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.

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

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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

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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*

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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

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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

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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).

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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

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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?

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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

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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

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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).

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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.

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

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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. 302, 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,

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“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

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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

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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 26year-old Jennifer Vasquez – a “younger and more attractive employee.” (D.E. 531, 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
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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).

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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

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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. 342, 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. 1215), 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

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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 nonmoving 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 nonmoving party.” Id.

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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

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

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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.

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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

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.

6

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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 mixedmotive 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 decisionmaker 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

10

Mora filed the entire EEOC file with the district court. (D.E. 53-1). 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 antidiscrimination 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,

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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 EVIDENCE COURT IMPROPERLY FAVORED JMF’S

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

36

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

37

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. 38

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 selfserving 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). 39

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
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. 40
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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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