[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
12/03/99
No. 98-5554 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 1:97-CV-230
WALTER DAMON, RICHARD KANAFANI,
Plaintiffs-Appellants,
versus
FLEMING SUPERMARKETS OF FLORIDA, INC.,
f.d.b.a. Wooley’s Fine Foods, etc.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 3, 1999)
Before EDMONDSON and MARCUS, Circuit Judges, and ALARCON*, Senior
Circuit Judge.
MARCUS, Circuit Judge:
*
Honorable Arthur L. Alarcon, Senior U.S. Circuit Judge for the Ninth Circuit,
sitting by designation.
In this age discrimination suit, Appellants Walter Damon and Richard
Kanafani appeal from an order of the district court granting summary judgment in
favor of the defendant, Fleming Supermarkets of Florida, Inc. d/b/a Hyde Park
Markets, f/d/b/a Wooley’s Fine Foods (“Fleming”). Damon and Kanafani brought
this action against Fleming, their former employer, alleging violations of the Age
Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 621-634,
and the Florida Civil Rights Act of 1992, Fl.Stat.Ann. §§ 760.01-760.11. The
district court concluded that neither plaintiff had established a prima facie case of
age discrimination, nor, in the alternative, had demonstrated that the legitimate
nondiscriminatory reasons proffered by Fleming for their terminations were a
pretext for age discrimination. We disagree, finding material facts in dispute.
Accordingly, we reverse the order of summary judgment and remand for trial.
I.
We review a district court’s order granting summary judgment de novo.
Browning v. AT&T Paradyne, 120 F.3d 222 (11th Cir. 1997). Summary judgment
is appropriate where there is no genuine issue of material fact and the moving party
is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). A factual
dispute is genuine “if the evidence is such that a reasonable jury could return a
verdict for the non-moving party." United States v. Four Parcels of Real
2
Property, 941 F.2d 1428, 1437 (11th Cir. 1991) (en banc) (citation omitted). In
making this determination, we review the record, drawing all reasonable inferences
in the light most favorable to the nonmoving party. See Jameson v. Arrow Co., 75
F.3d 1528, 1531 (11th Cir. 1996).
II.
The facts presented are reasonably straightforward. Fleming, a nationwide
supermarket chain, acquired twenty South Florida supermarket stores in September
1993 from Pantry Pride (d/b/a Wooley’s Fine Foods). It immediately installed
Harry Soto as district manager of seven of the stores. At the time, Appellants
Walter Damon and Richard Kanafani were store managers at two of the stores
acquired by Fleming. Each of their stores was placed under the direct supervision
of Soto. The undisputed evidence demonstrates that, within a period of slightly
over one year after assuming the position of district manager, Soto terminated or
demoted five older, more experienced managers, including Damon and Kanafani,
and replaced them with men who were younger and less experienced. The older
managers were all over forty, and the younger managers were all under forty. Soto
himself acknowledged that this pattern occurred. No evidence was presented by
Fleming that any younger managers were terminated by Soto while he was district
3
manager. Damon was fired for alleged poor performance. Kanafani was fired for
allegedly yelling profanities at an employee on the sales floor.
III.
In its September 16, 1998 summary judgment order, the district court made
several pertinent conclusions of law. First, the district court reasoned that
Appellants had not established all the elements of a prima facie case of age
discrimination. Specifically, the district court found that Damon and Kanafani
neither established that they were qualified for their positions under the McDonnell
Douglas rubric nor proffered direct evidence of discrimination by Fleming. The
district court also suggested in dicta that Kanafani had failed to establish that he
was replaced by someone substantially younger because, at the time of his
termination, Kanafani was forty-two and his replacement was thirty-seven.
Finally, the district court concluded that Appellants did not establish that the
nondiscriminatory reasons Fleming offered for the terminations were a pretext for
age discrimination. We discuss each conclusion in turn.
A. Prima Facie Case
In proving an age discrimination claim, a plaintiff can establish a prima facie
case of discrimination through either direct evidence of discrimination or a
variation of the four-part test outlined in McDonnell Douglas Corp. v. Green, 411
4
U.S. 792 (1973) for circumstantial evidence. See Carter v. City of Miami, 870 F.2d
578, 581(11th Cir. 1989) Appellants’ claims rely on both methods.
