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Order Granting Summary Judgment - Cardelle v. City of Miami Beach FOP

Order Granting Summary Judgment - Cardelle v. City of Miami Beach FOP

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District Court SDFLA grants summary judgment in favor of the City and the Police Union in Age Discrimination claim brought by group of officers claiming that they were denied certain retirement benefits because of their age. The court rejected all of the Plaintiff's Claims
District Court SDFLA grants summary judgment in favor of the City and the Police Union in Age Discrimination claim brought by group of officers claiming that they were denied certain retirement benefits because of their age. The court rejected all of the Plaintiff's Claims

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Case 1:11-cv-24273-WJZ Document 114 Entered on FLSD Docket 09/30/2013 Page 1 of 38

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 11-24273-CIV-ZLOCH THAMYRIS CARDELLE, RAYMOND F. CHAMBERS, JAMES F. HARLEY, ANDREW J. KUNCAS, JOHN MCCABE, JAMES V. MAURO, JESS M. METZGAR, JOSEPH PREVISH, MICHAEL PRYOR, PEDRO RODRIGUEZ, BERNIE RUDER, GARFIELD TAYLOR, NEWELL WILDER, WILLIAM YOUNG, and ELISEO R. ZACARIAS, Plaintiffs, vs. MIAMI BEACH FRATERNAL ORDER OF POLICE, WILLIAM NICHOLS LODGE, NO. 8, and CITY OF MIAMI BEACH, Defendants. / THIS MATTER is before the Court upon Defendant City of Miami Beach’s Motion For Summary Judgment (DE 53) and Defendant Miami Beach Fraternal Order Of Police, William Nichols Lodge No. 8’s Motion For Final Summary Judgment (DE 54). The Court has carefully reviewed said Motions, the entire court file and is otherwise fully advised in the premises. I. Background Plaintiffs, current and former police officers employed by Defendant the City of Miami Beach, who are over 40 years of age, initiated the above-styled cause with the filing of their Complaint (DE 1). Plaintiffs subsequently filed an Amended Complaint (DE 4). Therein, Plaintiffs allege claims under the Age Discrimination in O R D E R

Case 1:11-cv-24273-WJZ Document 114 Entered on FLSD Docket 09/30/2013 Page 2 of 38

Employment Act of 1967, 29 U.S.C. §§ 621 et seq. (hereinafter “ADEA”), and the Florida Civil Rights Act of 1992, Florida Statutes §§ 760 et seq. (hereinafter FCRA). The Amended Complaint (DE 4)

states claims against Defendant the City of Miami Beach, Florida (hereinafter “CMB”) and the Miami Beach Fraternal Order of Police, William Nichols Lodge No. 8 (hereinafter “FOP”), which is the bargaining representative for all police trainees, police officers, detention officers, sergeants, and lieutenants, within the City of Miami Beach Police Department. Specifically, Plaintiffs allege that CMB discriminated against them on the basis of age in violation of the ADEA in two ways: first, by not allowing them to participate in a modified version of the Deferred Retirement Option Plan (hereinafter “DROP”), which, under the 2009-2012 collective bargaining agreement (hereinafter “CBA”), altered the former maximum DROP period of 36 months——prior to September 1, 2012 (hereinafter “DROP-3")——to 60 months——on or after September 1, 2012 (hereinafter “DROP-5"); and second, by deducting 5% from their gross compensation for a period of 18 months, pursuant to the terms of the CBA (hereinafter “FOP-5"). The Plaintiffs make similar allegations against FOP, based on its role in negotiating these CBA terms. Plaintiffs further allege a separate count of disparate impact against both defendants based on the above-listed facially neutral CBA terms. And, Plaintiffs

charge that both defendants retaliated against them for conduct

2

Case 1:11-cv-24273-WJZ Document 114 Entered on FLSD Docket 09/30/2013 Page 3 of 38

protected under the ADEA.

Finally, Plaintiffs allege that the

actions of both defendants also violated the cognate provisions of the FCRA. The DROP program allows police officers who are otherwise eligible to retire, to take retirement status and yet continue their employment for a specified period of time.1 Participating

eligible employees continue to receive full pay and benefits, but at the same time also collect pension benefits, which are deposited into an interest-bearing account. CMB’s benefit retirement plan DROP retirement is

does not dictate a mandatory retirement age. one voluntary option.

Another is to retire under the normal

retirement date, when an officer reaches 50 or when the sum of the officer’s age and creditable service equals 70. incentive, which subsidizes early retirement. DROP provides an

Under the 2009-2012

CBA, the time period for DROP participation was increased from three years to five years. That increase, combined with the fact

that all Plaintiffs (with the exception of Plaintiff Taylor) were already participating in the DROP-3 and not allowed to extend into

1 The facts in this section are taken from CMB’s Statement Of Undisputed Material Facts In Support Of Motion For Summary Judgment (DE 52), FOP’s Statement Of Undisputed Material Facts In Support Of Motion For Summary Judgment (DE 55), as well as from Plaintiffs’ Responses to both Defendants’ Undisputed Facts (DE Nos. 57 & 59), where Plaintiffs take issue with Defendants’ Statements of the Facts. Additionally, CMB filed its Reply Statement Of Undisputed Material Facts In Support Of Motion For Summary Judgment (DE 74). While the Court refers to allegations of disputes from Plaintiffs’ Facts, in so noting, the Court does not intend to imply that any material facts are actually in dispute. The Court says along with Michael Dibdin’s fictional detective, Aurelio Zen, with respect to the above-styled cause, “The facts [are] not in dispute, it [is] a question of how you interpret[] them.” Michael Dibdin, Vendetta (1991).

3

Case 1:11-cv-24273-WJZ Document 114 Entered on FLSD Docket 09/30/2013 Page 4 of 38

the new DROP-5 option, forms one of the major bones of interpretive contention motivating Plaintiffs’ claims of discrimination. these Plaintiffs entered DROP and were thus classified When as

“retired,” they received their DROP benefits pursuant to a DROP Agreement, which includes a Waiver and Release Agreement and an Irrevocable Letter of Resignation in which each participating Plaintiff agreed to resign voluntarily no later than the last day of his DROP period. Plaintiff Taylor has not entered DROP-3 and

thus has no DROP claim. Another key source of Plaintiffs’ dissatisfaction is a

concession CMB and FOP reached in the process of negotiating the CBA. CMB, required to take account of a budgetary shortfall,

needed to identify ways to save additional funds. FOP believed the FOP-5 was one of the least undesirable options. The FOP-5, the 18-

month, 5% gross compensation deduction, reduced CMB’s contributions to the FOP Health Trust. One reason that FOP favored this

particular concession over alternative suggestions was that because it was tied to healthcare, it was a pre-tax deduction. CMB agreed to some other FOP requests, of no Naturally, particular

significance to this litigation. With respect to the ratification of the 2009-2012 CBA, the Plaintiffs agreement. and Defendants CMB and FOP are not in complete

The Court notes the slightly varying versions of these

events while stressing that such differences do not represent

4

Case 1:11-cv-24273-WJZ Document 114 Entered on FLSD Docket 09/30/2013 Page 5 of 38

material factual distinctions.

