see

also Delaware State College v. Ricks, 449 U.S. 250, 258 (1980)

(holding that the discriminatory action occurred when the unlawful

“tenure decision was made and communicated to Ricks”) (emphasis

added); White, 129 F.3d at 1434 (noting that “the Supreme Court has

held that courts should use the discovery rule to determine when a

cause of action accrues”).

Applying the discovery rule, Plaintiffs’ causes of action did

not arise after they executed the Waiver. In fact, at the time

Plaintiffs executed their irrevocable Waivers, they were agreeing

to resign in no later than three years’ time in exchange for the

benefits of the DROP-3. Plaintiffs cannot now claim that because

a new program was initiated after they had irrevocably joined the

former program, that the new program should also apply to them. At

the time they executed their Waivers, they were agreeing to certain


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additional, clearly specified retirement benefits. Surely, had the

subsequent CBA altered the terms of the DROP program by making it

less favorable to participants, Plaintiffs would not be before this

Court seeking to join such a later program. And indeed, Plaintiffs

would receive the benefit of their former bargain. Such is the

practical reality of bargaining. Plaintiffs who participated in

the DROP-3 have been denied no benefit to which they are entitled,

and they are disbarred from now coming before the Court and

demanding further benefits. Accordingly, the Court finds that the

causes of action asserted in the above-styled cause, in reference

to the DROP-5, did not arise after execution of the Waiver, and

Plaintiffs did not waive claims arising after its execution.

In sum, the Court finds that each of the Plaintiffs, with the

exception of Plaintiff Taylor, executed a Waiver of the claims they

now attempt to assert. The Court further finds that the Waiver

satisfies the standard for knowing and voluntary as set forth in

the OWBPA. Finally, the Court finds that any additional arguments

are without merit in that they do not raise a genuine issue of

material fact as to the legitimacy of the Waiver, or as to whether

the aforementioned Plaintiffs knowingly and voluntarily executed

the same.

B. ADEA and FCRA Disparate Treatment and Disparate Impact:DROP-5 and FOP-5

While the Court holds that the Waivers are valid and

altogether prevent Plaintiffs from challenging their inability to


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participate in the modified DROP-5, the Court will briefly address

the two other theories of ADEA discrimination. And the Court will

consider the FOP-5 provision under both of these theories as well.

The Court here notes that the following section will address both

theories for both programs, with respect to both Defendants, CMB

and FOP. The Court will highlight differences in the application

of its ruling to the two Defendants in acknowledgment of the ADEA’s

variances in application to employers and labor organizations.

The ADEA makes it unlawful to “discriminate against any

individual with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual’s age.” 29

U.S.C. § 623(a)(1). The FCRA, in turn, states that it is unlawful

to “discriminate against any individual with respect to

compensation, terms, conditions, or privileges of employment,

because of such individual’s . . . age.” Fla. Stat. § 760. The

analysis the Court employs when evaluating a claim of age

discrimination is the same under the ADEA and the FCRA. Zaben v.

Air Products & Chemicals, Inc., 129 F.3d 1453, 1455 (11th Cir.

1997); Morrow v. Duval County Sch. Bd., 514 So. 2d 1086 (Fla.

1987).

While this prohibition is set forth in a straightforward

manner, “[t]he question of the proper treatment of early-retirement

programs is the most difficult question under the Age

Discrimination in Employment Act.” Karlen v. City of Colleges, 837


20

F.2d 314, 317 (7th Cir. 1988). This is so because the discussions

leading up to the implementation of such a program necessarily

involve questions of age and the benefits to be gained by an

employer if certain employees retire, but the resultant

“discrimination seems to be in favor of rather than against older

employees, by giving them an additional option and one prized by

many older employees.” Id. Difficulty in applying this area of

the law has been increased over the years by an exchange between

Congress and the Supreme Court that saw numerous modifications in

the analysis used to test the lawfulness of retirement incentive

plans. See Auerbach v. Bd. of Educ. of the Harborfields Cent. Sch.

Dist. of Greenlawn, 136 F.3d 104, 110-12 (2d Cir. 1998) (discussing

the ensuing back and forth between Congress and the Supreme Court).

This exchange culminated with the enactment of the OWBPA, which

amended various provisions of the ADEA.

