IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

CASE NO.: 08-16113D

JOSEPHINE MORA, Plaintiff/Appellant, v. JACKSON MEMORIAL FOUNDATION, INC., Defendant/Appellee. __________________________________________/

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA

APPELLANT’S INITIAL BRIEF

Matthew Seth Sarelson, Esq. Florida Bar No. 888281 Michael A. Shafir, Esq. Florida Bar No. 660671 Sarelson & Shafir LLP 1401 Brickell Avenue Suite 510 Miami, Florida 33131 Telephone: (305) 379-0305 Facsimile: (800) 421-9954

CERTIFICATE OF INTERESTED PERSONS

Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure,

Appellant files her Certificate of Interested Persons and Corporate Disclosure

Statement.

The following people and corporate entities are interested persons:

1. Casey III, Esq., Michael W.

2. Dimond, Esq., Alan T.

3. Epstein Becker & Green, P.C.

4. Garber, Honorable Magistrate Judge Barry

5. Jackson Memorial Foundation, Inc.

6. Lenard, Honorable Judge Joan A.

7. Mora, Josephine

8. Rodriguez, Rolando R.

9. Sarelson, Esq., Matthew S.

10. Sarelson & Shafir LLP

11. Sarelson, P.A.

12. Shafir, Esq., Michael A.

13. Vance, Esq., Kevin E.

i

STATEMENT REGARDING ORAL ARGUMENT

Mora requests oral argument to assist the Court in understanding why

genuine issues of material fact exist.

TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS…………………………………….i

TABLE OF CITATIONS………………………………………………………….iv

STATEMENT OF JURISDICTION……………………………………………….1

STATEMENT OF THE ISSUES…………………………………………………..2

STATEMENT OF THE CASE…………………………………………………….4

i) Course of Proceedings and Disposition Below……………………….7

ii) Statement of the Facts………………………………………………...8

a. Mora’s Direct Evidence – Conceded by JMF……………………..8

b. JMF’s Purported Affirmative Defense Evidence………………...11

iii) Standard of Review………………………………………………….15

SUMMARY OF ARGUMENT…………………………………………………...16

ARGUMENT……………………………………………………………………...18

I. MORA’S SUBSTANTIAL DIRECT EVIDENCE OF

DISCRIMINATION PRECLUDES SUMMARY

JUDGMENT ON JMF’S AFFIRMATIVE

DEFENSE…………………………………………………….18

ii

II. THE EEOC’S CONCLUSION THAT JMF PROBABLY

VIOLATED THE ADEA WEIGHS HEAVILY

AGAINST SUMMARY JUDGMENT……………………….26

III. JMF’S FAILURE TO PLEAD A MIXED-MOTIVE

AFFIRMATIVE DEFENSE PRECLUDES ITS USE

AT SUMMARY JUDGMENT……………………………….33

IV. THE DISTRICT COURT IMPROPERLY FAVORED

JMF’S EVIDENCE…………………………………………..35

CONCLUSION…………………………………………………………………...41

CERTIFICATE OF COMPLIANCE……………………………………………..42

CERTIFICATE OF SERVICE……………………………………………………42

iii

TABLE OF CITATIONS

CASES

Barfield v. Orange Cty., 911 F.2d 644 (11th Cir. 1990)................................. 27, 30*

Blanton v. Univ. of Fla., 273 Fed. Appx. 797 (11th Cir. 2008)............................ 27*

Brewer v. Dupree, 356 F. Supp. 2d. 1261 (M.D. Ala. 2004) ..................................22

Buckley v. Hosp. Corp. of Am., 758 F.2d 1525 (11th Cir. 1985)............... 18, 20-21*

Burnette v. Taylor, 533 F.3d 1325 (11th Cir. 2008) ................................................39

Carter v. Univ. of S. Alabama, 510 F. Supp. 2d 596 (S.D. Ala. 2007) ............ 21, 24

Clark v. Coats & Clark, Inc., 990 F.2d 1217 (11th Cir. 1993)................................40

Damon v. Fleming Supermarkets of Florida, Inc.,

196 F.3d 1354 (11th Cir. 1999) ..................................................................... 15, 35

Day v. Liberty Nat’l Life Ins. Co., 122 F.3d 1012 (11th Cir. 1997) ........................34

Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003)....................................................34

E.E.O.C. v. Alton Packaging Corp., 901 F. 2d 920 (11th Cir. 1990)......................20

E.E.O.C. v. Warfield-Rohr Casket Co., 364 F.3d 160 (4th Cir. 2004).…..25-26, 36* E.E.O.C. v. White & Son Enterprises, 881 F. 3d 1006 (11th Cir. 1989) .................34

E.E.O.C. v. Windsor Court Hotel, Inc., 1999 WL 407610 (E.D. La. 1999)............31

Earley v. Champion Int’l Corp., 907 F. 2d. 1077 (11th Cir. 1990).........................18

Glanzman v. Metro. Mgmt. Corp. 391 F.3d 506 (3d Cir. 2004)..............................20

Goldsmith v. Bagby Elevator Co., 513 F.3d 1261 (11th Cir. 2008) .......... 27-29, 31*

iv

Griffith v. City of Des Moines, 387 F. 3d 733 (8th Cir. 2004).................................21

Hemsworth, II v. Quotesmith.com, Inc., 476 F. 3d 487 (7th Cir. 2007) ........... 19, 36

Horne v. Turner Const. Co., 136 Fed. Appx. 289 (11th Cir. 2005) ............... 26, 31*

Jones v. United Space Alliance, 494 F.3d 1306 (11th Cir. 2007)………………….7 Lindsey v. American Cast Iron Pipe Co., 772 F. 2d 799 (11th Cir. 1995) ..............19

Machinchick v. PB Power, Inc., 398 F.3d 345 (5th Cir. 2005)……………..…….16 Madden v. Chattanooga City Wide Service Dep’t,

2007 WL 3120054 (E.D. Tenn. Oct. 22, 2007)....................................................22

Meacham v. Knolls Atomic Power Lab., 128 S.Ct. 2395 (Jun. 19, 2008) ...............22

N.L.R.B. v. Transp. Mgt. Co., 462 U.S. 393 (1983).................................................20

Parris v. Miami Herald Publishing Co., 216 F.3d 1298 (11th Cir.2000)….....15, 35 Plummer v. Western Int’l Hotels Co., 656 F. 2d 502 (9th Cir. 1981)......................30

Porter v. White, 483 F.3d 1294 (11th Cir. 2007).....................................................15

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)............................................. 19*

Reeves v. Sanderson Plumbing Prods, Inc., 530 U.S. 133 (2000) ....................... 19*

Smith v. City of Mobile, 2007 WL 2580516 (S.D. Ala. Sept. 5, 2007) ...................22

United States v. Torkington, 874 F.2d 1441 (11th Cir. 1989) .................................41

Voorhis v. Hillsborough Cty Bd. of Cty Comm’s,

512 F.3d 1296 (11th Cir. 2008) ................................................................... 18, 21*

Welch v. Celotex Corp., 951 F.2d 1235 (11th Cir. 1992) ........................................39

v

vi

Wright v. Southland Corp., 187 F.3d 1287 (11th Cir. 1999)…………….18, 24-25* STATUTES

28 U.S.C. § 1291........................................................................................................1

29 U.S.C. § 621................................................................................................ passim

Fla. Stat. § 760.01 ......................................................................................................7

STATEMENT OF JURISDICTION

This Court has jurisdiction over this appeal pursuant to 28 U.S.C. § 1291

because Josephine Mora, Appellant/Plaintiff, appeals a final order granting Jackson

Memorial Foundation, Inc.’s (“JMF”), Appellee/Defendant, Motion for Summary

Judgment (the “Motion”) entered by the Honorable Joan A. Lenard of the United

States District Court for the Southern District of Florida. (D.E. 62).

1

STATEMENT OF THE ISSUES

I. Under the Age Discrimination in Employment Act, 29 U.S.C. § 621

(“ADEA”), is summary judgment on the employer’s affirmative defense that

it “would have fired employee anyway even absent any consideration of her

age” appropriate where the decision-maker told the employee during the

termination meeting that he “need[ed] someone younger I can pay less” and

then told the employee’s two supervisors that “she is too old to be working

here anyway, we need somebody younger for that position,” where the

employer concedes in its Motion that the employee has direct evidence of

discrimination, and where the Equal Employment Opportunity Commission

(“EEOC”) concludes that the employer probably violated the ADEA?

