order granting summary judgment - cardelle v. city of miami beach fop
DESCRIPTION
District Court SDFLA grants summary judgment in favor of the City and the Police Union in Age Discrimination claim brought by group of officers claiming that they were denied certain retirement benefits because of their age. The court rejected all of the Plaintiff's ClaimsTRANSCRIPT
UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF FLORIDA
CASE NO. 11-24273-CIV-ZLOCH
THAMYRIS CARDELLE, RAYMOND F.CHAMBERS, JAMES F. HARLEY,ANDREW J. KUNCAS, JOHN MCCABE,JAMES V. MAURO, JESS M. METZGAR,JOSEPH PREVISH, MICHAEL PRYOR, PEDRO RODRIGUEZ, BERNIE RUDER,GARFIELD TAYLOR, NEWELL WILDER,WILLIAM YOUNG, and ELISEO R.ZACARIAS,
Plaintiffs,
vs. O R D E R
MIAMI BEACH FRATERNAL ORDER OFPOLICE, WILLIAM NICHOLS LODGE,NO. 8, and CITY OF MIAMI BEACH,
Defendants. /
THIS MATTER is before the Court upon Defendant City of Miami
Beach’s Motion For Summary Judgment (DE 53) and Defendant Miami
Beach Fraternal Order Of Police, William Nichols Lodge No. 8’s
Motion For Final Summary Judgment (DE 54). The Court has carefully
reviewed said Motions, the entire court file and is otherwise fully
advised in the premises.
I. Background
Plaintiffs, current and former police officers employed by
Defendant the City of Miami Beach, who are over 40 years of age,
initiated the above-styled cause with the filing of their Complaint
(DE 1). Plaintiffs subsequently filed an Amended Complaint (DE 4).
Therein, Plaintiffs allege claims under the Age Discrimination in
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Employment Act of 1967, 29 U.S.C. §§ 621 et seq. (hereinafter
“ADEA”), and the Florida Civil Rights Act of 1992, Florida Statutes
§§ 760 et seq. (hereinafter FCRA). The Amended Complaint (DE 4)
states claims against Defendant the City of Miami Beach, Florida
(hereinafter “CMB”) and the Miami Beach Fraternal Order of Police,
William Nichols Lodge No. 8 (hereinafter “FOP”), which is the
bargaining representative for all police trainees, police officers,
detention officers, sergeants, and lieutenants, within the City of
Miami Beach Police Department.
Specifically, Plaintiffs allege that CMB discriminated against
them on the basis of age in violation of the ADEA in two ways:
first, by not allowing them to participate in a modified version of
the Deferred Retirement Option Plan (hereinafter “DROP”), which,
under the 2009-2012 collective bargaining agreement (hereinafter
“CBA”), altered the former maximum DROP period of 36 months——prior
to September 1, 2012 (hereinafter “DROP-3")——to 60 months——on or
after September 1, 2012 (hereinafter “DROP-5"); and second, by
deducting 5% from their gross compensation for a period of 18
months, pursuant to the terms of the CBA (hereinafter “FOP-5").
The Plaintiffs make similar allegations against FOP, based on
its role in negotiating these CBA terms. Plaintiffs further allege
a separate count of disparate impact against both defendants based
on the above-listed facially neutral CBA terms. And, Plaintiffs
charge that both defendants retaliated against them for conduct
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The facts in this section are taken from CMB’s Statement Of Undisputed1
Material Facts In Support Of Motion For Summary Judgment (DE 52), FOP’s StatementOf Undisputed Material Facts In Support Of Motion For Summary Judgment (DE 55),as well as from Plaintiffs’ Responses to both Defendants’ Undisputed Facts (DENos. 57 & 59), where Plaintiffs take issue with Defendants’ Statements of theFacts. Additionally, CMB filed its Reply Statement Of Undisputed Material FactsIn Support Of Motion For Summary Judgment (DE 74). While the Court refers toallegations of disputes from Plaintiffs’ Facts, in so noting, the Court does notintend to imply that any material facts are actually in dispute. The Court saysalong with Michael Dibdin’s fictional detective, Aurelio Zen, with respect to theabove-styled cause, “The facts [are] not in dispute, it [is] a question of howyou interpret[] them.” Michael Dibdin, Vendetta (1991).
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protected under the ADEA. Finally, Plaintiffs allege that the
actions of both defendants also violated the cognate provisions of
the FCRA.
The DROP program allows police officers who are otherwise
eligible to retire, to take retirement status and yet continue
their employment for a specified period of time. Participating1
eligible employees continue to receive full pay and benefits, but
at the same time also collect pension benefits, which are deposited
into an interest-bearing account. CMB’s benefit retirement plan
does not dictate a mandatory retirement age. DROP retirement is
one voluntary option. Another is to retire under the normal
retirement date, when an officer reaches 50 or when the sum of the
officer’s age and creditable service equals 70. DROP provides an
incentive, which subsidizes early retirement. Under the 2009-2012
CBA, the time period for DROP participation was increased from
three years to five years. That increase, combined with the fact
that all Plaintiffs (with the exception of Plaintiff Taylor) were
already participating in the DROP-3 and not allowed to extend into
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the new DROP-5 option, forms one of the major bones of interpretive
contention motivating Plaintiffs’ claims of discrimination. When
these Plaintiffs entered DROP and were thus classified as
“retired,” they received their DROP benefits pursuant to a DROP
Agreement, which includes a Waiver and Release Agreement and an
Irrevocable Letter of Resignation in which each participating
Plaintiff agreed to resign voluntarily no later than the last day
of his DROP period. Plaintiff Taylor has not entered DROP-3 and
thus has no DROP claim.
Another key source of Plaintiffs’ dissatisfaction is a
concession CMB and FOP reached in the process of negotiating the
CBA. CMB, required to take account of a budgetary shortfall,
needed to identify ways to save additional funds. FOP believed the
FOP-5 was one of the least undesirable options. The FOP-5, the 18-
month, 5% gross compensation deduction, reduced CMB’s contributions
to the FOP Health Trust. One reason that FOP favored this
particular concession over alternative suggestions was that because
it was tied to healthcare, it was a pre-tax deduction. Naturally,
CMB agreed to some other FOP requests, of no particular
significance to this litigation.
With respect to the ratification of the 2009-2012 CBA, the
Plaintiffs and Defendants CMB and FOP are not in complete
agreement. The Court notes the slightly varying versions of these
events while stressing that such differences do not represent
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The Court notes that while Plaintiffs dispute the dates on which CMB and2
FOP became aware of these charges, Plaintiffs’ explanation is not on point.Plaintiffs merely assert that both defendants were aware of the charges at anearlier date (unspecified) because of previous grievance complaints and ULPs.