To establish a prima facie case, a “‘plaintiff must produce

sufficient evidence to support an inference that the defendant

employer based its employment decision on an illegal criterion.’”

Alphin v. Sears, Roebuck & Co., 940 F.2d 1497, 1500 (11th Cir.

1991) (quoting Halsell v. Kimberly-Clark Corp., 683 F.2d 285, 290

(8th Cir. 1983)). This is achieved “through one of three generally

accepted methods: by direct evidence of discriminatory intent; by

meeting the four-pronged test set out for Title VII cases in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); or through


21

statistical proof.” Carter v. City of Miami, 870 F.2d 578, 581

(11th Cir. 1989). The Court will address each of these three

avenues in turn.

First, Plaintiffs have failed to produce direct evidence of

discriminatory intent. Plaintiffs have offered evidence in the

form of statements suggesting the DROP-5 and FOP-5 provisions of

the CBA were sought by other FOP members and/or leaders who desired

to exclude these Plaintiffs from the more favorable retirement

program. Plaintiffs essentially believe they were regarded as a

group of dissenters. The Eleventh Circuit has delineated “severe

limits for the kind of language to be treated as direct evidence of

discrimination.” Jones v. Bessemer Carrawy Med. Ctr., 151 F.3d

1321, 1321 n.11 (11th Cir. 1998). Further, “direct evidence is

composed of only the most blatant remarks, whose intent could be

nothing other than to discriminate on the basis of some

impermissible fact.” Rojas v. Florida, 285 F.3d 1339, 1342 n.2

(11th Cir. 2002) (quoting Schoenfeld v. Babbitt, 168 F.3d 1357,

1266 (11th Cir. 1999)). Also, “‘statements by nondecisionmakers,

or statements by decisionmakers unrelated to the decisional process

itself,’ are not direct evidence of improper discrimination.”

Bradley v. Pfizer, Inc., 440 Fed. App’x 805, 808 (11th Cir. 2011)

(citing Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989)

(O’Connor, J., concurring)). None of the alleged statements here

provide the direct proof to this exacting standard.


22

Next, the Court will consider the other means by which

Plaintiff could establish a disparate treatment claim. “When a

plaintiff alleges disparate treatment, ‘liability depends on

whether the protected trait (under the ADEA, age) actually

motivated the employer’s decision.’ That is, the plaintiff’s age

must have ‘actually played a role in [the employer’s

decisionmaking] process and had a determinative influence on the

outcome.’” Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.

133, 141 (2000) (quoting Hazen Paper Co. v. Biggins, 507 U.S. 604,

610 (1993)). The McDonnell Douglas framework is appropriate for

assessing circumstantial evidence of disparate treatment in an ADEA

case. Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir. 2000)

(citing McDonnell Douglas, Corp. v. Green, 411 U.S. 792 (1973);

Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981)).

“Under this framework [McDonnell Douglas], if a plaintiff

establishes a prima facie case of discrimination, the defendant may

articulate a legitimate, nondiscriminatory reason for the

challenged employment action. The Supreme Court has held that the

defendant’s explanation of its legitimate reasons must be clear and

reasonably specific to satisfy its burden.” Woolsey v. Town of

Hillsboro Beach, No. 12-16145, 2013 WL 4766872, at *2 (11th Cir.,

Sept. 6, 2013) (citing Burdine, 450 U.S. at 253-54; Chapman, 229

F.3d at 1024).

Typically, the prima facie case for ADEA violation requires


23

showing that the plaintiff “(1) was a member of the protected age

group, (2) was subjected to adverse employment action, (3) was

qualified to do the job, and (4) was replaced by or otherwise lost

a position to a younger individual.” Chapman, 229 F.3d at 1024

(citing Benson v. Tocco, Inc., 113 F.3d 1203, 1207-08 (11th Cir.

1997)). Obviously, here the question with respect to the DROP-5

and FOP-5 deals not with replacement, but with the ADEA’s other

prohibitions against “otherwise discriminat[ing] against any

individual with respect to his compensation, terms, conditions, or

privileges of employment.” 29 U.S.C. § 623(a)(1). All of the

Plaintiffs are in a protected class because they are over 40 years

old. But none can establish that either the DROP-5 or FOP-5

represented adverse actions through which they were disparately, or

differentially treated, compared with their younger co-workers.

