Case 1:97-cv-04223-UU Document 1 Entered on FLSD Docket 12/22/1997 Page 1 of 7

.· seoG" """"~~~O~
~-, ·~'10~$

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA

--- •

MIAMI DIVISION

CIV- UNGARO- BENAGES

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

CALDER RACE COURSE, INC.,

)

)

______________D_e_fe_n_da_n_t.___________))

97-4223

CIVIL ACTION NO.

tr• c
COMPLAINT C.;

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F : .··~

JURY TRIAL DEMAND:_~ ..

x.·. --· INJUNCTIVE RELIEF sOU~ .

.
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.

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.

NATURE OF THE ACTION This is aQ. action under the Age Discrimination in Employment Act of 1967, as amended (the "ADEA"), to correct unlawful employment practices on the basis of age and to provide appropriate relief to Robert Anderson, Arthur Carratt, Stanley Corcell and Frank Poer. As stated with greater particularity in paragraph 7 below, the Equal Employment Opportunity Commission (the "Commission") alleges that in May of 1996, Calder Race Course, Inc., violated the ADEA when it removed, discharged and/or constructively discharged Robert Anderson, then age 74, Arthur Carrat, then age 70, Stanley Corcell, then age 67, and Frank Poer, then age 68, from their positions as Money Room Division Heads on the basis of their respective ages and assigned their duties to younger employees.
JURISDICTION AND VENUE 1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to Section 7(b) of the Age

Case 1:97-cv-04223-UU Document 1 Entered on FLSD Docket 12/22/1997 Page 2 of 7
Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 626(b) (the "ADEA"), which incorporates by reference Section 16(c) of the Fair Labor Standards Act of 1938 (the "FLSA"), as amended, 29 U.S.C. § 216(c).
2. The employment practices alleged to be unlawful were committed within the jurisdiction of the United States District Court for the Southern District of Florida, Miami Division.
PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission (the "Commission"), is the agency of the United States of America charged with the administration, interpretation and enforcement of the ADEA and is expressly authorized to bring this action by Section 7(b) of the ADEA, 29 U.S.C. § 626(b), as amended by Section 2 of Reorganization Plan No. 1 of 1978, 92 Stat. 3781, and by Public Law 98-532 (1984), 98 Stat. 2705. 4. At all relevant times, Defendant. Calder Race Course. Inc (the "Employer"), has continuously been a Florida corporation doing business in the State of Florida and the City of Miami, and has continuously had at least 20 employees. 5. At all relevant times, Defendant Employer has continuously been an employer engaged in an industry affecting commerce within the meaning of Sections 11 (b), (g) and (h) of the ADEA, 29 U.S.C. §§ 630(b), (g) and (h).
CONCILIATION 6. Prior to institution of this lawsuit, the Commission's representatives attempted to eliminate the unlawful employment practices alleged below and to effect voluntary compliance with the ADEA through informal methods of conciliation, conference and persuasion within the meaning of Section 7(b) of the ADEA, 29 U.S.C. § 626(b).

Case 1:97-cv-04223-UU Document 1 Entered on FLSD Docket 12/22/1997 Page 3 of 7
STATEMENT OF CLAIMS 7. Since at least May of 1996, the Defendant Employer engaged in unlawful employment practices at its Miami, Florida, facility in violation of Section 4(a) of the ADEA, 29 U.S.C. § 623(a), by removing, discharging and/or constructively discharging individuals because of their age. (a) Robert Anderson was 74 years old in May of 1996. He was an
experienced, long-term employee of the Defendant who was qualified for his position of Money Room Division Head. In May of 1996, Defendant removed, discharged and/or constructively discharged Robert Anderson from his position of Money Room Division Head. Subsequently, Defendant assigned Robert Anderson's job responsibilities to significantly younger. less experienced employees who were not laid off, but retained. (b) Arthur Carratt was 70 years old in May of 1996. He was an experienced, long-term employee of the Defendant who was qualified for his position of Money Room Division Head. In May of 1996, Defendant removed, discharged and/or constructively discharged Arthur Carratt from his position of Money Room Division Head. Subsequently, Defendant assigned Arthur Carratt's job responsibilities to significantly younger, less experienced employees who were not laid off, but retained.
3

Case 1:97-cv-04223-UU Document 1 Entered on FLSD Docket 12/22/1997 Page 4 of 7
(c) Stanley Corcell was 67 years old in May of 1996. He was an experienced, long-term employee of the Defendant who was qualified for his position of Money Room Division Head. In May of 1996, Defendant removed, discharged and/or constructively discharged Stanley Corcell from his position of Money Room Division Head. Subsequently, Defendant replaced Stanley Corcell with a significantly younger employee who was not laid off, but retained. Defendant also retained several other Money Room Division Heads who were significantly younger and less experienced than Stanley Corcell.
(d) Frank Poer was 68 years old in May of 1996. He was an experienced. long-term employee of the Defendant who was qualified for his position of Money Room Division Head. In May of 1996, Defendant removed, discharged and/or constructively discharged Frank Poer from his position of Money Room Division Head. Subsequently, Defendant assigned Frank Poer's job responsibilities to significantly younger, less experienced employees who were not laid off, but retained.
8. The effect of the practices complained of in paragraph 7 above has been to deprive Robert Anderson, Art Carrat, Stanley Corcell and Frank Poer of equal employment opportunities and otherwise adversely affeci their sratus as employees because of their age.
4

Case 1:97-cv-04223-UU Document 1 Entered on FLSD Docket 12/22/1997 Page 5 of 7
9. The unlawful employment practices complained of in paragraph 7 above were willful within the meaning of Section 7(b) of the ADEA, 29 U.S.C. § 626(b).
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant Employer, its officers, successors, assigns and all persons in active concert or participation with it, from engaging in policies and/or practices of removing, discharging and/or constructively discharging individuals because of their age, or engaging in any other employment practices which discriminate on the basis of age against individuals 40 years of age and older. B. Order Defendant Employer to institute and carry out policies, practices and programs which provide equal employment opportunities for individuals 40 years of age and older, and which eradicate the effects of its unlawful employment practices. C. Grant a judgment requiring Defendant Employer to pay appropriate back wages in an amount to be determined at trial, and an equal sum as liquidated damages and prejudgment interest to individuals whose wages are being unlawfully withheld as a result of the acts complained of above, including but not limited to, paying wages to Robert Anderson, Art Carratt, Stanley Corcell and Frank Poer. D. Order Defendant Employer to make whole all individuals adversely affected by the unlawful practices described above, by providing the affirmative relief necessary to eradicate the effects of its unlawful pra<.:ti<.:es, induding but not limited to reinstatement and/or front pay
5

Case 1:97-cv-04223-UU Document 1 Entered on FLSD Docket 12/22/1997 Page 6 of 7

for Robert Anderson, Art Carratt, Stanley Corcell and Frank Poer. E. Grant such further relief as the Court deems necessary and proper in the public
interest. F. Award the Commission its costs of this action.

JURY TRIAL DEMAND The Commission requests a jury trial on all questions of fact raised by its complaint.

C. GREGORY STEWART General Counsel

GWENDOLYN YOUNG REAMS Associate General Counsel

EVE G. LOWE (Acting) Regional Attorney

~-

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.cf~,;rv··c,., /

·.

MICHAEL J. ~RRELL

Trial Attorney '-...

Florida Bar No. 0053228

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Miami District Office One Biscayne Tower 2 S. Biscayne Blvd., #2700 Miami, FL 33131 (305) 530-6005 (305) 530-7660

6

Case 1:97-cv-04223-UU Document 1 Entered on FLSD Docket 12/22/1997 Page 7 of 7

Tho~·· ~"' ""'"~" '"=~~~.~~~~~ .~,~~;~ ~' ~-ly~~~~~~' rules of couor't". Th1s fo•rm-, apopMro•ve•d Obyo<t•hmeo<J<uodotcial Confere"n"c"e'"of"th"e""U'nited States In September 1974, is require

he

of~l

r

e initiating the civil docket

sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

I (a) PLAINTIFFS

DEFENDANTS

EQUAL EMPLOYMENT OPPORI'UNITY COMMISSION

CALDER RACE COURSE, H1C.