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material factual distinctions. CMB and FOP assert that the FOP-5
was unintentionally left out of the CBA the FOP members voted to
ratify on August 4-6, 2010. Perhaps not surprisingly, Plaintiffs
do not believe this exclusion was inadvertent. Regardless, in
October of 2010, Plaintiffs filed unfair labor practice charges
(hereinafter “ULP(s)”) with the Public Employees Relations
Commission (hereinafter “PERC”), alleging improper ratification,
among other claims. PERC agreed with Plaintiffs as to the
ratification, so a second ratification vote was taken, and in
September of 2011, the CBA was again ratified by the FOP vote. CMB
disclaims any responsibility for any oversights which may have
occurred in this process.
The other facts relevant to Plaintiffs’ claims concern a
series of alleged affronts that Plaintiffs believe demonstrate
retaliation for ADEA-protected expression. Also, in October of
2010, they individually charged age discrimination and retaliation
to the United States Equal Employment Opportunity Commission
(hereinafter “EEOC”). CMB received these charges on December 8,
2010. FOP claims to have become aware of these charges in late
November of 2010. The complaints in these EEOC filings are, as2
in the above-styled cause, FOP-5 and the ineligibility to
participate in DROP-5. Plaintiffs’ Amended Complaint (DE 4)
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The Court will only discuss allegations in the Amended Complaint (DE 4).3
The Court would have believed that pointing out the most elementary principlesof the notice-pleading rules, i.e., a Complaint or Amended Complaint must giveopposing parties notice of the charges brought against them, would betautological. Yet, since the briefing for the instant Motions For SummaryJudgment (DE Nos. 53 & 54) references supposed additions to Plaintiffs’complaint, apparently surfacing during some Plaintiffs’ depositions, the Courtnotes: “A pleading that states a claim for relief must contain: . . . (2) a shortand plain statement of the claim showing that the pleader is entitled to relief.”Fed. R. Civ. P. 8(a)(2). The rule does not describe or imply that a complaintis a foundation upon which new claims can be added at will throughout the courseof the litigation, without formal or appropriate notice being provided to theopposing parties. If Plaintiffs believed that their complaint was insufficientin stating all claims for relief, Rule 15 clearly sets forth the process ofamending, which the Plaintiffs surely realize, as they took advantage of thisprocess in amending their original complaint.
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charges a list of grievances with various decisions that affected
Plaintiffs’ employment. Plaintiffs charge these allegedly
retaliatory actions against both Defendants. FOP argues that it
had no control over some of these decisions, as will be discussed
below.
The Court will briefly summarize the conduct Plaintiffs list
in their operative Complaint (DE 4). First, Plaintiffs articulate3
various “[v]erbal threats” and negative comments made to them by
both CMB employees and either FOP membership or FOP contract
negotiation committee members, regarding how they would vote on the
CBA ratification. Plaintiffs claim they were called “deadwood,”
the “old guys,” the “Group of 20,” “greedy,” and “bad guys” by CMB
employees and FOP membership. Plaintiffs allege that FOP
President, Alejandro Bello, threatened to countersue them for
objecting to FOP practices and proposals for the CBA. Plaintiff
Zacarias alleges that Mr. Bello also told him that the new CBA was
an attempt to get senior officers out of the police force and give
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younger officers promotional opportunities. Plaintiffs also object
to some articles they were sent by Mr. Bello and Sergeant Wayne
Jones, which they believe were intended to chill their protected
speech. The Plaintiffs who were already retired at the time that
the CBA was re-ratified were not allowed to vote. Most of the
other allegedly retaliatory conduct consists of unfavorable
assignments or instances when CMB did not grant Plaintiffs various
privileges, which Plaintiffs believe they should have received.
Plaintiff Harley believes he was denied a Master Sergeant
designation. Plaintiffs Harley, Cardelle, and Metzgar believe they
were subjected to drugs tests, which though ostensibly random, were
in fact targeted. Plaintiffs Cardelle, Metzgar, Mauro, and Taylor
maintain they were assigned disciplinary posts. Plaintiff Metzgar
was denied training on November 11, 2011, because he would be
separating by August 31, 2012. Plaintiff Rodriguez was also denied
training. Plaintiff Cardelle was removed from a Field Training
Position, which he had held for 14 years. Plaintiff Pryor
underwent an “overtime audit.” Plaintiff Ruder’s position was
reclassified as civilian. Plaintiffs Mauro and Metzgar were not
allowed a reassignment to undercover capacities that they
requested. Plaintiffs Cardelle, Chambers, Metzgar, and Taylor were
given foot and bike patrol. Plaintiffs Taylor and Cardelle were
not given breaks. Plaintiffs further fault the CMB for not taking
disciplinary action against other employees who made derogatory
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remarks.
II. Standard of Review
Under Federal Rule of Civil Procedure 56, summary judgment is
appropriate
if the pleadings, the discovery and disclosure materialson file, and any affidavits show that there is no genuineissue as to any material fact and that the movant isentitled to a judgment as a matter of law.
Fed. R. Civ. P. 56(c); see also Eberhardt v. Waters, 901 F.2d 1578,
1580 (11th Cir. 1990). The party seeking summary judgment “always
bears the initial responsibility of informing the district court of
the basis for its motion, and identifying those portions of the
pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, which it believes
demonstrate the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)(quotation
omitted). Indeed,
the moving party bears the initial burden to show thedistrict court, by reference to materials on file, thatthere are no genuine issues of material fact that shouldbe decided at trial. Only when that burden has been metdoes the burden shift to the non-moving party todemonstrate that there is indeed a material issue of factthat precludes summary judgment.
Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991);
Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991).
The moving party is entitled to “judgment as a matter of law”
when the non-moving party fails to make a sufficient showing of an
essential element of the case to which the non-moving party has the
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burden of proof. Celotex Corp., 477 U.S. at 322; Everett v.
Napper, 833 F.2d 1507, 1510 (11th Cir. 1987). Further, the
evidence of the non-movant is to be believed, and all justifiable
inferences are to be drawn in his favor. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986).
III. Analysis
By its instant Motion (DE 53), CMB asserts that all Plaintiffs
who were participating in the former DROP program, DROP-3,
knowingly and voluntarily waived their rights under the ADEA in
waivers which fully comply with the requirements of the Older
Workers Benefit Protection Act, 29 U.S.C. § 626(f)(1)(A)-(H), an
amendment to the ADEA (hereinafter “OWBPA”), which sets forth
requirements for a waiver of an employee’s rights under the ADEA.
With respect to Plaintiffs’ objections as to both their inability
to participate in the revised DROP program, DROP-5, and the 5%
gross compensation deduction, FOP-5, CMB further argues that
Plaintiffs have failed to state a discrimination claim under either
a theory of disparate treatment or a theory of disparate impact.
Under the disparate treatment theory, CMB asserts that it took no
adverse employment action against Plaintiffs, on the basis of their
age, in the implementation of either DROP-5 or FOP-5.
Additionally, CMB claims any decisions relevant to these terms of
the CBA were based on a “reasonable factor other than age”
(hereinafter “RFOA”), expressly provided for in the ADEA, 29 U.S.C.