1. Direct Evidence of Discrimination
We agree with the district court that neither plaintiff has presented direct
evidence of age discrimination. We have defined direct evidence of discrimination
as evidence which reflects “‘a discriminatory or retaliatory attitude correlating to
the discrimination or retaliation complained of by the employee.’” Carter v. Three
Springs Residential Treatment, 132 F.3d 635, 641 (11th Cir. 1998) (quoting
Caban-Wheeler v. Elsea, 904 F.2d 1549, 1555 (11th Cir. 1990)). In other words,
the evidence must indicate that the complained-of employment decision was
motivated by the decision-maker’s ageism. As a result, “only the most blatant
remarks, whose intent could be nothing other than to discriminate on the basis of
age” will constitute direct evidence of discrimination. Earley v. Champion Int’l
Corp., 907 F.2d 1077, 1081-82 (11th Cir. 1990) (citations and quotations omitted);
see also City of Miami, 870 F.2d at 582. An example of “direct evidence would be
a management memorandum saying, ‘Fire Earley--he is too old.’” Earley, 907
F.2d at 1082. No evidence presented by Appellants meets this rigorous standard.
5
The most probative piece of alleged direct evidence cited by Appellants is a
comment by Soto to Dennis D’Angelo, Kanafani’s replacement, immediately after
Kanafani’s termination that “what the company needed was aggressive young men
like [D’Angelo] to be promoted.”1 While the statement was made right after
Kanafani’s termination, and it was made by Soto, the decision-maker, to
Kanafani’s younger replacement, the comment does not amount to direct evidence
of discrimination. Though probative circumstantial evidence of Soto’s state of
mind, the comment still requires us to infer that Soto’s interest in promoting young
men motivated his decision to terminate Kanafani. In similar instances, our court
has refused to classify such comments as direct evidence of discrimination. See,
e.g., Beaver v. Rayonier Inc., 188 F.3d 1279, 1285-86 (11th Cir. 1999) (finding
that decision-maker’s comment that he wanted to attract “younger, engineer-type
1
In addition to this comment, Appellants also rely on an alleged comment by
Soto that he wanted “a younger influx of blood.” There is no record evidence that
Soto ever made this comment. The only evidence of this comment is double hearsay
testimony from a co-worker, Charlie Guerra, that another employee, Justo Varela,
overheard the comment at a store meeting and told Guerra about it. Varela avers in
an affidavit that he never heard the comment nor told Guerra about the alleged
comment. Guerra did not hear Soto make the comment, and was not even present at
the meeting in question. This comment is inadmissible double hearsay, and we refuse
to consider it as probative evidence. See Zaben v. Air Products & Chemicals, Inc., 129
F.3d 1453, 1455-57 (11th Cir. 1997). Finally, Appellants rely on Soto’s admission that, under
his direction, there was a pattern of firing or demoting older managers, and replacing them with
younger managers. While probative circumstantial evidence, this pattern is not direct evidence of
discrimination because it does not directly establish that Soto’s termination decisions were
motivated by age bias.
6
employees or supervisors” in reduction-in-force case did not rise to level of direct
evidence of discrimination); Burrell v. Board of Trustees of Georgia Military
College, 125 F.3d 1390, 1393-94 (11th Cir. 1997) (holding that evidence which
suggests, but does not prove, a discriminatory motive, is circumstantial evidence
by definition). We therefore conclude that the district court correctly found no
direct evidence of age discrimination.
2. Circumstantial Evidence of Discrimination
In evaluating age discrimination claims based on circumstantial evidence,
we require a plaintiff to initially satisfy a four-part prima facie requirement: (1)
that she was a member of the protected group of persons between the ages of forty
and seventy; (2) that she was subject to adverse employment action; (3) that a
substantially younger person filled the position that she sought or from which she
was discharged; and (4) that she was qualified to do the job for which she was
rejected. See Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1432 (11th Cir.