TE (b) COUNTY OF RESIDENCE OF FIRST LISTED PLAINTIFF _ _ _ _ __ (EXCEPT IN u.s. PLAINTIFF CASES) M..I\GIS~ SON

COUNTY OF RESIDENCE OF FIRST LISTED DEFENDANT ---'D=a~d,e"-----

1!...,.
~~

LAND

(IN U.S. PLAINTIFF CASES ONLY) CONDEMNATION CASES. USE THE LOCATION

OF

THE

TRACT OF LAND INVOLVED

(C) ATIORNEYS (FIRM NAME. ADDRESS. AND TELEPHONE NUMBER) Michael J. Farrell EEOC, 1 Biscayne 'Ibwer, Suite 2700
2ciklfE8'2'mm1:l1JH1R·EM~~~;Iol1~R6~~ ; 1

II. BASIS OF JURISDICTION

(PLACE AN X IN ONE BOX ONLY)

ATIORNEYS (IF KNOWN)
ST. LUCIE, INDIAN RIVER,

I& 1 U.S. Government
Plaintiff
0 2 U.S. Government Defendant

0 3 Federal Question (U.S. Government Not a Party)
0 4 Diversity (Indicate Citizenship of Parties in Item Ill)

Citizen of This State

PTF DEF L:Jt u1

Citizen of Another State ::J2 ::J2

Citizen or Subject of a Foreign Country

3 .:J 3

r·· Incorporate<~. or Prlncl Pia
of Business In Th ~
lncorporal@!t Mid nclpllf Place
.. of Buaii'Miaa I Anotlf615Statli
Foreign N~" :..;

05 05 D6 06

This i s an ·action under t h e Age IV. CAUSE OF ACTION :ciTE THEus CIVIL sTATUTE uNDER WHICH vou ARE FILING ANo wAITE A BRIEF sTATEMENT oF cAusE

Discrimination in Employment Act of ooNOTCITEJURisalcnaNALsTATUTEsuNLEssalvERsiTY) 1967, as arrended, to correct un·-

lawful employment practices on the basis of age and to provide appropriate relief to Robert

f\rcfl:rson' ~~1P\ sCE~li't~~' (~WtM'hC~f~~t e9'\ ff~t!'~r~a se.

v. NATURE OF SUIT (PLACE AN X IN ONE BOX ONLY)

--------------------------------------------

A

CONTRACT

0 11 0 Insurance 0 120 Marine 0 130 Moller Act D 140 Negotiable Instrument 0 150 Recovery of Overpayment
& Enforcement of
Judgment
0151 Medicare Act
B 0 152 Recovery ol Defaulted Student Loans
{Excl. Veterans)
B 0 153 Recovery ol Overpayment of Veteran's Benefrts 0 160 Stocl<hotders' Surts 0 190 Other Contract CJ 195 Contract Product Uability

A REAL PROPERTY
lJ 21 0 Land Condemnatton
B ~ 220 Foreclosure
I! 230 Rent Lease & EJeC'tm€'nl 0 240 Tons to Land 0 245 Ton Product Uability :-1 290 All Other Real Property

VI. ORIGIN

K! 1 Original

0

Proceeding

A

TORTS

PERSONAL INJURY

PERSONAL INJURY

0 310 Airplane 0 315 Aorplane Product
Uabilty
0 320 Assault. Ubel &

~ 362 Personal InJury-
Med Malpractice
:::J 365 Personal Injury-
Product Uability

Slander
0 330 Federal Employers
Uabilty
:::J 340 Marine

~ 368 Asbestos Personal
InJury Product Uabilty

0 345 Marine Product
Uabitity

PERSONAL PROPEI:TY
0 370 Other Fraud

0 350 Motor Vehocle

B 0 371 Truth in Lending

0 355 Motor Vehicle

LJ 380 Other Personal

Product Uabillty

Property Damage

0 360 Other Personal

U 385 Property Damage

InJury

Product Uabitity

A CIVIL RIGHTS
0 441 Votong El 442 Employment ~ 443 Housmg,
Accommodattons
0 444 Weffare :J 440 Other C•v•l Atghts

B PRISONER PETITIONS
L! 510 Motions to Vacate
Sentence Haoea!> Gorpv~
t" C 530 General
t*"cC 535 Death Penalty 540 Mandamus & Other Ci 550 Civil Rights *A or B

B FORFEITURE !PENAlTY
TI 610 Agriculture
~ 620 Other Food & Drug
~~ 625 Drug Related Se1zure of
Property 21 USC 881
:....' 630 liquor Laws -~: 640 R R & Truck lJ 650 A1rhne Regs
0 660 Oc~~fe~~~:~lth

~ 690 Other

A

LABOR

lJ 71 0 Fair Labor Standards
Act
B0 720 Labor/Mgmt
Relattons
0 730 Labor/Mgmt
Reporttng &
Disclosure Ad
::J 740 RaJiway Labor
Act
' ' 790 Other Labor
Lrttgatton
B 0 791 Empl. Rei Inc
Security Act

A

BANKRUPTCY

:::J 422 Appeal 28 usc 15B
0 423 Withdrawal 28 usc 157

A PROPERTY RIGHTS
0 820 Copyrights 0 830 Patent 0 840 Trademark
B SOCIAL SECURITY
0 861 HIA (t395W) 0 662 Black Lung (923) 0 863 DIWC/DIWW •(405(g)) 0 864 SSID Title XVI :::J 665 RSI (405{g))

A FEDERAL TAX SUITS
0 870 Taxes (U.S Plaontiff
Of DefendantJ
lJ 871 IRS- Thord Party 26 usc 7609

A nTIIFR STATUTES

[l 400 State

Reapportionment

0 41 0 Antitrust

0 430 Banks and Bankong
B 0 450 Commerce/ICC Rates/et
~ 460 Deportation

0 470 Racketeer Influenced and

Corrupt Organizations

0 810 Selective Service

0 850 Securities/Commodities/

Exchange

0 875 Customer Challenge 12 usc 3410

0 891 Agricultural Acts

0 692 Economic StabiNzalion

Act

D 893 Environmental Matters

0 694 Energy Allocation Act

0 895 Freedom ol

lnformabon Act

0 900 Appeal of Fee Determinatlo

Under Equal Access to

Justice

::J 950 Constitutionality of

* State Statutes ::J 890 Other Slatutory

Acttons

*A or B

2 Removed from State Court

[' 3

(PLACE AN x IN ONE BOX ONLY)
:= 4 Refiled

Transferred from 5 another district
(specify)

0 6 Multidistrict Litigation

Appeal to Dtstnct U 7 .Judge from
Magistrate Judgment

VII. REQUESTED IN CHECK IF THIS IS A

COMPLAINT:

0 UNDER F.R.C.P 23

DEMAND$

Check YES only if demanded in complaint·
JURY DEMAND: .)(YES o NO

VIII. RELATED CASE(S) (See instructions): IF ANY

JUDGE

-~~~~--~~~~-DOCKET NUMBER:~--------

- - - - - - - - Amount: _ _ _ _ __ Date Paid:_ _ _ _ _ _ _ _ K/ifp: _ _ _ _ __

 
 Case 1:97-cv-04223-UU Document 12 Entered on FLSD Docket 05/05/1998 Page 3 of 45

IN THE UNITED STATES DISTRICT COURT

.'-'

FOR THE SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
V.
CALDER RACE COURSE, INC., Defendant.

)

)

)

)

)

CIVIL ACTION NO.:

)

97-4223-CIV-UNGARO-BENAGES

)

)

AMENDED COMPLAINT

)

JURY TRIAL DEMAND

) INJUNCTIVE RELIEF SOUGHT

)

NATURE OF THE ACTION This is an action under the Age Discrimination in Employment Act of 1967, as amended (the "ADEA"), to correct unlawful employment practices on the basis of age and to provide appropriate relief to Robert Anderson, Arthur Carratt, Stanley Corcell and Frank Poer. As stated with greater particularity in paragraph 7 below, the Equal Employment Opportunity Commission (the "Commission") alleges that in May of 1996, Calder Race Course, Inc., violated the ADEA when it removed, discharged, constructively discharged, failed to hire and/or failed to rehire Robert Anderson, then age 74, Arthur Carrat, then age 70, Stanley Corcell, then age 67, and Frank Poer, then age 68, with respect to their positions as Money Room Division Heads on the basis of their respective ages and assigned their duties to younger employees.
JURISDICTION AND VENUE 1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to Section 7(b) of the Age

Case 1:97-cv-04223-UU Document 12 Entered on FLSD Docket 05/05/1998 Page 4 of 45
Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 626(b) (the "ADEA"), which incorporates by reference Section 16(c) of the Fair Labor Standards Act of 1938 (the "FLSA"), as amended, 29 U.S.C. § 216(c).
2. The employment practices alleged to be unlawful were committed within the jurisdiction of the United States District Court for the Southern District of Florida, Miami Division.
PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission (the "Commission"), is the agency of the United States of America charged with the administration, interpretation and enforcement of the ADEA and is expressly authorized to bring this action by Section 7(b) of the ADEA, 29 U.S.C. § 626(b), as amended by Section 2 of Reorganization Plan No. 1 of 1978, 92 Stat. 3781, and by Public Law 98-532 (1984), 98 Stat. 2705. 4. At all relevant times, Defendant, Calder Race Course, Inc. (the "Employer"), has continuously been a Florida corporation doing business in the State of Florida and the City of Miami, and has continuously had at least 20 employees. 5. At all relevant times, Defendant Employer has continuously been an employer engaged in an industry affecting commerce within the meaning of Sections 11(b), (g) and (h) of the ADEA, 29 U.S.C. §§ 630(b), (g) and (h).
CONCILIATION 6. Prior to institution of this lawsuit, the Commission's representatives attempted to eliminate the unlawful employment practices alleged below and to effect voluntary compliance with the ADEA through informal methods of conciliation, conference and persuasion within the meaning of Section 7(b) of the ADEA, 29 U.S.C. § 626(b)

