597 F.3d 1201 (11th Cir. 2010), 08-16113, Mora v. Jackson Memorial Foundation, Inc.

Docket Nº:08-16113.
Citation:597 F.3d 1201
Opinion Judge:PER CURIAM:
Party Name:Josephine MORA, Plaintiff-Appellant, v. JACKSON MEMORIAL FOUNDATION, INC., a Florida non-profit corporation, Defendant-Appellee.
Attorney:Matthew Seth Sarelson, Sarelson, P.A., Miami, FL, for Mora. Kevin E. Vance, Michael W. Casey, III, Epstein, Becker & Green, P.C., Miami, FL, for Defendant-Appellee.
Judge Panel:Before EDMONDSON and PRYOR, Circuit Judges, and CAMP,[*] District Judge.
Case Date:February 23, 2010
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1201

597 F.3d 1201 (11th Cir. 2010)

Josephine MORA, Plaintiff-Appellant,

v.

JACKSON MEMORIAL FOUNDATION, INC., a Florida non-profit corporation, Defendant-Appellee.

No. 08-16113.

United States Court of Appeals, Eleventh Circuit.

February 23, 2010

Page 1202

Matthew Seth Sarelson, Sarelson, P.A., Miami, FL, for Mora.

Kevin E. Vance, Michael W. Casey, III, Epstein, Becker & Green, P.C., Miami, FL, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before EDMONDSON and PRYOR, Circuit Judges, and CAMP,[*] District Judge.

PER CURIAM:

Josephine Mora (" Plaintiff" ) sued her former employer, Jackson Memorial Foundation (" Defendant" ) for wrongful termination under the Age Discrimination in Employment Act (" ADEA" ). 29 U.S.C §§ 621-34. The district court granted summary judgment to Defendant because the court concluded that Defendant would prevail under a " same decision" affirmative defense. After Plaintiff filed her appeal, the Supreme Court's ruling in Gross v. FBL Financial Services , __ U.S. __, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009), rejected " mixed motive" age discrimination claims as well as " same decision" affirmative defenses. Considering Gross and the traditional summary judgment standard, we conclude that material factual matters are in dispute. Therefore, we vacate the summary judgment.

I. Background

Plaintiff, who was 62 at the pertinent time, worked for Defendant as a fundraiser. She initially worked under Ms. Chea in the International Kids Fund (" IKF" ), a division of the Defendant, where she conducted media relations in addition to soliciting donors. Chea grew dissatisfied with Plaintiff's work and recommended to Defendant's chief executive Mr. Rodriguez that Plaintiff's employment be terminated. According to his affidavit, Rodriguez agreed, but later decided to give Plaintiff a different position in his own office " where he could observe her more closely." Rodriguez did not inform Plaintiff that she had been terminated from her position at IKF.

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Plaintiff worked with Rodriguez for a month, and more errors and professionalism issues supposedly arose.

Plaintiff contends that Rodriguez called her into his office at the end of the month and fired her, explaining that " I need someone younger I can pay less ... I need an Elena [Quevedo, a 25 year old employee]." Another coworker and former Jackson Memorial Foundation employee, D. K., alleges that she heard this conversation, adding that she heard Rodriguez say to Plaintiff " ... you are very old, you are very inept. What you should be doing is taking care of old people. They really need you. I need somebody younger that I can pay less and I can control." M. L., another former Foundation employee, stated that Rodriguez explained to her and Quevedo that " [Plaintiff] is too old to be working here anyway." Rodriguez denies that he made the discriminatory-sounding statements, and Quevedo substantiates Rodriguez's version of events.

Defendant moved for summary judgment, arguing that even if it had not discriminated against Plaintiff, her employment would still have been terminated for poor job performance. The district judge agreed, concluding that Defendant met its burden of persuasion under the " same decision" affirmative defense.

II. Discussion

We review the grant of a motion for summary judgment de novo and resolve all reasonable factual doubts in favor of the non-movant. Van Voorhis v. Hillsborough County Bd. of County Comm'rs , 512 F.3d 1296, 1299 (11th Cir.2008).

A. Procedural Background and Gross

The district court considered the Defendant's motion for summary judgment under the burden-shifting standard set out in Price Waterhouse v. Hopkins , 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). In Price Waterhouse , the Supreme Court set out a " burden shifting" procedure for " mixed motive" discrimination claims under Title VII. Briefly stated, under Price Waterhouse , once a plaintiff shows that race or sex discrimination was a motivating or substantial factor in an employment decision, the burden of persuasion shifts to the employer to demonstrate by a preponderance of the evidence that the employer would have made the " same decision" in the absence of the discriminatory motive. See id. at 1795; see also Steger v. Gen. Elec. Co. , 318 F.3d 1066, 1075 (11th Cir.2003).

Defendant argued in district court that...

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