1998) (citations omitted).
We conclude that both Appellants established prima facie cases of age
discrimination. First, there is no dispute that Appellants satisfied the first two
requirements. Both Appellants are members of the protected group and were
7
subjected to adverse employment actions. As for the third element, Appellees
concede that Damon satisfied the third requirement in that he was replaced by
someone “substantially younger.” However, both the Appellees and the district
court, in dicta, suggest that Kanafani did not meet this requirement because, at the
time of Kanafani’s termination, his replacement was thirty-seven, while Kanafani
was only forty-two. We disagree. Previously, we have held that a replacement
who is only three years younger is sufficient to establish a prima facie case. See
Carter v. Decisionone Corp., 122 F.3d 997, 1003 (11th Cir. 1997) (holding that
plaintiff aged 42, who was replaced by employee aged 39, met the “substantially
younger” replacement requirement under ADEA) (citing Carter v. City of Miami,
870 F.2d 578, 582-83 (11th Cir. 1989)). Here, there is a five year age difference
between Kanafani and his replacement. We therefore find that Kanafani has
satisfied the “substantially younger” replacement requirement.
Finally, we conclude that Kanafani and Damon were “qualified” for their
respective positions, satisfying the fourth and final prima facie requirement. In
age discrimination cases, our court focuses on a plaintiff’s “skills and background
to determine if they were qualified for a particular position.” Clark v. Coats &
Clark, 990 F.2d 1217, 1227 (11th Cir. 1993). Our precedent holds that if a
plaintiff has enjoyed a long tenure at a certain position, we can infer that he or she
8
is qualified to hold that particular position. See id. (inferring a plaintiff’s job
qualifications from his 25 years of experience); Pace v. Southern Railway System,
701 F.2d 1383, 1386 n.7 (11th Cir. 1983) (finding that “where a plaintiff has held a
position for a significant period of time, qualification for that position, sufficient to
satisfy a prima facie case, can be inferred”). Based on the employment history of
Damon and Kanafani, we can infer that they were qualified for their respective
positions. Appellants were store managers for more than a decade, and, by all
accounts, had performed their jobs with distinction during the bulk of that period.
Damon held the position of store manager for 34 years, and consistently received
numerous awards, commendations, and merit raises. Kanafani was a store manager
for13 years, and also received his share of bonus awards and merit raises.
In finding the Appellants unqualified, the district court incorrectly
considered Fleming’s allegations of Appellants’ poor performance. Our caselaw
quite clearly
instructs that plaintiffs, who have been discharged from a previously held position,
do not need to satisfy the McDonnell Douglas prong “‘requiring proof of
qualification.’” Young v. General Foods Corp., 840 F.2d 825, 830 n.3 (11th Cir.
1988) (quoting Rosenfeld v. Wellington Leisure Products, Inc., 827 F.2d 1493,
1495 n.2 (11th Cir. 1987)). We have explained that the “‘reason for this
9
modification [of McDonnell Douglas] is that in cases where a plaintiff has held a
position for a significant period of time, qualification for that position sufficient to
satisfy the test of a prima facie case can be inferred.’” Young, 840 F.2d at 830 n.3
(quoting Rosenfeld, 827 F.2d at 1495 n.2). We also have unambiguously held that
allegations of poor performance against plaintiffs discharged from long-held
positions may be properly considered, only after a prima facie case has been
established, when a court evaluates the pretextual nature of an employer’s
proffered nondiscriminatory reasons for termination. See Clark, 990 F.2d at 1227
(holding that evidence of employee’s performance reprimands do not establish that
employee was unqualified, but may indicate company was legitimately concerned
about employee’s performance); Young, 840 F.2d at 830 n.3 (same). The district
court therefore erred in concluding that Appellants were not “qualified” based on
Fleming’s allegations of poor performance.