Case 1:97-cv-04223-UU Document 12 Entered on FLSD Docket 05/05/1998 Page 5 of 45
STATEMENT OF CLAIMS 7. Since at least May of 1996, the Defendant Employer engaged in unlawful employment practices at its Miami, Florida, facility in violation of Section 4(a) of the ADEA, 29 U.S.C. § 623(a), by removing, discharging, constructively discharging, failing to hire and/or failing to rehire individuals because of their age. (a) Robert Anderson was 74 years old in May of 1996. He was an
experienced, long-term employee of the Defendant who was qualified for his position of Money Room Division Head. In May of 1996, Defendant removed, discharged, constructively discharged, failed to hire and/or failed to rehire Robert Anderson with respect to his position of Money Room Division Head. Subsequently, Defendant assigned Robert AndersonIs job responsibilities to significantly younger, less experienced employees who were not laid off, but retained. (b) Arthur Carratt was 70 years old in May of 1996. He was an experienced, long-term employee of the Defendant who was qualified for his position of Money Room Division Head. In May of 1996, Defendant removed, discharged, constructively discharged, failed to hire and/or failed to rehire Arthur Carratt with respect to his position of Money Room Division Head. Subsequently, Defendant assigned Arthur Carratt Is job responsibilities to significantly younger, less experienced employees who were not laid off, but retained.
3

Case 1:97-cv-04223-UU Document 12 Entered on FLSD Docket 05/05/1998 Page 6 of 45
(c) Stanley Corcell was 67 years old in May of 1996. He was an experienced, long-tenn employee of the Defendant who was qualified for his position of Money Room Division Head. In May of 1996, Defendant removed, discharged, constructively discharged, failed to hire and/or failed to rehire Stanley Corcell with respect to his position of Money Room Division Head. Subsequently, Defendant replaced Stanley Corcell with a significantly younger employee who was not laid off, but retained. Defendant also retained several other Money Room Division Heads who were significantly younger and less experienced than Stanley Corcell.
(d) Frank Poer was 68 years old in May of 1996. He was an experienced, long-tenn employee of the Defendant who was qualified for his position of Money Room Division Head. In May of 1996, Defendant removed, discharged, constructively discharged, failed to hire and/or failed to rehire Frank Poer with respect to his position of Money Room Division Head. Subsequently, Defendant assigned Frank Poer' s job responsibilities to significantly younger, less experienced employees who were not laid off, but retained.
8. The effect of the practices complained of in paragraph 7 above has been to deprive Robert Anderson, Art Carrat, Stanley Corcell and Frank Poer of equal employment opportunities and otherwise adversely affect their status as employees because of their age.
9. The unlawful employment practices complained of in paragraph 7 above were 4

Case 1:97-cv-04223-UU Document 12 Entered on FLSD Docket 05/05/1998 Page 7 of 45
willful within the meaning of Section 7(b) of the ADEA, 29 U.S.C. § 626(b).
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant Employer, its officers, successors, assigns and all persons in active concert or participation with it, from engaging in policies and/or practices of removing, discharging, constructively discharging, failing to hire and/or failing to rehire individuals because of their age, or engaging in any other employment practices which discriminate on the basis of age against individuals 40 years of age and older. B. Order Defendant Employer to institute and carry out policies, practices and programs which provide equal employment opportunities for individuals 40 years of age and older, and which eradicate the effects of its unlawful employment practices. C. Grant a judgment requiring Defendant Employer to pay appropriate back wages in an amount to be determined at trial, and an equal sum as liquidated damages and prejudgment interest to individuals whose wages are being unlawfully withheld as a result of the acts complained of above, including but not limited to, paying wages to Robert Anderson, Art Carratt, Stanley Corcell and Frank Poer. D. Order Defendant Employer to make whole all individuals adversely affected by the unlawful practices described above, by providing the affirmative relief necessary to eradicate the effects of its unlawful practices, including but not limited to reinstatement, rightful-place hiring or rehiring and/or front pay for Robert Anderson, Art Carratt, Stanley Corcell and Frank Poer.
5

Case 1:97-cv-04223-UU Document 12 Entered on FLSD Docket 05/05/1998 Page 8 of 45

E. interest.
F.

Grant such further relief as the Court deems necessary and proper in the public Award the Commission its costs of this action.

JURY TRIAL DEMAND The Commission requests a jury trial on all questions of fact raised by its complaint.

C. GREGORY STEWART General Counsel
GWENDOLYN YOUNG REAMS Associate General Counsel
DELNER FRANKLIN-THOMAS Regional Attorney
EVEG. LOWE Supervisory Trial Attorney

Trial Attorne Florida Ba o. 0053228
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Miami District Office One Biscayne Tower 2 S. Biscayne Blvd., #2700 Miami, FL 33131 (305) 530-6005 (305) 530-7660
6

 
 Case 1:97-cv-04223-UU Document 55 Entered on FLSD Docket 04/01/1999 Page 1 of 23

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, vs. CALDER RACE COURSE, INC.,
_____D_e_f_en_d_a_n_t.__________/

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
Case No. 97-4223-CN-UNGARO-BENAGES

ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court upon the Defendant's Motion for Summary Judgment, filed August 28, 1998.
THE COURT has considered the above-referenced Motion and the pertinent portions ofthe record and is othenvise fully advised in the premises. The Plaintiff filed the Complaint on May 1, 1998 on behalf of four claimants. The Complaint alleges that the Defendant violated the Age Discrimination in Employment Act ("ADEA''), 29 U.S.C. § 621, by depriving the claimants ofequal employment opportunities because oftheir age. On August 28, 1998, the Defendant filed the instant Motion for Summary Judgment arguing that the undisputed facts show that the Plaintiff failed to establish a prima facie case of age discrimination and even if it had, the Defendant articulated legitimate nondiscriminatory reasons for not rehiring the claimants. In response, the Plaintiff contends that the Defendant's stated reasons for not rehiring the claimants were pretextual. It is hereby

Case 1:97-cv-04223-UU Document 55 Entered on FLSD Docket 04/01/1999 Page 2 of 23
ORDERED AND ADJUDGED that the Defendant's Motion for Summary Judgment is GRANTED for the reasons set forth below.
FACTS The undisputed material facts are as follows: Calder is a pari-mutuel race track open to the public on a seasonal basis. (Mahony Affidavit at~ 2). At the beginning of each season, typically in May, Calder hires hundreds of employees to work at its betting windows and in its money rooms to manage the flow of money at the race track. (Mahony Affidavit at~ 3). The employees are hired on a seasonal basis, meaning that each employee is hired to work only during the current season. (Mahony Affidavit at~ 3). Many of Calder's seasonal employees typically work at other race tracks during the tracks' respective seasons. (Mahony Affidavit at ~ 3). Calder's money room employees are assigned their positions on the basis of skill levels, qualifications, and seniority. (Mahony Affidavit at ~ 5). Prior to May 1996, Calder had nine money rooms located around the racetrack and a main money room. (Mahony Affidavit at~ 7). Each money room is run by a division head, and each division head reports to the head cashier who in tum reports to Patrick Mahony, the Vice President of Mutuels. (Mahony Affidavit at~ 7). Mahony is responsible for the management of Calder's money rooms, the money room personnel, and the tellers. (Mahony Affidavit at~ 6; Mahony Depo. at 5-6). As Vice President, Mahony has the authority to hire and fire employees and is the ultimate decision maker as far as employment matters and money room personnel. (Mahony Depo. at 6, 12-13).
2

Case 1:97-cv-04223-UU Document 55 Entered on FLSD Docket 04/01/1999 Page 3 of 23
Each of the claimants, Anderson, Carratt, Corcell, and Poer, had been a division head at Calder prior to the 1996-1997 season. (Mahony Affidavit at~ 9). Anderson, who was born in 1922, was first hired by Calder in 1970 when he was 48 years old. (Mahony Affidavit at~ I 0). Carratt was first hired by Calder in 1974 when he was 49 years old. (Mahony Affidavit at~ 11}. Carratt was born in 1925. (Mahony Affidavit at~ 11 ). Corcell, who was born in 1929, was first hired by Calder in 1987 when he was 58 years old. (Mahony Affidavit at,, 12). Poer, who was born in 1927, was first hired by Calder in 1982 when he was 55 years old. (Mahony Affidavit at
~13).
In December 1995, Mahony prepared Calder's budget for the 1996-1997 racing season. (Mahony Affidavit at~ 15; Mahony Depo. at 28-29). Because of Calder's declining on-track business, Mahony found it economically necessary to streamline Calder's operations and reduce overhead expenses. (Mahony Affidavit at~ 15; Mahony Depo. at 30). Accordingly, Mahony cut 10-15% of Calder's employees from the budget. (Mahony Affidavit at ~15). Meanwhile, due to the introduction of night time simulcast racing, it was necessary to change the manner in which Calder's money rooms operated for the 1996-1997 racing season. (Mahony Affidavit at ~ 16). It was no longer possible to count all the money after the finish of the last live race because after the last live race, the betting windows remained open for the night time simulcast racing. (Mahony Affidavit at ~16; Mackie Depo. at 20; Gantz Depo. at 12-13). Therefore, all money was counted the following morning, and this required fewer counters than had been necessary under the previous system. (Mahony Affidavit at ~16). As part of the restructuring of Calder's money rooms, the teller/mini-dealer position was created which is a hybrid of teller and division head and required proficiency on the teller machine. (Mahony Affidavit at~ 19; Mackie Depo. at
3