Notwithstanding the fact that the Court has already held that

all participating Plaintiffs’ Waivers were valid, the fact that the

DROP-3 program was altered and thereafter became a DROP-5 program

under the CBA does not mean that Plaintiffs were treated

differently on the basis of their age. The differentiating factor

was instead pension status. The FOP-5 facially targeted no

employee or group of employees for any reason because all

employees, as a concession in negotiating the CBA, had 5% of their

gross compensation deducted.

In regard to the DROP changes, this Court is not the first to


24

examine why pension status is not equivalent to age for the

purposes of assessing discrimination under the ADEA. The CMB and

FOP negotiated modification to the DROP program fits within the

purpose of the ADEA. Of crucial importance is the fact that any

DROP program is a carrot, not a stick. This was true when all

participating Plaintiffs entered DROP-3, and it remains true under

DROP-5. The Court acknowledges that some of the DROP-3

participating Plaintiffs prefer DROP-5 as a more lucrative

retirement benefit. But, the basis on which they are ineligible to

join the new program is not Plaintiffs’ age; rather, it results

from their pension status. The Court also notes that although age

is one factor that weighs into an officer’s pension status, it is

not an impermissible component. Hazen Paper, 507 U.S. at 613. In

Kentucky Ret. Sys. v. EEOC, the Supreme Court held that

discrimination on the basis of pension status is not unlawful under

the ADEA, so long as it is not a “proxy for age.” 554 U.S. 135,

142-43 (2008) (noting that a complex set of rules determined

benefits, rather than individual employment decisions) (quoting

Hazen Paper, 507 U.S. at 613). In other words, age can be

considered in the framework of employees’ benefits, but it should

not be the basis of individual employment decisions that negatively

affect certain employees. Further, the rules embedded in pension

systems are treated “more flexibly and leniently in respect to age”

by the ADEA. Id. at 144.


25

The inability of DROP-3 participating Plaintiffs to

participate in DROP-5 is based on their respective pension status,

not their age alone. The benefits awarded under the original

program and the modified program are the result of a complex set of

factors negotiated between CMB and FOP, in which age is one factor.

The benefits are not determined by individual employment decisions

based on age. The FOP-5 is not driven by age either. It is not

even driven by pension status. All employees paid an equal

percentage. The fact that some employees paid more under the

deduction is based simply on the fact that their compensation,

based on numerous factors, is greater. Any disparity between

Plaintiffs and others with respect to their inability to

participate in DROP-5 is attributable to their pension status, not

their age. And, any disparity between the amount of compensation

deducted from Plaintiffs as compared with others is attributable to

the fact that their compensation was higher, not their age. Hazen

Paper, 507 U.S. at 613; Price Waterhouse v. Hopkins, 490 U.S. 228

(1989).

As the Court finds that Plaintiffs cannot establish a prima

facie case of age discrimination with respect to either Defendant

or either policy, the Court does not have to examine whether the

Defendants have produced legitimate nondiscriminatory business

reasons for either the DROP-5 or FOP-5. However, for the benefit

of the reviewing court, the Court makes the following comments.


26

Particularly as to the DROP-5, Defendants argue that a DROP program

fits within the safe harbor provision of the ADEA. When

considering an early retirement incentive program like DROP, the

Court notes that the OWBPA provides the following:

It shall not be unlawful for an employer, employmentagency, or labor organization—— . . .

(2) to take any action otherwise prohibited undersubsection (a), (b), (c), or (e) of this section——. . .

(B) to observe the terms of a bona fideemployee benefit plan——

(i) where for each benefit or benefitpackage, the actual amount of paymentmade or cost incurred on behalf of anolder worker is no less than that made orincurred on behalf of a younger worker, .. . ; or

(ii) that is a voluntary early retirementincentive plan consistent with therelevant purpose or purposes of thischapter.

29 U.S.C. § 623(f)(2)(B)(i)-(ii).

Plaintiffs emphasize what they believe is an age component

underlying the DROP program’s modification. Both DROP programs,

DROP-3 and DROP-5, are early retirement incentive programs, thus

the safe harbor found in § 623(f)(2)(B)(ii) (hereinafter the “safe

harbor”) guides the Court’s analysis. The safe harbor “does not

require that an employer provide identical early retirement

incentives for employees of different ages or incur the same costs

for all employees. Rather, the early retirement incentive plan


In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en5

banc), the Eleventh Circuit adopted as binding precedent all decisions of theformer Fifth Circuit handed down prior to October 1, 1980.

