February 12, 2020

Contact:Eric W. Boyer, Esq.
Managing Partner
305.670.1101 Ext. 1023


U.S. Labor and Employment Law – Age Discrimination in Employment Act (ADEA)

Christopher D. Hastings

Christopher D. Hastings

John S. Derr

John S. Derr

TALLAHASSEE, Fla.John S. Derr and Christopher D. Hastings, attorneys in QPWB’s Tallahassee office, obtained a final summary judgment on behalf of the Florida Department of Management Services in an age discrimination case in federal court.
Plaintiff, aged sixty-three, applied for multiple maintenance supervisor positions with the Florida Department of Management Services. While Plaintiff was interviewed for some positions, he was ultimately not selected for any of them. Plaintiff had approximately (20) years of experience in residential building maintenance. Most of Plaintiff’s experience was as a maintenance supervisor of a single retirement home. Because the retirement home was an older building, Plaintiff did not utilize computerized maintenance systems, or automated HVAC, security, or electrical systems. He also did not have experience with asset management software or Excel for purchase orders. Plaintiff also only ever supervised a single individual during those twenty (20) years.
The Department filled these positions with better qualified applicants, ranging from twenty-nine (29) to fifty-three (53) years of age. The better qualified applicants were selected because, although they had fewer years of experience than Plaintiff, they could hit the ground running. Most of the selected applicants had experience working in the same buildings, therefore, enabling them to begin as a maintenance supervisor without training. The successful applicants had experience supervising more employees in larger buildings and had experience with the same systems and software that the Department’s buildings used. Plaintiff did not have this experience.
Plaintiff brought an age discrimination claim under both the Florida Civil Rights Act and the Age Discrimination in Employment Act. Plaintiff’s theory of discrimination was simply that by sheer virtue of his greater years of experience, he must not have been accepted because he was older than the selected applicants. Plaintiff paid particular attention to an internal promotion for an employee with six (6) years of maintenance experience to Plaintiff’s twenty (20).
The Department filed a motion for summary judgment arguing two points (1) that due to the materially different employment experience between Plaintiff and the selected applicants, Plaintiff was not similarly situated to the selected applicants; and (2) Plaintiff cannot rebut as pretext the Department’s legitimate reasons for hiring the selected applicants.
Chief United States District Judge Mark E. Walker, of the Northern District of Florida, agreed with the Department on both points and granted summary judgment in favor of the Department. Judge Walker held that those applicants who had experience with those systems and had more valuable supervisory experience were not “similarly situated in all material respects” to Plaintiff. In so holding, Judge Walker has applied the recent 11th Circuit Decision of Lewis v. City of Union City, Georgia, which stated that a similarly situated comparator “will share the plaintiff’s employment or disciplinary history.” When a plaintiff has a different work history from the successful applicant that Plaintiff cannot make out a prima facie case of discrimination. Judge Walker paid no mind to the disparity in years of experience, stating instead that, despite the difference in years of experience, an employer “is entitled to prefer an applicant who has experience with its facilities and maintenance operations over one who does not.”
Judge Walker also held that Plaintiff did not rebut as pretext the Department’s legitimate reasons for hiring the selected applicants. Plaintiff had to prove both that the legitimate reasons for hiring the successful applicants were false and that discrimination was the real reason. Plaintiff could prove neither.

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John S. Derr is co-managing partner of the firm’s Tallahassee office. He regularly works with governmental agencies to resolve problems related to professional licensure issues. Mr. Derr appears in proceedings before the Department of Administrative Hearings and The Florida Bar. He represents clients at trial and on appeal in state and federal courts and has extensive experience in medical malpractice, legal professional liability, private and public sector labor and employment law, and insurance coverage and bad faith litigation. Mr. Derr has attained the highest rating afforded by Martindale Hubbell Law Directory – AV® Preeminent™.  He received his law degree in 1981 from Florida State University College of Law.
Christopher D. Hastings is an associate in the Tallahassee office. He focuses his practice in the areas of insurance defense, medical malpractice, nursing home defense, premises liability and construction defect.  He received his J.D. cum laude from Florida State University College of Law in 2015.
QPWB is the largest minority and women owned law firm in the nation with 24 offices in the U.S. and abroad across a spectrum of industries in over 40 areas of practice. Our lawyers provide representation in litigation, business, real estate and governmental law.

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