Case 1:97-cv-04223-UU Document 55 Entered on FLSD Docket 04/01/1999 Page 4 of 23
10; Gantz Depo. at 18, 25). In order to become a teller/mini-dealer, an individual is required to attend a training course and pass a test. (Mahony Affidavit at~ 19).
Due to the decline of on-track business and the advent of night time simulcast racing, Mahony identified the four least busy money rooms at Calder that had the smallest number of clerks. (Mahony Affidavit at ~17; Mahony Depo. at 23; Gantz Depo. at 14). Mahony scheduled those four money rooms for immediate closure. (Mahony Affidavit at~ 17; Gantz Depo. at 14). The rooms slated for closure were the divisions which previously had been headed by Anderson, Carratt, Corcell, and Poer. (Mahony Affidavit at~ 14). Mahony decided to keep one of the four rooms, the paddock room, open after discussing with Ed Mackie the possibility that too many rooms had been identified for closure. (Mahoney Depo. at 31-33; Mackie Depo. at 22, 61). Prior to the 1996-1997 season, Corcell was the paddock room division head.
In 1996, Bill Doolen, who had been employed at Calder for twenty years, opted not to reassume the position of head cashier during the 1996-1997 racing season due to medical problems. (Mahony Affidavit at ~ 18). Instead, Doolen requested to serve as a division head in one of Calder's money rooms. (Mahony Affidavit at~ 18). Mahony decided to place Doolen in the paddock money room, the division previously headed by Corcell. (Mahony Affidavit at ~~ 18, 23). Mahony based his decision on the fact that of all the division heads, Corcell was the last one to become a division head. 1 (Gantz Depo. at 29-30). Ed Mackie was promoted to head cashier when Doolen became a division head. (Mahony Affidavit at ,!18).
At the beginning of every Calder racing season, each individual wishing to be hired or rehired for the season must submit a written application. (Mahony Affidavit at ,[3; Mahony
1Corcell became a division head sometime in 1992 or 1993. (Corcell Depo. at 33). 4

Case 1:97-cv-04223-UU Document 55 Entered on FLSD Docket 04/01/1999 Page 5 of 23
Depo. at 14; Mackie Depo. at 30; Comegys Depo. at 11). Calder opens its office in mid May to accept applications from fonner employees and new applicants. (Mahony Depo. at 14). Absent unusual circumstances, a division head is typically rehired to the same division in which he or she had worked the year before. (Mahony Depo. at 15). "They would apply each year and then be available for the opening of the meeting in whatever their capacity has been." (Mahony Depo. at 15). Comegys testified that "Well, every time since I became a division head at each track I've had the same division. So if I started - - when I started to work full-time as a division head I had the same division at each track, as most division heads always - - we always just go back to the same one. We don't rotate divisions, we work at the same one all of the time." (Comegys Depo. at 29).
Each of the claimants applied to work at Calder in the 1996-1997 racing season, but none of the claimants was rehired as a division head for the 1996-1997 season. (Mahony Affidavit at 36). Approximately one week prior to the 1996-1997 racing season, Mahony individually advised each of the claimants that Calder was downsizing, a few divisions were being closed, and certain jobs were being eliminated. (Mahony Affidavit at~ 20; Mahony Depo. at 41; Anderson Depo. at 43; Carratt Depo. at 29). Mahony explained to each of the claimants that they were not being rehired as division heads because of the restructuring and because he had selected the "best five" qualified individuals for the divisions that were to remain open. (Mahony Depo. at 42, 45, 49; Anderson Depo. at 91; Carratt Depo. at 38-39; Poer Depo. at 36).
Although Mahony ultimately decided who to hire for the 1996-1997 season, Mackie and Gantz had input into the decision. {Mahony Depo. at 37; Mackie Depo. at 19, 24; Gantz Depo. at 18-19). Mackie and Gantz, based on their experience working with the applicants, made hiring
5

Case 1:97-cv-04223-UU Document 55 Entered on FLSD Docket 04/01/1999 Page 6 of 23
recommendations to Mahony. (Mahony Depo. at 37-38). Mahony, Gantz, and Mackie met and decided who the "best five" division heads were based primarily on their collective evaluation of the skills and qualifications of the candidates as well as their seniority. (Mackie Depo. at 24-25). In deciding whom to rehire, Mahony, Mackie, and Gantz considered what the job duties would be in the money rooms remaining open, the volume ofbusiness in each of those rooms, which division heads consistently balanced the money better, who performed best as division head, and which division heads displayed the ability to handle more windows. (Mahony Depo. at 39; Mackie Depo. at 25-26; Gantz Depo. at 20).2 The also considered the extent to which the candidates had experience as division heads in the rooms that were to remain open. Because the divisions to remain open were the rooms with the largest number of windows, the highest volume of business, and the largest number of clerks, the decision had to be made as to which individuals were best equipped to handle the busy rooms. (Mackie Depo. at 61-62). According to Gantz, "[o]ver the years, division heads sort of fell into a niche ofwhat they could handle." (Gantz Depo. at 20).
For the 1996-1997 season, Calder rehired as division heads John Gantz, Betty Comegys, Dave Levy, and Tom Barrett. (Mahony Affidavit at~ 14; Mahony Depo. at 36). Gantz testified that he recommended Comegys' because her "paperwork was always neat and I trained her years ago and she does it my way." (Gantz Depo. at 21). Mackie recommended Comegys because "[s]he was better than the ones we didn't keep." (Mackie Depo. at 51). Moreover, Mackie stated that Comegys was better at balancing, staying on top of the work, and working more efficiently.
2Mackie indicated that seniority was not a factor in considering who to rehire as division head. (Mackie Depo. at 26).
6

Case 1:97-cv-04223-UU Document 55 Entered on FLSD Docket 04/01/1999 Page 7 of 23
(Mackie Depo. at 51). As for Barrett, Gantz indicated that "[h]e does a good job, handles a big division and never has a problem." (Gantz Depo. at 21). Mackie testified that Barrett balanced consistently and quicker than the others and that "he ran a busier division and was used to handling the check activity ... he was one of the five that we would keep." (Mackie Depo. at 51-52). With respect to Levy, Gantz stated "he ran the toughest division with a check cashing window and everything. He didn't always make it easy on himself but the end result was he balanced." (Gantz Depo. at 22). Mackie testified that Levy was his fifth choice and that "he was running the biggest division at the time with the information windows and everything." (Mackie Depo. at 52). As for the decision to rehire Gantz as a division head, Mackie stated that "John is one of the best. ... He wasn't above average, he was excellent. ... He just did his job really good, better than anybody else." (Mackie Depo. at 53).
According to Mackie, Anderson "wasn't the most competent one of the ones I had worked with.... Well, he was never in the largest divisions in the race track, and wasn't one of the faster ones to balance on a daily basis." (Mackie Depo. at 43). With respect to Carratt, Anderson stated that "he wasn't one of the best ones, never was in one of the larger divisions. He was always in a slower division, and I'm not positive, but I think that floor that he was at never had cashiers either." (Mackie Depo. at 46). Mackie described Corcell's quality of work as "less than average." He also indicated that in his opinion, Corcell "wasn't keeping up with what he should have kept up with, didn't balance the first time out many times, we would have to look for discrepancies, wasn't one of the best." (Mackie Depo. at 47). Mackie also characterized Poer's work quality as "less than average." (Mackie Depo. at 49). He stated that Poer was slow at counting money and that he did less work than the average person. (Mackie Depo. at 49). The
7

Case 1:97-cv-04223-UU Document 55 Entered on FLSD Docket 04/01/1999 Page 8 of 23
division heads who were rehired for the 1996-1997 season were, according to Mackie, Mahoney, and Gantz, better qualified to handle the responsibilities associated with the busiest divisions. (Mackie Depo. at 50-53; Mahony Depo. at 39; Gantz Depo. at 20).
When Mahony informed the claimants that they would not be rehired as division heads for the 1996-1997 season, he also offered each of them the teller/mini-dealer position if they attended training and passed the requisite test. (Mahony Affidavit at ~ 19; Poer Depo. at 36; Anderson Depo. at 43; Corcell Depo. at 52; Gantz Depo. at 14). Anderson declined on the spot when he was offered the teller/mini-dealer position. (Anderson Depo. at 43-44, 47, 49; Mahony Affidavit at~ 20). Carratt was offered the teller/mini-dealer position and was given time to think it over, but he never called back about the offer. (Carratt Depo. at 42-44; Mahony Affidavit at~ 20). Poer attended the first day of the requisite training to become a teller/mini-dealer but then never returned. (Poer Depo. at 39, 68; Mahony Affidavit at~ 20. Corcell underwent the requisite teller/mini-dealer training, passed the test, and worked one day as a teller/mini-dealer before quitting. (Corcell Depo. at 69-71; Mahony Affidavit at~ 20).
In mid to late June, approximately one month after the 1996-1997 Calder racing season began, Mackie, previously Calder's head cashier, accepted the mutuels manager position at Hialeah racetrack. (Mahony Affidavit at ,121; Mahony Depo. at 52; Mackie Depo. at 35).
,I Mahony then promoted Gantz to the head cashier position at Calder. (Mahony Affidavit at 21;
Mahony Depo. at 52; Gantz Depo. at 5). At that point, Gantz's division head position became open, and Ray Loretto, who had been employed at Calder for eleven years, was hired to fill the vacant division head position for Calder's 1996-1997 season. (Mahony Affidavit at~ 21; Mahony Depo. at 53-54; Mackie Depo. at 36). Mahony, Mackie, and Gantz made the decision
8