B. Pretext
Having concluded that Appellants met their prima facie burdens, we turn to
the remaining issue of pretext. Once a prima facie case is established, a defendant
must proffer legitimate, nondiscriminatory reasons for its employment decision. If
such reasons are identified, a plaintiff then bears the ultimate burden of proving
10
them to be a pretext for age discrimination. See Turlington, 135 F.3d at 1432. We
have repeatedly and emphatically held that a defendant may terminate an employee
for a good or bad reason without violating federal law. See Elrod v. Sears,
Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991). We are not in the business
of adjudging whether employment decisions are prudent or fair. Instead, our sole
concern is whether unlawful discriminatory animus motivates a challenged
employment decision. See Nix v. WLCY Radio/Rahall Communications, 738 F.2d
1181, 1187 (11th Cir. 1984). In this case, Fleming clearly offered legitimate,
nondiscriminatory reasons for terminating Damon (poor performance), and
Kanafani (yelling vulgarities in front of customers). Therefore, Appellants bore
the burden of offering enough probative evidence so that a reasonable jury might
conclude that Fleming’s reasons for termination were a pretext for age
discrimination. See Bogle v. Orange County Bd. of County Comm’rs, 162 F.3d
653, 658 (11th Cir. 1998). In the summary judgment context, we conduct this
inquiry by determining whether a jury “could reasonably infer discrimination if the
facts presented [by Appellants] remain unrebuted.” Jameson, 75 F.3d at 1531
(citations omitted). We must avoid weighing conflicting evidence or making
credibility determinations. Rather, “‘[t]he evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his favor.’” Hairston v.
11
Gainesville Sun Publishing Co., 9 F.3d 913, 918 (11th Cir. 1993) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). After a painstaking
review of the entire record, we find that Appellants have made this requisite
showing.
First, circumstantial evidence was presented of Soto’s discriminatory animus
towards older store managers under his direct supervision. Within a one-year
period, four older, highly experienced store managers, out of a total of seven
managers under Soto’s direct supervision, were terminated or demoted, and each
was replaced by an employee under forty years old. In addition, Soto also
terminated a highly experienced, older assistant store manager, during this time
period, and replaced him with an employee under forty years old. As Soto
conceded, “[I]t certainly turns out that what has occurred is that older managers
were either fired or demoted and replaced by younger people,” and that “in every
instance ... the older store managers had more years of experience than the people
that replaced them.” While not direct evidence of discriminatory animus, we
believe that this pattern of firing and demoting so many older workers and replacing
them with younger workers, by the relevant decision-maker during the same time
period, constitutes probative circumstantial evidence of age discrimination. See
Stamey v. Southern Bell Telephone & Telegraph Co., 859 F.2d 855, 862 (11th Cir.
12
1988). Moreover, the probative value of this pattern was underscored by direct
testimony. Kanafani testified that, in January 1994, Fleming began placing
advertisements for new store managers even though there were no managerial
vacancies at the time. According to Kanafani, Harry Soto then began interviewing
younger managerial candidates at Kanafani’s store. Several of these candidates
were later hired by Soto to replace Kanafani and the other older managers. Record
evidence also reveals that shortly thereafter, older managers with good employment
histories, under Soto’s direct supervision, began receiving written reprimands for
“poor store conditions” or “poor sales.” Three former managers of Fleming, in
addition to Damon, averred that they were demoted or terminated by Soto, after
receiving written reprimands for “poor store conditions,” “poor performance,” or
“poor sales,” and replaced by a substantially younger manager. Each former
manager also disputed the veracity of their reprimands.
Second, Soto’s remark to Kanafani’s younger successor, D’Angelo, right
after Kanafani was terminated, that Soto wanted “aggressive, young men” like
himself to be promoted is highly suggestive circumstantial evidence from which a
jury could infer discriminatory animus.2 Far from being a stray remark, the
2
D’Angelo twice averred that Soto used the term “aggressive young men,”
although D’Angelo, who still works for Fleming, later stated, under examination by
defense counsel, that he was not sure whether Soto actually used the word “young.”
13
Kanafani also testified that D’Angelo told him that Soto had used the term “aggressive
young men.” The entire transcript of D’Angelo’s testimony reads as follows:
Q. [Plaintiff’s Attorney]: Did you ever have a one-on-one
conversation with Harry Soto where Mr. Soto told you that
what the company needed was aggressive young men like
yourself to be promoted.
