JAMES LAWRENCE KING, United States District Judge
Upon receiving notification that its largest customer was canceling a $20 million dollar annual account, representing fifty (50%) percent of the Defendant's total sales, Blue Ribbon Meats, Inc., decided that a company-wide reduction in force was essential for its economic survival.
Blue Ribbon's business as a wholesale meat manufacturing processor involves the cutting and packaging of sides of beef into portioned cuts of steak and ground beef for sale to food distributors. Wendy's, its largest single account, notified Defendant on April 10, 2001 that it was changing its ground beef supplier in Florida and completely phasing out Blue Ribbon as a supplier by December 31, 2001. It commenced immediately to reduce the volume of ground beef hamburger patties it had previously purchased from thirteen (13) truckloads (500,000 lbs. of patties) each week, to two (2) truckloads of 90,000 lbs. per week.
The loss of the Wendy's account required Defendant to drastically reduce its expenses. To implement this reduction, Blue Ribbon decided to reduce its workforce on June 1, 2001.
Ira Bregman, an owner and manager of Blue Ribbon, was responsible for selecting the employees who would have to be laid off. Bregman's normal duties required him to spend several hours a day in the Ground Beef Department and, as a person familiar with the employees' skills, work habits and performance was a logical person to be responsible for selecting the employees who would have to be laid off on June 1, 2001. As a part of this decision, he met and received advice from three Blue Ribbon supervisors, Antonio Rojas, Randolph Wilsman and Miguel Menendez, regarding the employees that should be kept after the reduction in force. In his deposition testimony he states that, in deciding who to keep, consideration of the age of the employees was not a factor.
On June 1, 2001, twenty-two (22) employees of the Defendant Blue Ribbon Meats, Inc. were laid off in the company-wide reduction in force. The Plaintiffs Felipa Santana, Berta Santos, Pilar Gonzalez and Yaquima Cepero were four (4) of the twenty-two (22) employees laid off Felipa Santana was a meat packer in the Steak Department and in addition to the reduction in force, the Defendant's reason for her termination from employment was her refusal to work on Saturdays and refusal to work late.
Plaintiff Berta Santos was, at the time of the reduction in force a meat packer in the Ground Beef Department and the company's stated reason for laying her off (in addition to the reduction in force) was because she was absent a substantial number of days.
Plaintiff Pilar Gonzalez was also a meat packer in the Ground Beef Department and the company's stated reasons for laying her off were reduction in force and refusal to work on Saturdays, and because of her slow eye/hand coordination.
Plaintiff Yaquima Cepero worked in the Box Department and was laid off because after the loss of its major customer, Defendant no longer needed three employees in the box room and because the company was unable to transfer her into refrigerated areas of Defendant's facility. Plaintiff Cepero had worked in the second floor box room because she would not work in the refrigerated areas of the meat processing and packing facility.
Approximately eight months later, the four individual plaintiffs filed, on March 19, 2002, a joint suit alleging they were laid off because of age in violation of 28 U.S.C. § 1331 and the Age Discrimination in Employment Act 29 U.S.C. § 626(c)(1). At the time of their discharge, their ages ranged from 53 to 66. The complaint alleges that the work record and performance history of the Plaintiffs demonstrated satisfactory performance that was equal to their significantly younger coworkers with less employment tenure with Blue Ribbon Meats.
The parties have stipulated that Blue Ribbon Meats, Inc., a Florida corporation, is an employer within the definition and for purposes of the Age Discrimination Act.
The Plaintiffs' collective motion for summary judgment was denied by the Court on December 17, 2002 where, after reciting the foregoing proffered reasons by the employer Blue Ribbon Meats for the decision to terminate Plaintiffs, the Court said: "This Court therefore finds that Defendant has alleged legitimate, non-discriminatory reasons for the Plaintiffs' respective layoffs, and that the Plaintiffs have not met their burden in showing that the Defendant's reasons are pretextual. Summary judgment is therefore inappropriate at this time."
