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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 16-17251 ________________________
D.C. Docket No. 3:15-cv-00632-BJD-MCR
BILL NANJI VIRA,
Plaintiff - Appellant,
versus
CROWLEY LINER SERVICES, INC., a foreign profit corporation, CROWLEY MARITIME CORPORATION, a foreign profit corporation,
Defendants - Appellees. ________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(February 2, 2018)
Before: WILLIAM PRYOR, JILL PRYOR and CLEVENGER,* Circuit Judges.
CLEVENGER, Circuit Judge:
_________________ *Honorable Raymond C. Clevenger III, United States Circuit Judge for the Federal Circuit, sitting by designation. Case: 16-17251 Date Filed: 02/02/2018 Page: 2 of 15
Bill Vira appeals the order of the U.S. District Court for the Middle District
of Florida granting summary judgment on his age discrimination claim in violation
of the Age Discrimination in Employment Act (“ADEA”) 1 and Florida Civil
Rights Act (“FCRA”), 2 and retaliation and interference claims in violation of the
Family and Medical Leave Act (“FMLA”) 3 in favor of defendants, Crowley Liner
Services, Inc. and Crowley Maritime Corporation. The issue on appeal is whether
the district court erred by concluding defendants provided a sufficient legitimate
and nondiscriminatory reason for laying off Mr. Vira, and whether any genuine
issues of material fact remain. The district court did not err, and Mr. Vira’s
arguments on appeal do not show a genuine issue of material fact. Therefore, we
affirm the district court’s grant of summary judgment.
I. BACKGROUND
Crowley Maritime Corporation is a marine solutions, logistics, and
transportation company, which, through its subsidiary Crowley Liner Services
(herein “Crowley”), operates barges out of Jacksonville, Florida and throughout
the Caribbean. Bill Vira was an employee of Crowley for just over 12 years, until
he was laid off in December 2014. Throughout most of his employment, Mr. Vira
1 29 U.S.C. §§ 621-34. 2 Ch. 760, pt. I, Fla. Stat. 3 29 U.S.C. §§ 2601-54.
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worked as a maintenance supervisor on the night shift, and generally received
positive feedback.
In January 2014, he became the day-shift maintenance supervisor of
Crowley’s reefer4 department. Crowley interviewed another individual, Ezra Clark,
to take over Mr. Vira’s prior night shift position, but instead hired him for another
management position. Mr. Clark and Mr. Vira each reported to Tracy Odom, one
of Crowley’s Directors, who in turn reported to Maureen Cunningham.
One of Mr. Vira’s job responsibilities as a day-shift supervisor was
maintenance of barge power packs. In early August 2014, Mr. Vira called Mr.
Odom to inform him of a double power pack failure on a barge, and that he could
not travel to the barge to fix the problem because of his fear of water. Mr. Odom
went to the barge himself, and reported the incident to Ms. Cunningham. Two
weeks later, Mr. Odom transferred responsibility of the power packs to Mr. Clark.
Later that month, Mr. Vira began experiencing heart problems, and took
leave from Crowley, as authorized by the Family and Medical Leave Act. Before
returning to work in September, Mr. Vira contacted Crowley’s third-party
administrator requesting additional FMLA leave through October 26, 2014. When
he returned to work on September 19, 2014, he told Mr. Odom he would need
4 Reefers are refrigerated container units that may be transported.
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additional time off for therapy, to which Mr. Odom replied “[t]hat’s fine. . . that
was okay.”
On September 30, 2014, Crowley announced a company-wide layoff in
order to improve financial performance. The following day, Mr. Vira was informed
that he was one of approximately one-hundred employees to be laid off. Ms.
Cunningham had met with Mr. Odom prior to the announcement to explain why
Mr. Vira was chosen, and that Mr. Clark would take over Mr. Vira’s job
responsibilities. According to Mr. Odom’s deposition testimony, Ms. Cunningham
stated she saw an upswing in Mr. Clark’s performance, was impressed by his cost-
saving initiatives, wanted a manager in charge of the reefer yard, and having Mr.
Clark take over Mr. Vira’s responsibilities would cut costs. There is no evidence
the two discussed Mr. Vira’s medical condition. Ms. Cunningham has since
deceased, and was unavailable to testify.
Despite being laid off, Mr. Vira continued working until December 17, 2014
in order to receive a work-completion bonus, and used accrued time off until the
end of the year. When Mr. Vira left, Mr. Clark assumed Mr. Vira’s job
responsibilities. Mr. Vira was 64 at the time, and Mr. Clark was under 40. Mr.
Clark had never taken FMLA leave, and although he had less experience, his salary
was higher.