CMB and FOP assert that the FOP-5

was unintentionally left out of the CBA the FOP members voted to ratify on August 4-6, 2010. Perhaps not surprisingly, Plaintiffs Regardless, in

do not believe this exclusion was inadvertent.

October of 2010, Plaintiffs filed unfair labor practice charges (hereinafter “ULP(s)”) with the Public Employees Relations

Commission (hereinafter “PERC”), alleging improper ratification, among other claims. PERC agreed with Plaintiffs as to the

ratification, so a second ratification vote was taken, and in September of 2011, the CBA was again ratified by the FOP vote. CMB

disclaims any responsibility for any oversights which may have occurred in this process. The other facts relevant to Plaintiffs’ claims concern a series of alleged affronts that Plaintiffs believe demonstrate retaliation for ADEA-protected expression. Also, in October of

2010, they individually charged age discrimination and retaliation to the United States Equal Employment Opportunity Commission

(hereinafter “EEOC”). 2010.

CMB received these charges on December 8,

FOP claims to have become aware of these charges in late The complaints in these EEOC filings are, as cause, FOP-5 and the ineligibility to

November of 2010.2 in the above-styled

participate in DROP-5.

Plaintiffs’ Amended Complaint (DE 4)

2 The Court notes that while Plaintiffs dispute the dates on which CMB and FOP became aware of these charges, Plaintiffs’ explanation is not on point. Plaintiffs merely assert that both defendants were aware of the charges at an earlier date (unspecified) because of previous grievance complaints and ULPs.

5

Case 1:11-cv-24273-WJZ Document 114 Entered on FLSD Docket 09/30/2013 Page 6 of 38

charges a list of grievances with various decisions that affected Plaintiffs’ employment. Plaintiffs charge these allegedly

retaliatory actions against both Defendants.

FOP argues that it

had no control over some of these decisions, as will be discussed below. The Court will briefly summarize the conduct Plaintiffs list in their operative Complaint (DE 4).3 First, Plaintiffs articulate

various “[v]erbal threats” and negative comments made to them by both CMB employees and either FOP membership or FOP contract negotiation committee members, regarding how they would vote on the CBA ratification. Plaintiffs claim they were called “deadwood,”

the “old guys,” the “Group of 20,” “greedy,” and “bad guys” by CMB employees and FOP membership. Plaintiffs allege that FOP

President, Alejandro Bello, threatened to countersue them for objecting to FOP practices and proposals for the CBA. Plaintiff

Zacarias alleges that Mr. Bello also told him that the new CBA was an attempt to get senior officers out of the police force and give

The Court will only discuss allegations in the Amended Complaint (DE 4). The Court would have believed that pointing out the most elementary principles of the notice-pleading rules, i.e., a Complaint or Amended Complaint must give opposing parties notice of the charges brought against them, would be tautological. Yet, since the briefing for the instant Motions For Summary Judgment (DE Nos. 53 & 54) references supposed additions to Plaintiffs’ complaint, apparently surfacing during some Plaintiffs’ depositions, the Court notes: “A pleading that states a claim for relief must contain: . . . (2) a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The rule does not describe or imply that a complaint is a foundation upon which new claims can be added at will throughout the course of the litigation, without formal or appropriate notice being provided to the opposing parties. If Plaintiffs believed that their complaint was insufficient in stating all claims for relief, Rule 15 clearly sets forth the process of amending, which the Plaintiffs surely realize, as they took advantage of this process in amending their original complaint.

3

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Case 1:11-cv-24273-WJZ Document 114 Entered on FLSD Docket 09/30/2013 Page 7 of 38

younger officers promotional opportunities. Plaintiffs also object to some articles they were sent by Mr. Bello and Sergeant Wayne Jones, which they believe were intended to chill their protected speech. The Plaintiffs who were already retired at the time that Most of the unfavorable

the CBA was re-ratified were not allowed to vote. other allegedly retaliatory conduct consists of

assignments or instances when CMB did not grant Plaintiffs various privileges, which Plaintiffs believe they should have received. Plaintiff Harley believes he was denied a Master Sergeant

designation. Plaintiffs Harley, Cardelle, and Metzgar believe they were subjected to drugs tests, which though ostensibly random, were in fact targeted. Plaintiffs Cardelle, Metzgar, Mauro, and Taylor Plaintiff Metzgar

maintain they were assigned disciplinary posts.

was denied training on November 11, 2011, because he would be separating by August 31, 2012. Plaintiff Rodriguez was also denied training. Position, Plaintiff Cardelle was removed from a Field Training which he had held for 14 years. Plaintiff Pryor

underwent an “overtime audit.” reclassified as civilian. allowed a reassignment

Plaintiff Ruder’s position was

Plaintiffs Mauro and Metzgar were not to undercover capacities that they

requested. Plaintiffs Cardelle, Chambers, Metzgar, and Taylor were given foot and bike patrol. not given breaks. Plaintiffs Taylor and Cardelle were

Plaintiffs further fault the CMB for not taking

disciplinary action against other employees who made derogatory

7

Case 1:11-cv-24273-WJZ Document 114 Entered on FLSD Docket 09/30/2013 Page 8 of 38

remarks. II. Standard of Review Under Federal Rule of Civil Procedure 56, summary judgment is appropriate if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c); see also Eberhardt v. Waters, 901 F.2d 1578, 1580 (11th Cir. 1990). The party seeking summary judgment “always

bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)(quotation omitted). Indeed,

the moving party bears the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial. Only when that burden has been met does the burden shift to the non-moving party to demonstrate that there is indeed a material issue of fact that precludes summary judgment. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991). The moving party is entitled to “judgment as a matter of law” when the non-moving party fails to make a sufficient showing of an essential element of the case to which the non-moving party has the 8

Case 1:11-cv-24273-WJZ Document 114 Entered on FLSD Docket 09/30/2013 Page 9 of 38

burden of proof.

Celotex Corp., 477 U.S. at 322; Everett v. Further, the

Napper, 833 F.2d 1507, 1510 (11th Cir. 1987).

evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor. Lobby, Inc., 477 U.S. 242, 255 (1986). III. Analysis By its instant Motion (DE 53), CMB asserts that all Plaintiffs who were participating in the former DROP program, DROP-3, Anderson v. Liberty

knowingly and voluntarily waived their rights under the ADEA in waivers which fully comply with the requirements of the Older Workers Benefit Protection Act, 29 U.S.C. § 626(f)(1)(A)-(H), an amendment to the ADEA (hereinafter “OWBPA”), which sets forth requirements for a waiver of an employee’s rights under the ADEA. With respect to Plaintiffs’ objections as to both their inability to participate in the revised DROP program, DROP-5, and the 5% gross compensation deduction, FOP-5, CMB further argues that

Plaintiffs have failed to state a discrimination claim under either a theory of disparate treatment or a theory of disparate impact. Under the disparate treatment theory, CMB asserts that it took no adverse employment action against Plaintiffs, on the basis of their age, in the implementation of either DROP-5 or FOP-5.

