Jose Diaz v. AIG Marketing, Inc.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-10440 ELEVENTH CIRCUIT
Non-Argument Calendar SEPTEMBER 22, 2010
________________________ JOHN LEY
CLERK
D.C. Docket No. 0:09-cv-60011-DLG
JOSE DIAZ,
llllllllllllllllllll Plaintiff - Appellant,
versus
AIG MARKETING, INC.,
a foreign corporation,
llllllllllllllllllll Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(September 22, 2010)
Before BARKETT, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:
Jose Diaz appeals from an adverse summary judgment on his claim that AIG
Marketing, his former employer, discriminated against him because of his age in
violation of the Florida Civil Rights Act, Fla. Stat. § 760.10(1). Because Diaz
failed to produce evidence sufficient to convince a reasonable juror that AIG
engaged in any unlawful discrimination, we affirm the district court’s summary
judgment.
I
Diaz, a man in his early sixties, worked for AIG in Florida as a claims
adjuster in its automobile-insurance division. After he was fired, Diaz brought a
an age-discrimination claim against AIG under the Florida Civil Rights Act, which
makes it “an unlawful employment practice for an employer: (a) To discharge . . .
any individual, or otherwise to discriminate against any individual with respect to
compensation, terms, conditions, or privileges of employment, because of such
individual’s . . . age.” Fla. Stat. § 760.10(1).1 In support of his claim, Diaz alleged
that his supervisors (who were not responsible for personnel decisions) had once
referred to him as “the guy with the experience” and “the old-timer.” He also said
1
Diaz filed suit in state court, and AIG timely removed the action to federal court on the
basis of diversity jurisdiction. See 28 U.S.C. §§ 1332(a), 1441(a).
2
that his last work assignments had lengthened his daily commute by three hours
and that his overall workload had sharply increased before his termination.
In support of its motion for summary judgment, AIG proffered testimony
that Diaz had been a Miami-area “field agent” who drove a company car and
whose commute had changed only because the company needed more adjusters to
work near a new office in Fort Lauderdale. With respect to Diaz’s increasing
workload, AIG explained that it had given him additional assignments to help him
meet productivity goals after his numbers dropped. And the company presented
testimonial and documentary evidence showing that Diaz’s termination had been
authorized by its human-resources department after he failed to report for work
and failed to explain his continued absence after an extended, two-week vacation.
In opposition to AIG’s motion for summary judgment, Diaz argued that the
company had wrongfully reassigned him to the Fort Lauderdale area after hiring
independent contractors to cover his previous territory. Diaz contended that
instead of moving him around, the company should have simply had the
contractors work near Fort Lauderdale. He also testified that although his
workload had increased, younger field agents had told him that their workloads
remained constant. Finally, he insisted that he had never received notice of his
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imminent termination and that he had been fired despite efforts to explain to his
supervisors that he needed to miss work to attend a funeral.
II
We review the district court’s order on a motion for summary judgment de
novo and construe the facts in the light most favorable to the non-moving party.
Van Voorhis v. Hillsborough Cnty. Bd. of Cnty. Comm’rs, 512 F.3d 1296, 1299
(11th Cir. 2008). “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.’” Id. (quoting
Fed. R. Civ. P. 56(c)).
The Florida Civil Rights Act is patterned on the Age Discrimination in
Employment Act (ADEA), 29 U.S.C. § 623. City of Hollywood v. Hogan, 986 So.
2d 634, 641 (Fla. Dist. Ct. App. 2008). Accordingly, both state and federal courts
have held that “[f]ederal case law interpreting Title VII and the ADEA applies to
cases arising under the [Florida Act].” Id.; see also Zaben v. Air Prods. & Chems.,
Inc., 129 F.3d 1453, 1455 n.2 (11th Cir. 1997) (citing Morrow v. Duval Cnty. Sch.
Bd., 514 So. 2d 1086 (Fla.1987)).
