Fusaro v. Hialeah Housing Authority

• Decision Date: 11 January 1999
• Docket Number: No. 97-2732-CIV.,97-2732-CIV.
• Citation: 33 F.Supp.2d 1354
• Parties: Richard FUSARO, et al., Plaintiffs, v. HIALEAH HOUSING AUTHORITY, Defendant.
• Court: U.S. District Court — Southern District of Florida

33 F.Supp.2d 1354

Richard FUSARO, et al., Plaintiffs, v. HIALEAH HOUSING AUTHORITY, Defendant.

No. 97-2732-CIV.

United States District Court, S.D. Florida, Miami Division.

January 11, 1999.

COPYRIGHT MATERIAL OMITTED

J.B. Harris, Coral Gables, FL, Nicholas A. Manzini, Manzini & Associates, P.A., Miami, FL, for plaintiffs.

Edward G. Guedes, Weiss Serota Helfman Pastoriza & Guedes, P.A., Miami, FL, for defendant.

ORDER

K. MICHAEL MOORE, District Judge.

THIS CAUSE came before the Court upon Defendant Hialeah Housing Authority's Motion for Summary Judgment (DE # 106) and Supplemental Motion for Summary Judgment (DE # 129).

UPON CONSIDERATION of the motions, responses, materials submitted, the pertinent portions of the record, and being otherwise fully advised in the premises, the Court enters the following Order.

BACKGROUND

Plaintiffs Richard Fusaro, Hugo Hernandez and Roberto Jimenez ("Plaintiffs") filed a 24-count complaint against the Hialeah Housing Authority (the "Authority") and Executive Director Maria Roca ("Roca") alleging violations of Title VII, the Age Discrimination in Employment Act ("ADEA"), procedural and substantive due process (pursuant to 42 U.S.C. § 1983) and the Florida Civil Rights Act.¹

STATEMENT OF FACTS²

The following facts are undisputed for purposes of ruling on the instant motion: Fusaro began working with the Authority in January 1980. In March 1994, Fusaro initiated contact with federal agents who were investigating allegations of mismanagement and misappropriation by the Authority's then-executive director Rafael Sanchez. In November 1995, Sanchez was suspended from his position and the Authority's Board of Commissioners (the "Board") voted Fusaro as acting executive director of the Authority. In December 1995, Roca resigned her position on the Authority's Board and was appointed to replace Fusaro as acting executive director. At that time, Fusaro was reassigned to his former position as Director of Operations. Fusaro alleges that after Roca became acting executive director, he was continually subject to reprimands (verbal and written) for alleged disobedience and nonperformance. On November 13, 1996, Fusaro was terminated from his employment with the Authority. Fusaro alleges his demotion and termination were discriminatory and in retaliation for Fusaro's assistance in the Sanchez investigation. In December 1996, Roca became the permanent executive director of the Authority.

Hernandez and Jimenez began working in the Authority's maintenance department in 1982 and 1975, respectively. In January 1996, Hernandez and Jimenez and several other employees signed a letter of protest (the "Letter") addressed to the United States Department of Housing and Urban Development in which they objected to the operation of the Authority and the Authority's alleged poor treatment of Fusaro. On November 26, 1996, following the completion of an inventory and audit of their department, Hernandez and Jimenez each were terminated from their employment with the Authority. Hernandez and Jimenez allege, among other things, they were terminated in retaliation for their protest letter and for voicing other matters of public concern.

DISCUSSION

I. Summary Judgment Standard

The standard to be applied in reviewing a summary judgment motion is stated unambiguously in Rule 56(c) of the Federal Rules of Civil Procedure:

The judgment sought shall be rendered forthwith 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 judgment as a matter of law.

Summary judgment may be entered only where there is no genuine issue of material fact. See Twiss v. Kury, 25 F.3d 1551, 1554 (11th Cir.1994). The moving party has the burden of meeting this exacting standard. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). An issue of fact is "material" if it is a legal element of the claim under the applicable substantive law which might affect the outcome of the case. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.1997). It is "genuine" if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party. Id.

