WALTER DAMON, RICHARD KANAFANI, Plaintiffs-Appellants, versus FLEMING SUPERMARKETS OF FLORIDA, INC., f.d.b.a. Wooley‘s Fine Foods, etc., Defendant-Appellee.
No. 98-5554
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
(December 3, 1999)
D. C. Docket No. 1:97-CV-230
Appeal from the United States District Court for the Southern District of Florida
Before EDMONDSON and MARCUS, Circuit Judges, and ALARCON*, Senior Circuit Judge.
MARCUS, Circuit Judge:
*Honorable Arthur L. Alarcon, Senior U.S. Circuit Judge for the Ninth Circuit, sitting by designation.
I.
We review a district court‘s order granting summary judgment de novo. Browning v. AT&T Paradyne, 120 F.3d 222 (11th Cir. 1997). Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See
II.
The facts presented are reasonably straightforward. Fleming, a nationwide supermarket chain, acquired twenty South Florida supermarket stores in September 1993 from Pantry Pride (d/b/a Wooley‘s Fine Foods). It immediately installed Harry Soto as district manager of seven of the stores. At the time, Appellants Walter Damon and Richard Kanafani were store managers at two of the stores acquired by Fleming. Each of their stores was placed under the direct supervision of Soto. The undisputed evidence demonstrates that, within a period of slightly over one year after assuming the position of district manager, Soto terminated or demoted five older, more experienced managers, including Damon and Kanafani, and replaced them with men who were younger and less experienced. The older managers were all over forty, and the younger managers were all under forty. Soto himself acknowledged that this pattern occurred. No evidence was presented by Fleming that any younger managers were terminated by Soto while he was district
III.
In its September 16, 1998 summary judgment order, the district court made several pertinent conclusions of law. First, the district court reasoned that Appellants had not established all the elements of a prima facie case of age discrimination. Specifically, the district court found that Damon and Kanafani neither established that they were qualified for their positions under the McDonnell Douglas rubric nor proffered direct evidence of discrimination by Fleming. The district court also suggested in dicta that Kanafani had failed to establish that he was replaced by someone substantially younger because, at the time of his termination, Kanafani was forty-two and his replacement was thirty-seven. Finally, the district court concluded that Appellants did not establish that the nondiscriminatory reasons Fleming offered for the terminations were a pretext for age discrimination. We discuss each conclusion in turn.
A. Prima Facie Case
In proving an age discrimination claim, a plaintiff can establish a prima facie case of discrimination through either direct evidence of discrimination or a variation of the four-part test outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) for circumstantial evidence. See Carter v. City of Miami, 870 F.2d 578, 581 (11th Cir. 1989). Appellants’ claims rely on both methods.
1. Direct Evidence of Discrimination
We agree with the district court that neither plaintiff has presented direct evidence of age discrimination. We have defined direct evidence of discrimination as evidence which reflects “a discriminatory or retaliatory attitude correlating to the discrimination or retaliation complained of by the employee.” Carter v. Three Springs Residential Treatment, 132 F.3d 635, 641 (11th Cir. 1998) (quoting Caban-Wheeler v. Elsea, 904 F.2d 1549, 1555 (11th Cir. 1990)). In other words, the evidence must indicate that the complained-of employment decision was motivated by the decision-maker‘s ageism. As a result, “only the most blatant remarks, whose intent could be nothing other than to discriminate on the basis of age” will constitute direct evidence of discrimination. Earley v. Champion Int‘l Corp., 907 F.2d 1077, 1081-82 (11th Cir. 1990) (citations and quotations omitted); see also City of Miami, 870 F.2d at 582. An example of “direct evidence would be a management memorandum saying, ‘Fire Earley--he is too old.‘” Earley, 907 F.2d at 1082. No evidence presented by Appellants meets this rigorous standard.
2. Circumstantial Evidence of Discrimination
In evaluating age discrimination claims based on circumstantial evidence, we require a plaintiff to initially satisfy a four-part prima facie requirement: (1) that she was a member of the protected group of persons between the ages of forty and seventy; (2) that she was subject to adverse employment action; (3) that a substantially younger person filled the position that she sought or from which she was discharged; and (4) that she was qualified to do the job for which she was rejected. See Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1432 (11th Cir. 1998) (citations omitted).