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§ 623(f)(1) and 29 C.F.R. § 1625.7. Pension status, rather than
age, is a RFOA, which CMB claims motivated certain limitations of
which Plaintiffs complain. Under the disparate impact theory, CMB
raises similar objections, in addition to the lack of relevant
statistical data to support Plaintiffs’ allegations. CMB argues
that Plaintiffs cannot set forth a prima facie case of age-based
retaliation because they suffered no adverse employment actions
which were caused by their engaging in ADEA-protected expression.
CMB maintains that Plaintiffs’ belief that any of CMB’s decisions
were unlawful is not reasonable. CMB notes that FCRA claims should
be analyzed under the same law and standards as the federal claims.
FOP, charged in similar counts, for the same DROP-5 and FOP-5
provisions of the CBA, makes similar arguments in its instant
Motion For Summary Judgment (DE 54). In addition, FOP articulates
ways in which a labor union can be found to be discriminating in
violation of the ADEA, arguing that it has undertaken none of the
prohibited conduct. FOP also asserts that some of the alleged
incidents of retaliation involve employer decisions over which the
bargaining unit has no control.
Both CMB and FOP urge the Court to take note of its recent
prior ruling in Lerman v. City of Fort Lauderdale, No. 02-60967-
CIV-ZLOCH, 2008 WL 5378127 (S.D. Fla. Dec. 23, 2008), aff’d, 346
Fed. App’x 500 (11th Cir. 2009). In Lerman, this Court held, in
short, that DROP waivers, strikingly similar to those at issue in
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See DE 50-13, pp. 40-42 (Cardelle’s Waiver); DE 50-13, pp. 47-494
(Chambers’s Waiver); DE 50-14, pp. 4-6 (Harley’s Waiver); DE 50-14, pp. 11-13(Kuncas’s Waiver); DE 50-14, pp. 18-20 (McCabe’s Waiver); DE 50-14, pp. 25-27(Mauro’s Waiver); DE 50-14, pp. 32-34 (Metzgar’s Waiver); DE 50-14, pp. 39-41(Prevish’s Waiver); DE 50-14, pp. 46-48 (Pryor’s Waiver); DE 50-15, pp. 3-5(Rodriguez’s Waiver); DE 50-15, pp. 10-12 (Ruder’s Waiver); DE 50-15, pp. 17-19(Wilder’s Waiver); DE 50-15, pp. 24-26 (Young’s Waiver); and DE 50-15, pp. 31-33(Zacarias’s Waiver).
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this case, were valid. Thus, in that case, summary judgment was
entered in favor of the defendant.
A. Waiver of Plaintiffs’ DROP-5 Claims
All Plaintiffs except Plaintiff Taylor, who never entered
DROP-3, executed a document entitled “City of Miami Beach Deferred
Retirement Option Program (“DROP”) Acknowledgment, Waiver and
Release Agreement” (hereinafter the “Waiver”) upon deciding to
enter DROP. Each waiver includes, in pertinent part, the4
following language:
In consideration for allowing me to participate in andderive the benefits of the DROP, to which I acknowledgeI would not otherwise be entitled and which I have freelyand voluntarily elected, I hereby release and dischargethe City of Miami Beach, Florida, Miami Beach EmployeesRetirement Plan in the City of Miami Beach, [or, in somewaivers substitute: the City Pension Fund forFirefighters and Police Officers in the City of MiamiBeach] and any and all of their agents, officers, oremployees, in both their official and individualcapacities, from all claims liabilities, demands andcauses of action, whether known or unknown, fixed orcontingent, which I may have or claim to have against[repeat same parties as above] arising out of my electionto participate in the DROP and to voluntarily resign andretire on the dates specified above and in my letter ofresignation (hereinafter referred to as “DROP claims”) .. . . With respect to DROP claims, this Waiver includes,but is not limited to, claims and liability . . . as wellas claims I may have under employment discrimination lawssuch as the Age Discrimination in Employment Act of 1967,(29 U.S.C. 621, et seq.) . . . the Older Worker’s
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Benefits Protection Act . . . the Florida Civil RightsAct of 1992 . . . and any other federal or state law orlocal ordinance dealing with employment discriminationsuch as age, sex, race, color, national origin,citizenship, religion, disability/handicap, marital orfamilial status, and family leave . . . .
Waiver, ¶ 1. Thus, the terms of the Waiver, if valid, expressly
bar Plaintiffs’ claims against CMB with respect to DROP-5 in this
case. Further, while prohibited employer practices are described
in 29 U.S.C. § 623(a), the prohibited practices of labor
organizations, such as FOP, are separately described in the ADEA in
the following section:
It shall be unlawful for a labor organization——
(1) to exclude or to expel from its membership, orotherwise to discriminate against, any individual becauseof his age;(2) to limit, segregate, or classify its membership, orto classify or fail or refuse to refer for employment anyindividual, in any way which would deprive or tend todeprive any individual of employment opportunities, orwould limit such employment opportunities or otherwiseadversely affect his status as an employee or as anapplicant for employment, because of such individual’sage; (3) to cause or attempt to cause an employer todiscriminate against an individual in violation of thissection.
§ 623(c)(1)-(3). Therefore while the discussion of the waiver
relates to both Defendants because Plaintiffs charge both with
discrimination under the ADEA, with respect to the DROP-5
alteration, FOP clearly engaged in no labor organization conduct
prohibited under the statute, or with respect to CMB, for which the
waiver would not also apply. FOP did not violate the ADEA in its
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representation of Plaintiffs already participating in the DROP-3,
if the waivers were valid, because age was not the but for cause,
as required, of Plaintiffs’ ineligibility for DROP-5. See Gross v.
FBL Fin. Serv., Inc., 557 U.S. 167, 176 (2009) (“Thus, the ordinary
meaning of the ADEA’s requirement that an employer took adverse
action ‘because of’ age is that age was the ‘reason’ that the
employer decided to act.”) (quoting Hazen Paper Co. v. Biggins, 507
U.S. 604, 610 (1993) (The claim “cannot succeed unless the
employee’s protected trait actually played a role in [the
employer’s decisionmaking] process and had a determinative
influence on the outcome.” (emphasis added)). See also Sims v.
MVM, Inc., 704 F.3d 1327, 1331-1332 (11th Cir. 2013).
