This matter is before the Court on the defendant’s motion for summary judgment. (Doc. 28). The parties have filed briefs and evidentiary materials in support of their respective positions, (Docs. 29, 30, 36, 38, 39, 45), and the motion is ripe for resolution. After careful consideration, the Court concludes that the. motion is due to be denied.
BACKGROUND
According to the complaint, (Doc. 1), the plaintiff was employed by the defendant as a project manager/estimator until he was terminated at the age of 77. The single claim presented by the plaintiff is that he was terminated on the basis of his age in violation of the Age Discrimination in Employment Act (“ADEA”).
DISCUSSION
Summary judgment should be granted only if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The party seeking summary judgment bears “the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial.” Clark v. Coats & Clark, Inc.,
“If the party moving for summary judgment fails to discharge the initial burden, then the motion must be denied and the court need not consider what, if any, showing the non-movant has made.” Fitzpatrick v. City of Atlanta,
“If, however, the movant carries the initial summary judgment burden ..., the responsibility then devolves upon the non-movant to show the existence of a genuine issue of material fact.” Fitzpatrick,
In deciding a motion for summary judgment, “[t]he evidence, and all reasonable inferences, must be viewed in the light most favorable to the nonmovant .... ” McCormick v. City of Font Lauderdale,
There is no burden on the Court to identify unreferenced evidence supporting a party’s position.
“A plaintiff in an ADEA claim may establish a claim of illegal age discrimination through either direct evidence or circumstantial evidence.” Mora v. Jackson Memorial Foundation, Inc.,
The parties agree that the plaintiff was terminated on May 2, 2014, when he was 77 years old, and that Mike Rogers and Steve Willard, the majority owners of the defendant, made' the termination decision. (Doc. 29 at 12; Doc. 36 at 7-8).
In May 2013, Rogers attended a conference. His notes from the conference dated May 29, 2013 include the following: .
• Immediately under the heading, “Attracting and Retaining employees,” Rogers wrote, “ ‘Fire all the old people.’ Fiat president”;
. • Next to . this statement, Rogers . wrote, “many large, companies bring- . jng in new bloo[d]”;
• Three bullet points later, Rogers wrote, “Older Guys — Ralph & Jer- - ry — Mentor to their-replacements— same with Diane”;
• Four bullet points later, Rogers wrote, “ ‘Paint’ a Vision of what company will look like in three years, i.e., new, younger employees ,..
(Doc. 39-2 at 3). The parties agree that “Ralph” is the plaintiff.
"For statements of discriminatory intent to constitute direct evidence of discrimination, 'they must be made by a person involved in the challenged decision.” Bass v. Board of County Commissioners,
“Direct evidence is evidence, that establishes the existence of discriminatory intent .behind the employment decision without any inference or presumption.” Standard v. A.B.E.L. Services, Inc.,
• Decisionmaker stated that “he did not want to interview [any-of the applicants] because he didn’t want to hire an old pilot”;2
• Decisionmaker stated that when the assistant manager’s position came open, “the company would be looking . for a. person younger than [the plaintiff] to fill it”;3
• Decisionmaker expressed surprise at ■longevity of staff members, indicated . the hospital needed “new blood” and that he intended to recruit younger doctors and nurses, and commented on the plaintiffs “advanced age”;4
• A hypothetical memorandum saying, “Fire Earley — he is too old.”5
The Eleventh Circuit has in addition repeatedly found direct evidence of race or gender discrimination in less precise statements. See, e.g., Haynes v. W.C. Caye & Co.,
The defendant offers three reasons that Rogers’ notes cannot constitute direct evidence of age discrimination in the plaintiffs termination: (1) the notes are too vague, in that they do not say, “Fire Ralph”; (2) Rogers offers an innocent explanation of those notes, which is controlling as to their meaning; and (3) the notes were written almost a year béfore the plaintiffs termination. (Doc. 45 at 14-15), None of these reasons withstand scrutiny.