II. Under federal employment discrimination statutes that require a presuit

charge of discrimination to be filed with the EEOC, should the district court,

at the summary judgment phase, “not defer to or even make reference to” an

EEOC finding of probable cause to believe the ADEA was violated?

III. Under the ADEA, does an employer have to actually plead the affirmative

defense that it “would have fired employee even absent consideration of her

age” in its Answer in order to assert such a defense on summary judgment

and at trial, when it failed to do so and the employer’s only actual defense

2

during discovery was that the employee and her witnesses were fabricating

their respective testimony?

IV. Under the ADEA, should the district court interpret the evidence in the light

most favorable to the employer and make adverse credibility findings in

granting the employer’s motion for summary judgment on its affirmative

defense?

3

STATEMENT OF THE CASE

Josephine Mora, Appellant/Plaintiff, was 62 years old when she was fired by

her employer, Jackson Memorial Foundation, Inc. (“JMF”), Appellee/Defendant.

(D.E. 33-2, p. 5).1 Mora was fired solely by Rolando Rodriguez, JMF’s chief

executive, supreme decision-maker and the man who admits his employees refer to

him as “The King.” (D.E. 34-3, pp. 3 & 11). Prior to working for JMF, Mora had

extensive experience working on children’s health issues and superb credentials,

and was even appointed to serve on two presidential commissions by Presidents

Reagan and Bush. (D.E. 33-4). JMF, which raises money for Jackson Memorial

Hospital in Miami, Florida, never questioned Mora’s credentials either while she

was employed or during discovery. (D.E. 32-2, pp. 17-18; 34-2, p. 18).

At the meeting where Rodriguez fired Mora, he told her he “need[ed]

someone younger I can pay less” and that he “need[ed] an Elena,” referring to

Elena Quevedo, who was then 26 years old. (D.E. 33-2, p. 5). Delia Kennedy,

another JMF employee, overheard the conversation from outside Mora’s door and

she testified that Rodriguez stated: “I need someone younger that I can pay less to

do the job, you are very old, you [sic] are very inept. What you should be doing is

taking care of old people. They really need you. I need somebody younger that I

1 References to the record on appeal are identified by their district court docket entry, followed by the page number of the docket entry. For example, D.E. 33-2 is the deposition of Josephine Mora and D.E. 33-2, p. 19 is page 19 of docket entry 33-2.

4

can pay less and I can control.” (D.E. 29-2, p. 3). Rodriguez categorically denies

that Mora’s age, even indirectly, came up when he fired Mora. (D.E. 34-2, p. 16).

Immediately after firing Mora, Rodriguez had a brief meeting with Martha

Lagarde and the aforementioned Quevedo – both of whom were JMF directors at

the time, and both of whom were overseeing Mora’s work. (D.E. 31-2, p. 13).

Rodriguez told both that “she [Mora] is too old to be working here anyway, we

need somebody younger for that position.” (D.E. 31-2, p. 13). Quevedo admits

that Rodriguez compared Mora to her in that conversation as well, but denies that

Rodriguez mentioned Mora’s age. (D.E. 30-2, pp. 6-7). Rodriguez again

categorically denies that Mora’s age, even indirectly, came up when he told

Quevedo and Lagarde that he fired Mora. (D.E. 34-2, p. 16).

Prior to being fired by Rodriguez, Mora was a well-liked and valuable

employee. (D.E. 32-2, p. 26-27). Even after her termination, Mora received thank

you notes from patients and emails from prospective donors. (D.E. 45-2, ¶ 4).

Quevedo and Lagarde, who were Mora’s immediate supervisors at the time of her

termination, did not have any performance problems with Mora and were not

involved in any way with her termination. (D.E. 30-2, pp. 9-10; 31-2, p. 13; 34-2,

p. 9).

In January 2006, just over two months prior to her termination on April 5,

2006, Mora was transferred from one department to another within the

5

organization by Rodriguez. (D.E. 32-2, p. 3; 34-2, p. 19). Her original boss at

JMF suggested a new position with “golf cart privileges.” (D.E. 32-2, p. 28; 32-5,

p. 31). Jennifer Vasquez, who was 26 years old at the time, filled the position

Mora was transferred out of in January 2006. (D.E. 34-2, p. 19; 31-2, p. 21; 32-2,

p. 4; 41-4; 53-1, p. 27).

Without the assistance of counsel, Mora filed an EEOC charge and

persuaded the EEOC, which heard from both Mora and JMF, that JMF probably

violated the ADEA when it terminated her. (D.E. 41-3).

Throughout discovery, JMF’s only defense was that Mora, Kennedy and

Lagarde completely fabricated their respective testimony. Rodriguez categorically

denied making any of the statements he is alleged to have made regarding Mora’s

age. (D.E. 34-2, p. 16). Quite unexpectedly, JMF moved for summary judgment

by first conceding that Mora had “direct evidence” of discrimination, but then

asserting that, even if Rodriguez said what he said, JMF would have fired Mora

anyway for performance issues. (D.E. 23, p. 5).

The district court, without a hearing, discounted Mora’s evidence,

discounted JMF’s proper confession of Mora’s direct evidence, discounted the

EEOC’s findings, and entered judgment as a matter of law on JMF’s affirmative

defense. (D.E. 62).

6

i) Course of Proceedings and Disposition Below

Mora was terminated on April 5, 2006. (D.E. 33-2, p. 5). She dual-filed a

charge of discrimination with the Miami District Office of the EEOC on May 26,

2006. (D.E. 53-1, p. 7). On May 16, 2007, the EEOC issued a letter determination

concluding that JMF’s termination of Mora probably violated the ADEA. (D.E.

53-1, pp. 1-2). JMF declined the EEOC’s offer to conciliate, (D.E. 34-2, p. 20),

and Mora was issued a Right to Sue letter on June 6, 2007. (D.E. 53-1). Mora filed

suit in the United States District Court for the Southern District of Florida on

August 27, 2007 alleging age discrimination in violation of the ADEA and the

Florida Civil Rights Act, Fla. Stat. § 760.01, et seq. (“FCRA”).2 (D.E. 1). JMF

moved for summary judgment on June 30, 2008. (D.E. 23). The Honorable Judge

Joan Lenard granted the motion for summary judgment and entered final judgment

in favor of JMF on September 26, 2008. (D.E. 62). Mora timely filed her Notice

of Appeal on October 17, 2008. (D.E. 63). It was docketed by this Court on

October 27, 2008.

2 For purposes of the summary judgment analysis, the Court’s interpretation and application of the FCRA is identical to the ADEA. See generally Jones v. United Space Alliance, LLC, 494 F.3d 1306, 1310 (11th Cir. 2007). Accordingly, this brief will refer only to the ADEA.

7

ii) Statement of the Facts

a. Mora’s Direct Evidence – Conceded by JMF

On April 5, 2006, Mora, who was then 62 years young, was fired from JMF,

solely by Rodriguez, JMF’s chief executive. (D.E. 33-2, pp. 5 & 16). Her annual

salary was $42,000. (D.E. 49-2, p. 4). At the time of her termination Mora was

working for Lagarde and Quevedo, (D.E. 34-2, p. 9), both of whom testified that

she was performing more than adequately. (D.E. 30-2, p. 9; 31-2, p. 13). Both

admitted they had no complaints with Mora, who was their direct report. (D.E. 30-

2, pp. 9-10; 31-2, p. 13). There is no evidence either one played any role in the

decision to terminate Mora.

During the brief termination meeting between Mora and Rodriguez – which

occurred in Mora’s office – Rodriguez told Mora that he was firing her because he

“need[ed] someone younger I can pay less.” (D.E. 33-2, pp. 5 & 52). He also

told Mora he “need[ed] an Elena.” (D.E. 33-2, pp. 5 & 52). “Elena” is Elena

Quevedo, who was approximately 25 years old at the time of Mora’s termination

and whose annual salary was approximately $50,000 or more. (D.E. 30-2, pp. 11,

13).