We conclude that both Appellants established prima facie cases of age discrimination. First, there is no dispute that Appellants satisfied the first two requirements. Both Appellants are members of the protected group and were
Finally, we conclude that Kanafani and Damon were “qualified” for their respective positions, satisfying the fourth and final prima facie requirement. In age discrimination cases, our court focuses on a plaintiff‘s “skills and background to determine if they were qualified for a particular position.” Clark v. Coats & Clark, 990 F.2d 1217, 1227 (11th Cir. 1993). Our precedent holds that if a plaintiff has enjoyed a long tenure at a certain position, we can infer that he or she
In finding the Appellants unqualified, the district court incorrectly considered Fleming‘s allegations of Appellants’ poor performance. Our caselaw quite clearly instructs that plaintiffs, who have been discharged from a previously held position, do not need to satisfy the McDonnell Douglas prong “requiring proof of qualification.” Young v. General Foods Corp., 840 F.2d 825, 830 n.3 (11th Cir. 1988) (quoting Rosenfeld v. Wellington Leisure Products, Inc., 827 F.2d 1493, 1495 n.2 (11th Cir. 1987)). We have explained that the “reason for this
B. Pretext
Having concluded that Appellants met their prima facie burdens, we turn to the remaining issue of pretext. Once a prima facie case is established, a defendant must proffer legitimate, nondiscriminatory reasons for its employment decision. If such reasons are identified, a plaintiff then bears the ultimate burden of proving
First, circumstantial evidence was presented of Soto‘s discriminatory animus towards older store managers under his direct supervision. Within a one-year period, four older, highly experienced store managers, out of a total of seven managers under Soto‘s direct supervision, were terminated or demoted, and each was replaced by an employee under forty years old. In addition, Soto also terminated a highly experienced, older assistant store manager, during this time period, and replaced him with an employee under forty years old. As Soto conceded, “[I]t certainly turns out that what has occurred is that older managers were either fired or demoted and replaced by younger people,” and that “in every instance ... the older store managers had more years of experience than the people that replaced them.” While not direct evidence of discriminatory animus, we believe that this pattern of firing and demoting so many older workers and replacing them with younger workers, by the relevant decision-maker during the same time period, constitutes probative circumstantial evidence of age discrimination. See Stamey v. Southern Bell Telephone & Telegraph Co., 859 F.2d 855, 862 (11th Cir. 1988). Moreover, the probative value of this pattern was underscored by direct testimony. Kanafani testified that, in January 1994, Fleming began placing advertisements for new store managers even though there were no managerial vacancies at the time. According to Kanafani, Harry Soto then began interviewing younger managerial candidates at Kanafani‘s store. Several of these candidates were later hired by Soto to replace Kanafani and the other older managers. Record evidence also reveals that shortly thereafter, older managers with good employment histories, under Soto‘s direct supervision, began receiving written reprimands for “poor store conditions” or “poor sales.” Three former managers of Fleming, in addition to Damon, averred that they were demoted or terminated by Soto, after receiving written reprimands for “poor store conditions,” “poor performance,” or “poor sales,” and replaced by a substantially younger manager. Each former manager also disputed the veracity of their reprimands.
Second, Soto‘s remark to Kanafani‘s younger successor, D‘Angelo, right after Kanafani was terminated, that Soto wanted “aggressive, young men” like himself to be promoted is highly suggestive circumstantial evidence from which a jury could infer discriminatory animus.2 Far from being a stray remark, the
Q. [Plaintiff‘s Attorney]: Did you ever have a one-on-one conversation with Harry Soto where Mr. Soto told you that what the company needed was aggressive young men like yourself to be promoted.
A. [D‘Angelo]: Yes.
Q. Why don‘t you tell me how this conversation went?
A. This was right after Rick [Kanafani] was terminated and Harry had brought me up to the main office to explain to me that he had terminated Rick, and that the company was going in a new direction, and we had to hold onto our pants, was like the catch phrase at the time. Things were moving fast.
Q. That‘s when he told you that the company needed aggressive young men like yourself?
A. He included me in -- I can‘t remember the exact word he used, but he included me in that mix, because I was in charge of the store for a week and a half until Tony Calaverio came in.
Q. But he did tell you that the company needed aggressive young men?
A. I can‘t recall that. I really can‘t.
Attorney: Could you read back to me my question?
(Thereupon, a portion of the record was read by the reporter as follows: Question: Did you ever have a one-on-one conversation with Harry Soto where Mr. Soto told you that what the company needed was aggressive young men like yourself to be promoted.
Answer. Yes.)
Q. Is that what happened?
[Objection to form]
A. Yes.
...
Q. [Defendant‘s Attorney]:. Do you have a recollection that these following words came out of Harry Soto, Harry Soto said the following words: We need aggressive young men like yourself? Do you have the recollection that he said that to you?
...
A. [D‘Angelo]: It was something similar to that. It could be a paraphrase, so I know aggressive was in there. He used me--I guess it was a motivational tool.