A. [D’Angelo]: Yes.
Q. Why don’t you tell me how this conversation went?
A. This was right after Rick [Kanafani] was terminated and
Harry had brought me up to the main office to explain to
me that he had terminated Rick, and that the company was
going in a new direction, and we had to hold onto our
pants, was like the catch phrase at the time. Things were
moving fast.
Q. That’s when he told you that the company needed
aggressive young men like yourself?
A. He included me in -- I can’t remember the exact word he
used, but he included me in that mix, because I was in
charge of the store for a week and a half until Tony
Calaverio came in.
Q. But he did tell you that the company needed aggressive
young men?
A. I can’t recall that. I really can’t.
Attorney: Could you read back to me my question?
(Thereupon, a portion of the record was read by the reporter
as follows: Question: Did you ever have a one-on-one
conversation with Harry Soto where Mr. Soto told you that
what the company needed was aggressive young men like
yourself to be promoted.
Answer. Yes.)
Q. Is that what happened?
[Objection to form]
A. Yes.
...
14
comment may evince probative evidence of the state of mind of the decision-maker
at the time of Kanafani’s termination. The comment also arguably suggests that
Soto had an ageist preference for young managers. Given the substance, context,
and timing of Soto’s comment, if credited, we find it to be a significant piece of
circumstantial evidence. See Jones v. Bessemer Carraway Medical Ctr., 151 F.3d
1321, 1323 n.11 (11th Cir. 1998) (holding that “language not amounting to direct
evidence, but showing some racial animus, may be significant evidence of pretext
Q. [Defendant’s Attorney]:. Do you have a recollection that
these following words came out of Harry Soto, Harry Soto
said the following words: We need aggressive young men
like yourself? Do you have the recollection that he said
that to you?
...
A. [D’Angelo]: It was something similar to that. It could
be a paraphrase, so – I know aggressive was in there. He
used me – I guess it was a motivational tool.
Q. Did he say the word ‘young’?
A. That, I can’t recall.
Q.But you can recall that he said aggressive?
A. Aggressive, yes, yes, aggressive.
Q. And he included yourself?
A. Yes.
Q. But you’re not sure if he said young?
A. I’m not sure about that.
We are satisfied that a jury should weigh the credibility of this circumstantial evidence. See Walker
v. Nationsbank, 53 F.3d 1548, 1563 (11th Cir. 1985) (Johnson, J. specially concurring)( noting that
“the factfinder must evaluate the credibility of the witnesses and the weight of the evidence. This
task is peculiarly the province of the jury.”) (citing Castle v. Sangamo Weston, Inc., 837 F.2d 1550,
1559 (11th Cir.1988)); see also Combs, 106 F.3d at 1530 (stating, in the summary judgment context,
that “[i]ssues of fact and sufficiency of evidence are properly reserved for the jury”) (citation
omitted).
15
once a plaintiff has set out a prima facie case) (emphasis added); see also Rayonier,
188 F.3d at 1286 (finding decision-maker’s comment that he wanted “younger”
employees to constitute circumstantial evidence of a discriminatory motive);
Alphin v. Sears, Roebuck & Co., 940 F.2d 1497, 1499 (11th Cir. 1991) (finding
remark by supervisor to plaintiff that he had “been around too long and [was] too
old and [was] making too much money” immediately after a “corrective interview”
to be circumstantial evidence of age discrimination). Moreover, we also find Soto’s
statement to be probative as to whether age animus motivated the decision to
terminate Damon because the remark (1) was allegedly made only three months
after Damon was terminated, (2) immediately followed the termination of someone
similarly situated to Damon and in the same protected class, and (3) came from the
same decision-maker responsible for Damon’s termination. See Ryder v.
Westinghouse Electric Corp., 128 F.3d 128, 130-133 (3d Cir. 1997) (holding that
remarks made one year after termination, and not directly about plaintiff, could be
taken by a jury as an accurate reflection of the existing managerial attitude toward
older workers) (emphasis added).