The termination conversation was overheard and testified to by Kennedy, a

now-former coworker whose desk was located immediately outside Mora’s open

office door. (D.E. 29-2, p. 1). According to Kennedy, Rodriguez told Mora that,

8

“I need someone younger that I can pay less to do the job, 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.” (D.E. 29-2, p. 3). She also testified that Rodriguez told Mora that, “She

[Mora] was too old, he needed someone younger he can control, she was very

inept and didn’t know how to do her job, she needs to work with old people.

That’s who needs you is old people because you are very old. He wanted

somebody younger.” (D.E. 29-2, p. 3) (emphasis added). (Kennedy also testified

that, at a staff meeting that may or may not have been related to Mora, Rodriguez

told the staff to “find somebody younger, somebody that’s out of the university

that we can mold…”). (D.E. 29-2, p. 6).

Immediately after Rodriguez fired Mora because he wanted someone

younger, he had a brief meeting with Mora’s actual supervisors, Lagarde and

Quevedo. (D.E. 30-2, p. 6; 31-2, p. 13). At this meeting, Rodriguez told both

Lagarde and Quevedo, in each other’s presence, that he fired Mora because “she

[Mora] is too old to be working here anyway, we need somebody younger for

that position.” (emphasis added). (D.E. 31-2, p. 13).

Quevedo, who remains employed by, dependent upon and “loyal to”

Rodriguez, (D.E. 30-2, pp. 4-5), testified that Mora’s age or any reference to her

age never came up during the conversation (D.E. 30-2, p. 7) (although she admitted

9

to being present for this meeting). (D.E. 30-2, p. 6). She also admitted that

Rodriguez “did make a comparison. He [told us he] needed somebody like

myself, like Elena.” (D.E. 30-2, p. 7). (Curiously, Quevedo admits that

Rodriguez referred to her in the third-person despite being directly in front of her).

(D.E. 30-2, p. 8).

Although Quevedo denied in her deposition that Rodriguez made any age

related comments, both Mora and Kennedy testified that Quevedo later admitted to

them that Rodriguez made the discriminatory comments. (D.E. 29-2, p. 11; 33-2,

p. 6). Quevedo admits that Mora contacted her after the EEOC charge was filed

(which Quevedo knew about), (D.E. 30-2, p. 7), but Quevedo, a material witness,

said nothing to discourage Mora from proceeding and did not tell Mora that

Rodriguez never said any such comments or words to that effect. (D.E. 30-2, pp.

13-14). Her silence in the face of the accusation speaks volumes.

Prior to being transferred to the job she was ultimately fired from, Mora

worked for Maria Luisa Chea in a JMF division known as the International Kids

Fund (“IKF”). (D.E. 33-2, pp. 3-4). It was Chea who initially hired Mora. (D.E.

32-2, p. 2; 33-2, p. 4). Although Mora and Chea had their differences, Chea’s sole

written performance review of Mora was quite favorable. (D.E. 32-5, p. 18). In the

review, Chea specifically stated: “All this said, I still think it was a good review.

In all fairness she deserves the credit for being committed to the program, for being

10

good with the press, for working independently and following through on most

matters. She is also very personable and very socialable. Raising money from the

community through media appeals is a very important part of the program’s

fundraising and she has handled it successfully. I recommend a raise of a 5% in

recognition of her achievements.” (D.E. 32-5, p. 18). Upon transferring Mora out

of the IKF in January 2006, (D.E. 32-2, p. 3), Rodriguez replaced Mora with 26-

year-old Jennifer Vasquez – a “younger and more attractive employee.” (D.E. 53-

1, p. 27; 34-2, p. 19; 31-2, p. 21; 41-4).3

b. JMF’s Purported Affirmative Defense Evidence

JMF’s purported evidence supporting its affirmative defense is highly

disputed at best and contrived at worst. JMF, like virtually all employers

defending an employment discrimination lawsuit, claims it fired Mora because she

had a history of performance issues. In its Motion, it cited a few specific

performance issues. (D.E. 23). For example, sometime in late 2004 or early 2005,

Rodriguez and Chea were upset that Mora, at a patient’s mother’s request,

contacted a donor that she brought in to JMF, (D.E. 32-2, p. 6), because the mother

wanted the donor to serve as the child’s godfather. (D.E. 23, p. 10). This was a

3 Rodriguez initially stated in his sworn interrogatory responses that Mora’s original position was “eliminated.” (D.E. 49-2, p. 3). When later pressed at deposition, he conceded that Mora was actually replaced by 26-year-old Vasquez. (D.E. 34-2, p. 19). Rodriguez’s testimony was also contradicted by Chea’s testimony that Mora was replaced by 26-year-old Vasquez, and that Vasquez was then soon replaced by Francesca Sotomayor, who was then soon replaced by Dayane Nunez. (D.E. 32-2, pp. 13-14).

11

first for JMF, (D.E. 32-2, p. 6), and the donor was honored to be asked and gladly

accepted. (D.E. 32-2, p. 7; 33-2, p. 29). Mora herself was asked to be and agreed

to serve as the child’s godmother. (D.E. 32-2, p. 7). Neither Chea nor Rodriguez

has ever been asked to serve as a godparent to a patient. (D.E. 32-2, p. 6; 45-2, ¶

5). It appears that Chea was simply a jealous boss whose primary direct report was

getting too much credit for her great work. (D.E. 45-2. ¶ 5). In any event, JMF

admits Mora did not violate any policy, (D.E. 32-2, p. 8), and JMF merely wished

Mora had consulted Rodriguez or Chea because of the odd request. (D.E. 32-2, pp.

6-7). Most importantly, Mora was not terminated because of this “incident.”

Second, according to JMF, Mora apparently was occasionally late in turning

in weekly progress reports and she purportedly included too much information in

her weekly reports. (D.E. 23, p. 11; 32-2, p. 8). JMF concedes, however, that

several employees were occasionally late in turning in these reports, (D.E. 32-2,

pp. 9-10), including 25-year-old Quevedo, and none were terminated because of

the tardy reports; indeed, JMF concedes that tardy reports alone would not have

warranted termination. (D.E. 32-2, pp. 12 & 23; 45-2, ¶ 6). Most importantly,

Mora was not terminated because of this “incident.”

Third, according to JMF, Mora was essentially terminated in January 2006

and was put in a temporary position in March 2006, i.e., Mora was fired from a

temporary position which afforded her less protection. (D.E. 23, p. 12; 34-2, p. 9).

12

The only evidence of this is Rodriguez’s own testimony – he admits he has no

documentation supporting the purported temporariness of Mora’s position and he

admits he never told Mora the position was temporary. (D.E. 34-2, p. 16). Mora

testified that no one ever told her the position was temporary. (D.E. 45-2, ¶ 10).

In any event, even assuming arguendo that Mora’s position was temporary, JMF

cannot seriously argue (and in fact has not argued) that temporary employees may

be discriminated against on the basis of age.

Fourth, according to JMF, Mora purportedly prepared and sent a brochure to

a donor that had errors on it. (D.E. 23, p. 12). This is the “one incident” that

Rodriguez claims he discussed with Mora on the day he fired her, and it

supposedly served as the proverbial “nail in the coffin.” (D.E. 34-2, p. 9). (Mora,

to the contrary, testified that Rodriguez never mentioned the brochure during the

termination conversation.) (D.E. 32-2, p. 52). Mora was asked to send the

brochure via email to Southern Wine & Spirits. (D.E. 34-2, p. 12). Mora did not

prepare or create the brochure; she merely reviewed and sent it. (D.E. 29-2, p. 4;

45-2, ¶ 11). The brochure was originally prepared by Quevedo (who was never

disciplined for the purportedly error-filled brochure). (D.E. 32-2, p. 48). The

brochure that was emailed had two typographical errors that were not caught by

Mora or by the computer’s spellchecker. (D.E. 34-2, p. 12-15). Rodriguez was

supposedly upset about the typos, that the brochure lacked a “history section” and

13

that the brochure stated that the Taylor Breast Health Center treated approximately

150 women daily. (D.E. 34-2, p. 12-15).