Q. Did he say the word ‘young‘?
A. That, I can‘t recall.
Q. But you can recall that he said aggressive?
A. Aggressive, yes, yes, aggressive.
Q. And he included yourself?
A. Yes.
Q. But you‘re not sure if he said young?
A. I‘m not sure about that.
We are satisfied that a jury should weigh the credibility of this circumstantial evidence. See Walker v. Nationsbank, 53 F.3d 1548, 1563 (11th Cir. 1985) (Johnson, J. specially concurring)( noting that “the factfinder must evaluate the credibility of the witnesses and the weight of the evidence. This task is peculiarly the province of the jury.“) (citing Castle v. Sangamo Weston, Inc., 837 F.2d 1550, 1559 (11th Cir. 1988)); see also Combs, 106 F.3d at 1530 (stating, in the summary judgment context, that “[i]ssues of fact and sufficiency of evidence are properly reserved for the jury“) (citation omitted).
In addition to this circumstantial evidence, we conclude that Appellants have offered evidentiary support by which a reasonable jury could conclude that the specific reasons for termination given by Fleming were a pretext. Appellants both
With respect to Damon, Fleming contends that Damon was fired for poor performance; specifically, that over a six month period his store was cited by Fleming management on four separate occasions for “poor conditions.” Damon flatly denies these allegations, and has adduced sufficient evidence to create a genuine dispute of material fact as to his job performance.
On May 30, 1994, during Memorial Day Weekend, Mel Beech, Fleming‘s Vice President of Store Operations and Soto‘s direct supervisor, visited Damon‘s store. On June 9, 1994, ten days after this visit, Damon received a written
Based on the totality of this evidence, the age-based comment allegedly made by Soto to Kanafani‘s replacement, and Soto‘s purported pattern of demoting and firing numerous older managers in favor of younger replacements, we conclude that Damon has introduced sufficient evidence to avoid summary judgment on his age discrimination claim.
We draw a similar conclusion with respect to Kanafani‘s claim. The sole reason advanced by Soto, the actual decision-maker, for Kanafani‘s termination is a yelling incident involving Kanafani and his seafood department manager on October 1, 1994.6 Dennis D‘Angelo, Kanafani‘s replacement, also testified that
Q. What was the basis for his [Kanafani‘s] termination?
A. Using profanity on the sales floor where the customers were out in the open.
.
.
.
Q. Was he terminated because of poor store conditions or was he terminated because of using vulgarity on the sales floor in front of customers?
A. He was terminated for using vulgarity on the sales floor in front of customers.
Q. No other reason?
A. That was the reason for the termination.
.
.
.
Q. So again, the only reason he was terminated was for using vulgarity on the sales floor, correct?
A. That is correct.
Moreover, Dennis D‘Angelo, Kanafani‘s replacement, also testified that Soto told him that Kanafani was fired solely because of the yelling incident. Based on the repeated statements by Soto during his deposition that he fired Kanafani solely for the yelling incident (as well as D‘Angelo‘s corroboration of Soto‘s termination motive), we find that a jury could infer that the “inconsistencies” between Soto‘s deposition and affidavit may be evidence of pretext. See Tidwell v. Carter Products, 135 F.3d 1422, 1427-28 (11th Cir. 1998) (citing Bechtel Construction Co. v. Secr. of Labor, 50 F.3d 926 (11th Cir. 1995); Howard v. BP Oil Co., Inc., 32 F.3d 520, 525 (11th Cir. 1994)). Furthermore, Kanafani has produced sufficient evidence to create genuine issues of material fact as to his previous reprimands from Soto. Kanafani received three reprimands prior to the yelling incident for “poor sales,” “poor store conditions,” and an altercation with a beer vendor respectively. First, Kanafani testified that his store had become more profitable since he became store manager, creating a genuine issue of material fact as to the first reprimand. Second, while Kanafani received a reprimand for “poor store conditions” during the busy Memorial Day Holiday Weekend, Fleming does not directly proffer this reprimand as a basis for Kanafani‘s termination. Even if this reprimand were cited as a termination factor, we believe Kanafani has presented sufficient evidence that the reprimand was a pretext. During Memorial Day weekend, Kanafani was on vacation, and not in charge of the store. Julio Nunez, a younger assistant manager at the time, actually was acting store manager for the weekend.
In addition, Kanafani also presented evidence which, if credited, could convince a jury that the incident was a pretext for his termination. Kanafani‘s replacement, Dennis D‘Angelo, testified that he had observed members of Fleming management, including Soto himself, yell at employees in front of store customers. Soto admitted to yelling at employees with profane language, but claimed these
In short, we find that the circumstantial evidence presented by Damon and Kanafani, taken as a whole, is sufficient to make a prima facie showing of age discrimination, and to rebut the nondiscriminatory reasons proffered by Fleming for their terminations. Material facts remain in dispute, precluding summary judgment. Accordingly, we reverse the district court‘s order of summary judgment and remand the case for further proceedings consistent with this opinion.
REVERSED and REMANDED.