While waivers like the one quoted above are permissible, by
its enactment of the OWBPA, “Congress [has] imposed specific duties
on employers who seek releases of certain claims created by [the
ADEA].” Oubre v. Entergy Operations, Inc., 522 U.S. 422, 427
(1998). Under the OWBPA, an employee may not waive his or her
rights under the ADEA unless the waiver is given knowingly and
voluntarily. With respect to the requirements for a waiver to be
deemed knowing and voluntary, the OWBPA provides, in pertinent
part, that “at a minimum”:
(A) the waiver is part of an agreement between theindividual and the employer that is written in a mannercalculated to be understood by such individual, or by theaverage individual eligible to participate;
(B) the waiver specifically refers to rights or claims
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arising under this chapter;
(C) the individual does not waive rights or claims thatmay arise after the date the waiver is executed;
(D) the individual waives rights or claims only inexchange for consideration in addition to anything ofvalue to which the individual already is entitled;
(E) the individual is advised in writing to consult withan attorney prior to executing the agreement;
(F)(i) the individual is given a period of at least 21days within which to consider the agreement; or
(ii) if a waiver is requested in connection with an exitincentive or other employment termination program offeredto a group or class of employees, the individual is givena period of at least 45 days within which to consider theagreement;
(G) the agreement provides that for a period of at least7 days following the execution of such agreement, theindividual may revoke the agreement, and the agreementshall not become effective or enforceable until therevocation period has expired;
(H) if a waiver is requested in connection with an exitincentive or other employment termination program offeredto a group or class of employees, the employer (at thecommencement of the period specified in subparagraph (F))informs the individual in writing in a manner calculatedto be understood by the average individual eligible toparticipate, as to——
(i) any class, unit, or group of individuals covered bysuch program, any eligibility factors for such program,and any time limits applicable to such program; and
(ii) the job titles and ages of all individuals eligibleor selected for the program, and the ages of allindividuals in the same job classification ororganizational unit who are not eligible or selected forthe program.
29 U.S.C. § 626(f)(1)(A)-(H). This provision makes clear that an
employee may waive his rights under the ADEA, and this principle
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has been reaffirmed by courts on numerous occasions. See, e.g.,
Lerman v. City of Fort Lauderdale, 346 Fed. App’x 500, 502 (citing
Oubre, 522 U.S. at 426-27; Lloyd v. Brunswick Corp., 180 F.3d 893,
895 (7th Cir. 1999) (“Employees are free to waive their ADEA
rights.”) (citation omitted)).
Plaintiffs do not argue that the Waiver is invalid. The
Waiver comprises a mere three pages. These pages include ten
paragraphs, and each paragraph addresses a single topic. Each page
is signed by the respective Plaintiff, and these signatures are
notarized. The language used in the Waiver is not complicated. It
is written in plain English and does not use legalese. Also,
notably, in the next to last paragraph, the Waiver states “I have
read and I fully understand this Waiver.” Waiver, ¶ 9.
Accordingly, the Court finds that the Waiver is written in language
calculated to be understood by the average police officer. The
Waiver satisfies Section (A) of the OWBPA waiver requirements. The
Waiver satisfies all of the other requirements as well, for the
reasons that follow.
The Waiver complies with § (B) because it refers to the rights
and claims under the ADEA in ¶ 2. Paragraph 2 clearly references
the rights or claims that may arise after the date the waiver is
executed in answer to § (C). The DROP benefits for which the
waiver is executed are additional in value, and participants are
not entitled to these benefits until they elect to participate and
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comply with all requirements, including the signing of the waiver.
Thus, § (D) is met. As to § (E), the participant is advised in ¶
6 to consult an attorney before executing. Each individual is
given the 45 days to consider that is required for exit incentives,
such as DROP programs, so § (F)(ii) is satisfied. Paragraphs 2 and
8 clearly reference § (G)’s required period of permissible
revocation. Paragraph 7 references the fact that DROP program
participants were provided with the necessary information outlined
in § (H)(i)-(ii).
Plaintiffs’ sole argument about why the Waiver does not cover
the DROP-related claims in the above-styled case is that, as in the
Lerman case previously before this Court, Plaintiffs argue that
their present DROP claims arose after they signed the Wavier. This
argument was rejected by this Court in Lerman. Lerman, 2008 WL
5378127, at *7, aff’d, 346 Fed. App’x 500 (11th Cir. 2009). The
Court recalls its prior ruling and applies the same legal
principles to the slightly, but not materially, different factual
situation in the above-styled cause.
A waiver will not satisfy the OWBPA if it attempts to waive
claims arising after it is signed. Plaintiffs argue that their
claims arose after they signed the Waiver because Plaintiffs
believe that their claims arose under the subsequent 2009-2012 CBA,
which extended the three-year period of the DROP-3 to the DROP-5's
additional two years. Plaintiffs are incorrect.
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As in Lerman, to answer the question before the Court, it is
not proper to focus on the time of the allegedly discriminatory
action——when the new DROP-5 program became a part of the
subsequently ratified CBA——but, rather the time at which Plaintiffs
“knew or should have known of [their] injury and its cause.” White
v. Mercury Marine, Div. of Brunswick, Inc., 129 F.3d 1428, 1435
(11th Cir. 1997). “A claim accrues in a federal cause of action as
soon as a potential claimant either is aware, or should be aware,
of the existence of and source of an injury.” Oshiver v. Levin,
Fishbein, Sedran & Berman, 38 F.3d 1380, 1386 (3d Cir. 1994); see
also Delaware State College v. Ricks, 449 U.S. 250, 258 (1980)
(holding that the discriminatory action occurred when the unlawful
“tenure decision was made and communicated to Ricks”) (emphasis
added); White, 129 F.3d at 1434 (noting that “the Supreme Court has
held that courts should use the discovery rule to determine when a
cause of action accrues”).
Applying the discovery rule, Plaintiffs’ causes of action did
not arise after they executed the Waiver. In fact, at the time
Plaintiffs executed their irrevocable Waivers, they were agreeing
to resign in no later than three years’ time in exchange for the
benefits of the DROP-3. Plaintiffs cannot now claim that because
a new program was initiated after they had irrevocably joined the
former program, that the new program should also apply to them. At
the time they executed their Waivers, they were agreeing to certain
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additional, clearly specified retirement benefits. Surely, had the
subsequent CBA altered the terms of the DROP program by making it
less favorable to participants, Plaintiffs would not be before this
Court seeking to join such a later program. And indeed, Plaintiffs
would receive the benefit of their former bargain. Such is the
practical reality of bargaining. Plaintiffs who participated in
the DROP-3 have been denied no benefit to which they are entitled,
and they are disbarred from now coming before the Court and
demanding further benefits. Accordingly, the Court finds that the
causes of action asserted in the above-styled cause, in reference
to the DROP-5, did not arise after execution of the Waiver, and
Plaintiffs did not waive claims arising after its execution.
In sum, the Court finds that each of the Plaintiffs, with the
exception of Plaintiff Taylor, executed a Waiver of the claims they
now attempt to assert. The Court further finds that the Waiver
satisfies the standard for knowing and voluntary as set forth in
the OWBPA. Finally, the Court finds that any additional arguments
are without merit in that they do not raise a genuine issue of
material fact as to the legitimacy of the Waiver, or as to whether
the aforementioned Plaintiffs knowingly and voluntarily executed
the same.
