Van Voorhis v. HILLSBOROUGH CTY. BD OF CTY. COM'RS

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JAN 08 2008
No. 07-12672 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 06-01171-CV-T-TBM

JOHN C. VAN VOORHIS,

Plaintiff-Appellant,

versus

HILLSBOROUGH COUNTY BOARD OF COUNTY COMMISSIONERS,

Defendant-Appellee.

________________________

Appeal from the United States District Court
for the Middle District of Florida
_________________________

(January 8, 2008)

Before ANDERSON, HULL and PRYOR, Circuit Judges.

PER CURIAM:

John Van Voorhis, a pilot over 50 years old, appeals pro se the summary
judgment entered in favor of the Hillsborough County Board of County

Commissioners and against Van Voorhis’s complaint of discrimination in violation

of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621–634, Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), and the Florida Civil

Rights Act, Fla. Stat. §§ 760.01–.11. Van Voorhis contends that Hillsborough

County discriminated against him because of his age when Hillsborough County

rejected his application for employment as a helicopter pilot. Van Voorhis

presented evidence that the decision-maker for Hillsborough County rejected Van

Voorhis’s application because the decision-maker, in his own words, “didn’t want

to hire an old pilot.” Because Van Voorhis presented direct evidence of

discrimination on the basis of age and evidence of an adverse employment action,

the district court erred when it granted summary judgment against Van Voorhis’s

complaint of age discrimination. We reverse and remand for further proceedings.

I. BACKGROUND

In April 2002, Hillsborough County posted a job opening for a helicopter

pilot in its Mosquito Control Section. Joel Jacobson, manager of the Mosquito

Control Section, was in charge of hiring. The open pilot position was one of two

such positions in Mosquito Control. Dennis Boone, the chief helicopter pilot for

Hillsborough County, was the other pilot. Jacobson was Boone’s direct supervisor.

2
 Applicants submitted applications for the pilot position to the Hillsborough

County Civil Service Board, which processed the applications, determined which

candidates met the qualifications specified by Mosquito Control, and sent a list of

qualified candidates to Mosquito Control. One of the requirements was 100 hours

of flight experience in agricultural spraying. Between April and October 2002,

nine applicants, including Van Voorhis, were qualified by Civil Service for the

position. All nine applicants were over the age of forty. Boone testified in his

deposition that he reviewed the list of the nine applicants that met the listing

requirements and told Jacobson that two of the candidates, Van Voorhis and

another individual, already had a spray license and met “all the requirements to just

go get in the helicopter and go spray.” Van Voorhis’s application stated that he

had over 5000 hours of spraying experience.

According to Boone, Jacobson reviewed the list of qualified applicants and

stated that “he did not want to interview [any of the applicants] because he didn’t

want to hire an old pilot.” Linda Hangar, whose office was next to Jacobson’s

office, testified in an affidavit that she also overheard Jacobson comment that he

did not want to hire an old pilot. No interviews were conducted during the first

recruitment period.

Pamela Knight, who was eventually hired for the pilot position, did not

3
qualify for the position during the first recruitment period because she did not have

100 hours of agricultural spraying or dusting flight time. Knight testified in her

deposition that she met with Jacobson in September 2002 and discussed the 100-

hour requirement and whether Mosquito Control had a procedure in place through

which she could acquire the necessary flight time. Knight testified that Jacobson

told her that they were considering removing the requirement of 100 hours of spray

experience to expand the applicant pool and that she should monitor the

recruitment listings.

In October 2002, Jacobson rewrote the minimum qualifications for the pilot

position and instructed Civil Service to remove the first job listing and commence

a new recruitment period. On October 21, 2002, the second recruitment period was

opened. The new listing eliminated the requirement of 100 hours of flight

experience in low-level spraying or dusting. Applicants from the first recruitment

period were not notified of the re-listing and were required to re-apply to be

considered for the position during the second recruitment period.

On November 5, 2002, Civil Service forwarded to Jacobson the applications

of Knight, age 40, and Fred Yocher, age 54 or 56, the two qualified candidates who

had submitted applications in response to the second job posting. Van Voorhis

submitted an application during the second recruitment period, but he was not

4
certified by Civil Service as a qualified candidate until December 2, 2002. Knight

and Yocher were interviewed by Boone, Jacobson, and Rebeckah Sanchez, a

Hillsborough County public works employee from a different division, on

November 21, 2002. Boone and Sanchez rated the candidates’ answers to

interview questions. Jacobson was a non-voting interview panelist.

Knight received the higher score from both Boone and Sanchez, was offered

the position, and accepted it. The second recruitment period was terminated on

December 13, 2002, at the direction of Mosquito Control. Before the second

recruitment period was closed, Civil Service forwarded to Mosquito Control a list

of nine qualified candidates that included Van Voorhis.

When Knight started her employment with Hillsborough County at

Mosquito Control, she was not qualified to fly the helicopter as the pilot in

command. Hillsborough County’s insurance company required her to log 50 hours

of supervised flight time in the helicopter before it would insure her. Knight also

received a warning letter from the Federal Aviation Administration for violating a

regulation requiring at least 100 hours of spraying flight time before operating a

helicopter used for agricultural spraying over a congested area.

