Case: 19-15186 Date Filed: 09/11/2020 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-15186 Non-Argument Calendar ________________________
D.C. Docket No. 3:17-cv-00736-TJC-JBT
DAVID ADAMS, Plaintiff - Appellant, versus
JERRY HOLLAND, as property appraiser of Duval County, Florida, THE CONSOLIDATED CITY OF JACKSONVILLE, Defendants - Appellees.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(September 11, 2020)
Before WILSON, LUCK and BLACK, Circuit Judges.
PER CURIAM: Case: 19-15186 Date Filed: 09/11/2020 Page: 2 of 7
David Adams, a male over the age of 40 and former civil service employee
with the Duval County Property Appraiser’s Office (PAO), appeals the district
court’s grant of summary judgment in favor of the Consolidated City of
Jacksonville (the City) and Jerry Holland, as Property Appraiser of Duval County,
on claims brought pursuant to the Age Discrimination in Employment Act (ADEA)
and Florida Civil Rights Act of 1992 (FCRA). He also challenges the court’s
refusal to alter its ruling on his motion for reconsideration. Adams argues the court
erred in: (1) declining to apply the prima facie test for reduction-in-force (RIF)
cases and finding that he could not establish a prima facie case of age
discrimination, and (2) concluding that he failed to present evidence of pretext or
discriminatory intent sufficient to defeat a motion for summary judgment. After
review, 1 we affirm.
I. DISCUSSION
A. Prima Facie Case
Under the ADEA, it is unlawful for an employer to discharge any employee
who is at least 40 years old “because of such individual’s age.” 29 U.S.C.
1 We review the district court’s grant of summary judgment de novo, “viewing all the evidence, and drawing all reasonable inferences, in favor of the non-moving party.” Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 767 (11th Cir. 2005). Summary judgment is appropriate when the record shows “that there is no genuine issue as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). We review the denial of a post- judgment motion for reconsideration for an abuse of discretion. Holland v. Sec’y, Fla. Dep’t of Corr., 941 F.3d 1285, 1288 (11th Cir. 2019).
2 Case: 19-15186 Date Filed: 09/11/2020 Page: 3 of 7
§§ 623(a)(1), 631(a). Similarly, the FCRA makes it unlawful for an employer to
discharge an individual on the basis of age. Fla. Stat. § 760.10(1)(a). We analyze
age discrimination actions under the FCRA under the same framework as the
ADEA. See Mazzeo v. Color Resolutions Int’l, LLC, 746 F.3d 1264, 1266 (11th
Cir. 2014).
A plaintiff may prove an ADEA claim through direct or circumstantial
evidence. Id. at 1270. Where a claim is based on circumstantial evidence, we use
the burden-shifting framework established in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Id. Under this framework, the plaintiff must first establish a
prima facie case of discrimination. Id. This generally requires a plaintiff to show
that: (1) he was a member of the protected group of persons between the ages of 40
and 70; (2) he was subject to an adverse employment action; (3) a substantially
younger person filled the position that he sought or from which he was discharged;
and (4) he was qualified to do the job for which he was rejected. Damon v.
Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1359 (11th Cir. 1999). In a
RIF case, the test is modified, and a plaintiff must show that: (1) he was in the
protected age group and was subject to an adverse employment decision; (2) he
was qualified for his current position or to assume another position at the time of
discharge; and (3) “evidence by which a fact finder could reasonably conclude that
3 Case: 19-15186 Date Filed: 09/11/2020 Page: 4 of 7
the employer intended to discriminate on the basis of age” in reaching its decision.
Jameson v. Arrow Co., 75 F.3d 1528, 1532 (11th Cir. 1996).
The district court did not err in finding that Adams could not establish a
prima facie case of age discrimination under the ADEA. As an initial matter, the
court did not err in concluding that the modified prima facie test for RIF cases was
inapplicable because the City had not eliminated Adams’s position as a Property
Field Representative and had replaced him with another individual following his
termination. See Mazzeo, 746 F.3d at 1270-72 (concluding that modified test did
not apply where plaintiff’s position was not eliminated and another individual
replaced him). Adams failed to establish a prima facie case because the City did
not fill his position with a substantially younger person and instead replaced him
with someone older. See Damon, 196 F.3d at 1359. Thus, no genuine issue of
material fact existed as to whether Adams could establish a prima facie case of age
discrimination under the ADEA.2
2 The district court also concluded that even under a RIF framework, Adams “failed as a matter of law to demonstrate that but for his age, he would have been laid off, or that Defendants’ reason for terminating him was pretextual.” While we do not reach the issue of pretext because Adams failed to establish a prima facie case, we agree, for the reasons set forth in Section II.B, that Adams’s claims would fail even under a RIF framework. See Jameson, 75 F.3d at 1532 (requiring plaintiff in RIF case to present “evidence by which a fact finder could reasonably conclude that the employer intended to discriminate on the basis of age”). 4 Case: 19-15186 Date Filed: 09/11/2020 Page: 5 of 7
B. Other Evidence of Discrimination
To the extent Adams argues it was unnecessary for him to establish a prima
facie case where other circumstantial evidence supports an inference of intentional
discrimination, the district court did not err in concluding that Adams failed to
present such evidence. Even if a plaintiff cannot establish a prima facie case of
discrimination, he will “survive summary judgment if he presents circumstantial
evidence that creates a triable issue concerning the employer’s discriminatory
intent.” Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011).