4
In Gross v. FBL Financial Services, the Supreme Court held that plaintiffs
alleging disparate treatment in violation of the ADEA “must prove by a
preponderance of the evidence (which may be direct or circumstantial)[] that age
was the ‘but-for’ cause of the challenged employer decision.” 129 S. Ct. 2343,
2350 (2009). In cases like this one involving circumstantial evidence,2 an ADEA
plaintiff must prove, at a minimum, that he suffered an adverse employment
action, in a job for which he was qualified, and that similarly situated younger
employees were treated more favorably. See, e.g., Turlington v. Atlanta Gas Light
Co., 135 F.3d 1428, 1432 (11th Cir. 1998). Although the plaintiff’s initial burden
is “light,” summary judgment is appropriate if he fails to establish any element of
this “prima facie case.” Id. at 1433–34.
At the outset, we note that neither assigning Diaz to the Fort Lauderdale
area nor increasing his workload was an adverse employment action. It is not our
role to second-guess AIG’s business decisions, and changes to an employee’s
work assignments are rarely sufficiently “adverse” to warrant scrutiny under the
anti-discrimination laws. See Davis v. Town of Lake Park, 245 F.3d 1232, 1244
2
Although Diaz alleged that his supervisors had once referred to him as an old-timer,
“remarks by non-decisionmakers or remarks unrelated to the decisionmaking process itself are
not direct evidence of discrimination.” Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330
(11th Cir. 1998).
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(11th Cir. 2001). On the facts here, no reasonable juror could conclude that
assigning Diaz to a new territory or giving him additional work was, without more,
an adverse employment action.
That leaves Diaz’s termination for consideration. But he presented no
convincing evidence that AIG fired him because of his age. At best, he showed
only that two of his supervisors—neither of whom had the authority to fire
him—made unfair work assignments and thought he was an “old-timer.” Diaz
tried to buttress this weak circumstantial evidence with conjecture about AIG’s
hidden motives, but his inability to show that the company treated any of its
younger employees differently is fatal to his claim. Cf. Evers v. Gen. Motors
Corp., 770 F.2d 984, 986 (11th Cir. 1985) (“[C]onclusory allegations [in an
affidavit] without specific supporting facts have no probative value.”). Although
Diaz testified in his affidavit that younger AIG adjustors had told him that they
had lighter workloads, the district judge properly disregarded those statements as
hearsay. See Macuba v. DeBoer, 193 F.3d 1316, 1323 (11th Cir. 1999) (“[A]
district court may consider a hearsay statement in passing on a motion for
summary judgment” only if “the out-of-court statement made to the witness . . .
[would be] admissible at trial for some purpose.”).
6
Diaz’s contention that he tried to contact his supervisors to explain his
failure to report for work does not affect our conclusion. Representatives from
AIG’s human-resources department sent Diaz a letter requesting a direct
explanation for his absence. Diaz’s purported attempts to contact his supervisors,
instead of human resources, were not responsive to that request.
Diaz maintains that he never received the letter, but we are not inclined to
give this assertion much credence. For one thing, Diaz never contested the invoice
AIG presented from the shipping company that confirmed the letter’s delivery.
Even though the letter bore the wrong address (as Diaz noted, 92nd “Street”
instead of 92nd Avenue), the invoice shows that the shipping company delivered it
to the right one. And Diaz’s alternative explanation—that AIG knew he was out
of town and unable to respond to the letter—appears only in his reply brief. Cf. In
re Egidi, 571 F.3d 1156, 1163 (11th Cir. 2009) (“Arguments not properly
presented in a party’s initial brief or raised for the first time in the reply brief are
deemed waived.”).
At any rate, that Diaz may not have received the letter bears only tangential
relevance to whether he suffered age discrimination. The real question is whether
AIG would have kept him on its employment rolls “but for” his age. Gross, 129
S. Ct. at 2350. Without any direct evidence of discrimination, or at least some
7
circumstantial evidence that AIG gave its younger employees preferential
treatment, no reasonable juror could conclude that Diaz had met his burden. The
district court’s summary judgment is
AFFIRMED.
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