In fact, Rodriguez’s own testimony indicates that his concerns over the

brochure were misplaced. (D.E. 34-2, p. 12-15). For example, he admits he was

more concerned about the brochure’s marketing appeal than its accuracy (D.E. 34-

2, p. 12-15), he admits that he had different information regarding the number of

patients the center sees a day but cannot identify the source of the information and

does not agree with the center’s own email stating that it treats approximately 134

women daily (D.E. 34-2, p. 12-15), he admits that Mora was not the reason why

the donor did not partner with JMF (D.E. 34-2, p. 12-15), he admits that he had

absolutely no communication with the donor regarding the proposal or regarding

JMF in general (D.E. 34-2, p. 12-15), he admits that he has absolutely no evidence

that the donor even received the email containing the brochure (D.E. 34-2, p. 12-

15), he admits that he did not ask anyone at JMF to follow up with the donor (D.E.

34-2, p. 12-15), he admits that he did not ask anyone at JMF to resend the brochure

to the donor with additional corrections and he admits that JMF was not affected in

any way by the purported incident. (D.E. 34-2, p. 12-15).

Simply put, the donor “incident” is much ado about nothing considering

Rodriguez’s nonchalant attitude, and is merely being used as a cover by an overtly

discriminatory chief executive. Even assuming Rodriguez was sincere about the

14

brochure, those purported concerns were trivial compared to the overt

discriminatory statements he made to Mora, Kennedy, Lagarde and Quevedo.4

iii) Standard of Review

This Court reviews a grant of summary judgment de novo. See Porter v.

White, 483 F.3d 1294 (11th Cir. 2007). This Court “must examine the evidence in

the light most favorable to the nonmoving party.” Parris v. Miami Herald

Publishing Co., 216 F.3d 1298, 1301 (11th Cir. 2000) (reversing district court

order granting summary judgment in favor of employer in FMLA action).

“Summary judgment is appropriate where there is no genuine issue of material fact

[when viewing the evidence and facts in the light most favorable to the non-

moving party] and the moving party is entitled to judgment as a matter of law.”

Damon v. Fleming Supermarkets of Florida, Inc., 196 F.3d 1354, 1358 (11th Cir.

1999) (reversing district court order granting summary judgment in ADEA case

because material facts were in genuine dispute). “A factual dispute is genuine if

the evidence is such that a reasonable jury could return a verdict for the non-

moving party.” Id.

4 The district court raised other supposed performance issues that JMF itself did not raise.

15

SUMMARY OF ARGUMENT

Mora was fired by JMF because of her age because JMF’s chief executive

and decision-maker told her he was firing her because of her age. Mora’s

immediate supervisors, Lagarde and Quevedo, testified that she was performing

well and both had no complaints. Kennedy, a co-worker, overheard Rodriguez

telling Mora she was being fired because of her age. Rodriguez then told two other

managing directors that he had just fired Mora because of her age. Despite

properly conceding Mora’s direct evidence, JMF moved for summary judgment on

its affirmative defense that it would have terminated her even if her age was not

taken into consideration. Without a hearing, the district court granted JMF’s

motion because “there can be no reasonable doubt that [JMF] would have

terminated [Mora] based on her unsatisfactory performance and conduct even

absent any considerations of her age.” (D.E. 62, p. 18). In light of Mora’s

overwhelming direct evidence of age discrimination, a reasonable jury could return

a verdict in Mora’s favor notwithstanding JMF’s non-frivolous but ultimately

meritless assertions that it had performance issues with her. 5

5 There appears to be some confusion regarding the proper wording of the affirmative defense. The Fifth Circuit recently noted that, although a “mixed-motives theory” is used by plaintiffs in direct evidence cases, the actual affirmative defense that must be proved at trial by the employer is that “the employment decision would have been made even absent discrimination on the employer.” Machinchick v. PB Power, Inc., 398 F. 3d 345, n. 33 (5th Cir. 2005) (reversing summary judgment for employer and noting the confusion). Thus, the phrase “mixed-motives affirmative defense” is a bit of misnomer, but one that is generally used for convenience purposes.

16

The district court’s order granting summary judgment should be reversed for

four reasons:

First, whether JMF will prevail on its affirmative defense (where it carries

the burden of proof) is for a jury to decide in light of Mora’s substantial true direct

evidence of age discrimination.

Second, the EEOC found probable cause to believe JMF’s termination of

Mora violated the ADEA, but the district court tersely concluded that it “need not

defer to or even make reference to the EEOC’s conclusory written determination

that there was reasonable cause to believe Plaintiff was fired because of her age.”

(D.E. 62, p. 18, n.5).

Third, JMF raised the affirmative defense that it ultimately prevailed on for

the first time in its Motion for Summary Judgment. Mora discovered and

prosecuted the case based upon JMF’s assertion that Mora and her witnesses were

lying, i.e., a blanket denial. Mora did not and could not know that JMF would be

relying on the specific affirmative defense that it eventually raised. Whether JMF

would have fired Mora anyway is a distinct argument from JMF’s argument that

Mora and her witnesses are simply fabricating a story.

Fourth and finally, the district court improperly construed the evidence in

the light most favorable to JMF and made improper credibility determinations

about Mora and her witnesses.

17

ARGUMENT

I. MORA’S SUBSTANTIAL DIRECT EVIDENCE OF DISCRIMINATION PRECLUDES SUMMARY JUDGMENT ON JMF’S AFFIRMATIVE DEFENSE Summary judgment on an employer’s affirmative defense, where it has the

burden of proof at trial, in an age discrimination case premised upon true direct

evidence of discrimination, is almost never appropriate. “Direct evidence of

employment discrimination is evidence from which a trier of fact could conclude,

based upon a preponderance of the evidence, that an adverse employment action

was taken against the plaintiff on the basis of a protective personal characteristic.”

Wright v. Southland Corp., 187 F.3d 1287, 1288 (11th Cir. 1999) (reversing order

granting summary judgment in favor of employer).6

The most blatant remarks, such as a management memorandum stating “Fire

[plaintiff] – he is too old,” constitute direct evidence of discrimination “whose

intent could be nothing other than to discriminate on the basis of age.” See Earley

v. Champion Int’l Corp., 907 F. 2d. 1077, 1081 (11th Cir. 1990) (noting the rarity

of true direct evidence cases); see also Voorhis v. Hillsborough Cty Bd. of Cty

6 Mora purposefully refers to “true” direct evidence because the actual decision-maker expressly stated during the termination meeting that she was being terminated because of her age. To the contrary, less obvious but still direct evidence would be stray remarks that tend to refer to an employee’s age indirectly, such as a statement that the employer needed “new blood” or that the employee had been working for the employer for decades. See, e.g., Buckley v. Hosp. Corp. of Am., 758 F.2d 1525 (11th Cir. 1985). Here, Mora’s case is premised upon the former, more expressed and true direct evidence, rather than the latter, implied direct evidence.

18

Comm’s, 512 F.3d 1296, 1300 (11th Cir. 2008) (reversing summary judgment

because the decision-maker’s statement that he “didn’t want to hire an old pilot” is

“direct evidence of age discrimination. The import [of which] could be nothing

other than to discriminate on the basis of age.”); Hemsworth, II v. Quotesmith.com,

Inc., 476 F. 3d 487, 490 (7th Cir. 2007) (noting that “You’re too old to work here”

is a “near-admission” of liability).

To survive a motion for summary judgment, Mora merely has to present

evidence from which a jury could conclude that she was fired, in part, because of

her age. See Reeves v. Sanderson Plumbing Prods, Inc., 530 U.S. 133, 141 (2000)

(affirming jury verdict in favor of employee). Indeed, “[i]n order to recover under

the [ADEA], [Mora] only had to show that age was a determinative factor” in the

decision to terminate her. Lindsey v. American Cast Iron Pipe Co., 772 F. 2d 799,

801 (11th Cir. 1995) (reversing a directed verdict in favor of employer and

reinstating jury verdict in favor of employee).

