Carter v. City of Miami

• Decision Date: 19 April 1989
• Docket Number: No. 87-5665,87-5665
• Citation: 870 F.2d 578
• Parties: 49 Fair Empl.Prac.Cas. 1014, 49 Empl. Prac. Dec. P 38,904 Mikele S. CARTER, Plaintiff-Appellee, v. CITY OF MIAMI, Jose Garcia-Pendrosa, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 578

870 F.2d 578

49 Fair Empl.Prac.Cas. 1014,

49 Empl. Prac. Dec. P 38,904

Mikele S. CARTER, Plaintiff-Appellee, v. CITY OF MIAMI, Jose Garcia-Pendrosa, Defendants-Appellants.

No. 87-5665.

United States Court of Appeals,

Eleventh Circuit.

April 19, 1989.

Arthur J. England, Jr., Fine Jacobson Schwartz Nash Block & England, Linda Ann Wells, Lucia A. Dougherty, City Atty., Leon M. Firtel, Miami, Fla., for defendants-appellants.

Sheridan Weissenborn, Papy, Weissenborn & Papy, Coral Gables, Fla., for plaintiff-appellee.

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

Before FAY and KRAVITCH, Circuit Judges, and LYNNE ^*, Senior District Judge.

LYNNE, Senior District Judge:

In July of 1984, Plaintiff-Appellee sued the City of Miami alleging violations of the Age Discrimination in Employment Act of 1967 [hereinafter ADEA], 29 U.S.C. Sec. 621 et seq., and seeking damages for violation of Florida's age discrimination act. The jury found in favor of Appellee, and the district court awarded her back pay, future pay, and an increased annual pension. The City appeals the district court's denial of its motions for directed verdict and judgment notwithstanding the verdict. We reverse.

I. FACTS

In June, 1961, Mikele Carter, a woman born August 31, 1933 [hereinafter Carter], was hired as a policewoman by the City of Miami Police Department. In 1973, she was admitted to the Florida Bar and transferred to the City of Miami Law Department. On March 30, 1983, she was fired.

In July of 1982, Jose Garcia-Pedrosa [hereinafter Pedrosa] was appointed City Attorney. Pedrosa evaluated and reorganized the staff after he assumed the position of City Attorney and by November, 1982, he had asked three attorneys to resign. They were all male and under forty years of age. ¹ Two employees who were in the age group protected by the ADEA ² retired or resigned. One, a 62 year old woman whom Pedrosa had promoted from secretary to an administrative position, was given the choice of returning to secretarial work or retiring. She retired with full pension benefits. Another female secretary was asked to resign by Pedrosa at the insistence of the attorney for whom she worked because the attorney considered her incompetent.

Pedrosa also moved the offices to a new building and instituted various procedural reforms, such as requesting that staff members not shout in the office, requiring that attorneys keep track of their time and insisting that correspondence be free of typographical errors. Carter openly opposed these reforms: she accused Pedrosa of engaging in impropriety in leasing the new building and threatened grand jury action; she refused to account for her time, criticizing the requirement as a fraud; she took personal offense at Pedrosa's request that staff not shout at each other and in protest whispered to everyone in the office for two weeks; she impugned the character of and refused to work with a Ms. Dougherty, hired to be Deputy City Attorney, because Carter had wanted the position; and she maligned the Mayor and called his assistant a thief. Pedrosa testified that although he had considered firing Carter for these actions, he had instead tried to transfer her to the police department.

Around November, 1982, Pedrosa hired Ms. Gisella Cardonne, who was at that time thirty-two years old. Relying on a news account that Ms. Cardonne was hired to do appellate work, which was Carter's primary responsibility, Carter asked Pedrosa whether he intended to fire her. Pedrosa assured Carter that she was not being replaced. However, Carter remembered that in August of 1982 Pedrosa had commented in reference to a sixty-two year old Jewish secretary that he did not want his office run by "little old Jewish ladies" like his mother-in-law. From this remark and a purported comment by Pedrosa that Carter's secretary was too old and made too much money, Carter concluded that Pedrosa wanted to get rid of older employees like herself in order to cut costs.