As the examples cited above reflect, direct evidence is not limited to “fire [the plaintiff], he’s too old.” In any event, that is exactly what Rogers’ notes say: “Fire all the old people,” with the plaintiff identified as an “older guy.” To “fire all the old people” is to fire them precisely because they are old, and identifying the plaintiff as an “older guy” directly marks him for termination because of ’his age. There is not the slightest subtlety or ambiguity in this statement, and it falls easily within the “most blatant” of remarks.
The defendant offers Rogers’ affidavit for the proposition that he did not really mean what his notes say.. He did not really mean the defendant should “fire all the old people” but was only remembering what he had heard spoken in jest by the president of Fiat at an earlier conference. He did not really mean the defendant should “bring in new blood” but was only remembering what he had heard at the earlier conference. He did not really mean he intended to “replace” the plaintiff and other “older guys,” only that they should become mentors to younger project managers. And by expressing a three-year “vision”-of the defendant with “new, younger employees,” he did not mean that older employees should go, only that the defendant should anticipate and prepare for the future. (Doc. 29 at 15-16; Doe. 30-2 at 21-22), The defendant asserts that the. plaintiff “has no evidence to rebut” Rogers’ explanation of his notes and of his mental state regarding them. (Doc. 45 at 3). Thus, the defendant concludes, Rogers’ testimony “provides the true meaning of his notations, which Plaintiff cannot dispute.” (Id.; accord id. at 16).
“Direct evidence is evidence which, if believed, proves the existence of a fact without inference or presumption.” Scott v. Suncoast Beverage Sales, Ltd.,
Of course, “[i]n a direct evidence case, the plaintiff must produce direct testimony that the employer acted' with' discriminatory motive, and must'convince the trier of fact to. accept the testimony.” EEOC v. Alton Packaging Corp,
What the defendant suggests, however, is that Rogers’ spin on what he wrote prevents the plaintiff from ever reaching the jury on a direct evidence theory. The defendant is mistaken. Just as testimony that the defendant’s representative made a statement creates a fact issue for the jury even though the representative denies making the statement,
The defendant offers no legal authority ' for its position that it can obtain summary judgment simply by its decisionmaker’s assertion that he did not mean what he wrote — a position which, if accepted, would amount to an automatically successful “just kidding” defense. For reasons stated above, the Court rejects the defendant’s unsupported argument.
The defendant’s timing argument is foreclosed by Lindsey v. American Cast Iron Pipe Co.,
Although uncited by the defendant, the Court is aware of two unpublished appellate decisions that might draw the foregoing conclusion into question. “A biased statement, separate in time from the employment decision under challenge, is not direct evidence of discrimination.” Williamson v. Adventist System/Sunbelt, Inc.,
Jones and Williamson are unpublished. “Unpublished opinions are not controlling authority and are persuasive only insofar as their legal analysis warrants.” Rogers v. Secretary, Department of Corrections,
In light of Lindsey and other cases, Williamson's, declaration that only statements made “concurrently with the adverse employment event” may constitute direct evidence cannot be credited. As noted, the statement in Lindsey was uttered approximately 1½ years before the plaintiff was denied promotion. In Buckley v. Hospital Corp. of America,
The Williamson panel provided no rationale for its limitation of direct evidence to statements made contemporaneously with the challenged employment decision; instead, it simply cited to Damon v. Fleming Supermarkets, Inc.,
Williamson has not been cited in any Eleventh Circuit opinion, While a number of trial courts within the Circuit have cited and/or relied on Williamson, the Court’s review of them reveals no explanation of or support for- Williamson’s “concurrently with” restriction on direct evidence.
.While Jones also addresses the significance of timing in the determination whether a statement, constitutes direct evidence, it does so in less precise terras than Williamson. Under Jones, direct evidence “must directly relate in time ... to the adverse employment action at issue.”
But Jones appears to envision a more specific temporal connection with the adverse employment decision. Jones relied on Standard and Scott, citing Scott for the proposition that a statement made over two years before (not after) the adverse employment action was not direct evidence.