27

need only be voluntary and consistent with the ADEA’s relevant

purpose(s).” Auerbach, 136 F.3d at 112.

With respect to both DROP-5 and FOP-5, Defendants also argue

that both CBA terms were based on reasonable factors other than

age. Reasonable factors other than age under the ADEA are also

discussed in § 623(f), in pertinent part:

It shall not be unlawful or an employer, employmentagency, or labor organization——

(1) to take any action otherwise prohibited undersubsections (a), (b), (c), or (e) of this sectionwhere age is a bona fide occupational qualificationreasonably necessary to the normal operation of theparticular business, or where the differentiationis based on reasonable factors other than age . . .

29 U.S.C. § 623(f)(1)(emphasis added). “[A] defendant in an ADEA

case bears only the burden of going forward with the evidence to

demonstrate reasonable factors other than age for the plaintiff’s

discharge.” Marshall v. Westinghouse Elec. Corp., 576 F.2d 588,

592 (5th Cir. 1978). One primary set of the legitimate5

nondiscriminatory business reasons CMB and FOP offer with respect

to their respective roles in negotiating (both) and implementing

(only CMB) the terms of the CBA involves the way in which the CBA

bound their conduct. The CBA was binding once it was in place.

CMB was not free to depart from its terms. The FOP-5 was a

solution to a budgetary crisis, not an effort to harm these


28

Plaintiffs or discriminate against them in any way. Naturally, FOP

seeks the most favorable concessions possible. FOP-5 was

considered by FOP to be better than many other options on the table

at the time. As noted above, pension plans, such as the DROP-5,

generally occupy a safe harbor carve out from ADEA liability.

Finally, the Court will discuss whether Plaintiffs can assert

a claim for ADEA discrimination based on the disparate impact of

either the DROP-5 or FOP-5. The discussion immediately preceding

of reasonable factors other than age as legitimate

nondiscriminatory reasons for disparate treatment is even more

significant in the discussion of the disparate impact theory for

DROP-5 and FOP-5. “[B]ecause ‘[i]n disparate-impact cases . . .

the allegedly ‘otherwise prohibited’ activity is not based on age,’

it is ‘in cases involving disparate-impact claims that the RFOA

provision plays its principal role by precluding liability if the

adverse impact was attributable to a nonage factor that was

‘reasonable.’’” Meacham v. Knolls Atomic Power Lab., 554 U.S. 84,

96 (2008)(quoting Smith v. City of Jackson, 544 U.S. 228, 239

(2005)). Further, what is most relevant in the application of the

reasonable factor other than age to a disparate impact claim is not

whether it exists, but whether such a factor was reasonable.

Meecham, 554 U.S. at 96 (2008) (“The RFOA defense in a disparate-

impact case, then, is not focused on the asserted fact that a non-

age factor was at work; we assume it was. The focus of the defense


29

is that the factor relied upon was a ‘reasonable’ one for the

employer to be using . . . . a reasonable factor may lean more

heavily on older workers, as against younger ones, and an

unreasonable factor might do just the opposite.”) (further

citations omitted). As stated above, the Court finds that the

decisions surrounding the DROP-5 and FOP-5 were based on reasonable

factors other than age.

Yet, additionally, with respect to this theory, the Court

finds that Plaintiffs have not set forth a prima facie case. To

establish a prima facie case of disparate impact, a plaintiff must

show:

1) there is a significant statistical disparity amongmembers of different [age] groups; 2) there is aspecific, facially-neutral employment policy orpractice; and 3) there is a causal nexus between thespecific policy or practice and the statisticaldisparity.

See Cooper v. S. Co., 390 F.3d 695, 724 (11th Cir. 2004), overruled

on other grounds; Ash v. Tyson Foods, Inc., 546 U.S. 454, 457

(2006); see also Summers v. Winter, 303 Fed. App’x 716, 719 (11th

Cir. 2008) (“To establish a prima facie case of discrimination by

disparate impact, ‘a plaintiff must show that the facially neutral

employment practice had a significantly discriminatory impact.’”