“A triable issue of fact exists if the record, viewed in a light most favorable to the
plaintiff, presents a convincing mosaic of circumstantial evidence that would allow
a jury to infer intentional discrimination by the decisionmaker.” Id. (quotation
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Case: 19-15186 Date Filed: 09/11/2020 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-15186 Non-Argument Calendar ________________________
D.C. Docket No. 3:17-cv-00736-TJC-JBT
DAVID ADAMS, Plaintiff - Appellant, versus
JERRY HOLLAND, as property appraiser of Duval County, Florida, THE CONSOLIDATED CITY OF JACKSONVILLE, Defendants - Appellees.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(September 11, 2020)
Before WILSON, LUCK and BLACK, Circuit Judges.
PER CURIAM: Case: 19-15186 Date Filed: 09/11/2020 Page: 2 of 7
David Adams, a male over the age of 40 and former civil service employee
with the Duval County Property Appraiser’s Office (PAO), appeals the district
court’s grant of summary judgment in favor of the Consolidated City of
Jacksonville (the City) and Jerry Holland, as Property Appraiser of Duval County,
on claims brought pursuant to the Age Discrimination in Employment Act (ADEA)
and Florida Civil Rights Act of 1992 (FCRA). He also challenges the court’s
refusal to alter its ruling on his motion for reconsideration. Adams argues the court
erred in: (1) declining to apply the prima facie test for reduction-in-force (RIF)
cases and finding that he could not establish a prima facie case of age
discrimination, and (2) concluding that he failed to present evidence of pretext or
discriminatory intent sufficient to defeat a motion for summary judgment. After
review, 1 we affirm.
I. DISCUSSION
A. Prima Facie Case
Under the ADEA, it is unlawful for an employer to discharge any employee
who is at least 40 years old “because of such individual’s age.” 29 U.S.C.
1 We review the district court’s grant of summary judgment de novo, “viewing all the evidence, and drawing all reasonable inferences, in favor of the non-moving party.” Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 767 (11th Cir. 2005). Summary judgment is appropriate when the record shows “that there is no genuine issue as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). We review the denial of a post- judgment motion for reconsideration for an abuse of discretion. Holland v. Sec’y, Fla. Dep’t of Corr., 941 F.3d 1285, 1288 (11th Cir. 2019).
2 Case: 19-15186 Date Filed: 09/11/2020 Page: 3 of 7
§§ 623(a)(1), 631(a). Similarly, the FCRA makes it unlawful for an employer to
discharge an individual on the basis of age. Fla. Stat. § 760.10(1)(a). We analyze
age discrimination actions under the FCRA under the same framework as the
ADEA. See Mazzeo v. Color Resolutions Int’l, LLC, 746 F.3d 1264, 1266 (11th
Cir. 2014).
A plaintiff may prove an ADEA claim through direct or circumstantial
evidence. Id. at 1270. Where a claim is based on circumstantial evidence, we use
the burden-shifting framework established in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Id. Under this framework, the plaintiff must first establish a
prima facie case of discrimination. Id. This generally requires a plaintiff to show
that: (1) he was a member of the protected group of persons between the ages of 40
and 70; (2) he was subject to an adverse employment action; (3) a substantially
younger person filled the position that he sought or from which he was discharged;
and (4) he was qualified to do the job for which he was rejected. Damon v.
Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1359 (11th Cir. 1999). In a
RIF case, the test is modified, and a plaintiff must show that: (1) he was in the
protected age group and was subject to an adverse employment decision; (2) he
was qualified for his current position or to assume another position at the time of
discharge; and (3) “evidence by which a fact finder could reasonably conclude that
3 Case: 19-15186 Date Filed: 09/11/2020 Page: 4 of 7
the employer intended to discriminate on the basis of age” in reaching its decision.