Additionally, CMB claims any decisions relevant to these terms of the CBA were based on a “reasonable factor other than age”

(hereinafter “RFOA”), expressly provided for in the ADEA, 29 U.S.C.

9

Case 1:11-cv-24273-WJZ Document 114 Entered on FLSD Docket 09/30/2013 Page 10 of 38

§ 623(f)(1) and 29 C.F.R. § 1625.7.

Pension status, rather than

age, is a RFOA, which CMB claims motivated certain limitations of which Plaintiffs complain. Under the disparate impact theory, CMB

raises similar objections, in addition to the lack of relevant statistical data to support Plaintiffs’ allegations. CMB argues

that Plaintiffs cannot set forth a prima facie case of age-based retaliation because they suffered no adverse employment actions which were caused by their engaging in ADEA-protected expression. CMB maintains that Plaintiffs’ belief that any of CMB’s decisions were unlawful is not reasonable. CMB notes that FCRA claims should be analyzed under the same law and standards as the federal claims. FOP, charged in similar counts, for the same DROP-5 and FOP-5 provisions of the CBA, makes similar arguments in its instant Motion For Summary Judgment (DE 54). In addition, FOP articulates

ways in which a labor union can be found to be discriminating in violation of the ADEA, arguing that it has undertaken none of the prohibited conduct. FOP also asserts that some of the alleged

incidents of retaliation involve employer decisions over which the bargaining unit has no control. Both CMB and FOP urge the Court to take note of its recent prior ruling in Lerman v. City of Fort Lauderdale, No. 02-60967CIV-ZLOCH, 2008 WL 5378127 (S.D. Fla. Dec. 23, 2008), aff’d, 346 Fed. App’x 500 (11th Cir. 2009). In Lerman, this Court held, in

short, that DROP waivers, strikingly similar to those at issue in

10

Case 1:11-cv-24273-WJZ Document 114 Entered on FLSD Docket 09/30/2013 Page 11 of 38

this case, were valid.

Thus, in that case, summary judgment was

entered in favor of the defendant. A. Waiver of Plaintiffs’ DROP-5 Claims

All Plaintiffs except Plaintiff Taylor, who never entered DROP-3, executed a document entitled “City of Miami Beach Deferred Retirement Option Program (“DROP”) Acknowledgment, Waiver and

Release Agreement” (hereinafter the “Waiver”) upon deciding to enter DROP.4 Each waiver includes, in pertinent part, the

following language: In consideration for allowing me to participate in and derive the benefits of the DROP, to which I acknowledge I would not otherwise be entitled and which I have freely and voluntarily elected, I hereby release and discharge the City of Miami Beach, Florida, Miami Beach Employees Retirement Plan in the City of Miami Beach, [or, in some waivers substitute: the City Pension Fund for Firefighters and Police Officers in the City of Miami Beach] and any and all of their agents, officers, or employees, in both their official and individual capacities, from all claims liabilities, demands and causes of action, whether known or unknown, fixed or contingent, which I may have or claim to have against [repeat same parties as above] arising out of my election to participate in the DROP and to voluntarily resign and retire on the dates specified above and in my letter of resignation (hereinafter referred to as “DROP claims”) . . . . With respect to DROP claims, this Waiver includes, but is not limited to, claims and liability . . . as well as claims I may have under employment discrimination laws such as the Age Discrimination in Employment Act of 1967, (29 U.S.C. 621, et seq.) . . . the Older Worker’s
See DE 50-13, pp. 40-42 (Cardelle’s Waiver); DE 50-13, pp. 47-49 (Chambers’s Waiver); DE 50-14, pp. 4-6 (Harley’s Waiver); DE 50-14, pp. 11-13 (Kuncas’s Waiver); DE 50-14, pp. 18-20 (McCabe’s Waiver); DE 50-14, pp. 25-27 (Mauro’s Waiver); DE 50-14, pp. 32-34 (Metzgar’s Waiver); DE 50-14, pp. 39-41 (Prevish’s Waiver); DE 50-14, pp. 46-48 (Pryor’s Waiver); DE 50-15, pp. 3-5 (Rodriguez’s Waiver); DE 50-15, pp. 10-12 (Ruder’s Waiver); DE 50-15, pp. 17-19 (Wilder’s Waiver); DE 50-15, pp. 24-26 (Young’s Waiver); and DE 50-15, pp. 31-33 (Zacarias’s Waiver).
4

11

Case 1:11-cv-24273-WJZ Document 114 Entered on FLSD Docket 09/30/2013 Page 12 of 38

Benefits Protection Act . . . the Florida Civil Rights Act of 1992 . . . and any other federal or state law or local ordinance dealing with employment discrimination such as age, sex, race, color, national origin, citizenship, religion, disability/handicap, marital or familial status, and family leave . . . . Waiver, ¶ 1. Thus, the terms of the Waiver, if valid, expressly

bar Plaintiffs’ claims against CMB with respect to DROP-5 in this case. in 29 Further, while prohibited employer practices are described U.S.C. § 623(a), the prohibited practices of labor

organizations, such as FOP, are separately described in the ADEA in the following section: It shall be unlawful for a labor organization—— (1) to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his age; (2) to limit, segregate, or classify its membership, or to classify or fail or refuse to refer for employment any individual, in any way which would deprive or tend to deprive any individual of employment opportunities, or would limit such employment opportunities or otherwise adversely affect his status as an employee or as an applicant for employment, because of such individual’s age; (3) to cause or attempt to cause an employer to discriminate against an individual in violation of this section. § 623(c)(1)-(3). Therefore while the discussion of the waiver

relates to both Defendants because Plaintiffs charge both with discrimination under the ADEA, with respect to the DROP-5

alteration, FOP clearly engaged in no labor organization conduct prohibited under the statute, or with respect to CMB, for which the waiver would not also apply. FOP did not violate the ADEA in its

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Case 1:11-cv-24273-WJZ Document 114 Entered on FLSD Docket 09/30/2013 Page 13 of 38

representation of Plaintiffs already participating in the DROP-3, if the waivers were valid, because age was not the but for cause, as required, of Plaintiffs’ ineligibility for DROP-5. See Gross v. FBL Fin. Serv., Inc., 557 U.S. 167, 176 (2009) (“Thus, the ordinary meaning of the ADEA’s requirement that an employer took adverse action ‘because of’ age is that age was the ‘reason’ that the employer decided to act.”) (quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993) (The trait claim “cannot succeed a a unless in the [the

employee’s employer’s

protected

actually process

played and had

role

decisionmaking]

determinative

influence on the outcome.” (emphasis added)).

See also Sims v.