B. ADEA and FCRA Disparate Treatment and Disparate Impact:DROP-5 and FOP-5
While the Court holds that the Waivers are valid and
altogether prevent Plaintiffs from challenging their inability to
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19
participate in the modified DROP-5, the Court will briefly address
the two other theories of ADEA discrimination. And the Court will
consider the FOP-5 provision under both of these theories as well.
The Court here notes that the following section will address both
theories for both programs, with respect to both Defendants, CMB
and FOP. The Court will highlight differences in the application
of its ruling to the two Defendants in acknowledgment of the ADEA’s
variances in application to employers and labor organizations.
The ADEA makes it unlawful to “discriminate against any
individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s age.” 29
U.S.C. § 623(a)(1). The FCRA, in turn, states that it is unlawful
to “discriminate against any individual with respect to
compensation, terms, conditions, or privileges of employment,
because of such individual’s . . . age.” Fla. Stat. § 760. The
analysis the Court employs when evaluating a claim of age
discrimination is the same under the ADEA and the FCRA. Zaben v.
Air Products & Chemicals, Inc., 129 F.3d 1453, 1455 (11th Cir.
1997); Morrow v. Duval County Sch. Bd., 514 So. 2d 1086 (Fla.
1987).
While this prohibition is set forth in a straightforward
manner, “[t]he question of the proper treatment of early-retirement
programs is the most difficult question under the Age
Discrimination in Employment Act.” Karlen v. City of Colleges, 837
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20
F.2d 314, 317 (7th Cir. 1988). This is so because the discussions
leading up to the implementation of such a program necessarily
involve questions of age and the benefits to be gained by an
employer if certain employees retire, but the resultant
“discrimination seems to be in favor of rather than against older
employees, by giving them an additional option and one prized by
many older employees.” Id. Difficulty in applying this area of
the law has been increased over the years by an exchange between
Congress and the Supreme Court that saw numerous modifications in
the analysis used to test the lawfulness of retirement incentive
plans. See Auerbach v. Bd. of Educ. of the Harborfields Cent. Sch.
Dist. of Greenlawn, 136 F.3d 104, 110-12 (2d Cir. 1998) (discussing
the ensuing back and forth between Congress and the Supreme Court).
This exchange culminated with the enactment of the OWBPA, which
amended various provisions of the ADEA.
To establish a prima facie case, a “‘plaintiff must produce
sufficient evidence to support an inference that the defendant
employer based its employment decision on an illegal criterion.’”
Alphin v. Sears, Roebuck & Co., 940 F.2d 1497, 1500 (11th Cir.
1991) (quoting Halsell v. Kimberly-Clark Corp., 683 F.2d 285, 290
(8th Cir. 1983)). This is achieved “through one of three generally
accepted methods: by direct evidence of discriminatory intent; by
meeting the four-pronged test set out for Title VII cases in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); or through
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21
statistical proof.” Carter v. City of Miami, 870 F.2d 578, 581
(11th Cir. 1989). The Court will address each of these three
avenues in turn.
First, Plaintiffs have failed to produce direct evidence of
discriminatory intent. Plaintiffs have offered evidence in the
form of statements suggesting the DROP-5 and FOP-5 provisions of
the CBA were sought by other FOP members and/or leaders who desired
to exclude these Plaintiffs from the more favorable retirement
program. Plaintiffs essentially believe they were regarded as a
group of dissenters. The Eleventh Circuit has delineated “severe
limits for the kind of language to be treated as direct evidence of
discrimination.” Jones v. Bessemer Carrawy Med. Ctr., 151 F.3d
1321, 1321 n.11 (11th Cir. 1998). Further, “direct evidence is
composed of only the most blatant remarks, whose intent could be
nothing other than to discriminate on the basis of some
impermissible fact.” Rojas v. Florida, 285 F.3d 1339, 1342 n.2
(11th Cir. 2002) (quoting Schoenfeld v. Babbitt, 168 F.3d 1357,
1266 (11th Cir. 1999)). Also, “‘statements by nondecisionmakers,
or statements by decisionmakers unrelated to the decisional process
itself,’ are not direct evidence of improper discrimination.”
Bradley v. Pfizer, Inc., 440 Fed. App’x 805, 808 (11th Cir. 2011)
(citing Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989)
(O’Connor, J., concurring)). None of the alleged statements here
provide the direct proof to this exacting standard.
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22
Next, the Court will consider the other means by which
Plaintiff could establish a disparate treatment claim. “When a
plaintiff alleges disparate treatment, ‘liability depends on
whether the protected trait (under the ADEA, age) actually
motivated the employer’s decision.’ That is, the plaintiff’s age
must have ‘actually played a role in [the employer’s
decisionmaking] process and had a determinative influence on the
outcome.’” Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.
133, 141 (2000) (quoting Hazen Paper Co. v. Biggins, 507 U.S. 604,
610 (1993)). The McDonnell Douglas framework is appropriate for
assessing circumstantial evidence of disparate treatment in an ADEA
case. Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir. 2000)
(citing McDonnell Douglas, Corp. v. Green, 411 U.S. 792 (1973);
Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981)).
“Under this framework [McDonnell Douglas], if a plaintiff
establishes a prima facie case of discrimination, the defendant may
articulate a legitimate, nondiscriminatory reason for the
challenged employment action. The Supreme Court has held that the
defendant’s explanation of its legitimate reasons must be clear and
reasonably specific to satisfy its burden.” Woolsey v. Town of
Hillsboro Beach, No. 12-16145, 2013 WL 4766872, at *2 (11th Cir.,
Sept. 6, 2013) (citing Burdine, 450 U.S. at 253-54; Chapman, 229
F.3d at 1024).
Typically, the prima facie case for ADEA violation requires
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23
showing that the plaintiff “(1) was a member of the protected age
group, (2) was subjected to adverse employment action, (3) was
qualified to do the job, and (4) was replaced by or otherwise lost
a position to a younger individual.” Chapman, 229 F.3d at 1024
(citing Benson v. Tocco, Inc., 113 F.3d 1203, 1207-08 (11th Cir.
1997)). Obviously, here the question with respect to the DROP-5
and FOP-5 deals not with replacement, but with the ADEA’s other
prohibitions against “otherwise discriminat[ing] against any
individual with respect to his compensation, terms, conditions, or
privileges of employment.” 29 U.S.C. § 623(a)(1). All of the
Plaintiffs are in a protected class because they are over 40 years
old. But none can establish that either the DROP-5 or FOP-5
represented adverse actions through which they were disparately, or
differentially treated, compared with their younger co-workers.
Notwithstanding the fact that the Court has already held that
all participating Plaintiffs’ Waivers were valid, the fact that the
DROP-3 program was altered and thereafter became a DROP-5 program
under the CBA does not mean that Plaintiffs were treated
differently on the basis of their age. The differentiating factor
was instead pension status. The FOP-5 facially targeted no
employee or group of employees for any reason because all
employees, as a concession in negotiating the CBA, had 5% of their
gross compensation deducted.