Case 1:97-cv-04223-UU Document 55 Entered on FLSD Docket 04/01/1999 Page 9 of 23
regarding Loretto because they determined he was the most qualified to fill the position and the individual most capable of handling the biggest division.3 (Corcell Depo. at 69; Mahony Depo.
at 53-54; Mackie Depo. at 36). Corcell stated that Mahony told him that Loretto was selected to
replace Gantz because "[w]e feel we picked the best five.... Well, we didn't think you could
handle 56 windows." (Corcell Depo. at 69). Gantz recommended Loretto to Mahony because he
felt that Loretto had a high skill level and substantial potential. (Mahony Depo. at 55). Mackie
indicated that Loretto ''was a good money room man. He was learning, he was responsible, he
was conscientious, really would get upset if he was out of balance, which made him balance even
more, he did a good job for us at Gulfstream and we thought he could handle that job." (Mackie
Depo. at 55-56).
LEGAL STANDARD
The procedure for disposition of a summary judgment motion is well established.
Summary judgment is authorized only when:
the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a
3The Defendant claims that at the time Loretto was selected to become a division head in mid to late June 1996, each of the claimants either had refused to come to work in the positions offered for the 1996-1997 racing season or had assumed the position and quit. In any event, according to the Defendant, none ofthe claimants was employed by Calder at the time the division head position became available in mid to late June. (Mahony Affidavit at~ 21; Gantz Depo. at 22, 24-25). The Plaintiff, however, contends that Loretto became a division head no later than June I, 1996, and that Corcell was still employed by Calder at that point and thus a candidate for the available division head position. (Corcell Depo. at 58). Corcell testified that on June 2, 1996, after seeing Loretto in the division room, he went to Mahony's office to find out why Loretto was there instead of him. According to Corcell, on June 2, 1996, Mahony explained to him "we feel that we picked the five best. ... Well, we didn't think you could handle 56 windows." (Corcell Depo. at 69).
9

Case 1:97-cv-04223-UU Document 55 Entered on FLSD Docket 04/01/1999 Page 10 of 23
matter oflaw. Fed. R. Civ. P. 56. The party moving for summary judgment has the burden of meeting this exacting standard. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). In applying this standard, the Adickes Court explained that when assessing whether the movant has met this burden, the courts should view the evidence and all factual inferences therefrom in the light most favorable to the party opposing the motion. All reasonable doubts about the facts should be resolved in favor of the non-movant. !d.
The party opposing the motion may not simply rest upon mere allegations or denial of the pleadings; after the moving party has met its burden of coming forward with proof of the absence of any genuine issue of material fact, the non-moving party must make a sufficient showing to establish the existence of an essential element to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
If the record presents factual issues, the court must not decide them; it must deny the motion and proceed to trial. Environmental Defense Fundv. Marsh, 651 F.2d 983,991 (51h Cir. 1981 ). Summary judgment may be inappropriate even where the parties agree on the basic facts, but disagree about the inferences that should be drawn from these facts. Lighting Fixture & Elec. Supply Co. v. Continental Ins. Co., 420 F.2d 1211, 1213 (Yh Cir. 1969). Ifreasonable minds might differ on the inferences arising from undisputed facts, then the court should deny summary judgment. Impossible Electronics Techniques. Inc. v. Wackenhut Protective Systems, Inc., 669 F.2d 1026, 1031 (51h Cir. 1982).
Moreover, the party opposing a motion for summary judgment need not respond to it with any affidavits or other evidence unless and until the movant has properly supported the motion
10

Case 1:97-cv-04223-UU Document 55 Entered on FLSD Docket 04/01/1999 Page 11 of 23
with sufficient evidence. Adickes, 398 U.S. at 160. The moving party must demonstrate that the facts underlying all the relevant legal questions raised by the pleadings or otherwise are not in dispute, or else summary judgment will be denied notwithstanding that the non-moving party has introduced no evidence whatsoever. Brunswick Corp. v. Vineberg, 370 F.2d 605,611-12 (51h Cir. 1967). The Court must resolve all ambiguities and draw all justifiable inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
LEGAL ANALYSIS It is unlawful under the ADEA for an employer to "discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's age." 29 U.S.C. § 623(1). The Court uses a three-step burden-shifting framework in ADEA employment discrimination cases. See Schoenfeld v. Rabbit, 1999 WL 111785 (11th Cir. 1999); Maddow v. Proctor & Gamble Co., Inc., 107 F.3d 846 (11 1h Cir. 1997); Walker v. NationsBank ofFlorida N.A., 53 F.3d 1548, 1556 (11th Cir. 1995). Under this analysis, as under Title VII, the initial burden is on the plaintiffto establish a prima facie case of discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993); Texas v. Burdine, 450 U.S. 248 (1981); Schoenfeld, 1999 WL 111785 at *8. lfthe plaintiff establishes aprimafacie case, the burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its actions. St. Mary's, 509 U.S. at 507; Burdine, 450 U.S. at 254; Schoenfeld, 1999 WL 111785 at *8. Assuming the defendant meets its burden, the plaintiff then has an opportunity to rebut the defendant's reasons by showing that they are pretextual. St Mary's, 509 U.S. at 507; Burdine. 450 U.S. at 254; Schoenfeld, 1999 WL 111785 at *8; Jameson
11

Case 1:97-cv-04223-UU Document 55 Entered on FLSD Docket 04/01/1999 Page 12 of 23
v. Arrow Co., 75 F.3d 1528 (1 ph Cir. 1996). The plaintiff, in establishing pretext, may not rely on mere conclusory allegations and assertions, but instead must present "concrete evidence in the form of specific facts which show that the defendant's proffered reason is mere pretext." Earley v. Champion International Co., 907 F.2d 1077, 1081 (11th Cir. 1990).
In an employment discrimination such as this one, a plaintiff must produce sufficient
evidence from which a court can infer that the defendant-employer based its employment decision on an illegal action. Benson v. Tocco, Inc., 113 F.3d 1203, 1207 (11th Cir. 1997) (citing Alphin v. Sears Roebuck& Co., 940 F.2d 1497, 1500 (1 ph Cir. 1991). The plaintiffmay establish a prima facie case of age discrimination by using any of the following three types of evidence: (1) direct evidence; (2) circumstantial evidence; or (3) statistical evidence. See Zaben v. Air Prods. & Chemicals, 129 F.3d 1453 (l1'h Cir. 1997); Corbin v. Southland International Trucks, 25 F.3d 1545, 1548 (11th Cir. 1994). In this case, the Plaintiff bases its prima facie case
on direct evidence and circumstantial evidence. A. Direct Evidence
The Plaintiff first argues that there is direct evidence that the Defendant discriminated against the claimants on the basis of age. In direct evidence cases, the plaintiff must provide evidence that discriminatory statements were made by a decision maker or an individual involved in the particular hiring decision and that such statements were made in conjunction with the hiring decision. See Trotter v. Board of Trustees ofthe University ofAlabama, 91 F.3d 1449, 1453-54 (11th Cir. 1996). "Direct evidence of discrimination would be evidence which, if believed, would prove the existence of a fact ... without inference or presumption. Schoenfeld v. Babbitt, 1999 WL 111785 (11th Cir. 1999); Carter v. City ofMiami, 870 F.2d 578, 581-82 (11'h
12

Case 1:97-cv-04223-UU Document 55 Entered on FLSD Docket 04/01/1999 Page 13 of 23
Cir. 1989). The Eleventh Circuit has held that"[o]nly the most blatant remarks, whose intent
could be nothing other than to discriminate on the basis of age ... constitute direct evidence of
discrimination. Schoenfeld, 1999 WL 111785 at *7; Castle v. Sangamo Weston, Inc., 837 F.2d
1550, 1558 n.l3 (11th Cir.I988) (indicating that a memorandum stating "Fire [the plaintiff]- he
is too old" is an example of direct evidence); Earley, 907 F.2d at 1081.
In this case, the Plaintiff points to the depositions of Corcell and Carratt as providing
evidence that Gantz and Mahon/ made comments to them regarding the fact that they collected
Social Security benefits and should retire. (Plaintiffs Response to Motion for Summary
Judgment at 9V As the Defendant points out, however, the evidence does not reflect when the
41t is undisputed that Mahony was a decision maker with respect to determining whom to hire for the 1996-1997 season. Moreover, the record contains evidence that Gantz was involved in the hiring decisions. See Trotter, 91 F.3d at 1453-54 ("For statements of discriminatory intent to constitute direct evidence of discrimination, they must be made by a person involved in the challenged decision."). As such, for purposes of determining whether this case involves direct evidence of discrimination, the Court will assume that both Gantz and Mahony were involved in the hiring process.
5Corcell testified in his deposition: "In the money room, John Gantz, Barrett, some of the others would make comments about, 'Why don't you give up your job? Retire. You're collecting Social Security. You don't need the money. We, the younger guys, need the money."' (Corcell Depo. at 89-90). Carratt testified in his deposition: "Mr. Gantz and Mr. Loretta, Mr. Tom Barrett, Betty Comegys, nice people, but they said, you know, why don't we give them a break, retire and Jet them take our jobs." (Carratt Depo. at 85-87). Carratt also testified: "Well, the word was around in the money room and got back to Mr. Mahony that I was getting Social Security, which was no secret. After 65, you qualify and several remarks were made that you're on Social Security, why don't you let a younger fellow come in and take your job?" [Q] "Were these remarks made during the meeting with Mr. Mahony?" [A] "The only thing, that I was drawing Social Security. He didn't mention to me about letting younger people. That was all done in the main money room with all these young people
13