MVM, Inc., 704 F.3d 1327, 1331-1332 (11th Cir. 2013). While waivers like the one quoted above are permissible, by its enactment of the OWBPA, “Congress [has] imposed specific duties on employers who seek releases of certain claims created by [the ADEA].” (1998). Oubre v. Entergy Operations, Inc., 522 U.S. 422, 427 Under the OWBPA, an employee may not waive his or her

rights under the ADEA unless the waiver is given knowingly and voluntarily. With respect to the requirements for a waiver to be

deemed knowing and voluntary, the OWBPA provides, in pertinent part, that “at a minimum”: (A) the waiver is part of an agreement between the individual and the employer that is written in a manner calculated to be understood by such individual, or by the average individual eligible to participate; (B) the waiver specifically refers to rights or claims 13

Case 1:11-cv-24273-WJZ Document 114 Entered on FLSD Docket 09/30/2013 Page 14 of 38

arising under this chapter; (C) the individual does not waive rights or claims that may arise after the date the waiver is executed; (D) the individual waives rights or claims only in exchange for consideration in addition to anything of value to which the individual already is entitled; (E) the individual is advised in writing to consult with an attorney prior to executing the agreement; (F)(i) the individual is given a period of at least 21 days within which to consider the agreement; or (ii) if a waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees, the individual is given a period of at least 45 days within which to consider the agreement; (G) the agreement provides that for a period of at least 7 days following the execution of such agreement, the individual may revoke the agreement, and the agreement shall not become effective or enforceable until the revocation period has expired; (H) if a waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees, the employer (at the commencement of the period specified in subparagraph (F)) informs the individual in writing in a manner calculated to be understood by the average individual eligible to participate, as to—— (i) any class, unit, or group of individuals covered by such program, any eligibility factors for such program, and any time limits applicable to such program; and (ii) the job titles and ages of all individuals eligible or selected for the program, and the ages of all individuals in the same job classification or organizational unit who are not eligible or selected for the program. 29 U.S.C. § 626(f)(1)(A)-(H). This provision makes clear that an

employee may waive his rights under the ADEA, and this principle 14

Case 1:11-cv-24273-WJZ Document 114 Entered on FLSD Docket 09/30/2013 Page 15 of 38

has been reaffirmed by courts on numerous occasions.

See, e.g.,

Lerman v. City of Fort Lauderdale, 346 Fed. App’x 500, 502 (citing Oubre, 522 U.S. at 426-27; Lloyd v. Brunswick Corp., 180 F.3d 893, 895 (7th Cir. 1999) (“Employees are free to waive their ADEA rights.”) (citation omitted)). Plaintiffs do not argue that the Waiver is invalid. Waiver comprises a mere three pages. The

These pages include ten

paragraphs, and each paragraph addresses a single topic. Each page is signed by the respective Plaintiff, and these signatures are notarized. The language used in the Waiver is not complicated. It

is written in plain English and does not use legalese.

Also,

notably, in the next to last paragraph, the Waiver states “I have read and I fully understand this Waiver.” Waiver, ¶ 9.

Accordingly, the Court finds that the Waiver is written in language calculated to be understood by the average police officer. The

Waiver satisfies Section (A) of the OWBPA waiver requirements. The Waiver satisfies all of the other requirements as well, for the reasons that follow. The Waiver complies with § (B) because it refers to the rights and claims under the ADEA in ¶ 2. Paragraph 2 clearly references

the rights or claims that may arise after the date the waiver is executed in answer to § (C). The DROP benefits for which the

waiver is executed are additional in value, and participants are not entitled to these benefits until they elect to participate and

15

Case 1:11-cv-24273-WJZ Document 114 Entered on FLSD Docket 09/30/2013 Page 16 of 38

comply with all requirements, including the signing of the waiver. Thus, § (D) is met. As to § (E), the participant is advised in ¶ Each individual is

6 to consult an attorney before executing.

given the 45 days to consider that is required for exit incentives, such as DROP programs, so § (F)(ii) is satisfied. 8 clearly reference § (G)’s required period Paragraphs 2 and of permissible

revocation.

Paragraph 7 references the fact that DROP program

participants were provided with the necessary information outlined in § (H)(i)-(ii). Plaintiffs’ sole argument about why the Waiver does not cover the DROP-related claims in the above-styled case is that, as in the Lerman case previously before this Court, Plaintiffs argue that their present DROP claims arose after they signed the Wavier. This argument was rejected by this Court in Lerman. Lerman, 2008 WL The legal

5378127, at *7, aff’d, 346 Fed. App’x 500 (11th Cir. 2009). Court recalls its prior ruling and applies the same

principles to the slightly, but not materially, different factual situation in the above-styled cause. A waiver will not satisfy the OWBPA if it attempts to waive claims arising after it is signed. Plaintiffs argue that their

claims arose after they signed the Waiver because Plaintiffs believe that their claims arose under the subsequent 2009-2012 CBA, which extended the three-year period of the DROP-3 to the DROP-5's additional two years. Plaintiffs are incorrect.

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As in Lerman, to answer the question before the Court, it is not proper to focus on the time of the allegedly discriminatory action——when the new DROP-5 program became a part of the

subsequently ratified CBA——but, rather the time at which Plaintiffs “knew or should have known of [their] injury and its cause.” White

v. Mercury Marine, Div. of Brunswick, Inc., 129 F.3d 1428, 1435 (11th Cir. 1997). “A claim accrues in a federal cause of action as

soon as a potential claimant either is aware, or should be aware, of the existence of and source of an injury.” Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1386 (3d Cir. 1994); see also Delaware State College v. Ricks, 449 U.S. 250, 258 (1980) (holding that the discriminatory action occurred when the unlawful “tenure decision was made and communicated to Ricks”) (emphasis added); White, 129 F.3d at 1434 (noting that “the Supreme Court has held that courts should use the discovery rule to determine when a cause of action accrues”). Applying the discovery rule, Plaintiffs’ causes of action did not arise after they executed the Waiver. In fact, at the time

Plaintiffs executed their irrevocable Waivers, they were agreeing to resign in no later than three years’ time in exchange for the benefits of the DROP-3. Plaintiffs cannot now claim that because

a new program was initiated after they had irrevocably joined the former program, that the new program should also apply to them. At

the time they executed their Waivers, they were agreeing to certain

17

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additional, clearly specified retirement benefits. Surely, had the subsequent CBA altered the terms of the DROP program by making it less favorable to participants, Plaintiffs would not be before this Court seeking to join such a later program. And indeed, Plaintiffs would receive the benefit of their former bargain. practical reality of bargaining. Such is the