In regard to the DROP changes, this Court is not the first to
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examine why pension status is not equivalent to age for the
purposes of assessing discrimination under the ADEA. The CMB and
FOP negotiated modification to the DROP program fits within the
purpose of the ADEA. Of crucial importance is the fact that any
DROP program is a carrot, not a stick. This was true when all
participating Plaintiffs entered DROP-3, and it remains true under
DROP-5. The Court acknowledges that some of the DROP-3
participating Plaintiffs prefer DROP-5 as a more lucrative
retirement benefit. But, the basis on which they are ineligible to
join the new program is not Plaintiffs’ age; rather, it results
from their pension status. The Court also notes that although age
is one factor that weighs into an officer’s pension status, it is
not an impermissible component. Hazen Paper, 507 U.S. at 613. In
Kentucky Ret. Sys. v. EEOC, the Supreme Court held that
discrimination on the basis of pension status is not unlawful under
the ADEA, so long as it is not a “proxy for age.” 554 U.S. 135,
142-43 (2008) (noting that a complex set of rules determined
benefits, rather than individual employment decisions) (quoting
Hazen Paper, 507 U.S. at 613). In other words, age can be
considered in the framework of employees’ benefits, but it should
not be the basis of individual employment decisions that negatively
affect certain employees. Further, the rules embedded in pension
systems are treated “more flexibly and leniently in respect to age”
by the ADEA. Id. at 144.
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The inability of DROP-3 participating Plaintiffs to
participate in DROP-5 is based on their respective pension status,
not their age alone. The benefits awarded under the original
program and the modified program are the result of a complex set of
factors negotiated between CMB and FOP, in which age is one factor.
The benefits are not determined by individual employment decisions
based on age. The FOP-5 is not driven by age either. It is not
even driven by pension status. All employees paid an equal
percentage. The fact that some employees paid more under the
deduction is based simply on the fact that their compensation,
based on numerous factors, is greater. Any disparity between
Plaintiffs and others with respect to their inability to
participate in DROP-5 is attributable to their pension status, not
their age. And, any disparity between the amount of compensation
deducted from Plaintiffs as compared with others is attributable to
the fact that their compensation was higher, not their age. Hazen
Paper, 507 U.S. at 613; Price Waterhouse v. Hopkins, 490 U.S. 228
(1989).
As the Court finds that Plaintiffs cannot establish a prima
facie case of age discrimination with respect to either Defendant
or either policy, the Court does not have to examine whether the
Defendants have produced legitimate nondiscriminatory business
reasons for either the DROP-5 or FOP-5. However, for the benefit
of the reviewing court, the Court makes the following comments.
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Particularly as to the DROP-5, Defendants argue that a DROP program
fits within the safe harbor provision of the ADEA. When
considering an early retirement incentive program like DROP, the
Court notes that the OWBPA provides the following:
It shall not be unlawful for an employer, employmentagency, or labor organization—— . . .
(2) to take any action otherwise prohibited undersubsection (a), (b), (c), or (e) of this section——. . .
(B) to observe the terms of a bona fideemployee benefit plan——
(i) where for each benefit or benefitpackage, the actual amount of paymentmade or cost incurred on behalf of anolder worker is no less than that made orincurred on behalf of a younger worker, .. . ; or
(ii) that is a voluntary early retirementincentive plan consistent with therelevant purpose or purposes of thischapter.
29 U.S.C. § 623(f)(2)(B)(i)-(ii).
Plaintiffs emphasize what they believe is an age component
underlying the DROP program’s modification. Both DROP programs,
DROP-3 and DROP-5, are early retirement incentive programs, thus
the safe harbor found in § 623(f)(2)(B)(ii) (hereinafter the “safe
harbor”) guides the Court’s analysis. The safe harbor “does not
require that an employer provide identical early retirement
incentives for employees of different ages or incur the same costs
for all employees. Rather, the early retirement incentive plan
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In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en5
banc), the Eleventh Circuit adopted as binding precedent all decisions of theformer Fifth Circuit handed down prior to October 1, 1980.
27
need only be voluntary and consistent with the ADEA’s relevant
purpose(s).” Auerbach, 136 F.3d at 112.
With respect to both DROP-5 and FOP-5, Defendants also argue
that both CBA terms were based on reasonable factors other than
age. Reasonable factors other than age under the ADEA are also
discussed in § 623(f), in pertinent part:
It shall not be unlawful or an employer, employmentagency, or labor organization——
(1) to take any action otherwise prohibited undersubsections (a), (b), (c), or (e) of this sectionwhere age is a bona fide occupational qualificationreasonably necessary to the normal operation of theparticular business, or where the differentiationis based on reasonable factors other than age . . .
29 U.S.C. § 623(f)(1)(emphasis added). “[A] defendant in an ADEA
case bears only the burden of going forward with the evidence to
demonstrate reasonable factors other than age for the plaintiff’s
discharge.” Marshall v. Westinghouse Elec. Corp., 576 F.2d 588,
592 (5th Cir. 1978). One primary set of the legitimate5
nondiscriminatory business reasons CMB and FOP offer with respect
to their respective roles in negotiating (both) and implementing
(only CMB) the terms of the CBA involves the way in which the CBA
bound their conduct. The CBA was binding once it was in place.
CMB was not free to depart from its terms. The FOP-5 was a
solution to a budgetary crisis, not an effort to harm these
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Plaintiffs or discriminate against them in any way. Naturally, FOP
seeks the most favorable concessions possible. FOP-5 was
considered by FOP to be better than many other options on the table
at the time. As noted above, pension plans, such as the DROP-5,
generally occupy a safe harbor carve out from ADEA liability.
Finally, the Court will discuss whether Plaintiffs can assert
a claim for ADEA discrimination based on the disparate impact of
either the DROP-5 or FOP-5. The discussion immediately preceding
of reasonable factors other than age as legitimate
nondiscriminatory reasons for disparate treatment is even more
significant in the discussion of the disparate impact theory for
DROP-5 and FOP-5. “[B]ecause ‘[i]n disparate-impact cases . . .
the allegedly ‘otherwise prohibited’ activity is not based on age,’
it is ‘in cases involving disparate-impact claims that the RFOA
provision plays its principal role by precluding liability if the
adverse impact was attributable to a nonage factor that was
‘reasonable.’’” Meacham v. Knolls Atomic Power Lab., 554 U.S. 84,
96 (2008)(quoting Smith v. City of Jackson, 544 U.S. 228, 239
(2005)). Further, what is most relevant in the application of the
reasonable factor other than age to a disparate impact claim is not
whether it exists, but whether such a factor was reasonable.
Meecham, 554 U.S. at 96 (2008) (“The RFOA defense in a disparate-
impact case, then, is not focused on the asserted fact that a non-
age factor was at work; we assume it was. The focus of the defense
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29
is that the factor relied upon was a ‘reasonable’ one for the
employer to be using . . . . a reasonable factor may lean more
heavily on older workers, as against younger ones, and an
unreasonable factor might do just the opposite.”) (further
citations omitted). As stated above, the Court finds that the
decisions surrounding the DROP-5 and FOP-5 were based on reasonable
factors other than age.