In addition to this circumstantial evidence, we conclude that Appellants have
offered evidentiary support by which a reasonable jury could conclude that the
specific reasons for termination given by Fleming were a pretext. Appellants both
16
were terminated for alleged violations of company work rules. On summary
judgment, we have written that the “work rule” defense is arguably pretextual when
a plaintiff submits evidence (1) that she did not violate the cited work rule, or (2)
that if she did violate the rule, other employees outside the protected class, who
engaged in similar acts, were not similarly treated. See Alphin, 940 F.2d at 1501 n.1
(citing Anderson v. Savage Laboratories, Inc., 675 F.2d 1221, 1224 (11th Cir.
1982)). We are satisfied that Appellants have made this requisite showing.3
With respect to Damon, Fleming contends that Damon was fired for poor
performance; specifically, that over a six month period his store was cited by
Fleming management on four separate occasions for “poor conditions.” Damon
flatly denies these allegations, and has adduced sufficient evidence to create a
genuine dispute of material fact as to his job performance.
3
Of course, this framework is simply used to assess whether a plaintiff has
presented sufficient evidence to establish pretext–that is, the employer has not given
an honest explanation of the employer’s behavior–and thereby reach a jury on the
ultimate question of discrimination. This framework, however, does not vitiate a
plaintiff’s ultimate burden to prove by a preponderance of the evidence that an
employer terminated the plaintiff based on a discriminatory motive. An employer
who fires an employee under the mistaken but honest impression that the employee
violated a work rule is not liable for discriminatory conduct. An employer “‘may fire
an employee for a good reason, a bad reason, a reason based on erroneous facts, or for
no reason at all, as long as its action is not for a discriminatory reason.’” Jones, 151
F.3d at 1324 n.16 (quoting Nix, 738 F.2d at 1187) (emphasis added).
17
The first set of relevant allegations involve a February 24, 1994 visit by Soto
to Damon’s store. According to Damon, he and Soto discussed the store’s overall
appearance during the visit, but Soto never stated that conditions were below
acceptable company standards. However, a week later, on March 4, 1994, Soto
issued a written reprimand to Damon for store conditions in violation of company
policy. According to Damon, Soto ordered him to sign the reprimand even though
he did not agree with the reprimand’s charges. Damon also averred that his store
was in good condition on February 24, 1994, that the letter was a “fabrication,” and
that at no time prior to the reprimand did Soto tell him that store conditions were
unacceptable. The reprimand gave Damon until March 15 to correct the violations.
Soto conducted a follow-up store inspection on March 12, 1994. In an internal
memo of the same day, which apparently was never shown to Damon, Soto found
several uncorrected store violations. However, Soto subsequently testified that, by
March 15, all of the store’s violations had been fixed by Damon. Indeed, Soto
admitted that Damon’s ability to bring his store into compliance showed impressive
managerial drive. For the next few months, Damon received no reprimands.
On May 30, 1994, during Memorial Day Weekend, Mel Beech, Fleming’s
Vice President of Store Operations and Soto’s direct supervisor, visited Damon’s
store. On June 9, 1994, ten days after this visit, Damon received a written
18
reprimand from Soto for conditions allegedly found at the store during Beech’s
visit. The reprimand charged that Damon had been warned previously about
performance improvements expected from him, that Damon was not performing
consistently enough to continue in his position, and that any further operational
problems would result in Damon’s immediate termination. Damon disputes that the
store was in poor condition during Beech’s visit, and denies every single specific
criticism contained in the June reprimand, save one minor point.4 Damon also
reiterates that the memorandum was a “fabrication” designed to justify his eventual
firing, and that other older store managers in Soto’s district received similar letters
threatening to terminate or demote them, while he knew of no younger manager
who received a similar letter.5
4
Of eight specific criticisms, Damon only conceded that three clerks may have
been taking a break in the back room for a portion of Beech’s visit. Among other
things, he disputes that the meat and seafood cases were empty, that there were
miscellaneous floor displays all over the store, that there was poor signage, that floor
conditions were deplorable, and that there was poor customer service.
