Damon v. Fleming Supermarkets of Florida, Inc.

Walter DAMON, Richard Kanafani, Plaintiffs-Appellants,
v.
FLEMING SUPERMARKETS OF FLORIDA, INC., f.d.b.a. Wooley's Fine Foods, etc., Defendant-
Appellee.
No. 98-5554.
United States Court of Appeals,
Eleventh Circuit.
Dec. 3, 1999.
Appeal from the United States District Court for the Southern District of Florida. (No. 97-230-CV-JAL), Joan
A. Lendard, Judge.
Before EDMONDSON and MARCUS, Circuit Judges, and ALARCON*, Senior Circuit Judge.
MARCUS, Circuit Judge:
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
*
Honorable Arthur L. Alarcon, Senior U.S. Circuit Judge for the Ninth Circuit, sitting by designation.
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 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
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
2
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 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (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.
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
3
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 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
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.
4
(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 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 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
5
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
for 13 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
Rosenfield v. Wellington Leisure Products, Inc., 827 F.2d 1493, 1495 n. 2 (11th Cir.1987)). We have
explained that the " 'reason for this 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 Rosenfield, 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 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
6
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 unrebutted." 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. Gainesville Sun Publishing Co., 9 F.3d 913, 918 (11th Cir.1993) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (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
7
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.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
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." 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.
8
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.
...
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?
9
remark, the 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 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).
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.1995) (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).
10
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 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.
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
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).
11
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 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
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.
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.
12
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 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
13
department manager on October 1, 1994.6 Dennis D'Angelo, Kanafani's replacement, also testified that Soto
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 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.1998) (citing Bechtel Construction Co. v. Secretary 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
14
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 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
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. 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?"
15
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.
16