Case 1:97-cv-04223-UU Document 55 Entered on FLSD Docket 04/01/1999 Page 14 of 23
comments were made or who specifically made each comment, let alone that the comments were
made in connection with the subject employment decisions.
Specifically, Carratt testified only that Mahony had commented at some unidentified time
about the fact that Carratt was drawing Social Security benefits. (Carratt Depo. at 85). In fact,
Carratt testified that Mahony did not state that the employees over 65 ought to let younger people
take the jobs. (Carratt Depo. at 85). As for comments attributed to Gantz, the record is devoid of
any evidence indicating whether the comments were made when Gantz was a division head or later when he became a decision maker.6 There is simply no evidence in the record linking the
Social Security comments to the challenged hiring decisions. See Trotter, 91 F.3d at 1453-54 (plaintiff must show remarks played a part in the particular hiring decision) (citing Price
Waterhouse v. Hopkins, 490 U.S. 228 (1991) (plurality opinion)). In any event, assuming the
comments were made by decision makers in connection with employment decisions, none of the
comments is the type of"blatant remark" from which discrimination can be found "without
that are still working there now. They always said, 'Why don't you fellows, you old fellows drawing Social Security, why don't you retire and let us young people take your job?'" (Carratt Depo. at 85).
6Gantz denies making any comments relating to the claimants' collecting Social Security. (Gantz Depo. at 32).
[Q] "With these four individuals that we've been discussing Anderson, Corcell, Carratt and Poer, did you ever discuss with any of them their retirement?"
[A] "No." [Q] "Did you ever discuss with any of them their eligibility to collect their full social security benefits?" [A] "No." [Q] "Did you ever hear anyone discussing that with them?" [A] "You hear the talk, but I don't pay much attention to it. I'm not in that age bracket yet, but I'm getting close."
14

Case 1:97-cv-04223-UU Document 55 Entered on FLSD Docket 04/01/1999 Page 15 of 23
inference or presumption." Schoenfeld v. Babbitt, 1999 WL 111785 at *8; Carter, 870 F.2d at 581-82. The comments, at most, are merely circumstantial evidence leaving the trier of fact to infer discrimination. See Schoenfeld, 1999 WL 111785 at *8; Burrell v. Board of Trustees ofGa. Military College, 125 F.3d 1390, 1393 (11th Cir. 1997). Accordingly, the record does not contain direct evidence of age discrimination. B. Circumstantial Evidence
1. Prima Facie Case In order to establish a prima facie case of age discrimination under the ADEA on the basis of circumstantial evidence, the plaintiff must demonstrate that: (1) he was a member of the protected group ofpersons between the ages of forty and seventy; (2) he applied and was qualified for a position for which the defendant was accepting applications; (3) despite his qualifications, he was not hired; and (4) a substantially younger person filled the position that he sought. Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1432 (11th Cir. 1998); see also Schoenfeld, 1999 WL 111785 at *9.7 The Defendant does not dispute that the claimants are all members of a protected class, that the claimants were qualified to perform the functions of a division head or that the claimants
7The Defendant argues that this case should also be analyzed under the Reduction in Work Force ("RIF") prima facie model. The Court finds that the traditional failure to hire prima facie case is more appropriate based on the circumstances presented in this case. The evidence is undisputed that age was not a consideration in determining which money rooms to close. The record also reflects that the claimants applied for the 1996-1997 season but were not rehired as division heads. Nonetheless, even under the RIF prima facie case, the outcome would be the same because the Plaintiff has failed to present evidence that the Defendant's proffered reasons for its hiring decisions were pretextual. Therefore, the Court finds that as a matter of law the Defendant is entitled to summary judgment under either prima facie standard.
15

Case 1:97-cv-04223-UU Document 55 Entered on FLSD Docket 04/01/1999 Page 16 of 23
were not rehired as division heads for the 1996-1997 Calder racing season. The Defendant disuptes that the evidence shows that the division head positions were filled by individuals substantially younger than the claimants. However, the record reflects that the division head positions were filled by individuals substantially younger than the claimants.8 See 0 'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 313 (1996) (an ADEA plaintiff must show that he was replaced by someone "substantially younger," not necessarily by someone under age 40); Carter, 870 F.2d at 583. Based on the undisputed evidence, the Court finds as a matter of law that the Plaintiff has met its burden with respect to presenting a prima facie case of age discrimination with respect to each claimant.
2. Leuitimate. Non-discriminatory Reason Once a plaintiff meets his or her burden of establishing a prima facie case, an inference of discrimination arises and the burden of production shifts to the defendant to articulate a legitimate, non-discriminatory reason for its hiring decisions. Burdine, 450 U.S. at 253;
Schoenfeld, 1999 WL 111785 at *10; Turlington, 135 F.3d at 310. In this case, the Defendant, in
providing a legitimate, non-discriminatory basis for not rehiring the claimants as division heads, states that the claimants were not as qualified as the individuals who were selected as division heads for the 1996-1997 season. Mahony, Vice President of Mutuels, with input from Gantz and Mackie, selected division heads on the basis of skill, qualifications, and seniority. (Mahony
8At the time the employment decisions were made for the 1996-1997 season, Barrett was 54, Comegys was 61, Doolen was 56, Levy was 54, Gantz was 57, and Loretto was 44. (Plaintiffs Exhibit 5). The claimants were 67, 68, 70, and 74 when Mahony decided not to rehire them as division heads.
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Case 1:97-cv-04223-UU Document 55 Entered on FLSD Docket 04/01/1999 Page 17 of 23
Affidavit at~ 5). Mahony, Gantz, and Mackie met and decided who, based on subjective and objective criteria, the "best five" division heads were. (Mackie Depo. at 24-25).
In making the decision ofwhom to rehire, Mahony, Mackie, and Gantz considered what the job duties would be in the money rooms that would remain open, the volume of business in each of those rooms, which division heads consistently balanced the money better, who performed best as division head, and which division heads displayed the ability to handle more windows. (Mahony Depo. at 39; Mackie Depo. at 25-26; Gantz Depo. at 20). Because the divisions to remain open were the rooms with the largest number of windows, the highest volume of business, and the largest number of clerks, the decision had to be made as to which individuals were best equipped to handle the busy rooms. (Mackie Depo. at 61-62; Gantz Depo. at 29). Moreover, in deciding whom to rehire, Mahony also determined that "those people that were in place in those existing money rooms that we left open, certainly ... they were best qualified to continue operating those rooms." (Mahony Depo. at 39). Gantz testified"[w]e turned around, we knew which divisions were going to be closed.... the consensus of opinion was leave the people [in the divisions they had previously worked]." (Gantz Depo. at 29).9 After discussing the skill, qualification, and seniority of each of the applicants, Mahony decided to rehire Gantz, Comegys, Levy, and Barrett. (Mahony Affidavit at ,114; Mahony Depo. at 36).
91t should also be noted that typically the division heads would return to the same division year after year. Comegys testified "we always just go back to the same one. We don't rotate divisions, we work at the same one all of the time." (Comegys Depo. at 29).
Gantz's deposition also contains evidence that the standard procedure at Calder was to rehire the division heads into the same division in which they previously served the year before.
[Q] "So it would be fair to say that you assume you will be hired into your previous position for each new season unless told otherwise?"
[A] "Correct." (Gantz Depo. at 12). 17

Case 1:97-cv-04223-UU Document 55 Entered on FLSD Docket 04/01/1999 Page 18 of 23

Based on the undisputed evidence, the Court finds as a matter of law that the Defendant offered

legitimate, non-discriminatory reasons for its decision not to rehire Anderson, Poer, and Carratt

as division heads.

See Nix v.

WLCY Radio/RAHALL Communications, 738 F.2d

1181,

1187

(11

1
h

Cir. 1984) (holding that an "employer may fire an employee for a good reason, a bad reason, a

reason based on erroneous facts, or for no reason at all, as long as its action is not for a

discriminatory reason.").

With respect to Corcell, Mahony decided to replace him with Doolen when Doolen gave

up his position as head cashier due to medical problems. The Defendant states that Doolen was

selected to replace Corcell because Corcell was the last individual to become a full-time division

head "and just by rights, the head cashier is going to step down and take a division and the last

division head steps down and goes back to running the window. (Mahony Affidavit at~ 18;

Gantz Depo. at 29-30). Thus, the Defendant has articulated a legitimate, nondiscriminatory

reason for replacing Corcell. See Nix, 738 F.2d at 1187.