Plaintiffs who participated in

the DROP-3 have been denied no benefit to which they are entitled, and they are disbarred from now coming before the Court and demanding further benefits. Accordingly, the Court finds that the

causes of action asserted in the above-styled cause, in reference to the DROP-5, did not arise after execution of the Waiver, and Plaintiffs did not waive claims arising after its execution. In sum, the Court finds that each of the Plaintiffs, with the exception of Plaintiff Taylor, executed a Waiver of the claims they now attempt to assert. The Court further finds that the Waiver

satisfies the standard for knowing and voluntary as set forth in the OWBPA. Finally, the Court finds that any additional arguments

are without merit in that they do not raise a genuine issue of material fact as to the legitimacy of the Waiver, or as to whether the aforementioned Plaintiffs knowingly and voluntarily executed the same. B. ADEA and FCRA Disparate Treatment and Disparate Impact: DROP-5 and FOP-5 While the Court holds that the Waivers are valid and

altogether prevent Plaintiffs from challenging their inability to 18

Case 1:11-cv-24273-WJZ Document 114 Entered on FLSD Docket 09/30/2013 Page 19 of 38

participate in the modified DROP-5, the Court will briefly address the two other theories of ADEA discrimination. And the Court will

consider the FOP-5 provision under both of these theories as well. The Court here notes that the following section will address both theories for both programs, with respect to both Defendants, CMB and FOP. The Court will highlight differences in the application

of its ruling to the two Defendants in acknowledgment of the ADEA’s variances in application to employers and labor organizations. The ADEA makes it unlawful to “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” U.S.C. § 623(a)(1). to “discriminate 29

The FCRA, in turn, states that it is unlawful against any individual or with of respect to

compensation,

terms,

conditions,

privileges

employment, The age

because of such individual’s . . . age.” analysis the Court employs when

Fla. Stat. § 760. a claim of

evaluating

discrimination is the same under the ADEA and the FCRA.

Zaben v.

Air Products & Chemicals, Inc., 129 F.3d 1453, 1455 (11th Cir. 1997); Morrow v. Duval County Sch. Bd., 514 So. 2d 1086 (Fla. 1987). While this prohibition is set forth in a straightforward manner, “[t]he question of the proper treatment of early-retirement programs is the most difficult question under the Age

Discrimination in Employment Act.” Karlen v. City of Colleges, 837

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F.2d 314, 317 (7th Cir. 1988).

This is so because the discussions

leading up to the implementation of such a program necessarily involve questions of age and the benefits to be gained by an employer if certain employees retire, but the resultant

“discrimination seems to be in favor of rather than against older employees, by giving them an additional option and one prized by many older employees.” Id. Difficulty in applying this area of

the law has been increased over the years by an exchange between Congress and the Supreme Court that saw numerous modifications in the analysis used to test the lawfulness of retirement incentive plans. See Auerbach v. Bd. of Educ. of the Harborfields Cent. Sch.

Dist. of Greenlawn, 136 F.3d 104, 110-12 (2d Cir. 1998) (discussing the ensuing back and forth between Congress and the Supreme Court). This exchange culminated with the enactment of the OWBPA, which amended various provisions of the ADEA. To establish a prima facie case, a “‘plaintiff must produce sufficient evidence to support an inference that the defendant employer based its employment decision on an illegal criterion.’” Alphin v. Sears, Roebuck & Co., 940 F.2d 1497, 1500 (11th Cir. 1991) (quoting Halsell v. Kimberly-Clark Corp., 683 F.2d 285, 290 (8th Cir. 1983)). This is achieved “through one of three generally accepted methods: by direct evidence of discriminatory intent; by meeting the four-pronged test set out for Title VII cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); or through

20

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statistical proof.” (11th Cir. 1989). avenues in turn.

Carter v. City of Miami, 870 F.2d 578, 581 The Court will address each of these three

First, Plaintiffs have failed to produce direct evidence of discriminatory intent. Plaintiffs have offered evidence in the

form of statements suggesting the DROP-5 and FOP-5 provisions of the CBA were sought by other FOP members and/or leaders who desired to exclude these Plaintiffs from the more favorable retirement program. Plaintiffs essentially believe they were regarded as a The Eleventh Circuit has delineated “severe

group of dissenters.

limits for the kind of language to be treated as direct evidence of discrimination.” Jones v. Bessemer Carrawy Med. Ctr., 151 F.3d Further, “direct evidence is

1321, 1321 n.11 (11th Cir. 1998).

composed of only the most blatant remarks, whose intent could be nothing other than to discriminate on the basis of some

impermissible fact.”

Rojas v. Florida, 285 F.3d 1339, 1342 n.2

(11th Cir. 2002) (quoting Schoenfeld v. Babbitt, 168 F.3d 1357, 1266 (11th Cir. 1999)). Also, “‘statements by nondecisionmakers,

or statements by decisionmakers unrelated to the decisional process itself,’ are not direct evidence of improper discrimination.” Bradley v. Pfizer, Inc., 440 Fed. App’x 805, 808 (11th Cir. 2011) (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989) (O’Connor, J., concurring)). None of the alleged statements here

provide the direct proof to this exacting standard.

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Next,

the

Court

will

consider

the

other

means

by

which

Plaintiff could establish a disparate treatment claim. plaintiff whether alleges disparate trait treatment, (under ‘liability ADEA,

“When a on

depends

the

protected

the

age)

actually

motivated the employer’s decision.’ must have ‘actually played a

That is, the plaintiff’s age role in [the employer’s

decisionmaking] process and had a determinative influence on the outcome.’” Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 141 (2000) (quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)). The McDonnell Douglas framework is appropriate for

assessing circumstantial evidence of disparate treatment in an ADEA case. Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir. 2000)

(citing McDonnell Douglas, Corp. v. Green, 411 U.S. 792 (1973); Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981)). “Under this framework [McDonnell Douglas], if a plaintiff

establishes a prima facie case of discrimination, the defendant may articulate a legitimate, nondiscriminatory reason for the

challenged employment action.

The Supreme Court has held that the

defendant’s explanation of its legitimate reasons must be clear and reasonably specific to satisfy its burden.” Woolsey v. Town of

Hillsboro Beach, No. 12-16145, 2013 WL 4766872, at *2 (11th Cir., Sept. 6, 2013) (citing Burdine, F.3d at 1024). Typically, the prima facie case for ADEA violation requires 450 U.S. at 253-54; Chapman, 229

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showing that the plaintiff “(1) was a member of the protected age group, (2) was subjected to adverse employment action, (3) was qualified to do the job, and (4) was replaced by or otherwise lost a position to a younger individual.” Chapman, 229 F.3d at 1024

(citing Benson v. Tocco, Inc., 113 F.3d 1203, 1207-08 (11th Cir. 1997)). Obviously, here the question with respect to the DROP-5

and FOP-5 deals not with replacement, but with the ADEA’s other prohibitions against “otherwise discriminat[ing] against any

individual with respect to his compensation, terms, conditions, or privileges of employment.” 29 U.S.C. § 623(a)(1). All of the

Plaintiffs are in a protected class because they are over 40 years old. But none can establish that either the DROP-5 or FOP-5

represented adverse actions through which they were disparately, or differentially treated, compared with their younger co-workers. Notwithstanding the fact that the Court has already held that all participating Plaintiffs’ Waivers were valid, the fact that the DROP-3 program was altered and thereafter became a DROP-5 program under the CBA does not mean that Plaintiffs were treated

differently on the basis of their age. was instead or pension group status. of The