In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Supreme Court

held that once a plaintiff provides direct evidence of discrimination (which JMF

properly conceded in its Motion), the burden shifts to the employer to prove by a

preponderance of the evidence that it would have terminated the plaintiff for

legitimate reasons even if it had not considered the protected characteristic (in this

case, age). JMF’s burden is one of persuasion, not merely production. This is

19

wholly distinct from the employer’s exceedingly light burden of production under

the familiar McDonnell-Douglas test used in circumstantial evidence cases. See

E.E.O.C. v. Alton Packaging Corp., 901 F. 2d 920, 924-45 (11th Cir. 1990) (noting

that employers have to prove at trial, not merely produce at summary judgment,

evidence of its affirmative defense when faced with direct evidence). But, as JMF

conceded in its Motion, “this is a high burden on a motion for summary judgment

because [JMF] must leave no doubt that a rational jury would find that [JMF]

would have fired [Mora] even if it had not been for the discriminatory statement.”

Glanzman v. Metro. Mgmt. Corp. 391 F.3d 506, 514 (3d Cir. 2004) (emphasis

added); see also N.L.R.B. v. Transp. Mgt. Co., 462 U.S. 393, 400 (1983) (noting

that employer must prove to the factfinder that it would have fired the employee

anyway by a preponderance of the evidence).

This Court has expressly held, at least twice, that summary judgment is not

appropriate under the ADEA once the plaintiff establishes direct evidence of age

discrimination, and that the question of whether the employer would have taken the

same adverse employment action notwithstanding plaintiff’s age is a jury question.

First, this Court held in Buckley that because the employee “presented evidence

from which the jury could find that plaintiff established a prima facie case by

direct evidence of discriminatory intent . . . defendant's evidence merely creates a

jury question as to whether defendants have proved by a preponderance of the

20

evidence that the decision would have been reached even in the absence of age

discrimination.” 758 F.2d at 1530 (reversing directed verdict for employer and

reinstating jury verdict for the employee) (emphasis added). Second, and quite

recently, this Court held in Voorhis that the employee “presented evidence that the

decision-maker for [employer] rejected [employee’s] application because the

decision-maker, in his own words, ‘didn’t want to hire an old pilot.’ Because

[employee] presented direct evidence of discrimination on the basis of age . . . the

district court erred when it granted summary judgment….” 512 F.3d at 1297.

Several cases outside the Eleventh Circuit and within the Eleventh Circuit’s

appellate jurisdiction have similarly held that whether JMF has proven its

affirmative defense by a preponderance of the evidence is a jury question, and is

not appropriate for summary judgment. See, e.g., Griffith v. City of Des Moines,

387 F. 3d 733, 735 (8th Cir. 2004) (“At the summary judgment stage, the issue is

whether the plaintiff has sufficient evidence that unlawful discrimination was a

motivating factor in the defendant's adverse employment action. If so, the presence

of additional legitimate motives will not entitle the defendant to summary

judgment. Therefore, evidence of additional motives, and the question whether the

presence of mixed motives defeats all or some part of plaintiff's claim, are trial

issues, not summary judgment issues.”); Carter v. Univ. of S. Alabama, 510 F.

Supp. 2d 596, 615 (S.D. Ala. 2007) (“In a last-ditch effort to claim summary

21

judgment on the Title VII retaliation cause of action, defendants invoke the mixed-

motive defense . . . [But] there are obvious, glaring issues of material fact as to

whether the Hospital would have passed over Carter for hire in the absence of any

retaliatory motive. For that reason, the Hospital's request for summary judgment on

its affirmative defense is denied.”); Brewer v. Dupree, 356 F. Supp. 2d. 1261, 1268

(M.D. Ala. 2004) (denying summary judgment on mixed-motive affirmative

defense because the employer had not shown that no rational jury would find in

employee’s favor); Madden v. Chattanooga City Wide Service Dep’t, 2007 WL

3120054, n.2 (E.D. Tenn. Oct. 22, 2007) (denying summary judgment in Title VII

action and noting that “[i]t is difficult for a Court to ever grant summary judgment

on an affirmative defense raised by the party carrying the burden of proof.”); Smith

v. City of Mobile, 2007 WL 2580516, *13 (S.D. Ala. Sept. 5, 2007) (denying

summary judgment in USERRA discrimination action because “[t]he evidence

[was] insufficient for the court to grant summary judgment to the defendant on the

basis of that [mixed-motive] affirmative defense.”).

In fact, the Supreme Court, in its most recent opinion concerning the

ADEA’s affirmative defenses (albeit not a direct evidence discrimination case),

acknowledged that the Act essentially requires the employer to defend its own

hiring and firing decisions with proof at trial. See Meacham v. Knolls Atomic

Power Lab., 128 S.Ct. 2395, 2406 (Jun. 19, 2008) (“there is no denying that

22

putting employers to the work of persuading factfinders that their choices are

reasonable makes it harder and costlier to defend than if employers merely bore the

burden of production; nor do we doubt that this will sometimes affect the way

employers do business with their employees.”).

Here, Mora has presented direct evidence that she was terminated because of

her age – JMF does not dispute that. Instead, JMF has presented various incidents

that purportedly show that she had performance issues and that it would have

terminated Mora anyway. But the fact remains that Mora was not terminated for

any of the purported “incidents” and that she was not terminated until Rodriguez

purportedly expressed his dissatisfaction with Mora and told her she was being

terminated because of her age. He terminated Mora without consulting her two

supervisors – both of whom testified that she was performing well and that they

had no complaints. Furthermore, Rodriguez told Mora that he needed someone

younger who he could pay less, like Quevedo – except that Quevedo was both

substantially younger than Mora and had a higher salary than her. Even Quevedo

admits Rodriguez compared Mora to her.

Finally, if a jury believes Mora and her witnesses, which it should, then it

also must believe, automatically, that Rodriguez lied about what was said during

the conversation. A jury cannot believe Mora’s version, i.e., that Rodriguez told

her he was firing her because of age, and Rodriguez’s version, i.e., that he never

23

said anything of the sort. Accordingly, if the jury believes Mora, then it also

believes that Rodriguez lied about what happened, and a jury could reasonably

conclude that Rodriguez’s lie is evidence that Mora’s age did indeed play a role in

her termination and that she would not have been otherwise terminated.7 In fact,

one of the underlying themes of Mora’s case (and one that is well-supported by

evidence) is that Rodriguez is lying about what was said and what occurred and

that his right-hand employee, Quevedo, is actively participating in the cover-up.8

Mora’s case is most analogous to, and indistinguishable from, Wright v.

Southland Corp., 187 F. 3d 1287 (11th Cir. 1999) (reversing summary judgment).

In Wright, the employee had direct evidence of age discrimination – specifically,

evidence that a regional manager said he “was looking for younger store

managers” and another manager said the employee was “getting too old.” Id. at

1303-04. This Court concluded that “based on this evidence, a jury could

reasonably conclude that, more probably than not, age discrimination was the

7 Similarly, the district court in Carter v. Univ. of S. Alabama, 510 F. Supp. 2d 596, 615, n. 31 (S.D. Ala. 2007) denied summary judgment on the employer’s mixed-motive affirmative defense, in part, because the actual decision-maker was the individual who made the biased comments. Id. (“the final decisionmaker is the very employee as to whom plaintiff's evidence creates genuine issues of bias.”). Here, like in Carter, Rodriguez is both the actual decision-maker who terminated Mora and the individual who made the biased comments. 8 Quevedo’s salary was approximately $50,000 at the time of Mora’s termination. (D.E. 30:2, p. 4). She started as a receptionist in November 2003 at $28,000. (D.E. 30:2, p. 3) It was raised to $70,000 in 2007, to $85,000 in January 2008, and again to $97,000 in April 2008. (D.E. 30:2, p. 4). Quevedo is now director of real estate development for JMF despite her admission that she has no background of any kind in real estate development. (D.E. 30:2, p. 5). Despite a poor overall economy, a tax-exempt non-profit that relies exclusively on donations has been able to raise Quevedo’s salary 21.4% and then another 14.1% in just a single year.

24

cause of Wright’s termination.” Id. This Court then noted that the employer still

had “substantial evidence to support its position that Wright was fired because of

[legitimate, non-discriminatory reasons.]”). Id. In reversing for trial, this Court

concluded:

In sum, [employee] has presented direct evidence of age discrimination. Consequently, there is a genuine issue of material fact as to the cause of [employee’s] termination, an issue that turns largely on whether [employee’s] witnesses or [employer’s] witnesses are to be believed. Such a credibility determination can be made only after trial, and the entry of summary judgment on [employee’s] ADEA claim was therefore inappropriate.