While Standard and Scott mention timing, neither decision depended on timing for its result. The Eleventh Circuit has recognized that, “when the employer ,.. makes a specific comment in'relation to a specific job or promotion, we believe that the value of that comment as direct evidence is limited to a challenge to that specific job or employment decision.” Burrell v. Board of Trustees,
It is thus not clear that any published Eleventh Circuit decision has ever' developed any temporal limitations on the use of direct evidence, and Lindsey, Buckley and Bell establish that, at least when (as here) the statement is sufficiently explicit and sufficiently tied to a particular employment decision, its staying power as direct evidence is measured in years. Neither Jones, the cases it cites nor the cases citing it offer any reason to believe otherwise.
“If the plaintiff offers direct,evidence and the trier of fact accepts that evidence, then the plaintiff has proven discrimination.” Maynard v. Board of Regents,
Because the plaintiffs direct evidence requires the denial of the defendant’s motion, the Court does not consider whether he could also avoid summary' judgment under a circumstantial evidence theory.
CONCLUSION
For the reasons set forth above, the defendant’s motion for summary judgment is denied.
DONE and ORDERED this 26th day of September, 2017.
Notes
. Fed. R. Civ. P. 56(c)(3) (“The court need consider only the cited materials, but it may consider other materials in the record.”); accord Adler v. Wal-Mart Stores, Inc.,
. Van Voorhis,
. Lindsey v. American Cast Iron Pipe Co.,
. Buckley v. Hospital Corp., of America,
. Earley v. Champion International Corp.,
. The Eleventh Circuit has employed the same analysis of direct evidence regardless of the protected category involved. Indeed, while Merritt involved direct evidence in a retaliation context, the panel relied on cases discussing direct evidence in the contexts of race, gender and age.
. The other statements in Rogers' notes may not independently constitute direct evidence, but they echo and bolster the discriminatory intent manifest in "fire all the old people.”
. E.g., Dixon v. Hallmark Cos.,
. Because Rogers’ notes say, "fire all the old people,” involuntary separations of other older employees are evidence the defendant acted on that basis and may serve to shorten the relevant time gap. It is uncontroverted that the defendant fired Lillian Dobbs and accepted the coerced resignation of Bill Dobbs (receptionist and superintendent, respectively) in 2013, after the May conference, and non-renewed Jerry Ingle (contractor project manager identified as one of the "older guys” in Rogers’ notes) in February 2014. The Dobbses were in their middle to late 60’s, and Ingle was 73. (Doc. 38-5 at 12-13; Doc. 38-10 at 21-22, 27, 36). There is thus evidence the defendant began "fir[ing] all the old people” no more than seven months after Rogers' notes. The defendant denies any age discrimination regarding these separations, but for present purposes the significant point is that the defendant began firing the old people within months after Rogers wrote his notes and that it continued doing so until it terminated the plaintiff.
. "The holding of a case comprises both the result of the case and those portions of the opinion necessary, to that result.” United States v. Caraballo-Martinez,
. The Eleventh Circuit identified the direct evidence as the new hospital administrator's comments about the staff’s longevity, his belief the hospital needed “new blood,” his intent to recruit younger doctors and nurses, and the plaintiff’s "advancing age.”
. Before the decisionmaker became the plaintiff’s supervisor in September 1980, he said that, if it were up to him, he would have no women employees; the plaintiff was constructively discharged in July 1982.
. In 1978 or 1979, the decisionmaker stated that the company had no blacks because "[h]alf of them weren’t worth a shit”; the plaintiff was denied recall between January and June 1980.
, This critique extends to the two previous opinions of this Court citing Williamson. See Bell v. Crowne Management, LLC,
. It appears that Jones understood Standard’s rule that statements constituting direct evidence must be ‘‘[r]elated to” the decision-making process,
. The plaintiff was terminated in late.December 1995.
. Standard was captured by this rule because the plaintiff attempted to extrapolate statements regarding hiring in one department to firing in another department.
.Scott involved a statement by the plaintiff’s co-worker (later his supervisor), during a discussion of the plaintiff's absence for jury duty, that "Well burn his black ass.”
. The defendant’s motion to strike, (Doc. 44), is denied as moot, since the Court has not considered the evidentiary materials made the subject of that motion.