Moreover, when Gantz's division head position later opened due to Gantz's promotion to

head cashier, Loretto was chosen instead of Corcell. Mahony made the decision regarding

Loretto after determining he was the most qualified to fill the position and the individual most

capable of handling the biggest division. (Corcell Depo. at 69; Mahony Depo. at 53-54; Mackie

Oepo. at 36). Corcell stated that Mahony told him that Loretto was selected to replace Gantz

because "[w]e feel we picked the best five.... Well, we didn't think you could handle 56

windows." (Corcell Depo. at 69). Gantz recommended Loretto to Mahony because he felt that

Loretto had a high skill level and substantial potential. (Mahony Depo. at 55). Mackie indicated

that Loretto "was a good money room man. He was learning, he was responsible, he was

18

Case 1:97-cv-04223-UU Document 55 Entered on FLSD Docket 04/01/1999 Page 19 of 23
conscientious, really would get upset if he was out of balance, which made him balance even more, he did a good job for us at Gulfstream and we thought he could handle that job." (Mackie Depo. at 55-56). The Defendant has stated a legitimate, nondiscriminatory reason for selecting Loretto rather than Corcell. See Nix, 738 F.2d at 1187.
3. Pretext Once a defendant articulates a legitimate, non-discriminatory reason for its actions, the initial inference of discrimination "drops" from the case. See St. Mary's, 509 U.S. at 510-11;
Schoenfeld, 1999 WL 111785 at *11. The burden then shifts back to the plaintiff to show that
the proffered reason was a pretext for intentional discrimination and that the defendant intentionally discriminated against him. Burdine, 450 U.S. at 256; Schoenfeld, 1999 WL 111785
at *11. The Eleventh Circuit has held that a plaintiff can show pretext by "presenting evidence
sufficient to demonstrate a genuine issue of material fact as to the truth or falsity ofthe employer's legitimate, nondiscriminatory reasons." Schoenfeld, 1999 WL 111785 at *11 (quoting Combs); Combs v. Plantation Patterns, 106 F.3d 1519, 1531 (11th Cir. 1997) (once plaintiff has established prima facie case and has presented sufficient evidence to allow fact finder to disbelieve employer's proffered explanation for its action, "that alone is enough to preclude entry ofjudgment as a matter of law"); Evans v. McClain of Georgia, Inc., 131 F.3d 957, 965 (11th Cir. 1997).
The Plaintiff has attempted to show pretext by arguing that the claimants were more experienced, better qualified, and more skilled than the individuals who were hired as division
19

Case 1:97-cv-04223-UU Document 55 Entered on FLSD Docket 04/01/1999 Page 20 of 23
heads. 10 The Plaintiff points to the fact that some of the claimants had received "Employee of the Week" awards, had never been disciplined, and had even trained some of the individuals selected to be division heads in the 1996-1997 season. However, the determination of an individual's skill and qualifications to perform the division head job undisputably included subjective and objective judgments by Calder's management. Therefore, even though the claimants might have been qualified to serve as division heads, Mahoney, Mackie, and Gantz felt that Comegys, Levy, Barrett, Gantz, and Loretto were better qualified than the claimants to handle the money rooms in the 1996-1997 season. The Court will not sit as a super-personnel department, second-guessing the Defendant's management decisions. Elrod v. Sears, Roebuck and Co., 939 F.2d 1466 (11th Cir. 1991) (Federal courts "do not sit as a super-personnel department that reexamines an entity's business decisions. No matter how medieval a firm's practices, no matter how high-handed its decisional process, no matter how mistaken the firm's managers, the ADEA does not interfere.) (citations omitted). The Plaintiff has not provided evidence showing that the Defendant's proffered subjective and objective criteria underlying its hiring decisions were false or not worthy ofbelief. Combs, 106 F.3d at 1531. Accordingly, the Plaintiffhas failed to show that the
10With respect to the decision to hire Loretto instead of CoreeII for the division head position left vacant by Gantz, the Plaintiff in addition to arguing that Corcell was more qualified than Loretto also disputes the Defendant's rationale that Corcell was not employed by Calder at the time the position became available. The evidence as to when the position opened and when Loretto was hired as division head is in dispute. See note 3 supra. Nonetheless, the Plaintiff has failed to show that at least one of the Defendant's articulated reasons for hiring Loretto rather than Corcell was pretextual, and therefore the Plaintiff cannot survive summary judgment. Combs, 106 F.3d at 1543 ("A plaintiff in a discrimination case based on circumstantial evidence can avoid judgment as a matter of law ... by producing evidence sufficient to discredit in the mind of a reasonable juror all of the defendant's proffered nondiscriminatory reasons for its actions.") (italics added).
20

Case 1:97-cv-04223-UU Document 55 Entered on FLSD Docket 04/01/1999 Page 21 of 23
reasons articulated by the Defendant were pretextual, and therefore the Plaintiff cannot withstand
the Defendant's Motion for Summary Judgment as a matter oflaw_l'
As for Mahony's decision to replace Corcell with Doolen, seniority was the sole reason
articulated by the Defendant for replacing Corcell rather than any of the other division. In
attempting to establish pretext, the Plaintiff presented evidence indicating that Barrett was less
senior than Corcell. 12 However, the deposition of Gantz clarifies what the Defendant means by
"seniority." For the purposes of determining which division head Doolen should replace,
"seniority" refers to the length of time the individual has served as a division head at Calder
rather than the date when each individual was initially hired by Calder (which are the dates listed
on the exhibit upon which the Plaintiff relies). (Gantz Depo. at 29-30). Gantz indicated that
Doolen replaced Corcell because "Corcell was the last person that became a division head."
(Gantz Depo. at 29-30). As such, the Plaintiffhas failed to establish that the Defendant's
11The Plaintiff also argues that the comments made by Mahony and Gantz quoted in footnote 5, supra, are circumstantial evidence of discriminatory intent and evidence of pretext because the comments reflect the decision makers' biased attitudes toward the claimants. As discussed above, however, the record is devoid of any evidence indicating when and in what context the statements were made. Moreover, it is also unclear who specifically made each comment. For instance, in Carratt's deposition, he testifies that "They always said, 'Why don't you fellows, you old fellows drawing Social Security ...." (Carratt Depo. at 85). However, Carratt fails to identify who "they" refers to. As such, the comments do not support an inference ofdiscrimination. SeeStandardv. A.B.E.L. Services, Inc., 161 F.3d 1318 (1998); Carter, 870 F.2d 578; Martin v. Ryder Distribution Resources, Inc., 811 F. Supp. 658,664 (S.D. Fla. 1992).
Finally, the Court would note that the comment attributed to Mahony that Carratt "is drawing Social Secuirty" was merely an accurate, neutral statement of fact. Carter, 870 F.2d at 582.
12The Plaintiff also points to the fact that Loretto had less seniority than CoreeII. However, Loretto was not a division head at the time that Doolen replaced Corcell, and therefore his seniority is irrelevant because Doolen could not possibly replace him.
21

Case 1:97-cv-04223-UU Document 55 Entered on FLSD Docket 04/01/1999 Page 22 of 23
reasons articulated by the Defendant were pretextual, and therefore the Plaintiff cannot withstand the Defendant's Motion for Summary Judgment as a matter of law. 11
As for Mahony's decision to replace Corcell with Doolen, seniority was the sole reason
articulated by the Defendant for replacing Corcell rather than any of the other division. In
attempting to establish pretext, the Plaintiff presented evidence indicating that Barrett was less
senior than Corcell. 12 However, the deposition of Gantz clarifies what the Defendant means by
"seniority." For the purposes of determining which division head Doolen should replace,
"seniority" refers to the length of time the individual has served as a division head at Calder
rather than the date when each individual was initially hired by Calder (which are the dates listed
on the exhibit upon which the Plaintiff relies). (Gantz Depo. at 29-30). Gantz indicated that
Doolen replaced Corcell because "Corcell was the last person that became a division head."
(Gantz Depo. at 29-30). As such, the Plaintiff has failed to establish that the Defendant's
11The Plaintiff also argues that the comments made by Mahony and Gantz quoted in footnote 5, supra, are circumstantial evidence of discriminatory intent and evidence of pretext because the comments reflect the decision makers' biased attitudes toward the claimants. As discussed above, however, the record is devoid of any evidence indicating when and in what context the statements were made. Moreover, it is also unclear who specifically made each comment. For instance, in Carratt's deposition, he testifies that "They always said, 'Why don't you fellows, you old fellows drawing Social Security ...." (Carratt Depo. at 85). However, Carratt fails to identify who "they" refers to. As such, the comments do not support an inference of discrimination. See Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318 (1998); Carter, 870 F.2d 578; Martin v. Ryder Distribution Resources, Inc., 811 F. Supp. 658, 664 (S.D. Fla. 1992).
Finally, the Court would note that the comment attributed to Mahony that Carratt "is drawing Social Security" was merely an accurate, neutral statement of fact. Carter, 870 F.2d at 582.
12The Plaintiff also points to the fact that Loretto had less seniority than Corcell. However, Loretto was not a division head at the time that Doolen replaced Coree!!, and therefore his seniority is irrelevant because Doolen could not possibly replace him.
21

Case 1:97-cv-04223-UU Document 55 Entered on FLSD Docket 04/01/1999 Page 23 of 23

articulated reason for replacing Corcell was pretextual, and therefore the Defendant's Motion for

Summary Judgment is granted as to Corcell.

Based on the foregoing, it is hereby

ORDERED AND ADJUDGED that the Defendant's Motion for Summary Judgment is

GRANTED. It is further

ORDERED AND ADJUDGED that the case is CLOSED for administrative purposes and

all pending motions not otherwise ruled on are DENIED AS MOOT.

i.l_ DONE AND ORDERED in Chambers at Miami, Florida, this

day of March, 1999.

copies provided: Counsel of Record

URSULA UNG -BENAGES UNITED STATE DISTRICT JUDGE

22

 
 Case 1:97-cv-04223-UU Document 56 Entered on FLSD Docket 04/01/1999 Page 1 of 1

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
vs.
CALDER RACE COURSE, INC.,
_______ Defendant. /

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
Case No. 97-4223-CIV-UNGARO-BENAGES

ADMINISTRATIVE ORDER CLOSING CASE
THIS CAUSE is before the Court upon a sua sponte examination of the file. It is hereby ORDERED and ADruDGED that this case is CLOSED for administrative purposes. It is further ORDERED and ADJUDGED that all pending motions are DENIED as MOOT. DONE AND ORDERED in Chambers at Miami, Florida, this £/day of March, 1999.