After the close of all discovery pursuant to the Court's Pretrial Order of July 17, 2001 (on January 1, 2003) the Defendant, relying in part on the Court's December 17th Order (cited above) moved for summary judgment.
Plaintiffs have not denied any of the above-stated reasons for their respective layoffs. Thus, question the wisdom and fairness of Blue Ribbons' stated reasons suggesting they are not worthy of disbelief. Simply put, they do not create pretext.
In Combs v. Plantation Patterns, 106 F.3d 1519 (11th Cir. 1997), a case dealing with the employer's proffered reason that a promoted one employee over another because it believed that the employee promoted would be a more trustworthy financial manager, the Eleventh Circuit said:
"In relying on Walker's financial improprieties to undermine Meadowcraft's explanation that is based its promotion decision on Walker's superior supervisory experience, Combs confuses disagreement about the wisdom of an employer's reason and its application in the circumstances. Reasonable people may disagree about whether persons involved in past financial improprieties should be made supervisors, but such potential disagreement does not, without more, create a basis to disbelieve an employer's explanation that it in fact based its decision on prior non-financial supervisory experience. Meadowcraft's decision to promote Walker instead of Combs may seem to some to be bad business judgment, and to others to be good business judgment, but federal courts do not sit to second-guess the business judgment of employers. Stated somewhat differently, a plaintiff may not establish that an employer's proffered reason is pretextual merely by questioning the wisdom of the employer's reason, at least not where, as here, the reason is one that might motivate a reasonable employer.
To summarize, Combs failed to produce evidence sufficient to permit a reasonable factfinder to disbelieve Meadowcraft's proffered nondiscriminatory explanation that it promoted Walker instead of Combs because Walker had superior supervisory experience. Because of that failure, the district court should not have permitted the case to go to the jury. Meadowcraft was entitled to judgment as a matter of law.
A plaintiff in a discrimination case based on a circumstantial evidence can avoid judgment as a matter of law by putting on a prima facie case and by producing evidence sufficient to discredit in the mind of a reasonable juror all of the defendant's proffered nondiscriminatory reasons for its actions. In this case, however, Combs failed to produce evidence sufficient to permit a reasonable juror to reject as spurious Meadowcraft's explanation that it promoted
Walker instead of Combs to supervisor because Walker had superior supervisory experience."
Moreover, the wisdom and fairness, or lack thereof, of Blue Ribbon's decision to select the Plaintiffs for the reduction-in-force is irrelevant. "No matter how medieval a firm's practices, no matter how high-handed its decisional process, no mater how mistaken the firm's managers the ADEA does not interfere. Rather [the Court's] inquiry is limited to whether the employer gave an honest explanation of its behavior." Chapman v. AI Transport, 229 F.3d 1012, 1036 (11th Cir. 2001). Here, Blue Ribbon has given an honest explanation for its actions on June 1, 2001 and Plaintiffs cannot create a question of fact that the proffered reasons might not be true by simply asserting (without more) their non-trust worthiness.
The party opposing summary judgment may not simply rest upon mere allegations or denials, but rather must make a sufficient showing to establish the existence of an essential element to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 324 (1986); Barfield v. Brierton, 883 F.2d 923, 933 (11th Cir. 1989). If the nonmovant "fails to adduce evidence which would be sufficient, when viewed in a light most favorable to the nonmovant, to support a jury finding for the nonmovant, summary judgment may be granted." Lurvey v. Metropolitan Dade County, 870 F. Supp. 1570, 1575 (S.D. Fla. 1994) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254-55 (1986)). The burden on the nonmoving party is substantial; "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment . . ." Anderson, 477 U.S. at 247-48 (emphasis added). As such, the nonmoving party "must provide more than a mere scintilla of evidence to survive a motion for judgment as a matter of law." Combs v. Plantation Patterns, 106 F.3d 1519, 1526 (11th Cir. 1997).