Id. at 1305. Mora’s claim against JMF is virtually identical to the situation in

Wright, and summary judgment was likewise inappropriate.

A nearly identical fact-pattern emerged in the Fourth Circuit’s decision in

E.E.O.C. v. Warfield-Rohr Casket Co., 364 F.3d 160 (4th Cir. 2004), where the

court reversed summary judgment because, “viewing the present facts in the light

most favorable to the EEOC, [decision-maker’s] alleged statements to [employee]

that he was getting too old and that [replacement employee] – a much younger

employee – could give [employer] more years clearly reflect [decision-maker’s]

reliance on [employee’s] age as one of the reasons for his termination. Id. at 163.

There, the district court improperly concluded that, notwithstanding the

employee’s direct evidence of age discrimination, “no rational factfinder could

reasonably conclude that [employee] was terminated because of his age.” Id. The

25

Fourth Circuit reversed and correctly concluded that, given the employee’s direct

evidence of age discrimination, summary judgment on the employer’s “we would

have fired him anyway” affirmative defense was inappropriate. Id. at 165. Here,

the district court reached the same incorrect conclusion as the district court in

Warfield-Rohr.

To the contrary, summary judgment would only be appropriate if Mora had

no evidence to dispute the affirmative defense. Here, JMF concedes that Mora has

presented direct evidence, i.e., evidence from which a rational jury could conclude

that she was terminated for discriminatory reasons without inference or

circumstance. Plaintiff’s direct evidence creates a genuine issue of material fact.

Despite this concession, the district court improperly held that no rational jury

could conclude that Mora was fired for discriminatory reasons.

II. THE EEOC’S CONCLUSION THAT JMF PROBABLY VIOLATED THE ADEA WEIGHS HEAVILY AGAINST SUMMARY JUDGMENT Without the assistance of counsel, Mora persuaded the EEOC that JMF

probably violated the ADEA. (D.E. 41-3). The EEOC’s conclusion, especially

when combined with Mora’s substantial direct evidence, makes summary

judgment inappropriate. See Horne v. Turner Const. Co., 136 Fed. Appx. 289, 292

(11th Cir. 2005) (reversing order granting summary judgment and concluding that

“[t]he EEOC's finding that there was reasonable cause to believe that

26

discrimination occurred bolsters our conclusion. We previously have held that such

an EEOC finding is admissible evidence in a bench trial, and the district court

should have taken it into consideration in this summary judgment proceeding as

well. The district court erred in failing to do so.”) (internal citations omitted).

“EEOC determinations are generally admissible . . . unless the sources of

information or other circumstances indicate lack of trustworthiness sufficient to

justify exclusion from evidence.” Blanton v. Univ. of Fla., 273 Fed. Appx. 797,

804 (11th Cir. 2008) (internal citations omitted) (affirming district court’s

admission of EEOC determination in jury trial). “[A] district court does not abuse

its discretion in admitting an EEOC determination that concerns the same

discrimination claim as that before the jury, where sufficient evidence was adduced

at trial to place the determination in its proper context, and the district court

instructed the jury as to the appropriate use of the determination by explaining that

it is not an adjudication of rights and liability.” Id.

Even in a jury trial, an EEOC determination is “ordinarily admissible,”

Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1288 (11th Cir. 2008) (affirming

admission of EEOC letter), and is “highly probative.” Barfield v. Orange Cty., 911

F.2d 644, 649 (11th Cir. 1990) (same). This Court, in affirming the district court’s

decision to admit an EEOC probable cause finding, recently explained at length

that:

27

Our precedents explain that an EEOC determination is ordinarily admissible. In Barfield v. Orange County, we considered whether an EEOC determination and report can be excluded from evidence in a jury trial under either Rule 403 or Rule 803(8)(C), and we concluded that this determination was best left to the sound discretion of the district court. 911 F.2d 644, 650-51 (11th Cir.1990). We explained, “A finding of intentional racial discrimination ... is a finding of fact. Rule 803(8)(C) explicitly makes such evaluative reports admissible, regardless whether they contain factual opinions or conclusions.” Id. at 651 n. 8 (citations omitted). We long ago stated that the probative value of an EEOC determination ordinarily outweighs any possible prejudice to the defendant in a bench trail, Smith v. Universal Servs., Inc., 454 F.2d 154, 157 (5th Cir.1972), although we more recently recognized in Barfield that there may be some circumstances in which the probative value of an EEOC determination is trumped by the “danger of creating unfair prejudice in the minds of a jury,” 911 F.2d at 650. Both Goldsmith and Bagby Elevator presented ample evidence at trial to place the EEOC determination in its proper context. Bagby Elevator elicited testimony at trial from Hunter Bagby that there was no factual support in the EEOC determination. Goldsmith elicited testimony from Hunter Bagby that Bagby Elevator had supplied documents to the EEOC during its investigation of the charges of discrimination filed by Peoples, Jemison, and Goldsmith. Steber also wrote a letter to the EEOC before it issued the cause determination, and this letter was admitted as an exhibit at trial and provided factual support for the cause determination. Bagby Elevator complains that the EEOC determination was tainted by an untruthful affidavit of union representative Larry Gardner, which stated that Bagby Elevator had not hired any black employees for the field department of Bagby Elevator operations. Again, we disagree. Bagby Elevator corrected this assertion at trial when Gardner admitted during direct examination that Bagby Elevator had hired one black person for the field in his 13 years as the union representative. The district court instructed the jury to guard against the improper use of this evidence. The district court explained what an EEOC

28

determination was and emphasized that it was not an adjudication of rights that was binding on the employer: “Now, as I have previously stated to you, the plaintiff sued the defendant for violation of his rights under Title VII of the Civil Rights Act of 1964. Pursuant to that Act, an individual who believes his rights have been infringed upon must first file a “Charge of Discrimination” with the Equal Employment Opportunity Commission, or the EEOC as it is called, before he or she may bring a lawsuit. Upon receiving that charge, the EEOC must investigate the allegation. After investigation, the EEOC may either determine that there is not reasonable cause to believe the charge is true and dismiss the charge or determine that there is reasonable cause to believe that charge is true. Whether or not the EEOC determines cause, the person who alleges to be aggrieved may file a lawsuit. The EEOC's reasonable cause determination is not an adjudication of rights and liabilities. Indeed, it is a nonadversary proceeding designed to notify the employer of the EEOC's findings, which is not reviewable in court and not binding on the employer.” This instruction correctly explained the purpose and character of an EEOC determination and it did not adjudicate rights and liabilities. In the light of this instruction, we cannot conclude that the district court abused its discretion when it admitted the EEOC determination. See Morro v. City of Birmingham, 117 F.3d 508, 517 (11th Cir.1997).

Bagby Elevator, 513 F.3d at 1288-89.

The relevant facts here are virtually identical to Bagby Elevator, except there

the employer alleged that the EEOC process was “tainted.” Id. (although the court

ultimately rejected the employer’s “tainted” EEOC argument.) Here, JMF does not

like the EEOC’s finding, but it raises absolutely no issue with the process the

EEOC used to make its determination. This is not surprising because the evidence

29

discovered and produced in this matter is the identical evidence discovered and

produced during the EEOC investigation. See also Barfield, 911 F. 2d at 651

(“Apart from bare allegations that admission of the [EEOC] report would cause

unfair prejudice and delay, [appellant] offers no evidence that the EEOC materials

admitted here suffer from any defects in trustworthiness.”).9

The Ninth Circuit, albeit merely persuasive, has gone a step further and held

that EEOC findings of probable cause are always admitted, even in a jury trial:

A civil rights plaintiff has a difficult burden of proof, and should not be deprived of what may be persuasive evidence. We therefore hold that the plaintiff has a right to introduce an EEOC probable cause determination in a Title VII lawsuit, regardless of what other claims are asserted, or whether the case is tried before a judge or jury. The district court erred in excluding the EEOC determination, and we reverse and remand [for a new trial.]