In applying this standard, the district court must view the evidence and all factual inferences therefrom in the light most favorable to the party opposing the motion. Id. However, the non-moving party:

may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.

Rule 56(e), Fed.R.Civ.P. "The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In other words, the party opposing summary judgment "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Company v. Zenith Radio, 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

Additionally, the non-moving party must "make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial and requires the court to grant the motion for summary judgment. Id.

II. Burden of Proof

The burden of proof in a Title VII or ADEA action is set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and its progeny. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Meeks v. Computer Assocs. Int'l, 15 F.3d 1013 (11th Cir. 1994). Initially, the plaintiff must establish a prima facie case of discrimination. Once a plaintiff establishes a prima facie case, a presumption of discrimination arises. Hicks, 509 U.S. at 506, 113 S.Ct. 2742. Thereafter, the defendant can rebut any presumption by producing a legitimate, nondiscriminatory reason for its actions. Id. This burden is "exceedingly light"; the defendant must merely proffer the legitimate reasons, not prove them. Meeks, 15 F.3d at 1019. Once such a reason is proffered, the plaintiff must then demonstrate the reasons were simply a pretext and the defendant had a discriminatory intent. Because the plaintiff bears the burden of establishing pretext, he must present "significantly probative evidence on the issue to avoid summary judgment." Isenbergh v. Knight-Ridder Newspaper Sales, Inc., 97 F.3d 436, 444 (11th Cir.1996), cert. denied, ___ U.S. ___, 117 S.Ct. 2511, 138 L.Ed.2d 1014 (1997). Thus, "a mere scintilla of evidence does not create a jury question." Id. (quoting Carter v. City of Miami, 870 F.2d 578, 581 (11th Cir.1989)). That a plaintiff calls into question some assertions made by defendant in support of defendant's justification is not enough; a plaintiff must call into question the veracity of defendant's ultimate justification itself. Id. Based on the standards set forth above, the Court will address each Plaintiff's allegations in turn.

A. Fusaro's Claims of Retaliation and Discrimination Based on National Origin and Age (Counts I And II)

In Count I of the second amended complaint, Fusaro alleges he was subjected to unlawful discrimination and retaliation based on his national origin. In Count II, Fusaro alleges he was discriminated against on the basis of his age.

For purposes of this discussion, the Court will assume Fusaro has stated prima facie cases for national origin³ and age discrimination⁴ and retaliation.⁵ The Authority argues, however, it had a legitimate, nondiscriminatory reason for terminating Fusarohis inadequate performance as Director of Operations. Thus, Fusaro now has the burden of producing evidence to show the Authority's reason for terminating his employment was simply a pretext for intentional discrimination.

With respect to Fusaro's claim for age discrimination, Fusaro provides no evidence other than he was replaced by a younger person. This evidence is part of Fusaro's prima facie case and cannot be used to rebut the Authority's legitimate, nondiscriminatory reason for his termination. See Tidwell v. Carter Products, 135 F.3d 1422, 1426 (11th Cir.1998) (plaintiff must provide a prima facie case plus evidence discrediting the employer's reasons to survive a motion for summary judgment). In his affidavit in support of his argument, Fusaro states "I firmly believe that I have been discriminated against based on my age and national origin, because I was replaced as Acting Executive Director by a younger Hispanic female who was less qualified than I to run the Authority." Fusaro, however, provides no additional supporting factual evidence for this statement. Conclusory statements in an affidavit are not sufficient evidence to prove age discrimination. See Red Mendoza v. Borden, Inc., 158 F.3d 1171, 1174 (11th Cir.1998). In addition, when asked in a deposition whether there were any reasons other than retaliation and national origin that caused his termination at the Authority, Fusaro replied "no."

The evidence is similarly lacking with respect to Fusaro's claim for discrimination based on national origin. The sole evidence Fusaro presents to support his claim for discrimination based on national origin is the composition and ethnicity of the Board. In the same deposition, the...