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After being laid off, Mr. Vira filed suit against Crowley, alleging race and
national origin discrimination, age discrimination, disability discrimination, and
FMLA retaliation and interference. Crowley moved for summary judgment on all
of Mr. Vira’s claims, and the district court entered an Order Granting Summary
Judgment on all counts. He appeals only the portions of the order related to his age
discrimination, FMLA retaliation and FMLA interference claims.
In its order, the district court examined the age discrimination and FMLA
retaliation claims under the McDonnell Douglas 5 burden-shifting framework, and
found that Mr. Vira proved a prima facie case for each claim. However, the district
court found Crowley rebutted the inference of discrimination and retaliation by
providing a legitimate and non-discriminatory reason for his termination – to
reduce costs and increase profitability. The district court then granted summary
judgment because Mr. Vira failed to provide any comparative evidence that the
legitimate reasons given were pretext for discrimination and retaliation. The
district court also found that Mr. Vira failed to show causation for his FMLA
interference claim, and granted summary judgment accordingly.
II. STANDARD OF REVIEW
Grants of summary judgment are reviewed de novo, viewing all facts and
reasonable inferences in the light most favorable to the nonmoving party. Allison v.
5 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
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McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir. 1999). A grant of summary
judgment is appropriate “if the movant shows that 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). “If the record presents factual issues, the court must not decide
them; it must deny the motion and proceed to trial.” Clemons v. Dougherty Cty.,
Ga., 684 F.2d 1365, 1369 (11th Cir. 1982). Admissions of evidence by the district
court are reviewed under the abuse of discretion standard. United States v. Reid, 69
F.3d 1109, 1114 (11th Cir. 1995).
III. DISCUSSION
A. The District Court Properly Granted Summary Judgment for the Age Discrimination and FMLA Retaliation Claims.
This circuit applies the McDonnell Douglas burden-shifting framework to
claims of age discrimination and FMLA retaliation. See Kragor v. Takeda Pharm.
Am., Inc., 702 F.3d 1304, 1308 (11th Cir. 2012) (age discrimination); Hurlbert v.
St. Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1297 (11th Cir. 2006) (FMLA
retaliation). Under the McDonnell Douglas framework, the plaintiff must first offer
evidence sufficient to establish a prima facie case of discrimination and/or
retaliation. Kragor, 702 F.3d at 1308. Once a prima facie case is made, the burden
shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the
adverse employment action. Id. If the employer meets its burden, the plaintiff must
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then show that the employer’s stated reason is pretext for discrimination and/or
retaliation. Id.
We begin by examining the prima facie cases of age discrimination and
FMLA retaliation. To establish a prima facie case of age discrimination, a plaintiff
must show: (1) that he or she was a member of a protected group of persons
between the ages of forty and seventy; (2) that he or she was subject to an adverse
employment action; (3) that a substantially younger person filled the position from
which he or she was discharged; and (4) that he was qualified to do the job that he
or she was discharged from. Id. The district court properly concluded that
Appellant established a prima facie case because he was (1) 64 years old; (2) at the
time he was laid off; (3) where he was replaced by another employee under the age
of 40; (4) despite the fact that he was qualified for his job. 6
The district court also properly found a prima facie case of FMLA
retaliation. To succeed on a retaliation claim, the plaintiff “must show that his
employer intentionally discriminated against him for exercising an FMLA right.”
Martin v. Brevard Cty. Pub. Sch., 543 F.3d 1261, 1267 (11th Cir. 2008) (emphasis
omitted). Without direct evidence of retaliatory intent, “an employee claiming
FMLA retaliation must show that (1) he engaged in a statutorily protected activity,
(2) he suffered an adverse employment decision, and (3) the decision was causally 6 Crowley argued for the first time on appeal that Mr. Vira was unqualified for his job, but the district court was explicit: “Defendant does not dispute that Plaintiff was qualified for his supervisor position.”
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related to the protected activity.” Id. at 1268. Neither party disputes the first two
prongs, or the facts underlying the third prong. The only dispute remaining is
whether those facts constitute a sufficient causal link between Mr. Vira taking
FMLA leave and his termination.
To prove the decision was causally related to the protected activity at the
prima facie stage, the plaintiff may rely on a close temporal proximity between the
two events. Hurlbert, 439 F.3d at 1298. While a few days is sufficient for a causal
connection, id., a few months is not. Brisk v. Shoreline Found., Inc., 654 F. App'x
415, 416 (11th Cir. 2016) (citing Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268,
273 (2001)). Appellant claims that no more than 8 days after he returned from
FMLA leave, Crowley decided to fire him. He was informed of that decision 13
days after he returned from FMLA leave. Whether 8 or 13 days, the timing
between the two events suggests a causal relationship sufficient to establish a
prima facie case of FMLA retaliation.