The differentiating factor facially reason targeted because no all

FOP-5 for any

employee

employees

employees, as a concession in negotiating the CBA, had 5% of their gross compensation deducted. In regard to the DROP changes, this Court is not the first to

23

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examine why pension status is not equivalent to age for the purposes of assessing discrimination under the ADEA. The CMB and

FOP negotiated modification to the DROP program fits within the purpose of the ADEA. Of crucial importance is the fact that any This was true when all

DROP program is a carrot, not a stick.

participating Plaintiffs entered DROP-3, and it remains true under DROP-5. The Court acknowledges prefer that some as a of the DROP-3

participating

Plaintiffs

DROP-5

more

lucrative

retirement benefit. But, the basis on which they are ineligible to join the new program is not Plaintiffs’ age; rather, it results from their pension status. The Court also notes that although age

is one factor that weighs into an officer’s pension status, it is not an impermissible component. Kentucky Ret. Sys. v. EEOC, Hazen Paper, 507 U.S. at 613. the Supreme Court held In

that

discrimination on the basis of pension status is not unlawful under the ADEA, so long as it is not a “proxy for age.” 554 U.S. 135,

142-43 (2008) (noting that a complex set of rules determined benefits, rather than individual employment decisions) (quoting Hazen Paper, 507 U.S. at 613). In other words, age can be

considered in the framework of employees’ benefits, but it should not be the basis of individual employment decisions that negatively affect certain employees. Further, the rules embedded in pension

systems are treated “more flexibly and leniently in respect to age” by the ADEA. Id. at 144.

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The

inability

of

DROP-3

participating

Plaintiffs

to

participate in DROP-5 is based on their respective pension status, not their age alone. The benefits awarded under the original

program and the modified program are the result of a complex set of factors negotiated between CMB and FOP, in which age is one factor. The benefits are not determined by individual employment decisions based on age. The FOP-5 is not driven by age either. It is not

even driven by pension status. percentage.

All employees paid an equal

The fact that some employees paid more under the

deduction is based simply on the fact that their compensation, based on numerous factors, is greater. Plaintiffs and others with respect to Any disparity between their inability to

participate in DROP-5 is attributable to their pension status, not their age. And, any disparity between the amount of compensation

deducted from Plaintiffs as compared with others is attributable to the fact that their compensation was higher, not their age. Hazen

Paper, 507 U.S. at 613; Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). As the Court finds that Plaintiffs cannot establish a prima facie case of age discrimination with respect to either Defendant or either policy, the Court does not have to examine whether the Defendants have produced legitimate nondiscriminatory business reasons for either the DROP-5 or FOP-5. However, for the benefit

of the reviewing court, the Court makes the following comments.

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Particularly as to the DROP-5, Defendants argue that a DROP program fits within the safe harbor provision of the ADEA. When

considering an early retirement incentive program like DROP, the Court notes that the OWBPA provides the following: It shall not be unlawful for an employer, employment agency, or labor organization—— . . . (2) to take any action otherwise prohibited under subsection (a), (b), (c), or (e) of this section—— . . . (B) to observe the terms employee benefit plan—— of a bona fide

(i) where for each benefit or benefit package, the actual amount of payment made or cost incurred on behalf of an older worker is no less than that made or incurred on behalf of a younger worker, . . . ; or (ii) that is a voluntary early retirement incentive plan consistent with the relevant purpose or purposes of this chapter. 29 U.S.C. § 623(f)(2)(B)(i)-(ii). Plaintiffs emphasize what they believe is an age component underlying the DROP program’s modification. Both DROP programs,

DROP-3 and DROP-5, are early retirement incentive programs, thus the safe harbor found in § 623(f)(2)(B)(ii) (hereinafter the “safe harbor”) guides the Court’s analysis. require that an employer provide The safe harbor “does not early retirement

identical

incentives for employees of different ages or incur the same costs for all employees. Rather, the early retirement incentive plan

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Case 1:11-cv-24273-WJZ Document 114 Entered on FLSD Docket 09/30/2013 Page 27 of 38

need only be voluntary and consistent with the ADEA’s relevant purpose(s).” Auerbach, 136 F.3d at 112.

With respect to both DROP-5 and FOP-5, Defendants also argue that both CBA terms were based on reasonable factors other than age. Reasonable factors other than age under the ADEA are also

discussed in § 623(f), in pertinent part: It shall not be unlawful or an employer, employment agency, or labor organization—— (1) to take any action otherwise prohibited under subsections (a), (b), (c), or (e) of this section where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age . . . 29 U.S.C. § 623(f)(1)(emphasis added). “[A] defendant in an ADEA

case bears only the burden of going forward with the evidence to demonstrate reasonable factors other than age for the plaintiff’s discharge.” 592 (5th Marshall v. Westinghouse Elec. Corp., 576 F.2d 588, 1978).5 One primary set of the legitimate

Cir.

nondiscriminatory business reasons CMB and FOP offer with respect to their respective roles in negotiating (both) and implementing (only CMB) the terms of the CBA involves the way in which the CBA bound their conduct. The CBA was binding once it was in place. The FOP-5 was a

CMB was not free to depart from its terms.

solution to a budgetary crisis, not an effort to harm these

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1980.

5

27

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Plaintiffs or discriminate against them in any way. Naturally, FOP seeks the most favorable concessions possible. FOP-5 was

considered by FOP to be better than many other options on the table at the time. As noted above, pension plans, such as the DROP-5,

generally occupy a safe harbor carve out from ADEA liability. Finally, the Court will discuss whether Plaintiffs can assert a claim for ADEA discrimination based on the disparate impact of either the DROP-5 or FOP-5. of reasonable factors The discussion immediately preceding other than age as legitimate

nondiscriminatory reasons for disparate treatment is even more significant in the discussion of the disparate impact theory for DROP-5 and FOP-5. “[B]ecause ‘[i]n disparate-impact cases . . .

the allegedly ‘otherwise prohibited’ activity is not based on age,’ it is ‘in cases involving disparate-impact claims that the RFOA provision plays its principal role by precluding liability if the adverse impact was attributable to a nonage factor that was

‘reasonable.’’” Meacham v. Knolls Atomic Power Lab., 554 U.S. 84, 96 (2008)(quoting Smith v. City of Jackson, 544 U.S. 228, 239 (2005)). Further, what is most relevant in the application of the

reasonable factor other than age to a disparate impact claim is not whether it exists, but whether such a factor was reasonable. Meecham, 554 U.S. at 96 (2008) (“The RFOA defense in a disparate-

impact case, then, is not focused on the asserted fact that a nonage factor was at work; we assume it was. The focus of the defense

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is that the factor relied upon was a ‘reasonable’ one for the employer to be using . . . . a reasonable factor may lean more heavily on older workers, might as do against just the younger ones, and an

unreasonable

factor

opposite.”)

(further

citations omitted).