Plummer v. Western Int’l Hotels Co., 656 F. 2d 502, 505 (9th Cir. 1981) (“An

EEOC determination, prepared by professional investigators on behalf of an

impartial agency, has been held to be a highly probative evaluation of an

individual’s discrimination complaint.”) (emphasis added).

EEOC probable cause findings, like the one here, are extremely rare. In

fiscal year 2007, the EEOC received 19,103 charges of age discrimination. Only

625, or 3.27%, resulted in “probable cause” findings.10 As the Ninth Circuit has

9 Mora filed the entire EEOC file with the district court. (D.E. 53-1). 10 See ADEA Charges/Statistics, available at http://www.eeoc.gov/stats/adea.html (last viewed Aug. 13, 2008).

30

intimated, the fact that a professional investigator trained in reviewing and

weeding out frivolous or meritless claims (constituting over 96% of all claims

filed) concluded, after an investigation and after hearing from both parties, that the

evidence showed that JMF probably violated the ADEA is highly probative.

The EEOC Letter of Determination that was improperly not considered by

the district court in Horne is virtually identical to the EEOC Letter of

Determination issued to Mora here. (D.E. 53-2). The same is true of the EEOC

Letters of Determination that were properly admitted by the district court in Bagby

Elevator. (D.E. 53-3). All EEOC Letters of Determination are short, concise,

conclusory (based upon the evidence provided to it by the parties) and virtually

identical. They are not detailed opinions or findings of fact and conclusions of

law. In fact, documents indicating exactly how the EEOC came to its conclusion

are prohibited from being disclosed pursuant to the deliberative process exception

to the Freedom of Information Act, 5 U.S.C. § 552(b)(5). See generally E.E.O.C.

v. Windsor Court Hotel, Inc., 1999 WL 407610 (E.D. La. 1999) (noting that

documents pertaining to how the EEOC reached its conclusion are exempt from a

FOIA request). What matters is that the EEOC heard from both Mora and JMF,

and it concluded that the ADEA was probably violated.11

11 To be clear, Mora is not suggesting that EEOC decisions should have a res judicata effect on subsequent litigation. Rather, due to the EEOC’s specialized knowledge and training, the district courts should give significant, but not dispositive, weight to an EEOC probable cause

31

Limited deference to the EEOC by district courts is also good public policy.

If litigants know that EEOC findings are taken into consideration by district courts,

parties (and their counsel) will be far more likely to actively and meaningfully

participate in the EEOC process (including mediation and conciliation). (Here,

JMF refused the EEOC’s offer of conciliation after it found cause). In meritorious

cases, terminated employees will be more likely to be reinstated or compensated

for their economic damages – which satisfies the remedial goals of federal anti-

discrimination statutes. It will simultaneously decrease the number of employment

lawsuits filed in the district courts by promoting presuit or early settlement.

Congress created the EEOC to, inter alia, facilitate the speedy resolution of

employment disputes in an effort to avoid excessive and protracted employment

litigation. If district courts categorically refuse to even consider EEOC findings,

then the EEOC is nothing more than a federal reporting agency whose only value

is maintaining statistics and forcing victims of illegal discrimination to wait six

months before they can seek any redress.

Mora’s favorable finding by the EEOC, especially when paired with

substantial direct evidence of discrimination, raises genuine issues of material fact

regarding why she was terminated, and thus makes summary judgment

inappropriate.

finding. Here, the district court categorically discounted the EEOC process at the summary judgment phase, which is inappropriate.

32

III. JMF’S FAILURE TO PLEAD A MIXED-MOTIVE AFFIRMATIVE DEFENSE PRECLUDES ITS USE AT SUMMARY JUDGMENT In its summary judgment motion, JMF argued, for the first time, that

“Rodriguez would have made the same decision absent any consideration of

Plaintiff’s age.” (D.E. 23, pp. 2 & 4). JMF’s Answer did not plead a “mixed

motives” defense; indeed, JMF did not even allude to the defense (that is, there is

no allegation in the Answer that JMF would have fired Mora anyway). (D.E. 3).

In fact, JMF’s only asserted defense is that Rodriguez did not tell Mora, or anyone

else, that Mora was “too old” to work at JMF, or that he “needed someone

younger” – i.e., JMF believes that Mora and her witnesses “fabricated” their

respective testimony. (D.E. 23, p. 10). This constitutes a blanket denial, not an

“admission and avoidance.”

Significantly, Mora is prejudiced by JMF’s failure to properly plead a

mixed-motives affirmative defense, only to assert it for the first time at the

summary judgment stage, because Mora has not taken any evidence regarding the

specific issue of whether Mora’s alleged performance issues would have, standing

alone, resulted in her termination. Instead, Mora discovered and prosecuted this

case based on the defenses set forth in JMF’s Answer – specifically, that JMF

denied that Rodriguez made any statements regarding Mora’s age. On that basis,

and in light of JMF’s proper concession that Mora had direct evidence of

33

discrimination, Mora did not inquire, at depositions or in written discovery, as to

whether Mora would have been terminated even absent the alleged discrimination.

The district court rejected Mora’s waiver argument because it concluded that

Mora was on notice through discovery that JMF had issues with Mora’s

performance. (D.E. 62). Even if true, this is irrelevant. The issue is not whether

Mora was aware of JMF’s purported “performance issues” with Mora; indeed,

virtually every employer defending an employment suit cries foul regarding the

employee’s “performance.” The issue is whether Mora knew that JMF was

relying upon these purported “performance issues” in its defense and whether JMF

would have fired Mora for her performance issues even absent the discriminatory

motive. Had JMF properly pled a mixed-motives affirmative defense, Mora would

have taken far more extensive discovery on this discrete issue.

It is well settled that a mixed-motives defense must be pled specifically as an

affirmative defense pursuant to Fed. R. Civ. P. 8(c), and JMF’s failure to so plead

constitutes an irreversible waiver of the defense. See, e.g., Desert Palace, Inc. v.

Costa, 539 U.S. 90, 92-93 (2003) (holding that a “mixed motive defense” is an

affirmative defense that must be proved by the employer); Day v. Liberty Nat’l

Life Ins. Co., 122 F.3d 1012, 1015 (11th Cir. 1997) (“an affirmative defense []

must be specifically pled.”); E.E.O.C. v. White & Son Enterprises, 881 F. 3d 1006,

34

1009 (11th Cir. 1989) (holding that an affirmative defense can never be raised for

the first time in a dispositive motion).

Because of the prejudice to Mora, JMF’s purported mixed motive

affirmative defense was irreversibly waived and JMF’s summary judgment motion,

which was exclusively premised on the mixed-motive defense, should have been

denied.

IV. THE DISTRICT COURT IMPROPERLY FAVORED JMF’S EVIDENCE

It is axiomatic that, when ruling on a motion for summary judgment, the

district court must review the evidence in the light most favorable to, and must

resolve factual disputes, ambiguities and doubts in favor of, the non-moving party.

See generally Parris, 216 F.3d at 1301 (reversing same district court granting

employer summary judgment in FMLA action); Damon, 196 F.3d at 1358

(reversing same district court granting employer summary judgment in similar

ADEA claim). Here, the district court did the opposite.

First, the district court expressed at length its doubt as to whether “you’re

too old to work here” constitutes direct evidence of discrimination, despite JMF’s

concession that Mora presented direct evidence. (D.E. 62, p. 14, n.3) (“Despite

Defendant’s concession, the Court wonders whether such statements in fact

amount to more than circumstantial evidence.”). Evidence that a CEO told a

subordinate that he fired her because she is “too old to work here” is a “near

35

admission of liability.” Hemsworth, 476 F. 3d at 490 (noting that “You’re too old

to work here” is a “near-admission” of liability); see also Warfield-Rohr, 364 F.3d

at 164 (reversing for trial because “There is no question that [employer’s] alleged

statement to [employee] that he was ‘getting too … old; and that [employer] was

retaining [younger employee] because he ‘could give [employer] more years’

would support a jury finding that [employee’s] age was a motivation factor

[employer’s] decision to terminate him.”) (citations omitted). Mora and JMF both

agreed and recognized that this is a classic direct evidence case, but the district

court, without convening a hearing or requesting additional briefing, suggested

otherwise.