Yet, additionally, with respect to this theory, the Court
finds that Plaintiffs have not set forth a prima facie case. To
establish a prima facie case of disparate impact, a plaintiff must
show:
1) there is a significant statistical disparity amongmembers of different [age] groups; 2) there is aspecific, facially-neutral employment policy orpractice; and 3) there is a causal nexus between thespecific policy or practice and the statisticaldisparity.
See Cooper v. S. Co., 390 F.3d 695, 724 (11th Cir. 2004), overruled
on other grounds; Ash v. Tyson Foods, Inc., 546 U.S. 454, 457
(2006); see also Summers v. Winter, 303 Fed. App’x 716, 719 (11th
Cir. 2008) (“To establish a prima facie case of discrimination by
disparate impact, ‘a plaintiff must show that the facially neutral
employment practice had a significantly discriminatory impact.’”
(quoting Connecticut v. Teal, 457 U.S. 440, 446 (1982)). And, the
Supreme Court also cautions that, “[E]ven though both statutes [the
ADEA and Title VII] authorize recovery on a disparate-impact
theory, the scope for disparate-impact liability under [the] ADEA
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is narrower than under Title VII.” Smith, 544 U.S. at 240.
Plaintiffs must establish causation. Id. (citing Watson v. F.
Worth Bank & Trust, 487 U.S. 977, 994 (1988)). A plaintiff can
establish that a facially neutral policy caused a disparate impact
by producing statistical evidence “of a kind and degree sufficient
to show that the practice in question caused [the harm] because of
membership in a protected group.” Id.
Here, Plaintiffs have offered no statistical evidence
whatsoever with respect to the DROP-5. Therefore, the Court finds
that Plaintiffs cannot make out a prima facie case of disparate
impact against either Defendant on this theory for this claim. The
Court notes that Plaintiffs have attempted to offer statistical
evidence to support their disparate impact claim with respect to
FOP-5. The Court states once more here that, as discussed above,
both the DROP-5 and FOP-5 were motivated by reasonable factors
other than age. Therefore, whether or not Plaintiffs are able to
produce statistical evidence would not change the Court’s ruling on
this theory. The Court notes that Plaintiffs have submitted one
untimely expert report (DE 67-3), which purports to offer
statistical evidence that FOP-5, only, produced a disparate impact
for older employees such as the Plaintiffs. The Court’s Pre-Trial
Order (DE 23) set governing deadlines in this case, such as the
deadline for the exchange of the resumes of experts and their
reports. The report (DE 67-3) was filed after said deadline had
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“The elements of retaliation under the FCRA and the ADEA are the same.”6
Brillinger v. City of Lake Worth, 317 Fed. App’x 871, 877, n.5 (11th Cir.2008)(citing Drago v. Jenne, 453 F.3d 1301, 1307 (11th Cir. 2006)).
31
passed, and the Court denied Plaintiffs’ request for an extension
of time to exchange expert reports. See DE 47. This Report (DE
67-3) has not been submitted in compliance with the Court’s prior
Orders; however, the Court notes that whether or not it remains in
the record does not affect the Court’s ruling. The Plaintiffs have
failed to establish a prima facie case of disparate impact with
respect to either the DROP-5 or FOP-5.
C. Retaliation
The ADEA describes impermissible retaliation, in pertinent
part:
(d) Opposition to unlawful practices; participation ininvestigations, proceedings, or litigation
It shall be unlawful for an employer to discriminateagainst any of his employees or applicants foremployment, for an employment agency to discriminateagainst any individual, or for a labor organization todiscriminate against any member thereof or applicant formembership, because such individual, member or applicantfor membership has opposed any practice made unlawful bythis section, or because such individual, member orapplicant for membership has made a charge, testified,assisted, or participated in any manner in aninvestigation, proceeding, or litigation under thischapter.
29 U.S.C. § 623(d). The elements necessary to establish a prima
facie case of ADEA (and therefore also FCRA ) retaliation are:6
that the plaintiff (1) “engaged in ADEA protected expression,” (2)
“suffered an adverse employment action,” and (3) “the adverse
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action was causally related to the protected expression.” Stone v.
Geico General Ins. Co., 279 Fed. App’x 821, 822 (11th Cir. 2008)
(citing Bass v. Bd. of Cnty. Comm’rs, 256 F.3d 1095 (11th Cir.
2001)). The McDonnell Douglas burden-shifting framework applied to
the discrimination claims above also applies to ADEA retaliation
claims. Cobb v. City of Roswell, No. 12-15633, 2013 WL 4046578, at
*6 (11th Cir. Aug. 12, 2013) (citing Hairston v. Gainesville Sun
Pub. Co., 9 F.3d 913, 919 (1993)). Additionally, for the ADEA to
protect expression, the plaintiff must show “a good faith,
reasonable belief that the employer was engaged in unlawful
employment practices.” Id. at 823 (quoting Weeks v. Harden Mfg.
Corp., 291 F.3d 1307, 1311 (11th Cir. 2002)). This criteria
references a subjective belief, and yet this subjective belief must
be “objectively reasonable in light of the facts and record
presented.” Id. (quoting Weeks, 291 F.3d at 1312). And, with
respect to element (2), adverse action is also keyed to a
reasonableness standard: “A plaintiff must show that a reasonable
employee would have found the challenged action materially adverse,
meaning that it might well have dissuaded a reasonable employee
from making or supporting a discrimination charge.” Cobb, 2013 WL
4046578, at *6 (quoting Burlington North. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 67-8 (2006)).
With respect to Plaintiffs’ ability to establish a prima facie
case of retaliation, CMB and FOP argue that the primary conduct on
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33
the part of Plaintiffs’ that would constitute ADEA-protected
expression under element (1) would be Plaintiffs’ EEOC filing. The
Court notes that some authority suggests that other types of
grievance procedures may also be protected by the ADEA. In Bailey
v. City of Huntsville, when evaluating claims for both Title VII
and ADEA retaliation, the Eleventh Circuit stated, “The filing of
a grievance can constitute statutorily-protected activity, but only
if the grievance alleges discrimination based upon a statutorily-
protected ground.” 517 Fed. App’x 857, 861 (11th Cir. 2008) (citing
Rollins v. Fla. Dep’t of Law Enforcement, 868 F.2d 397, 400 (11th
Cir. 1989)). However, whether only the complaint before the EEOC,
or other grievance procedures as well, constitutes the type of
proceeding which would receive ADEA protection is of no moment
here. Neither Defendant disputes that, momentarily setting aside
the content of Plaintiffs’ initial complaints, the ADEA protects
charges before the EEOC, such as the one filed by Plaintiffs in
October of 2010, which FOP received in late November of 2010 and
CMB in early December of 2010.