Carter interpreted several of Pedrosa's actions as personal criticisms aimed at harassing her to retire. For example, she felt she was being harassed by Pedrosa's insistence that her correspondence go out in the correct envelope, by his insistence that she refrain from shouting in the office, and by his questioning of her use of secondary research aids in her briefs. She also drew this conclusion when the Deputy City Attorney asked her when she was planning to retire. In March of 1983, Pedrosa took offense at some remarks Carter had made at a University of Miami fundraiser and either fired her or offered to let her retire. ³ When Pedrosa came to see Carter at her office on March 30, 1983, Carter refused to speak with him without a witness present. Pedrosa considered this an act of insubordination and, when Carter insisted, told Carter to clear out her desk. Carter reverted to a position as police sergeant and remained there until her voluntary retirement on August 31, 1983. In April of 1983, Albertine Smith, a forty-six year old woman, was hired by the City Attorney's office to fill the vacancy created by Carter's departure.

Carter filed suit in state court on March 31, 1983, to enjoin the City from revoking her appointment in the City Attorney's office. The action was dismissed with prejudice and affirmed on appeal. Carter v. Garcia-Pedrosa, 442 So.2d 1022 (Fla.3d DCA 1983), cert. denied, 451 So.2d 847 (Fla.1984). Carter also filed a complaint with the Equal Employment Opportunity Commission, and on April 20, 1983, was notified of her right to institute a civil action. On July 19, 1984, Carter filed a complaint against the City and against Pedrosa, both individually and in his official capacity, alleging that her termination violated the ADEA, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e et seq., on grounds of sex and religious discrimination. Carter also charged violation of two corresponding Florida statutes, Secs. 760.10(8)(b) and 112.044(4). On June 12, 1985, summary judgment was entered in favor of defendants on the civil rights claim, after which Carter dismissed all remaining claims against Pedrosa.

At the close of Carter's case, the court granted an involuntary dismissal of the sex discrimination count but denied defendant's motions for directed verdict under the ADEA and Title VII. At the close of all the evidence, the court denied the City's motions for involuntary dismissal of the religious discrimination claim and for directed verdict on the age discrimination claim. The court rendered judgment for Appellant on the religious discrimination claim, and the jury found in favor of Carter on the age discrimination claim.

The court awarded Carter $174,954.43 in back pay, $45,224.55 for future pay and $26,912.54 for economic benefits based on a stipulation by the parties as to when Carter would have retired had she not been fired. In addition, the district court increased Carter's annual pension from $30,422.88 to $56,045.52. Appellant's motions for judgment not withstanding the verdict and for new trial were denied, and this appeal ensued.

II. STANDARD OF REVIEW

When considering whether or not a ruling on a motion for directed verdict or for judgment notwithstanding the verdict should be upheld, the standard of review to be applied by this Court is the same as that applied by the district court. ⁴ Thus, we consider all the evidence, and the inferences drawn therefrom, in the light most favorable to the nonmoving party. ⁵ If the facts and inferences point overwhelmingly in favor of one party, such that reasonable people could not arrive at a contrary verdict, then the motion was properly granted. Conversely, if there is substantial evidence opposed to the motion such that reasonable people, in the exercise of impartial judgment, might reach differing conclusions, then such a motion was due to be denied and the case was properly submitted to the jury. ⁶

It bears repeating that a mere scintilla of evidence does not create a jury question. Motions for directed verdict and for judgment notwithstanding the verdict need not be reserved for situations where there is a complete absence of facts to support a jury verdict. Rather, there must be a substantial conflict in evidence to support a jury question. ⁷

III. DISCUSSION

A. THE PRIMA FACIE CASE

Under the ADEA, a plaintiff claiming disparate treatment bears the ultimate burden of proving that age was a determining factor in the employer's decision to fire him or her. ⁸ Initially, a plaintiff must establish a prima facie case of discrimination 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, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); or through statistical proof. Because Carter did not submit statistical evidence, we need only address the first two methods.

1. Direct Evidence of Discrimination

Direct evidence of discrimination would be evidence which, if believed, would prove the existence of a fact without inference or presumption. Castle v. Sangamo Weston, Inc., 837 F.2d 1550, 1558 n. 13 (11th Cir.1988). In the face of direct evidence, an employer must prove that the same employment decision would have been made absent any discriminatory intent. ⁹

This Court has held that not every comment concerning a person's age presents direct evidence of discrimination. Young, 840 F.2d at 829. The Young Court made clear that remarks merely referring to characteristics associated with increasing age, or facially neutral comments from which a plaintiff has inferred discriminatory intent, are not directly probative of discrimination. Id. Rather, courts have found only the most blatant remarks, whose intent could be nothing other than to discriminate on the basis of age, to constitute direct evidence of discrimination. ¹⁰

Here, the...