(quoting Connecticut v. Teal, 457 U.S. 440, 446 (1982)). And, the

Supreme Court also cautions that, “[E]ven though both statutes [the

ADEA and Title VII] authorize recovery on a disparate-impact

theory, the scope for disparate-impact liability under [the] ADEA


30

is narrower than under Title VII.” Smith, 544 U.S. at 240.

Plaintiffs must establish causation. Id. (citing Watson v. F.

Worth Bank & Trust, 487 U.S. 977, 994 (1988)). A plaintiff can

establish that a facially neutral policy caused a disparate impact

by producing statistical evidence “of a kind and degree sufficient

to show that the practice in question caused [the harm] because of

membership in a protected group.” Id.

Here, Plaintiffs have offered no statistical evidence

whatsoever with respect to the DROP-5. Therefore, the Court finds

that Plaintiffs cannot make out a prima facie case of disparate

impact against either Defendant on this theory for this claim. The

Court notes that Plaintiffs have attempted to offer statistical

evidence to support their disparate impact claim with respect to

FOP-5. The Court states once more here that, as discussed above,

both the DROP-5 and FOP-5 were motivated by reasonable factors

other than age. Therefore, whether or not Plaintiffs are able to

produce statistical evidence would not change the Court’s ruling on

this theory. The Court notes that Plaintiffs have submitted one

untimely expert report (DE 67-3), which purports to offer

statistical evidence that FOP-5, only, produced a disparate impact

for older employees such as the Plaintiffs. The Court’s Pre-Trial

Order (DE 23) set governing deadlines in this case, such as the

deadline for the exchange of the resumes of experts and their

reports. The report (DE 67-3) was filed after said deadline had


“The elements of retaliation under the FCRA and the ADEA are the same.”6

Brillinger v. City of Lake Worth, 317 Fed. App’x 871, 877, n.5 (11th Cir.2008)(citing Drago v. Jenne, 453 F.3d 1301, 1307 (11th Cir. 2006)).

31

passed, and the Court denied Plaintiffs’ request for an extension

of time to exchange expert reports. See DE 47. This Report (DE

67-3) has not been submitted in compliance with the Court’s prior

Orders; however, the Court notes that whether or not it remains in

the record does not affect the Court’s ruling. The Plaintiffs have

failed to establish a prima facie case of disparate impact with

respect to either the DROP-5 or FOP-5.

C. Retaliation

The ADEA describes impermissible retaliation, in pertinent

part:

(d) Opposition to unlawful practices; participation ininvestigations, proceedings, or litigation

It shall be unlawful for an employer to discriminateagainst any of his employees or applicants foremployment, for an employment agency to discriminateagainst any individual, or for a labor organization todiscriminate against any member thereof or applicant formembership, because such individual, member or applicantfor membership has opposed any practice made unlawful bythis section, or because such individual, member orapplicant for membership has made a charge, testified,assisted, or participated in any manner in aninvestigation, proceeding, or litigation under thischapter.

29 U.S.C. § 623(d). The elements necessary to establish a prima

facie case of ADEA (and therefore also FCRA ) retaliation are:6

that the plaintiff (1) “engaged in ADEA protected expression,” (2)

“suffered an adverse employment action,” and (3) “the adverse


32

action was causally related to the protected expression.” Stone v.

Geico General Ins. Co., 279 Fed. App’x 821, 822 (11th Cir. 2008)

(citing Bass v. Bd. of Cnty. Comm’rs, 256 F.3d 1095 (11th Cir.

2001)). The McDonnell Douglas burden-shifting framework applied to

the discrimination claims above also applies to ADEA retaliation

claims. Cobb v. City of Roswell, No. 12-15633, 2013 WL 4046578, at

*6 (11th Cir. Aug. 12, 2013) (citing Hairston v. Gainesville Sun

Pub. Co., 9 F.3d 913, 919 (1993)). Additionally, for the ADEA to

protect expression, the plaintiff must show “a good faith,

reasonable belief that the employer was engaged in unlawful

employment practices.” Id. at 823 (quoting Weeks v. Harden Mfg.

Corp., 291 F.3d 1307, 1311 (11th Cir. 2002)). This criteria

references a subjective belief, and yet this subjective belief must

be “objectively reasonable in light of the facts and record

presented.” Id. (quoting Weeks, 291 F.3d at 1312). And, with

respect to element (2), adverse action is also keyed to a

reasonableness standard: “A plaintiff must show that a reasonable

employee would have found the challenged action materially adverse,

meaning that it might well have dissuaded a reasonable employee

from making or supporting a discrimination charge.” Cobb, 2013 WL

4046578, at *6 (quoting Burlington North. & Santa Fe Ry. Co. v.