Jameson v. Arrow Co., 75 F.3d 1528, 1532 (11th Cir. 1996).
The district court did not err in finding that Adams could not establish a
prima facie case of age discrimination under the ADEA. As an initial matter, the
court did not err in concluding that the modified prima facie test for RIF cases was
inapplicable because the City had not eliminated Adams’s position as a Property
Field Representative and had replaced him with another individual following his
termination. See Mazzeo, 746 F.3d at 1270-72 (concluding that modified test did
not apply where plaintiff’s position was not eliminated and another individual
replaced him). Adams failed to establish a prima facie case because the City did
not fill his position with a substantially younger person and instead replaced him
with someone older. See Damon, 196 F.3d at 1359. Thus, no genuine issue of
material fact existed as to whether Adams could establish a prima facie case of age
discrimination under the ADEA.2
2 The district court also concluded that even under a RIF framework, Adams “failed as a matter of law to demonstrate that but for his age, he would have been laid off, or that Defendants’ reason for terminating him was pretextual.” While we do not reach the issue of pretext because Adams failed to establish a prima facie case, we agree, for the reasons set forth in Section II.B, that Adams’s claims would fail even under a RIF framework. See Jameson, 75 F.3d at 1532 (requiring plaintiff in RIF case to present “evidence by which a fact finder could reasonably conclude that the employer intended to discriminate on the basis of age”). 4 Case: 19-15186 Date Filed: 09/11/2020 Page: 5 of 7
B. Other Evidence of Discrimination
To the extent Adams argues it was unnecessary for him to establish a prima
facie case where other circumstantial evidence supports an inference of intentional
discrimination, the district court did not err in concluding that Adams failed to
present such evidence. Even if a plaintiff cannot establish a prima facie case of
discrimination, he will “survive summary judgment if he presents circumstantial
evidence that creates a triable issue concerning the employer’s discriminatory
intent.” Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011).
“A triable issue of fact exists if the record, viewed in a light most favorable to the
plaintiff, presents a convincing mosaic of circumstantial evidence that would allow
a jury to infer intentional discrimination by the decisionmaker.” Id. (quotation
marks and footnote omitted).
The City showed that Adams was terminated as a result of the operation of
established rules. The PAO, which is part of the consolidated City government,
has both civil service and appointed employees. Under the City’s Charter and
Civil Service Rules, civil service employees who take appointed positions retain
the right to revert back to the same or comparable civil service position and may
displace or “bump” a civil service employee from that position if it is occupied.
Adams was terminated when a more senior PAO employee, who was also older
5 Case: 19-15186 Date Filed: 09/11/2020 Page: 6 of 7
than him, exercised this right, displacing Adams from the only civil service
position within the PAO.
Adams argues that the City falsely used the term “reduction in force,”
misrepresented who had the authority to hire for appointed positions within the
PAO, offered to settle with him, and filled appointed positions to which he himself
did not apply with individuals who were younger than him. The evidence that he
presented, however, fails to create a “convincing mosaic” of circumstantial
evidence from which intentional discrimination can be inferred. See id. While the
City hired some younger individuals for appointed positions within the PAO
following Adams’s termination, these hiring decisions do not give rise to an
inference of discrimination because Adams never applied for any PAO position
after he was laid off, and one new hire was older than Adams. Cf. Jameson, 75
F.3d at 1532 (“[W]here a job for which the plaintiff is qualified, and for which the
plaintiff applies, is available at the time of termination, and the employer offers the
job to an individual outside the protected age group, an inference of intentional
discrimination is permissible.”); Beaver v. Rayonier, Inc., 200 F.3d 723, 729-30
(11th Cir. 1999) (concluding, in RIF case, that employer’s failure to hire plaintiff
into the supervisor position for which he applied, decision to fill supervisor
positions with younger employees, and comment about attracting younger
employees, supported inference of intentional discrimination). Although Adams
6 Case: 19-15186 Date Filed: 09/11/2020 Page: 7 of 7
argues no alternative appointed positions were offered or even mentioned to him,
the record does not reflect that the City kept him from knowing of or applying for
such jobs. The district court therefore did not err in concluding that Adams failed
to present a “convincing mosaic” of circumstantial evidence that would allow for
an inference of intentional discrimination.
II. CONCLUSION
The district court did not err in finding that Adams failed to establish a
prima facie case of age discrimination where he was replaced by someone older,
nor did it err in concluding that Adams failed to present evidence of intentional
discrimination sufficient to otherwise survive summary judgment. Accordingly,
we affirm the district court’s grant of summary judgment and its refusal to alter its
ruling on reconsideration.
AFFIRMED.