Plaintiffs' affidavits, filed in support of their motion for summary judgment on November 15, 2002, challenge their respective layoffs by stating that they were unable to work on Saturdays because they were one-car households. These affidavits support Blue Ribbon Meats' reasons for the company's statements for selecting Plaintiffs Santana and Gonzalez for layoff. The affidavits do not rebut the fact that Santana and Gonzalez did not work on Saturdays while other employees did. These two employees rely instead, upon the fact that when they were initially hired, they were not told that they would have to work late or on Saturdays but, the fact remains, that when Santana was requested to work, she refused while other employees did not.
That is, Santana does not deny that she did not work on Saturdays or stay late; Gonzalez does not deny that she had slow eye-hand coordination and that she refused to work on Saturdays; Cepero does not deny that she would not work anywhere else but in the non-refrigerated Box Room; and Santos does not deny that she was absent a substantial number of days. Moreover, Plaintiffs have no record evidence to allow a reasonable juror to conclude that Blue Ribbon's proffered reasons are unworthy of credence and thus a pretext for age discrimination. Quite the opposite, the only conclusion that a reasonable juror could discern from the record in this case is that Plaintiffs' age had absolutely nothing to do with their layoffs on June 1, 2001.
Plaintiffs' reliance upon the alleged statements of Lilibeth Gonzalez (a nondecisionmaker June 1) about her desire to help the company eliminate old women; Bregman's statement to a supervisor (not to a plaintiff) "to tell the old lady (Cepero) that she could not eat in the Box Room" (made two years before the June 1 layoffs), and Plaintiffs' claim of substantiating statistical evidence is so frivolous and/or insubstantial as to want no further comment. See Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989) (O'Connor, J., concurring) (superseded by statute on other grounds); Trotter v. Board of Trustees of the University of Alabama, 91 F.3d 1449, 1453-54 (11th Cir. 1996). Statements by individuals not involved in the decision-making process, i.e., stray remarks, are not probative of discriminatory intent and do not constitute direct evidence of discrimination. Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318, 1330 (11th Cir. 1998); Wheatley v. Baptist Hospital of Miami, Inc., 16 F. Supp.2d 1356, 1359 (S.D. Fla. 1998) (King, J.), aff'd, 172 F.3d 882 (11th Cir. 1999) ("As explained by Justice O'Connor, "stray remarks in the workplace . . . cannot justify requiring the employer to prove that its hiring or promotion decisions were based on legitimate criteria. Nor can statements by nondecisionmakers, or statements by decisionmakers unrelated to the decisional process itself, suffice to satisfy the plaintiff s burden in this regard"). Lilibeth Gonzalez did not become the supervisor of the Ground Beef Department until after the Plaintiffs had been laid off on June 1, 2002, nor did she have any part in the decision to terminate any of the Plaintiffs. In the Eleventh Circuit "statistics along cannot make a case of individual disparate treatment." Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 1131 (11th Cir. 1984). Plaintiffs' reliance on Barnes v. GenCorp., 896 F.2d 1457 (6th Cir. 1990) for the opposite proposition is thus misplaced.
Even if the Eleventh Circuit case law did not prevail over the holding in Barnes, Plaintiffs still could not avail themselves of its holding. In Barnes, the Sixth Circuit held that in order for statistics to create an inference of discrimination, they "must show a significant disparity and eliminate the most common nondiscriminatory explanations for the disparity." Barnes, 896 F.2d at 1466. Plaintiffs have not satisfied this standard because all they have done is recite raw percentages without any underlying statistical analyses.
Conclusion
Plaintiffs have failed to carry their burden of demonstrating circumstantial, direct, or statistical evidence of discrimination; nor have they demonstrated that Blue Ribbon Meats' legitimate non-discriminatory reasons for their respective layoffs are pretextual.
In this case, there is no issue of material fact remaining for trial and the plain language of Rule 56(c) of the Federal Rules of Civil Procedure mandates the entry of summary judgment for Defendant.
DONE and ORDERED in chambers at the James Lawrence King Federal Justice Building and United States District Courthouse, Miami, Florida.