White, 548 U.S. 53, 67-8 (2006)).

With respect to Plaintiffs’ ability to establish a prima facie

case of retaliation, CMB and FOP argue that the primary conduct on


33

the part of Plaintiffs’ that would constitute ADEA-protected

expression under element (1) would be Plaintiffs’ EEOC filing. The

Court notes that some authority suggests that other types of

grievance procedures may also be protected by the ADEA. In Bailey

v. City of Huntsville, when evaluating claims for both Title VII

and ADEA retaliation, the Eleventh Circuit stated, “The filing of

a grievance can constitute statutorily-protected activity, but only

if the grievance alleges discrimination based upon a statutorily-

protected ground.” 517 Fed. App’x 857, 861 (11th Cir. 2008) (citing

Rollins v. Fla. Dep’t of Law Enforcement, 868 F.2d 397, 400 (11th

Cir. 1989)). However, whether only the complaint before the EEOC,

or other grievance procedures as well, constitutes the type of

proceeding which would receive ADEA protection is of no moment

here. Neither Defendant disputes that, momentarily setting aside

the content of Plaintiffs’ initial complaints, the ADEA protects

charges before the EEOC, such as the one filed by Plaintiffs in

October of 2010, which FOP received in late November of 2010 and

CMB in early December of 2010.

Yet, the Plaintiffs’ prima facie showing is still plagued at

every element by their inability to establish a case of ADEA

retaliation against either CMB or FOP. First, with respect to the

ADEA-protected expression, although the EEOC, and perhaps some

other formal grievance proceedings could qualify, the content of

Plaintiffs’ complaint is problematic under existing law. As noted


34

above, Plaintiffs must have had a reasonable belief that the

discrimination they complained of was unlawful under the ADEA. The

Court certainly does not contest that Plaintiffs subjectively

believed they had experienced discrimination. Yet, as has been

exhaustively discussed above, Plaintiffs’ subjective belief that

the DROP-5 and FOP-5 are discriminatory does not square with the

existing law and thus is not objectively reasonable:

[T]he plaintiffs may not stand on their ignorance of thesubstantive law to argue that their belief wasreasonable. As we have stated previously, “[i]f theplaintiffs are free to disclaim knowledge of thesubstantive law, the reasonableness inquiry becomes nomore than speculation regarding their substantiveknowledge.”

Weeks, 291 F.3d at 1317 (quoting Harper v. Blockbuster Entm’t,

Corp., 139 F. 3d 1385, 1388 n.2 (11th Cir. 1998)) (further

citations omitted).

With respect to the third element, the Court finds that the

Plaintiffs have not clearly established that the allegedly adverse

conduct was connected to their expressions related to

discrimination under the ADEA. Plaintiffs allege that such a

connection exists, but they have not produced proof that such is

the case. As Defendants argue, the time frame is problematic.

Plaintiffs’ EEOC filing was in October of 2010. If earlier

grievances are also appropriately considered, then some of the

speech was slightly earlier, in late September and early October,

which means that all of these allegations were taking place in late


35

2010. Some of the comments of which Plaintiffs complain pertaining

to the ratification, while not tied to any specific date in

Plaintiffs’ Amended Complaint (DE 4), must, based on the entirety

of the record have occurred before the August 4-6, 2010

ratification. Some of the meetings at which such comments may have

been made took place in June and July of 2010. It is possible, of

course, that these comments continued. Plaintiffs are not entirely

clear. Other problems surround Plaintiffs’ belief that comments

from other employees constitute retaliation from either their

employer, CMB, or their labor union, FOP. It is not clear that in

any of these occurrences that the individuals speaking were

speaking for or on behalf of either Defendant. In addition to the

fact that some of the complained of retaliatory conduct took place

prior to Plaintiffs’ allegedly protected speech, other instances

took place after a substantial amount of time had passed. See

Bailey, 517 Fed. App’x at 861 (noting plaintiff’s inability “to

show causation based on temporal proximity alone, as a five-month

time lapse is considered too long under our precedent) (citing

Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir.