5
Damon testified that he personally spoke to several older managers about their
receipt of threat-to-terminate memos in 1994. He also stated that he spoke to several
of the younger managers, including Dave Applebaum, who denied receiving similar
letters despite the fact that their stores were kept in similar condition to Damon’s
store.
19
Finally, on July 1, 1994, at the start of the busy July 4th weekend, Soto
revisited Damon’s store, and filed another reprimand of Damon. Five days later,
Soto terminated Damon, by letter, for poor performance. Damon disputes the
specific allegations of his store’s poor condition, contained in the July reprimand, as
well as Soto’s claim that he had given Damon repeated verbal warnings about his
alleged performance deficiencies. Moreover, Damon asserts that, Soto told him in
the course of direct conversations, that he was doing a good job, and that his store’s
conditions had improved since Damon had become store manager. Damon also
avers that he visited the stores of younger store managers and found that their stores
were either in the same or worse shape during this relevant time period. None of
these younger managers were terminated. Damon’s testimony is corroborated by
Julio Nunez, a former Fleming manager promoted by Soto, who testified that
Damon’s store was essentially in the same condition as the rest of Fleming’s South
Florida stores during the relevant time period. Additionally, Soto also conceded
that two of Damon’s three reprimands for “poor store conditions” occurred during
busy holiday weekends-- a time, according to Soto, when stores may well be in poor
condition. Finally, evidence was presented that Luis Requejo, Damon’s younger
replacement, experienced substantially more severe problems in maintaining proper
store conditions, and yet, was not fired. In addition to receiving two performance
20
reprimands from Soto in August and October 1994, Requejo’s meat department
received several reprimands from state food inspectors beginning in July 1995, one
month after Soto was promoted to another company position. Eventually,
Requejo’s meat department was shut down for failure to comply with these state
reprimands. Although Soto admitted that this problem was more serious than
Damon’s alleged deficiencies, Fleming took no disciplinary action against Requejo.
Based on the totality of this evidence, the age-based comment allegedly
made by Soto to Kanafani’s replacement, and Soto’s purported pattern of demoting
and firing numerous older managers in favor of younger replacements, we conclude
that Damon has introduced sufficient evidence to avoid summary judgment on his
age discrimination claim.
We draw a similar conclusion with respect to Kanafani’s claim. The sole
reason advanced by Soto, the actual decision-maker, for Kanafani’s termination is a
yelling incident involving Kanafani and his seafood department manager on
October 1, 1994.6 Dennis D’Angelo, Kanafani’s replacement, also testified that
6
Fleming now claims, despite repeated statements by Soto, the decision-maker,
during his deposition that Kanafani was fired solely because of his yelling vulgarities
at an employee on the sales floor, that Kanafani also was terminated, in part, because
of his “previous disregard of company rules and blatant unprofessionalism.” As
evidence, Fleming introduced a subsequent affidavit from Soto in its motion for
summary judgment that somewhat broadens Soto’s termination motives. In the
affidavit, Soto claimed that he fired Kanafani after the yelling incident for his “failure
21
to improve his people skills,” “[his] disregard of company rules, and his blatant
unprofessionalism.” However, during his earlier deposition, Soto unequivocally
stated that the sole reason for Kanafani’s termination was the yelling incident.
Q. What was the basis for his [Kanafani’s] termination?
A. Using profanity on the sales floor where the customers
were out in the open.
...
Q. Was he terminated because of poor store conditions or
was he terminated because of using vulgarity on the sales
floor in front of customers?
A. He was terminated for using vulgarity on the sales floor
in front of customers.
Q. No other reason?
A. That was the reason for the termination.
...
Q. So again, the only reason he was terminated was for using vulgarity
on the sales floor, correct?
A. That is correct.
Moreover, Dennis D’Angelo, Kanafani’s replacement, also testified that Soto told him
that Kanafani was fired solely because of the yelling incident. Based on the repeated
statements by Soto during his deposition that he fired Kanafani solely for the yelling
incident (as well as D’Angelo’s corroboration of Soto’s termination motive), we find
that a jury could infer that the “inconsistencies” between Soto’s deposition and
affidavit may be evidence of pretext. See Tidwell v. Carter Products, 135 F.3d 1422, 1427-28
(11th Cir. 1988) (citing Bechtel Construction Co. v. Secr. of Labor, 50 F.3d 926 (11th Cir.1995);
Howard v. BP Oil Co., Inc., 32 F.3d 520, 525 (11th Cir.1994)). Furthermore, Kanafani has produced
sufficient evidence to create genuine issues of material fact as to his previous reprimands from Soto.