Upon establishing a prima facie case of discrimination and retaliation, the
burden of production shifts to the defendant to provide a legitimate and
nondiscriminatory reason for the adverse employment action. Kragor, 702 F.3d at
1308; Sims v. MVM, Inc., 704 F.3d 1327, 1333 (11th Cir. 2013). Crowley provided
its layoff – otherwise known as a reduction-in-force (herein “RIF”) – plus Ms.
Cunningham’s statements explaining why Mr. Vira was included in the layoff as
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its legitimate and nondiscriminatory reason. Appellant argues that Ms.
Cunningham’s statements are inadmissible hearsay, however, and the only
admissible evidence Crowley has is its RIF. Appellant believes that a gap exists in
the case law, that this Court has suggested defendants cannot rely solely on the
economic benefits of a RIF, such as reduced costs to increase profitability, without
a particular reason for including the plaintiff in the RIF, and that we should now
explicitly require defendants to provide such a “plus factor” in addition to the
generalized benefits of a RIF.
It is true that this Court has looked for “plus factors” in combination with a
RIF to determine whether a particular decision to terminate an employee was
nondiscriminatory or nonretaliatory. See Tidwell v. Carter Prods., 135 F.3d 1422,
1426 (11th Cir. 1998) (stating that offering a RIF as a legitimate,
nondiscriminatory reason “eliminat[es] the presumption of discrimination,” while
noting other evidence presented at trial showed the RIF was nondiscriminatory);
see also Padilla v. N. Broward Hosp. Dist., 270 F. App’x. 966, 971-72 (11th Cir.
2008) (finding a RIF plus legitimate, subjective considerations of the
decisionmaker constituted a nondiscriminatory reason); Tran v. Boeing Co., 190 F.
App’x 929, 933 (11th Cir. 2006) (per curiam) (finding that a RIF plus
individualized evaluations that suggested plaintiff was the “least able to perform
the work that would remain after the RIF” constituted a legitimate and
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nondiscriminatory reason); Earley v. Champion Int’l Corp., 907 F.2d 1077, 1084
n.5 (11th Cir. 1990) (finding a RIF plus evidence of an employee’s poor
performance constituted a nondiscriminatory reason). But we do not need to reach
whether a RIF alone is sufficient for a defendant to meet its burden, because
defendants here provided a “plus factor” – Ms. Cunningham’s statements
explaining why Mr. Vira was included in the RIF.
Ms. Cunningham’s statements are properly in the record in this case,
because those statements are not hearsay, or fall within a hearsay exception.
Hearsay is an out-of-court statement offered to prove the truth of the matter
asserted. Macuba v. Deboer, 193 F.3d 1316, 1322 n. 11 (11th Cir. 1999). “The
general rule is that inadmissible hearsay cannot be considered on a motion for
summary judgment.” Id. at 1322 (footnote and citation omitted). Some of Ms.
Cunningham’s statements – that she believed Mr. Clark was more dynamic and
cost-saving – are not hearsay, because they are not being offered to prove the truth
of those assertions. The remaining statements – that she claimed Mr. Vira’s layoff
was a “financial” decision and that she preferred a manager in that position – are
hearsay, but fall within an exception.
A statement that would otherwise be hearsay may nonetheless be admitted if
it is “[a] statement of the declarant’s then-existing state of mind. . . .” Fed. R. Evid.
803(3). Ms. Cunningham’s statements that she chose to lay off Mr. Vira for
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“financial” and staffing reasons are just that – statements regarding her state of
mind when she selected Mr. Vira for the layoff. Appellant argues “then-existing”
requires the statements to be made the moment Ms. Cunningham first decided to
lay off Mr. Vira, rather than several days later in a conversation with Mr. Odom.
However, a declarant may hold a state of mind over a period of time. A
declarant’s statement about his or her continuous state of mind is not hearsay, but a
declarant’s statement of a past memory or belief offered to prove the fact
remembered or believed is hearsay. See e.g. United States v. Cardascia, 951 F.2d
474, 488 (2d Cir. 1991) (noting that an individual may hold a continuous state of
mind that falls within the hearsay exception, while a statement of a past memory or
belief must be excluded as hearsay); see also United States v. Veltmann, 6 F.3d
1483, 1494 (11th Cir. 1993) (admitting prior suicidal statements of a victim to
show her state of mind, even though they were made several months before her
suicide). Ms. Cunningham statements to Mr. Odom occurred after Appellant
alleges she decided to lay off Mr. Vira, but before the layoffs were announced.
Without any evidence indicating she changed her mind, she maintained a
continuous state of mind for the purposes of hearsay at least until Mr. Vira was
notified. Thus, the district court was not required to exclude those statements,
which explain why Mr. Vira was chosen to be laid off in the RIF.
