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Wheat v. Rogers & Willard, Inc.

United States District Court, S.D. Alabama, Southern Division

September 26, 2017

RALPH WHEAT, Plaintiff,
ROGERS & WILLARD, INC., Defendant.



         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.


         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”).


         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., 929 F.2d 604, 608 (11th Cir. 1991). The moving party may meet its burden in either of two ways: (1) by “negating an element of the non-moving party's claim”; or (2) by “point[ing] to materials on file that demonstrate that the party bearing the burden of proof at trial will not be able to meet that burden.” Id. “Even after Celotex it is never enough simply to state that the non-moving party cannot meet its burden at trial.” Id.; accord Mullins v. Crowell, 228 F.3d 1305, 1313 (11th Cir. 2000); Sammons v. Taylor, 967 F.2d 1533, 1538 (11th Cir. 1992).

         “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, 2 F.3d 1112, 1116 (11th Cir. 1993); accord Mullins, 228 F.3d at 1313; Clark, 929 F.2d at 608.

         “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, 2 F.3d at 1116. “If the nonmoving party fails to make ‘a sufficient showing on an essential element of her case with respect to which she has the burden of proof, ' the moving party is entitled to summary judgment.” Clark, 929 F.2d at 608 (quoting Celotex Corp. v. Catrett, 477 U.S. 317 (1986)) (footnote omitted); see also Fed. R. Civ. P. 56(e)(2) (“If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may … consider the fact undisputed for purposes of the motion ….”).

         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 Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003). “Therefore, the plaintiff's version of the facts (to the extent supported by the record) controls, though that version can be supplemented by additional material cited by the defendants and not in tension with the plaintiff's version.” Rachel v. City of Mobile, 112 F.Supp.3d 1263, 1274 (S.D. Ala. 2015), aff'd, 633 Fed.Appx. 784 (11th Cir. 2016).

         There is no burden on the Court to identify unreferenced evidence supporting a party's position.[1] Accordingly, the Court limits its review to the exhibits, and to the specific portions of the exhibits, to which the parties have expressly cited. Likewise, “[t]here is no burden upon the district court to distill every potential argument that could be made based upon the materials before it on summary judgment.” Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995); accord Gennusa v. Canova, 748 F.3d 1103, 1116 (11th Cir. 2014). The Court accordingly limits its review to those arguments the parties have expressly advanced.

         “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., 597 F.3d 1201, 1204 (11th Cir. 2010) (internal quotes omitted). The defendant argues the plaintiff cannot succeed under either approach; the plaintiff says he can succeed under both methods. The Court agrees with the plaintiff as to the former and therefore does not reach the latter.

         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 bringing in new bloo[d]”;
• Three bullet points later, Rogers wrote, “Older Guys - Ralph & Jerry - 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, 256 F.3d 1095, 1105 (11thCir. 2001) (internal quotes omitted). The defendant acknowledges that Rogers was a decisionmaker regarding the plaintiff's termination. (Doc. 29 at 12).

         “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., 161 F.3d 1318, 1330 (11th Cir. 1998). “Only the most blatant remarks, whose intent could be nothing other than to discriminate on the basis of age, … constitute direct evidence of discrimination.” Van Voorhis v. Hillsborough County Board of County Commissioners, 512 F.3d 1296, 1300 (11th Cir. ...

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