2007)). Plaintiffs assert causation, but they do not establish

that their speech caused any of the alleged retaliatory conduct.

Because the Court finds that Plaintiffs cannot make out

several elements of their prima facie case for retaliation, the

Court will only briefly address whether these actions were adverse.


36

About this point, the Court would note that, in the Amended

Complaint (DE 4), it does not consider the cumulative alleged

actions as being perpetrated against Plaintiffs as a group.

Instead, the Court would ask whether any of the Plaintiffs,

individually, would reasonably have been dissuaded from his speech

based on the alleged consequences to such speech. Reviewing the

Amended Complaint (DE 4), the Court observes that most Plaintiffs

make only a few specific allegations. Thus, none can reasonably

claim that his experience was adverse to the degree the ADEA

intends to protect.

Finally, even though the Court finds that Plaintiffs cannot

establish a prima facie case against either CMB or FOP, the Court

will also discuss, for the benefit of any reviewing court,

Defendants’ alleged legitimate nondiscriminatory business reasons

for such decisions. Much of the retaliatory conduct consisted of

employment assignments and privilege decisions over which FOP

claims no authority. Plaintiffs have produced no evidence to the

contrary. CMB, as Plaintiffs’ employer, has met its burden of

production with respect to such decisions. For example, CMB

provides support that the drug tests are in fact random, that

Plaintiffs do not have any actual data to support their assertion

that they were targeted, and that other non-parties were tested

with even greater frequency. DE 52, ¶ 34. CMB explains its

decisions not to train as related to the fact that some of the


37

Plaintiffs would shortly be retiring, so such training would not be

a proper use of time and money. DE 52, ¶ 37. CMB details the way

in which assignments to allegedly unfavorable positions take place.

This is a complicated procedure involving how personnel are

distributed to fill the posts which CMB must man. The fact that

Plaintiffs also had to fill these posts at times was not

retaliation in response to any of their complaints. DE 52, ¶ 38.

Often, officers are not able to take lunch breaks, but are allowed

to eat in their cars. These Plaintiffs were not the only

individuals who were, at times, subject to the operational needs of

the department and did not receive designated lunch breaks. DE 52,

¶ 39. Plaintiff Pryor had in fact been overpaid. He repaid the

amount paid to him in error. DE 52, ¶ 40. Plaintiff Harley admits

that he did not fully understand the master sergeant designation he

claims he did not receive. DE 52, ¶ 41. Plaintiff Cardelle’s

alleged removal as Field Training Officer was never even finalized.

DE 52, ¶ 46. The Court does not mean to suggest that Plaintiffs do

not respond to Defendants’ explanations; however, the Court does

find that Plaintiffs have produced no proof, as required by

McDonnell Douglas, that such reasons are actually pretextual for

discrimination by either Defendant. In addition, as the Court

stated above, Plaintiffs cannot establish a prima facie case of

retaliation under the ADEA or FCRA.


38

IV. Conclusion

The Court finds that fourteen of the fifteen Plaintiffs in the

above-styled cause waived their claims under the ADEA with respect

to their DROP participation. The FOP-5 was applied equally to all

employees, pursuant to the terms of the CBA. No Plaintiff can

establish a prima facie case of disparate treatment or disparate

impact with respect to either of these CBA provisions against

either CMB or FOP. Neither CMB nor FOP retaliated against any

Plaintiff for speech which was in fact protected by the ADEA.

Accordingly, after due consideration, it is

ORDERED AND ADJUDGED as follows:

1. That Defendant City of Miami Beach’s Motion For Summary

Judgment (DE 53) be and the same is hereby GRANTED;

2. Defendant Miami Beach Fraternal Order Of Police, William

Nichols Lodge No. 8’s Motion For Final Summary Judgment (DE 54) be

and the same is hereby GRANTED; and

3. Pursuant to Rules 56 and 58, Final Judgment shall be

entered by separate Order.

DONE AND ORDERED in Chambers at Fort Lauderdale, Broward

County, Florida, this 30th day of September, 2013.

WILLIAM J. ZLOCH United States District Judge

Copies furnished:

All Counsel of Record


order granting summary judgment - cardelle v. city of miami beach fop

Documents

city of miami beach

police officers

plaintiffs responses

police trainees

william nichols lodge

support of motion

final summary judgment

defendants basedon