Yet, the Plaintiffs’ prima facie showing is still plagued at
every element by their inability to establish a case of ADEA
retaliation against either CMB or FOP. First, with respect to the
ADEA-protected expression, although the EEOC, and perhaps some
other formal grievance proceedings could qualify, the content of
Plaintiffs’ complaint is problematic under existing law. As noted
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34
above, Plaintiffs must have had a reasonable belief that the
discrimination they complained of was unlawful under the ADEA. The
Court certainly does not contest that Plaintiffs subjectively
believed they had experienced discrimination. Yet, as has been
exhaustively discussed above, Plaintiffs’ subjective belief that
the DROP-5 and FOP-5 are discriminatory does not square with the
existing law and thus is not objectively reasonable:
[T]he plaintiffs may not stand on their ignorance of thesubstantive law to argue that their belief wasreasonable. As we have stated previously, “[i]f theplaintiffs are free to disclaim knowledge of thesubstantive law, the reasonableness inquiry becomes nomore than speculation regarding their substantiveknowledge.”
Weeks, 291 F.3d at 1317 (quoting Harper v. Blockbuster Entm’t,
Corp., 139 F. 3d 1385, 1388 n.2 (11th Cir. 1998)) (further
citations omitted).
With respect to the third element, the Court finds that the
Plaintiffs have not clearly established that the allegedly adverse
conduct was connected to their expressions related to
discrimination under the ADEA. Plaintiffs allege that such a
connection exists, but they have not produced proof that such is
the case. As Defendants argue, the time frame is problematic.
Plaintiffs’ EEOC filing was in October of 2010. If earlier
grievances are also appropriately considered, then some of the
speech was slightly earlier, in late September and early October,
which means that all of these allegations were taking place in late
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35
2010. Some of the comments of which Plaintiffs complain pertaining
to the ratification, while not tied to any specific date in
Plaintiffs’ Amended Complaint (DE 4), must, based on the entirety
of the record have occurred before the August 4-6, 2010
ratification. Some of the meetings at which such comments may have
been made took place in June and July of 2010. It is possible, of
course, that these comments continued. Plaintiffs are not entirely
clear. Other problems surround Plaintiffs’ belief that comments
from other employees constitute retaliation from either their
employer, CMB, or their labor union, FOP. It is not clear that in
any of these occurrences that the individuals speaking were
speaking for or on behalf of either Defendant. In addition to the
fact that some of the complained of retaliatory conduct took place
prior to Plaintiffs’ allegedly protected speech, other instances
took place after a substantial amount of time had passed. See
Bailey, 517 Fed. App’x at 861 (noting plaintiff’s inability “to
show causation based on temporal proximity alone, as a five-month
time lapse is considered too long under our precedent) (citing
Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir.
2007)). Plaintiffs assert causation, but they do not establish
that their speech caused any of the alleged retaliatory conduct.
Because the Court finds that Plaintiffs cannot make out
several elements of their prima facie case for retaliation, the
Court will only briefly address whether these actions were adverse.
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About this point, the Court would note that, in the Amended
Complaint (DE 4), it does not consider the cumulative alleged
actions as being perpetrated against Plaintiffs as a group.
Instead, the Court would ask whether any of the Plaintiffs,
individually, would reasonably have been dissuaded from his speech
based on the alleged consequences to such speech. Reviewing the
Amended Complaint (DE 4), the Court observes that most Plaintiffs
make only a few specific allegations. Thus, none can reasonably
claim that his experience was adverse to the degree the ADEA
intends to protect.
Finally, even though the Court finds that Plaintiffs cannot
establish a prima facie case against either CMB or FOP, the Court
will also discuss, for the benefit of any reviewing court,
Defendants’ alleged legitimate nondiscriminatory business reasons
for such decisions. Much of the retaliatory conduct consisted of
employment assignments and privilege decisions over which FOP
claims no authority. Plaintiffs have produced no evidence to the
contrary. CMB, as Plaintiffs’ employer, has met its burden of
production with respect to such decisions. For example, CMB
provides support that the drug tests are in fact random, that
Plaintiffs do not have any actual data to support their assertion
that they were targeted, and that other non-parties were tested
with even greater frequency. DE 52, ¶ 34. CMB explains its
decisions not to train as related to the fact that some of the
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37
Plaintiffs would shortly be retiring, so such training would not be
a proper use of time and money. DE 52, ¶ 37. CMB details the way
in which assignments to allegedly unfavorable positions take place.
This is a complicated procedure involving how personnel are
distributed to fill the posts which CMB must man. The fact that
Plaintiffs also had to fill these posts at times was not
retaliation in response to any of their complaints. DE 52, ¶ 38.
Often, officers are not able to take lunch breaks, but are allowed
to eat in their cars. These Plaintiffs were not the only
individuals who were, at times, subject to the operational needs of
the department and did not receive designated lunch breaks. DE 52,
¶ 39. Plaintiff Pryor had in fact been overpaid. He repaid the
amount paid to him in error. DE 52, ¶ 40. Plaintiff Harley admits
that he did not fully understand the master sergeant designation he
claims he did not receive. DE 52, ¶ 41. Plaintiff Cardelle’s
alleged removal as Field Training Officer was never even finalized.
DE 52, ¶ 46. The Court does not mean to suggest that Plaintiffs do
not respond to Defendants’ explanations; however, the Court does
find that Plaintiffs have produced no proof, as required by
McDonnell Douglas, that such reasons are actually pretextual for
discrimination by either Defendant. In addition, as the Court
stated above, Plaintiffs cannot establish a prima facie case of
retaliation under the ADEA or FCRA.
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38
IV. Conclusion
The Court finds that fourteen of the fifteen Plaintiffs in the
above-styled cause waived their claims under the ADEA with respect
to their DROP participation. The FOP-5 was applied equally to all
employees, pursuant to the terms of the CBA. No Plaintiff can
establish a prima facie case of disparate treatment or disparate
impact with respect to either of these CBA provisions against
either CMB or FOP. Neither CMB nor FOP retaliated against any
Plaintiff for speech which was in fact protected by the ADEA.
Accordingly, after due consideration, it is
ORDERED AND ADJUDGED as follows:
1. That Defendant City of Miami Beach’s Motion For Summary
Judgment (DE 53) be and the same is hereby GRANTED;
2. Defendant Miami Beach Fraternal Order Of Police, William
Nichols Lodge No. 8’s Motion For Final Summary Judgment (DE 54) be
and the same is hereby GRANTED; and
3. Pursuant to Rules 56 and 58, Final Judgment shall be
entered by separate Order.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward
County, Florida, this 30th day of September, 2013.
WILLIAM J. ZLOCH United States District Judge
Copies furnished:
All Counsel of Record
Case 1:11-cv-24273-WJZ Document 114 Entered on FLSD Docket 09/30/2013 Page 38 of 38