David Pro v. Facts Services, Inc.

491 F. App'x 135
CourtCourt of Appeals for the Eleventh Circuit
DecidedOctober 4, 2012
Docket12-10649
StatusUnpublished

This text of 491 F. App'x 135 (David Pro v. Facts Services, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
David Pro v. Facts Services, Inc., 491 F. App'x 135 (11th Cir. 2012).

Opinion

PER CURIAM:

Appellant David Proe, a person over 40 years old, appeals from the district court’s grant of summary judgment in favor of FACTS Services, Inc., and Ebix, Inc. (collectively, “the employers”), on his claim under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623(a), and the Florida Civil Rights Act (“FCRA”), Fla. Stat. § 760.10(l)(a). Before the district court, the evidence showed: (1) that Proe was 59 years old at the time of the alleged adverse employment action; (2) that his employers terminated him during a reduetion-in-force (“RIF”); and (3) that the employers retained a substantially younger employee, in a position for which Proe was also qualified, because they considered the retained employee to be the better fit for the position. On appeal, Proe argues that the district court erred in granting the employers summary judgment because he both established a prima facie case of age discrimination and demonstrated that the employers’ legitimate, nondiscriminatory reasons for their adverse employment action were pretextual. Moreover, he asserts that the district court erred in referencing the employers’ expert’s analysis in its order granting summary judgment without having ruled on his pending motion in limine to exclude the expert’s testimony.

I.

We review de novo a district court’s grant of summary judgment, drawing all inferences and reviewing all evidence in the light most favorable to the non-moving party. Johnson v. Bd. of Regents of Univ. of Ga., 263 F.3d 1234, 1242-43 (11th Cir.2001).

Summary judgment shall be granted if the movant shows that there is no genuine dispute as to any material fact, such that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Summary judgment should be entered against a party who fails to make a showing sufficient to establish the existence of an essential element of its case and on which it bears the burden of proof at trial. Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir.2008). We may affirm a district court’s judgment based “on any ground that finds support in the record.” Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1256 (11th Cir.2001) (internal quotation marks omitted).

The ADEA prohibits an employer from discriminating solely on the basis of age against an employee who is at least 40 years age. 29 U.S.C. §§ 623(a)(1), 631(a).

The FCRA prohibits discharging, or failing or refusing to hire, an individual based on age. Fla. Stat. § 760.10(l)(a). We analyze age discrimination claims brought under the FCRA within the same framework used to decide actions brought pursuant to the ADEA. Zaben v. Air Prod. & Chem., Inc., 129 F.3d 1453, 1455 n. 2 (11th Cir.1997).

Absent direct evidence of an employer’s discriminatory motive, a plaintiff may establish a prima facie ADEA case through circumstantial evidence, using the framework established by the Supreme Court in *137 McDonnell Douglas. 1 Earley v. Champion Int’l Corp., 907 F.2d 1077, 1082 (11th Cir.1990).

If a plaintiff establishes his prima fa-cie case of age discrimination, and the defendant articulates a “legitimate, nondiscriminatory reason for the challenged employment action,” the plaintiff must then establish pretext by proffering evidence “sufficient to permit a reasonable factfinder to conclude that the reasons given by the employer were not the real reasons for the adverse employment decision.” Chapman v. AI Transp., 229 F.3d 1012, 1024-25 (11th Cir.2000) (en banc) (internal quotation marks omitted). In so doing, the plaintiff may not recast the reason, attempt to “substitute his business judgment for that of the employer,” or “simply quarrel[] with the wisdom of that reason,” assuming the “reason is one that might motivate a reasonable employer.” Id. at 1030; see also Rowell v. Bell-South Corp., 433 F.3d 794, 798 (11th Cir.2005) (noting that “[i]t is by now axiomatic that we cannot second-guess the business decisions of an employer”).

Rather, the plaintiff must show “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons ... that a reasonable factfinder could find them unworthy of credence.” Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir.1997) (internal quotation marks omitted). However, even where a defendant offers “differing explanations” for an adverse employment action, pretext is not established if the reasons are not “necessarily inconsistent.” Zaben, 129 F.3d at 1458.

Where a plaintiff attempts to show pretext by arguing that he was more qualified than another individual, he must show, in light of those superior qualifications, that “no reasonable person” would have selected the other candidate rather than the plaintiff. Springer v. Convergys Customer Mgmt. Group, Inc., 509 F.3d 1344, 1349 (11th Cir.2007) (internal quotation marks omitted). Moreover, an employer’s proffered reason may be based on subjective qualities, so long as the employer “articulates a clear and reasonably specific factual basis upon which it based its subjective opinion.” Chapman, 229 F.3d at 1033-34.

Finally, to prevail under the ADEA, a plaintiff must prove that age was the “but for” cause of the challenged adverse employment action. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177, 129 S.Ct. 2343, 2351, 174 L.Ed.2d 119 (2009).

Here, even if we assume arguendo that Proe established a prima facie case, we conclude that the district court did not err in granting summary judgment in favor of the employers. The employers advanced legitimate, nondiscriminatory reasons for their termination of Proe and failure to rehire him for the newly created position for which he was qualified. Specifically, the acquisition of FACTS by Ebix necessitated a RIF, see Tidwell v. Carter Prod.,

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Related

Combs v. Plantation Patterns
106 F.3d 1519 (Eleventh Circuit, 1997)
Johnson v. Board of Regents of the University of Georgia
263 F.3d 1234 (Eleventh Circuit, 2001)
Norman E. Rowell v. BellSouth Corporation
433 F.3d 794 (Eleventh Circuit, 2005)
Springer v. Convergys Customer Management Group Inc.
509 F.3d 1344 (Eleventh Circuit, 2007)
Shiver v. Chertoff
549 F.3d 1342 (Eleventh Circuit, 2008)
Morgan v. Family Dollar Stores, Inc.
551 F.3d 1233 (Eleventh Circuit, 2008)
McDonnell Douglas Corp. v. Green
411 U.S. 792 (Supreme Court, 1973)
Gross v. FBL Financial Services, Inc.
557 U.S. 167 (Supreme Court, 2009)
Chalwest (Holdings) Limited v. Samuel L. Ellis
924 F.2d 1011 (Eleventh Circuit, 1991)
John D. Chapman v. Ai Transport
229 F.3d 1012 (Eleventh Circuit, 2000)

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Bluebook (online)
491 F. App'x 135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/david-pro-v-facts-services-inc-ca11-2012.