Kanafani received three reprimands prior to the yelling incident for “poor sales,” “poor store
conditions,” and an altercation with a beer vendor respectively. First, Kanafani testified that his
store had become more profitable since he became store manager, creating a genuine issue of
material fact as to the first reprimand. Second, while Kanafani received a reprimand for “poor store
conditions” during the busy Memorial Day Holiday Weekend, Fleming does not directly proffer this
reprimand as a basis for Kanafani’s termination. Even if this reprimand were cited as a termination
factor, we believe Kanafani has presented sufficient evidence that the reprimand was a pretext.
During Memorial Day weekend, Kanafani was on vacation, and not in charge of the store. Julio
Nunez, a younger assistant manager at the time, actually was acting store manager for the weekend.
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Soto told him that the only reason Kanafani was fired was because he yelled at a
fellow employee on the sales floor. Fleming claims that Kanafani uttered several
vulgarities on the sales floor, where customers could overhear, and that this breach
of company policy justified his immediate firing five days later. Kanafani admitted
that he yelled during the incident, but vehemently denies using any vulgarity aside
from the word "hell" once.7 Kanafani’s testimony creates a genuine issue of
material fact with respect to whether he uttered profanities on the sales floor.
In addition, Kanafani also presented evidence which, if credited, could
convince a jury that the incident was a pretext for his termination. Kanafani’s
replacement, Dennis D’Angelo, testified that he had observed members of Fleming
management, including Soto himself, yell at employees in front of store customers.
Soto admitted to yelling at employees with profane language, but claimed these
Despite this fact, Kanafani, and not Nunez, was reprimanded for the store’s “poor condition.”
Nunez subsequently was promoted to store manager by Soto, replacing an older store manager,
despite Soto’s admission that he was aware that Nunez, and not Kanafani, was primarily responsible
for the poor store conditions during Memorial Day Weekend. Finally, Kanafani vigorously denies
that he upbraided the beer vendor over complimentary football tickets offered to him, or told the
vendor “deliver better tickets or else.” All Kanafani admits to is politely returning the tickets
because they were not to his satisfaction, creating a genuine issue of material fact as to this incident.
We believe that this evidence, when combined with all of the previously-cited circumstantial
evidence, could convince a jury that Kanafani’s reprimands were a pretext for his termination.
7
Fleming asserts that Kanafani used the word “fuck” several times during the
incident. Kanafani denies this claim, admitting only to stating at the end of the
incident, “what the hell do you want me to do?”
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incidents occurred in employee-only store areas. Previously, we have held that
evidence demonstrating that the decision-maker engaged in the same policy
violation proffered for an employee’s termination is “especially compelling”
evidence of pretext. Ross v. Rhodes Furniture, Inc., 146 F.3d 1286, 1291 (11th Cir.
1998). As a result, if a jury were to credit D’Angelo’s testimony, they could
reasonably find the yelling incident to be a pretext. When this testimony is
combined with Soto’s comment to D’Angelo, immediately after Kanafani’s
termination, that Soto wished to promote “younger aggressive men,” and Soto’s
pattern of demoting and firing numerous older managers in favor of younger
replacements, we conclude that Kanafani too has introduced sufficient
circumstantial evidence to survive summary judgment.
In short, we find that the circumstantial evidence presented by Damon and
Kanafani, taken as a whole, is sufficient to make a prima facie showing of age
discrimination, and to rebut the nondiscriminatory reasons proffered by Fleming for
their terminations. Material facts remain in dispute, precluding summary judgment.
Accordingly, we reverse the district court’s order of summary judgment and remand
the case for further proceedings consistent with this opinion.
REVERSED and REMANDED.
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