As stated above, the Court finds that the

decisions surrounding the DROP-5 and FOP-5 were based on reasonable factors other than age. Yet, additionally, with respect to this theory, the Court finds that Plaintiffs have not set forth a prima facie case. To

establish a prima facie case of disparate impact, a plaintiff must show: 1) there is a significant statistical disparity among members of different [age] groups; 2) there is a specific, facially-neutral employment policy or practice; and 3) there is a causal nexus between the specific policy or practice and the statistical disparity. See Cooper v. S. Co., 390 F.3d 695, 724 (11th Cir. 2004), overruled on other grounds; Ash v. Tyson Foods, Inc., 546 U.S. 454, 457 (2006); see also Summers v. Winter, 303 Fed. App’x 716, 719 (11th Cir. 2008) (“To establish a prima facie case of discrimination by disparate impact, ‘a plaintiff must show that the facially neutral employment practice had a significantly discriminatory impact.’” (quoting Connecticut v. Teal, 457 U.S. 440, 446 (1982)). And, the

Supreme Court also cautions that, “[E]ven though both statutes [the ADEA and Title VII] authorize recovery on a disparate-impact theory, the scope for disparate-impact liability under [the] ADEA 29

Case 1:11-cv-24273-WJZ Document 114 Entered on FLSD Docket 09/30/2013 Page 30 of 38

is narrower than under Title VII.” Plaintiffs must establish causation.

Smith, 544 U.S. at 240. Id. (citing Watson v. F. A plaintiff can

Worth Bank & Trust, 487 U.S. 977, 994 (1988)).

establish that a facially neutral policy caused a disparate impact by producing statistical evidence “of a kind and degree sufficient to show that the practice in question caused [the harm] because of membership in a protected group.” Here, Plaintiffs have Id. no statistical evidence

offered

whatsoever with respect to the DROP-5.

Therefore, the Court finds

that Plaintiffs cannot make out a prima facie case of disparate impact against either Defendant on this theory for this claim. The Court notes that Plaintiffs have attempted to offer statistical evidence to support their disparate impact claim with respect to FOP-5. The Court states once more here that, as discussed above,

both the DROP-5 and FOP-5 were motivated by reasonable factors other than age. Therefore, whether or not Plaintiffs are able to

produce statistical evidence would not change the Court’s ruling on this theory. untimely The Court notes that Plaintiffs have submitted one report (DE 67-3), which purports to offer

expert

statistical evidence that FOP-5, only, produced a disparate impact for older employees such as the Plaintiffs. The Court’s Pre-Trial

Order (DE 23) set governing deadlines in this case, such as the deadline for the exchange of the resumes of experts and their reports. The report (DE 67-3) was filed after said deadline had

30

Case 1:11-cv-24273-WJZ Document 114 Entered on FLSD Docket 09/30/2013 Page 31 of 38

passed, and the Court denied Plaintiffs’ request for an extension of time to exchange expert reports. See DE 47. This Report (DE

67-3) has not been submitted in compliance with the Court’s prior Orders; however, the Court notes that whether or not it remains in the record does not affect the Court’s ruling. The Plaintiffs have failed to establish a prima facie case of disparate impact with respect to either the DROP-5 or FOP-5. C. Retaliation

The ADEA describes impermissible retaliation, in pertinent part: (d) Opposition to unlawful practices; participation in investigations, proceedings, or litigation It shall be unlawful for an employer to discriminate against any of his employees or applicants for employment, for an employment agency to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because such individual, member or applicant for membership has opposed any practice made unlawful by this section, or because such individual, member or applicant for membership has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this chapter. 29 U.S.C. § 623(d). The elements necessary to establish a prima

facie case of ADEA (and therefore also FCRA6) retaliation are: that the plaintiff (1) “engaged in ADEA protected expression,” (2) “suffered an adverse employment action,” and (3) “the adverse

“The elements of retaliation under the FCRA and the ADEA are the same.” Brillinger v. City of Lake Worth, 317 Fed. App’x 871, 877, n.5 (11th Cir. 2008)(citing Drago v. Jenne, 453 F.3d 1301, 1307 (11th Cir. 2006)).

6

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Case 1:11-cv-24273-WJZ Document 114 Entered on FLSD Docket 09/30/2013 Page 32 of 38

action was causally related to the protected expression.” Stone v. Geico General Ins. Co., 279 Fed. App’x 821, 822 (11th Cir. 2008) (citing Bass v. Bd. of Cnty. Comm’rs, 256 F.3d 1095 (11th Cir. 2001)). The McDonnell Douglas burden-shifting framework applied to the discrimination claims above also applies to ADEA retaliation claims. Cobb v. City of Roswell, No. 12-15633, 2013 WL 4046578, at *6 (11th Cir. Aug. 12, 2013) (citing Hairston v. Gainesville Sun Pub. Co., 9 F.3d 913, 919 (1993)). protect expression, belief the plaintiff the Additionally, for the ADEA to must was show “a good in faith,

reasonable

that

employer

engaged

unlawful

employment practices.”

Id. at 823 (quoting Weeks v. Harden Mfg. This criteria

Corp., 291 F.3d 1307, 1311 (11th Cir. 2002)).

references a subjective belief, and yet this subjective belief must be “objectively reasonable in light of the facts and record

presented.” respect to

Id. (quoting Weeks, 291 F.3d at 1312). element (2), adverse action is also

And, with keyed to a

reasonableness standard:

“A plaintiff must show that a reasonable

employee would have found the challenged action materially adverse, meaning that it might well have dissuaded a reasonable employee from making or supporting a discrimination charge.” 4046578, at *6 Cobb, 2013 WL

(quoting Burlington North. & Santa Fe Ry. Co. v.

White, 548 U.S. 53, 67-8 (2006)). With respect to Plaintiffs’ ability to establish a prima facie case of retaliation, CMB and FOP argue that the primary conduct on

32

Case 1:11-cv-24273-WJZ Document 114 Entered on FLSD Docket 09/30/2013 Page 33 of 38

the

part

of

Plaintiffs’

that

would

constitute

ADEA-protected

expression under element (1) would be Plaintiffs’ EEOC filing. The Court notes that some authority suggests that other types of grievance procedures may also be protected by the ADEA. In Bailey

v. City of Huntsville, when evaluating claims for both Title VII and ADEA retaliation, the Eleventh Circuit stated, “The filing of a grievance can constitute statutorily-protected activity, but only if the grievance alleges discrimination based upon a statutorilyprotected ground.” 517 Fed. App’x 857, 861 (11th Cir. 2008) (citing Rollins v. Fla. Dep’t of Law Enforcement, 868 F.2d 397, 400 (11th Cir. 1989)). However, whether only the complaint before the EEOC,

or other grievance procedures as well, constitutes the type of proceeding which would receive ADEA protection is of no moment here. Neither Defendant disputes that, momentarily setting aside

the content of Plaintiffs’ initial complaints, the ADEA protects charges before the EEOC, such as the one filed by Plaintiffs in October of 2010, which FOP received in late November of 2010 and CMB in early December of 2010. Yet, the Plaintiffs’ prima facie showing is still plagued at every element by their inability to establish a case of ADEA retaliation against either CMB or FOP. First, with respect to the

