Loberger v. Del-Jen Inc.

616 F. App'x 922
CourtCourt of Appeals for the Eleventh Circuit
DecidedJune 25, 2015
DocketNo. 14-13158
StatusPublished
Cited by5 cases

This text of 616 F. App'x 922 (Loberger v. Del-Jen 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
Loberger v. Del-Jen Inc., 616 F. App'x 922 (11th Cir. 2015).

Opinion

PER CURIAM:

Richard Loberger and Raymond Miller appeal from the district court’s grant of summary judgment in favor of Del-Jen, Inc. (“Del-Jen”), and J & J Maintenance, Inc. (“J & J”), in their employment discrimination and retaliation suit under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623, and the Florida Civil Rights Act (“FCRA”), Fla. Stat. § 760.01. After careful review, we affirm.

I.

We recite the facts in the light most favorable to Loberger and Miller. See Mora v. Jackson Mem’l Found., Inc., 597 F.3d 1201, 1203 (11th Cir.2010) (stating that we “resolve all reasonable factual doubts in favor of the non-movant”). Lo-berger and Miller were both employed by Del-Jen as certified pest controllers at Tyndall Air Force Base (the “Base”) near Panama City, Florida. Loberger was hired in 1998, Miller in 1997. Del-Jen provided various services, including pest control, at the Base pursuant to a military contract. The general duties of a pest controller were to control weeds, insects, and vermin.

In 2012, the military re-bid Del-Jen’s contract. J & J won the bidding and was set to take over on about November 14, 2012. While the contract previously had been “cost-plus,” meaning Del-Jen billed the military for its actual costs plus a markup, the military re-bid it as a “fixed-price” contract. Generally, fixed-price contracts, which provide a set monthly payment for the provision of services, require contractors to staff projects with fewer employees.

In August 2012, Del-Jen informed its employees that J & J would be taking over the Base contract, and it gave them applications to apply with J & J. In October 2012, both Loberger and Miller timely submitted applications for pest-control jobs with J & J. They each had a brief interview with J & J representatives.

At some point during the transition phase (between August and November 2012), Tim Lewis, a Del-Jen employee who had been hired as J & J’s new site manager, asked the appellants’ immediate super[924]*924visor, Robert Bushway, to identify the best pest controllers for J & J to hire. Bush-way verbally recommended all five pest controllers in this order: Andy Fox, Doug Bailey, Robert Nowaczyk, Loberger, and Miller. Bushway did not explain to Lewis or J & J his reasons for ranking the pest controllers in that order.

Bushway (then age 67) also applied for a position at J & J and was hired as the lead pest controller. Initially, J & J hired two other pest controllers, Fox (then age 42) and Bailey (then age 51). Soon after, J & J determined that it needed to hire an additional pest controller. Thereafter, J & J also hired Nowaczyk (then age 53). Consequently, of the five pest controllers previously employed by Del-Jen, only Lo-berger (then age 66) and Miller (then age 63), the oldest pest controllers, were not hired by J & J.

After learning of Nowaczyk’s hire on October 23 or 24, the appellants approached Bushway on October 25. Bushway told them, “It will be a hard fight for your job because you will be retiring next year ... and we want someone with longevity.”1 According to the appellants’ testimony, Bushway was concerned that Loberger and Miller were going to retire soon and that it would be difficult to replace them at a later time. They understood Bushway as saying that both Bushway and J & J believed that the appellants’ age was an issue.

Based on Bushway’s October 25 statement, Loberger and Miller filed an internal grievance with their union alleging that they had not been recommended or hired because of their age. Bushway was provided with a copy of the grievance by both appellants, to which Bushway responded, “Gentlemen, I wouldn’t be closing any doors.” On November 13, Del-Jen terminated all of its employees. J & J took over the next day.

Loberger and Miller filed charges of age discrimination with the Equal Employment Opportunity Commission (“EEOC”) in December 2012. They amended these charges in February 2013.

Nowaczyk left his position with J & J in August 2013. Both Loberger and Miller applied for the vacancy. Neither was hired. Instead, J & J hired Thomas Spragg (then age 53) in September 2013 based on Bushway’s recommendation. Bushway interviewed Spragg but not Lo-berger or Miller. Spragg did not have two certifications — “right of way” and “public health” — that were listed as mandatory requirements on the job notice published by J & J. Both Loberger and Miller had these certifications.

II.

Loberger and Miller filed a joint complaint in the United States District Court for the Northern District of Florida against Del-Jen and J & J. Appellants jointly alleged claims'under the ADEA and the FCRA of age discrimination against both defendants and of retaliation against J & J, and Loberger alleged a state-law claim of worker’s compensation retaliation against Del-Jen.2 Only the ADEA and [925]*925FCRA claims are at issue.3

The district court granted summary judgment in favor of Del-Jen and J & J. The court ruled that Del-Jen could not be held liable for any discriminatory acts of Bushway because Bushway’s recommendations were for the benefit of J & J, not Del-Jen. As for J & J, the court' found that Appellants offered no evidence to rebut J & J’s legitimate, non-discriminatory reasons for why it did not hire them. Finally, the district court granted summary judgment on Appellants’ retaliation claims against J & J because Appellants had not presented evidence of a causal connection between their protected activity and the failure to hire them in September 2013. Following entry of final judgment, Lober-ger and Miller brought this appeal.

III.

We review a district court’s grant of summary judgment de novo and resolve all reasonable factual doubts in favor of the non-moving party. Mora, 597 F.3d’ at 1203. Summary judgment should be granted “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).

At the summary-judgment stage, the judge’s function is not to weigh the evidence but to determine if there is a “genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d. 202 (1986). “[Tjhere is no issue for .trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Id. Therefore, summary judgment may be granted “[i]f the evidence is merely colorable or is not significantly probative.” Id. at 249-50, 106 S.Ct. at 2511 (citations omitted). We may affirm a district court’s grant of summary judgment on any ground supported by the record, even if that ground was not relied on by the district court. Feliciano v. City of Miami Beach, 707 F.3d 1244, 1252 (11th Cir.2013).

IV.

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