Second, the district court failed to address all of the relevant testimony from

Mora, Kennedy, Lagarde and Quevedo and failed to interpret the evidence in the

light most favorable to Mora. There are numerous examples of this. First, the

court did not acknowledge at all the undisputed evidence that Mora was initially

replaced by 26 year old Jennifer Vasquez in January 2006. (D.E. 62). Instead, the

district court found it “significant” that Mora has no direct evidence that Chea

discriminated against her or that Rodriguez discriminated against her in January

2006. (D.E. 62, p. 5). This is wholly irrelevant because Chea did not terminate

Mora and Rodriguez did not fire Mora until April 2006. The district court also

failed to acknowledge that Rodriguez fired Mora despite testimony from Mora’s

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two actual supervisors that she was doing well and that they had no complaints.

This alone is a genuine issue of material fact – Mora’s supervisors did not have

performance issues with her, only Rodriguez did and only he is alleged to have

made age related comments during the termination conversation.

Next, the district court noted that Mora does not deny contacting a donor

without first consulting Chea, but failed to acknowledge at all that JMF admits that

this did not violate any policy and that it resulted in the donor serving as godfather

and Mora serving as godmother to a child-patient. (D.E. 62, p. 3). This was a

beautiful event that JMF unsuccessfully attempted to turn into a black eye for

Mora. Additionally, the district court noted that Mora does not deny failing to

provide timely weekly reports on occasion, but failed to acknowledge at all that

several employees did the same thing, including Quevedo, but none were

terminated. (D.E. 62, p. 3).

Further, the district court viewed a performance evaluation prepared by Chea

for Rodriguez concerning Mora as being mostly negative, despite the

memorandum’s conclusion that “in all fairness, Mora deserves credit for being

committed to the program, for being good with the press, for working

independently and following through on most matters” and its recommendation of

a 5% raise for Mora. (D.E. 62, p. 4). The district court also noted that Mora

“called in sick twice to work, without explaining the reasons to Rodriguez,” but

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failed to acknowledge that Rodriguez admitted that Mora was entitled to her sick

leave and that she did not violate any policy. (D.E. 62, p. 5).12 Finally, the district

court failed to acknowledge that Mora’s two supervisors, Lagarde and Quevedo,

were not consulted prior to Mora’s termination and that both testified that she was

performing adequately when Rodriguez fired her. Most importantly, at no point

did the district court acknowledge that Mora was not terminated for any of these

purported performance issues. It was not until Rodriguez actually fired Mora that

he made any reference to her age. In other words, JMF purportedly had

performance issues with Mora but did not terminate her. Instead, the immediate

performance issue that supposedly led to her termination (which is disputed by

Mora) was coupled with Rodriguez’s overt discriminatory statements made

directly to her during the termination conversation.

Third, the district court made improper adverse credibility determinations

regarding various witnesses. The two most serious examples are located on page 7

of the Order where the district court noted that Kennedy “was fired by Defendant

on August 11, 2006, and [] is close friends with Plaintiff” and at footnote 1, where

the court noted that “Lagarde was also terminated by Defendant, and, like

Kennedy, is close friends with Plaintiff.” (D.E. 62). Discounting the testimony of

two fact witnesses because they have personal relationships with Mora and because

12 This “issue” was not even raised in JMF’s Motion – the district court raised it sua sponte.

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they both were later terminated by JMF is not appropriate when ruling on summary

judgment. See generally Burnette v. Taylor, 533 F.3d 1325, 1330 (11th Cir. 2008)

(“[W]e make no credibility determinations or choose between conflicting

testimony, but instead accept Plaintiff's version of the facts drawing all justifiable

inferences in Plaintiff's favor.”); Welch v. Celotex Corp., 951 F.2d 1235, 1237

(11th Cir. 1992) (on summary judgment, district courts “must avoid weighing

conflicting evidence for probity or making credibility determinations.”). These are

classic bias arguments reserved exclusively for the jury. While questioning

Lagarde and Kennedy’s veracity and motivation, the district court said nothing of

Quevedo’s obvious bias, motivation and suspect testimony.13 Rodriguez’s self-

serving testimony is obvious – no chief executive is going to admit that he

terminated an employee because of her age and expect to remain a chief executive.

And Chea, who was not even supervising Mora at the time of her termination, gave

testimony that permeates with envy and bitterness toward Mora.14

13 Although Quevedo’s rapid professional advancement from receptionist to director of real estate development is dependent upon remaining in Rodriguez’s good graces, in fairness, Mora did not extensively argue Quevedo’s credibility problem in opposing JMF’s Motion because Mora recognizes its limited use at the summary judgment phase. To the contrary, Mora’s lack of credibility and that of her witnesses is JMF’s entire case and was the predominant theme in its Motion. (D.E. 23, p. 8-10). 14 The first question asked of Chea at her deposition was, “what one word best describes Josephine Mora,” to which Chea tersely responded, “liar.” (D.E. 32-2, p. 1). Two questions later she was asked how she knows that Mora was lying, to which she responded “Actually, I really don’t. So I guess that I don’t know that this is not true.” (D.E. 32-2, p. 2).

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Mora concedes that JMF has some evidence concerning her performance

(albeit weak, incomplete and, to some extent, irrelevant to the ultimate issue) and

that JMF has a non-frivolous (albeit meritless) argument that she was terminated

for performance reasons, but the district court’s conclusion that JMF’s evidence

was overwhelming is unsupported. Even if the district court, at this juncture, finds

JMF’s evidence to be superior, or even overwhelming, it does not change the fact

that JMF’s key evidence is highly disputed with contradictory evidence that must

be reviewed in Mora’s favor, the most obvious of which is Rodriguez’s own

statements to Mora, Kennedy, Lagarde and Quevedo that he fired Mora because

she was too old to work at JMF.

With due respect to the district court, Mora has a reasonable apprehension

that the district court is biased against her, or at least against her claims, and thus

requests that this Court remand the case for trial before a different trial judge. The

district court has made adverse credibility decisions (not merely legal conclusions)

that may affect motions in limine,15 trial objections, and post-trial motions. Under

the circumstances, Mora requests reassignment of the trial judge on remand. See

generally Clark v. Coats & Clark, Inc., 990 F.2d 1217, 1229-30 (11th Cir. 1993)

(ordering reassignment because “the original judge would have difficulty putting 15 For example, the district court has already discounted the EEOC probable cause finding, which reasonably lends to the conclusion that the district court will not even entertain a pretrial motion concerning the admissibility of the probable cause finding during the jury trial. This runs contrary to this Court’s precedent that presumes the admissibility of EEOC letter determinations in jury trials unless a party can show unfair prejudice.

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his previous views and findings aside.”); United States v. Torkington, 874 F.2d

1441, 1446-47 (11th Cir. 1989) (reassigning case on remand, in order to preserve

the appearance of impartiality, where district court had expressed doubts about the

merits of the prosecution).

CONCLUSION

For the reasons stated above, Mora requests that this Court reverse the

district court’s Order granting summary judgment in favor of Defendant, Jackson

Memorial Foundation, Inc., remand this case for trial, and grant any further relief

deemed just and proper.

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CERTIFICATE OF COMPLIANCE WITH RULE 32(a)

1) This brief complies with the type-volume limitation of Fed. R.App. P.

32(a)(7)(B) because this brief contains 9,899 words, excluding the parts of the

brief exempted by Fed. R.App. P. 32(a)(7)(B)(iii).

2) This brief complies with the typeface requirements of Fed. R.App. P.

32(a)(5) and the type style requirements of Fed. R.App. P. 32(a)(6) because this

brief has been prepared in a proportionally spaced typeface using Microsoft Word

Version 12.1.3 with Times New Roman 14-point font.

CERTIFICATE OF SERVICE

I certifY that on December 15,2008, I mailed a copy of this brief via Federal

Express Next Day to the Clerk of this Court and via first class U.S. Mail to counsel

for the Appellee, Kevin Vance, Esq., Epstein Becker & Green, PC, Wacha

Financial Center, Suite 4300, 200 S. Biscayne Blvd., Miami, Florida 3313

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