ADEA-protected expression, although the EEOC, and perhaps some other formal grievance proceedings could qualify, the content of Plaintiffs’ complaint is problematic under existing law. As noted

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Case 1:11-cv-24273-WJZ Document 114 Entered on FLSD Docket 09/30/2013 Page 34 of 38

above, Plaintiffs must have had a reasonable belief that the discrimination they complained of was unlawful under the ADEA. The Court certainly does not contest that Plaintiffs subjectively believed they had experienced discrimination. Yet, as has been

exhaustively discussed above, Plaintiffs’ subjective belief that the DROP-5 and FOP-5 are discriminatory does not square with the existing law and thus is not objectively reasonable: [T]he plaintiffs may not stand on their ignorance of the substantive law to argue that their belief was reasonable. As we have stated previously, “[i]f the plaintiffs are free to disclaim knowledge of the substantive law, the reasonableness inquiry becomes no more than speculation regarding their substantive knowledge.” Weeks, 291 F.3d at 1317 (quoting Harper v. Blockbuster Entm’t, Corp., 139 F. 3d 1385, 1388 n.2 (11th Cir. 1998)) (further

citations omitted). With respect to the third element, the Court finds that the Plaintiffs have not clearly established that the allegedly adverse conduct was connected to their expressions related to

discrimination under the ADEA.

Plaintiffs allege that such a

connection exists, but they have not produced proof that such is the case. As Defendants argue, the time frame is problematic. If earlier

Plaintiffs’ EEOC filing was in October of 2010.

grievances are also appropriately considered, then some of the speech was slightly earlier, in late September and early October, which means that all of these allegations were taking place in late

34

Case 1:11-cv-24273-WJZ Document 114 Entered on FLSD Docket 09/30/2013 Page 35 of 38

2010. Some of the comments of which Plaintiffs complain pertaining to the ratification, while not tied to any specific date in Plaintiffs’ Amended Complaint (DE 4), must, based on the entirety of the record have occurred before the August 4-6, 2010

ratification. Some of the meetings at which such comments may have been made took place in June and July of 2010. It is possible, of

course, that these comments continued. Plaintiffs are not entirely clear. Other problems surround Plaintiffs’ belief that comments

from other employees constitute retaliation from either their employer, CMB, or their labor union, FOP. any of these occurrences that the It is not clear that in speaking were

individuals

speaking for or on behalf of either Defendant.

In addition to the

fact that some of the complained of retaliatory conduct took place prior to Plaintiffs’ allegedly protected speech, other instances took place after a substantial amount of time had passed. See

Bailey, 517 Fed. App’x at 861 (noting plaintiff’s inability “to show causation based on temporal proximity alone, as a five-month time lapse is considered too long under our precedent) (citing Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007)). Plaintiffs assert causation, but they do not establish

that their speech caused any of the alleged retaliatory conduct. Because the Court finds that Plaintiffs cannot make out several elements of their prima facie case for retaliation, the Court will only briefly address whether these actions were adverse.

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Case 1:11-cv-24273-WJZ Document 114 Entered on FLSD Docket 09/30/2013 Page 36 of 38

About this point, the Court would note that, in the Amended Complaint (DE 4), it does not consider the cumulative alleged actions Instead, as being perpetrated would ask against whether Plaintiffs any of the as a group.

the

Court

Plaintiffs,

individually, would reasonably have been dissuaded from his speech based on the alleged consequences to such speech. Reviewing the

Amended Complaint (DE 4), the Court observes that most Plaintiffs make only a few specific allegations. Thus, none can reasonably

claim that his experience was adverse to the degree the ADEA intends to protect. Finally, even though the Court finds that Plaintiffs cannot establish a prima facie case against either CMB or FOP, the Court will also discuss, for the benefit of any reviewing court,

Defendants’ alleged legitimate nondiscriminatory business reasons for such decisions. Much of the retaliatory conduct consisted of

employment assignments and privilege decisions over which FOP claims no authority. contrary. Plaintiffs have produced no evidence to the

CMB, as Plaintiffs’ employer, has met its burden of For example, CMB

production with respect to such decisions.

provides support that the drug tests are in fact random, that Plaintiffs do not have any actual data to support their assertion that they were targeted, and that other non-parties were tested with even greater frequency. DE 52, ¶ 34. CMB explains its

decisions not to train as related to the fact that some of the

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Case 1:11-cv-24273-WJZ Document 114 Entered on FLSD Docket 09/30/2013 Page 37 of 38

Plaintiffs would shortly be retiring, so such training would not be a proper use of time and money. DE 52, ¶ 37. CMB details the way

in which assignments to allegedly unfavorable positions take place. This is a complicated procedure involving how personnel are

distributed to fill the posts which CMB must man. Plaintiffs also had to fill these posts at

The fact that times was not

retaliation in response to any of their complaints.

DE 52, ¶ 38.

Often, officers are not able to take lunch breaks, but are allowed to eat in their cars. These Plaintiffs were not the only

individuals who were, at times, subject to the operational needs of the department and did not receive designated lunch breaks. DE 52, ¶ 39. Plaintiff Pryor had in fact been overpaid. DE 52, ¶ 40. He repaid the

amount paid to him in error.

Plaintiff Harley admits

that he did not fully understand the master sergeant designation he claims he did not receive. DE 52, ¶ 41. Plaintiff Cardelle’s

alleged removal as Field Training Officer was never even finalized. DE 52, ¶ 46. The Court does not mean to suggest that Plaintiffs do

not respond to Defendants’ explanations; however, the Court does find that Plaintiffs have produced no proof, as required by

McDonnell Douglas, that such reasons are actually pretextual for discrimination by either Defendant. In addition, as the Court

stated above, Plaintiffs cannot establish a prima facie case of retaliation under the ADEA or FCRA.

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Case 1:11-cv-24273-WJZ Document 114 Entered on FLSD Docket 09/30/2013 Page 38 of 38

IV. Conclusion The Court finds that fourteen of the fifteen Plaintiffs in the above-styled cause waived their claims under the ADEA with respect to their DROP participation. The FOP-5 was applied equally to all No Plaintiff can

employees, pursuant to the terms of the CBA.

establish a prima facie case of disparate treatment or disparate impact with respect to either of these CBA provisions against either CMB or FOP. Neither CMB nor FOP retaliated against any

Plaintiff for speech which was in fact protected by the ADEA. Accordingly, after due consideration, it is ORDERED AND ADJUDGED as follows: 1. That Defendant City of Miami Beach’s Motion For Summary Judgment (DE 53) be and the same is hereby GRANTED; 2. Defendant Miami Beach Fraternal Order Of Police, William Nichols Lodge No. 8’s Motion For Final Summary Judgment (DE 54) be and the same is hereby GRANTED; and 3. Pursuant to Rules 56 and 58, Final Judgment shall be entered by separate Order. DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida, this 30th day of September, 2013.

WILLIAM J. ZLOCH United States District Judge Copies furnished: All Counsel of Record 38

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