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Once a defendant provides a legitimate and nondiscriminatory reason for the
adverse employment action, the burden falls back to the plaintiff to prove those
reasons were pretext for discrimination and/or retaliation. Kragor, 702 F.3d at
1308. In order to show pretext, the plaintiff must show both that the employer’s
explanation was false, and that discrimination was the real reason for his
decision. Brooks v. Cty. Comm’n of Jefferson Cty., Ala., 446 F.3d 1160, 1163 (11th
Cir. 2006). The district court found that Mr. Vira could not show pretext because
he did not provide any comparator evidence, 7 and Appellant does not challenge
this finding on appeal. Instead, Appellant offers several arguments to support his
claim of pretext: (1) that Crowley deviated from its standard procedures by not
documenting its reasons for including him in the RIF; (2) that he was not fired for
financial reasons because his replacement had a higher salary; (3) that Mr. Odom
provided shifting reasons for firing Mr. Vira – first claiming it was financial, then
suggesting Ms. Cunningham wanted a manager in his position; and (4) that Mr.
Vira had a record of good performance. However, none of these arguments involve
a genuine issue of material fact, and none establish that Crowley’s legitimate and
nondiscriminatory reasons in fact are pretext for discrimination or retaliation.
7 A plaintiff may show pretext many ways, including showing that a similarly situated individual was treated differently than the plaintiff under similar circumstances. See Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1277 (11th Cir. 2008) (discussing the use of comparator evidence in the pretext analysis); Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554, 1563 n. 20 (11th Cir. 1987) (noting that comparator evidence may be used to show pretext). 12 Case: 16-17251 Date Filed: 02/02/2018 Page: 13 of 15
Appellant cites the fact that Crowley did not record the reason for including
Mr. Vira in the layoff, which is inconsistent with corporate policy, as evidence of
pretext. The written corporate policy, however, requires only “[a] record of
employees on layoff [be] maintained by the Human Resources Department,” and
does not require recording particularized reasons for each individual to be laid off.
The speculative deposition testimony of the company’s regional human resources
manager – believing managers would record the reasons why they would select
someone for layoff – does not create a genuine issue of material fact as to whether
Crowley acted inconsistently with its policy, because Crowley acted in accordance
with its written policy.
Appellant’s argument that Ms. Cunningham’s decision cannot be financial
because Mr. Clark earned more money than Mr. Vira also does not indicate
pretext. Mr. Clark was already an employee of Crowley at the time of the layoffs,
and the layoff resulted in Crowley paying one salary, instead of two.
The fact that Mr. Odom provided two different reasons for Mr. Vira’s layoff
– that it was financial, and that Ms. Cunningham wanted a manager in that position
– does not show pretext, either. Contrary to Appellant’s assertions, the two reasons
do not contradict one another, but rather support each other. See Tidwell, 135 F.3d
at 1428 (stating that when an employer provides additional, previously undisclosed
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reasons, such as performance issues, for laying off an employee, that does not
prove pretext).
Finally, the fact that Mr. Vira was laid off despite receiving numerous
positive performance reviews, alone does not constitute pretext. Cost generally
motivates layoffs, exposing even well-regarded employees to the risk of being laid
off. Without any evidence supporting pretext, the district court properly granted
summary judgment on Mr. Vira’s age discrimination and FMLA retaliation claims
in favor of Crowley.
B. The District Court Properly Granted Summary Judgment for the FMLA Interference Claim.
To establish a claim of FMLA interference, “an employee need only
demonstrate by a preponderance of the evidence that he was entitled to the benefit
denied.” Strickland v. Water Works & Sewer Bd. of Birmingham, 239 F.3d 1199,
1206–07 (11th Cir. 2001). The employer’s intent or motives are irrelevant to the
analysis, id. at 1208, but the plaintiff’s request must have been the proximate cause
of the termination. Schaaf v. Smithkline Beecham Corp., 602 F.3d 1236, 1242
(11th Cir. 2010). A district court may grant summary judgment against a FMLA
interference claim if it is undisputed that the employer would have terminated the
employee regardless. See Krutzig v. Pulte Home Corp., 602 F.3d 1231, 1236 (11th
Cir. 2010) (“[A]n employee can be dismissed, preventing her from exercising her
right to commence FMLA leave, without hereby violating the FMLA, if the 14 Case: 16-17251 Date Filed: 02/02/2018 Page: 15 of 15
employee would have been dismissed regardless of any request for FMLA leave.”).
Here, the district court found that Mr. Vira failed to provide any evidence that his
FMLA request was the proximate cause of his termination, and that the record
evidence demonstrates his layoff was financially-motivated and unrelated to his
use of FMLA leave. In response, Appellant offers only the temporal relationship
between the FMLA leave and his termination as evidence of causation, but this
does not raise a genuine issue of material fact. Therefore, summary judgment was
proper.
IV. CONCLUSION
We AFFIRM the district court’s order of summary judgment.