Van Voorhis filed amended complaints in state court that alleged age

discrimination. Hillsborough County removed the action to federal court and

5
moved for summary judgment. The district court entered summary judgment in

favor of Hillsborough County. The district court concluded that Van Voorhis had

presented no direct evidence of discrimination on the basis of age, and the court

concluded that Van Voorhis had failed to present evidence that he had suffered an

adverse employment action.

II. STANDARD OF REVIEW

We review the grant of summary judgment de novo and construe “all

reasonable doubts about the facts in favor of the non-movant.” Morris v. Emory

Clinic, Inc., 402 F.3d 1076, 1081 (11th Cir. 2005) (quoting Browning v. Peyton,

918 F.2d 1516, 1520 (11th Cir.1990)) (internal quotation marks omitted).

Summary judgment should be granted “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).

III. DISCUSSION

Our discussion is divided in two parts. We first address the conclusion of

the district court that Van Voorhis did not present direct evidence of

discrimination. We next address whether Van Voorhis suffered an adverse

employment action. We conclude both that Van Voorhis presented direct evidence

6
of discrimination and that he suffered an adverse employment action. Van Voorhis

does not challenge the conclusion of the district court that Title VII does not

prohibit discrimination on the basis of age, so his claim under Title VII has been

abandoned.

A. Van Voorhis Presented Direct Evidence of Discrimination.

“Under the ADEA, a plaintiff . . . bears the ultimate burden of proving that

age was a determining factor in the employer’s decision . . . [not to hire] him or

her.” See Carter v. City of Miami, 870 F.2d 578, 581 (11th Cir. 1989). A plaintiff

may establish a claim of illegal age discrimination through either direct evidence or

circumstantial evidence. See id. We define “direct evidence of discrimination as

‘evidence which reflects a discriminatory or retaliatory attitude correlating to the

discrimination or retaliation complained of by the employee.’” Wilson v. B/E

Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004) (quoting Damon v. Fleming

Supermarkets of Fla., Inc., 196 F.3d 1354, 1358 (11th Cir. 1999) (internal

quotation marks omitted)). “[O]nly the most blatant remarks, whose intent could

be nothing other than to discriminate on the basis of age, . . . constitute direct

evidence of discrimination.” City of Miami, 870 F.2d at 582; see also Merritt v.

Dillard Paper Co., 120 F.3d 1181, 1189–90 (11th Cir. 1997) (listing cases where

we have concluded that remarks and actions constitute direct evidence of illegal

7
discrimination). “In the face of direct evidence, an employer must prove that the

same employment decision would have been made absent any discriminatory

intent.” City of Miami, 870 F.2d at 582.

Jacobson’s alleged statements that he “didn’t want to hire any old pilots”

and was not going to interview any of the applicants from the first recruitment

period, including Van Voorhis, because he “didn’t want to hire an old pilot” are

direct evidence of age discrimination. The import of the alleged statements “could

be nothing other than to discriminate on the basis of age.” Id. The district court

erred when it concluded that the alleged statements did not constitute direct

evidence of discrimination on the basis of age.

B. Van Voorhis Presented Evidence of An Adverse Employment Action.

Even where direct evidence of discrimination exists, Van Voorhis must

present evidence of an adverse employment action. See Hipp v. Liberty Nat’l Life

Ins. Co., 252 F.3d 1208, 1230 n.34 (11th Cir. 2001). “An adverse employment

action is an ultimate employment decision, such as discharge or failure to hire, or

other conduct that ‘alters the employee’s compensation, terms, conditions, or

privileges of employment, deprives him or her of employment opportunities, or

adversely affects his or her status as an employee.’” Gupta v. Fla. Bd. of Regents,

212 F.3d 571, 587 (11th Cir. 2000) (quoting Robinson v. City of Pittsburgh, 120

8
F.3d 1286, 1300 (3d Cir. 1997)). Hillsborough County argues that Van Voorhis

did not suffer an adverse employment action because his application was

incomplete when Knight was hired. We disagree.

The conclusion of the district court that Van Voorhis did not suffer an

adverse action was based on the erroneous assumption that the second recruitment

period was the only relevant time period. Hillsborough County contends that Van

Voorhis did not complain about its actions in connection with the first recruitment

period, but Hillsborough County is wrong. Van Voorhis, in his Second Amended

Complaint, alleged that Hillsborough County “had over ten qualified applications

when it rejected all applications for a new posting, and although it had the

applications when it chose to re-post the job, it offered a position to a woman much

younger than [Van Voorhis], who was not even qualified for the position.” The

rejection of Van Voorhis’s application during the first recruitment period was an

adverse employment action about which Van Voorhis complained.

IV. CONCLUSION

Because Van Voorhis presented both direct evidence of discrimination on

the basis of age and evidence of an adverse employment action, the summary

judgment in favor of Hillsborough County and against Van Voorhis’s complaint

under the ADEA and FCRA is REVERSED and this action is REMANDED for

9
further proceedings consistent with this opinion.

REVERSED AND REMANDED.

10