URSULA UNGAR EN AGES UNITED STATES STRICT ruDGE

 
 Case 1:97-cv-04223-UU Document 73 Entered on FLSD Docket 09/23/1999 Page 1 of 2

Thomas K. Kahn Clerk

United States Court of Appeals
Eleventh Circuit
56 Forsyth Street, N.W.
Atlanta, Georgia 30303

In Replying Give Number Of Case And Names of Parties

September 07, 1999

Carlos Juenke Clerk, U.S. District Court 301 N. Miami Avenue Miami FL 33128

& 'FiLED by

D. c:

SEP 1 5 \999 I

RE: 99-11532-HH EEOC v. Calder Race Course, Inc. DC DKT NO.: 97-04223 CV-UUB

,.,r(I.IJ:J JUt 1\111"\t..
CLERK u.s. OIST. CT. s.o. OF FLA. • MIAMI

The enclosed certified copy of this Court's Order of Dismissal is issued as the mandate of this court.
Please acknowledge receipt by returning the enclosed copy of this lettter.

Sincerely, THOMAS K. KAHN, Clerk Reply To: Debbie Cordell (404) 335-6177

Encl.

DIS-4 (1-1999)

Case 1:97-cv-04223-UU Document 73 Entered on FLSD Docket 09/23/1999 Page 2 of 2

IN

THE

UNITED

STATES

COURT

OF

}

iPPE~§.

F ll ED
COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

I SE;_;-;;1 ELEVENTH CIRCUIT

j

_:_j

No. 99-11532-HH

THOMAS K. KAHN
CLERK

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff-Appellant,

CALDER RACE COURSE, INC.,

versus

Defendant-Appellee.

On Appeal from the United States District Court for the Southern District of Florida

BEFORE: COX and BARKETT, Ci+cuit Judges. BY THE COURT:
Appellant's motion for voluntary dismissal of this appeal with prejudice is GRANTED.

 
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U.S. District Court Southern District of Florida (Miami) CIVIL DOCKET FOR CASE #: 1:97-cv-04223-UU

CLOSED

Equal Employment v. Calder Race Course Assigned to: Judge Ursula Ungaro Demand: $0 Cause: 42:2000 Job Discrimination (Age) Plaintiff Equal Employment Opportunity Commission
V. Defendant Calder Race Course, Inc.

Date Filed: 12/18/1997 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff
represented by Eve G. Lowe Equal Employment Opportunity Commission Miami District Office 2 S Biscayne Boulevard 2700 One Biscayne Tower Miami, FL 33131-2483 305-530-6008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael J. Farrell Jill S. Schwartz & Associates, P.A. 180 North Park Avenue Suite 200 Winter Park, FL 32789 407-647-8911 Fax: 407-628-4994 Email: mfarrell@schwartzlawfirm.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Eric David Isicoff Isicoff Ragatz & Koenigsberg 1200 Brickell Avenue Suite 1900 Miami, FL 33131 305-373-3232 Fax: 373-3233 Email: Isicoff@irlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Teresa Ragatz Isicoff Ragatz & Koenigsberg 1200 Brickell Avenue Suite 1900 Miami, FL 33131 305-373-3232 Fax: 373-3233 Email: Ragatz@irlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 12/18/1997 12/18/1997 12/18/1997 01/15/1998 02/02/1998 02/02/1998 03/13/1998 03/31/1998 03/31/1998
04/15/1998

#

Docket Text

1 COMPLAINT, jury trial demand, injunctive relief sought filed; FILING FEE waived; LRJ; A-7 (gz, Deputy Clerk) (Entered: 12/22/1997)
Magistrate identification: Magistrate Judge Linnea R. Johnson (gz, Deputy Clerk) (Entered: 12/22/1997)
2 SUMMONS(ES) issued for Calder Race Course (gz, Deputy Clerk) (Entered: 12/22/1997)
3 ORDER set scheduling conference for 11:00 3/27/98 before Judge Ursula Ungaro-Benages ( signed by Judge Ursula Ungaro-Benages on 1/12/98) CCAP (Former Deputy Clerk) (Entered: 01/23/1998)
4 Answer and affirmative defenses by Calder Race Course; and demand for recovery of attorneys' fees (Attorney Eric David Isicoff, Teresa Ragatz), (Former Deputy Clerk) (Entered: 02/05/1998)
4 Answer and affirmative defenses by Calder Race Course; Demand by Calder Race Course for recovery of attorney fees (Former Deputy Clerk) (Entered: 02/05/1998)
5 JOINT Scheduling Report of Scheduling Meeting by Equal Employment (tb, Deputy Clerk) (Entered: 03/17/1998)
6 ORDER referring case to mediation. 15 days to appoint mediator ( signed by Judge Ursula Ungaro-Benages on 3/27/98) CCAP (tb, Deputy Clerk) (Entered: 04/02/1998)
7 ORDER set pretrial conference for 11:30 10/23/98 before Judge Ursula Ungaro-Benages , set discovery due for 7/24/98 , set motion filing deadline for 8/28/98 , set pretrial stipulation due for 9/18/98 before Judge Ursula Ungaro-Benages , set calendar call for 1:00 11/18/98 before Judge Ursula Ungaro-Benages , set Jury trial for 9:00 11/23/98 before Judge Ursula Ungaro-Benages ( signed by Judge Ursula Ungaro-Benages on 3/28/98) CCAP (tb, Deputy Clerk) (Entered: 04/02/1998)
8 Notice of compliance: by Calder Race Course, Equal Employment with [6-1] referral/referred order (tb, Deputy Clerk) (Entered: 04/17/1998)

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04/17/1998
04/23/1998 04/23/1998 05/01/1998 05/01/1998 05/05/1998
05/08/1998
05/18/1998 05/18/1998 05/19/1998
07/31/1998 08/03/1998
08/28/1998 08/28/1998 08/28/1998 08/28/1998 08/28/1998 08/28/1998

9 ORDER appointing Mediator Gerald Wetherington and scheduling mediation conference for 8/7/98 at 10:00 ( signed by Judge Ursula Ungaro-Benages on 4/16/98) CCAP (tb, Deputy Clerk) (Entered: 04/21/1998)
10 MOTION by Equal Employment for reconsideration of [7-7] order (tb, Deputy Clerk) (Entered: 04/28/1998)
11 MEMORANDUM by Equal Employment in support of [10-1] motion for reconsideration of [7-7] order (tb, Deputy Clerk) (Entered: 04/28/1998)
12 UNOPPOSED MOTION by Equal Employment to amend [1-1] complaint (Former Deputy Clerk) (Entered: 05/05/1998)
13 MEMORANDUM by Equal Employment in support of [12-1] motion to amend [1-1] complaint (Former Deputy Clerk) (Entered: 05/05/1998)
14 ORDER granting [12-1] motion to amend [1-1] complaint ( signed by Judge Ursula Ungaro-Benages on 5/4/98) CCAP (tb, Deputy Clerk) (Entered: 05/07/1998)
15 ORDER denying [10-1] motion for reconsideration of [7-7] order ( signed by Judge Ursula Ungaro-Benages on 5/8/98) CCAP (Former Deputy Clerk) (Entered: 05/12/1998)
16 ANSWER by Calder Race Course to amended complaint (tb, Deputy Clerk) (Entered: 05/21/1998)
16 MOTION by Calder Race Course for attorney fees (tb, Deputy Clerk) (Entered: 05/21/1998)
17 ORDER set pretrial conference for 11:30 10/23/98 before Judge Ursula Ungaro-Benages , set discovery deadline for 7/24/98 , set motion filing deadline for 8/28/98 , set pretrial stipulation due for 9/18/98 before Judge Ursula Ungaro-Benages , set calendar call for 1:00 11/18/98 before Judge Ursula Ungaro-Benages , set Jury trial for 9:00 11/23/98 before Judge Ursula Ungaro-Benages ( signed by Judge Ursula Ungaro-Benages on 5/11/98) CCAP (tb, Deputy Clerk) (Entered: 05/21/1998)
18 MOTION by Calder Race Course to continue mediation deadline (sk, Deputy Clerk) (Entered: 08/06/1998)
19 ORDER granting [18-1] motion to continue mediation deadline ( signed by Judge Ursula Ungaro-Benages on 8/3/98) CCAP (sk, Deputy Clerk) (Entered: 08/07/1998)
21 NOTICE of filing deposition transcripts and affidavit by Calder Race Course (wj, Deputy Clerk) (Entered: 09/01/1998)
22 DEPOSITION of Robert J. Anderson (wj, Deputy Clerk) (Entered: 09/01/1998)
23 DEPOSITION of Arthur G. Carratt (wj, Deputy Clerk) (Entered: 09/01/1998)
24 DEPOSITION of Stanley Corcell (wj, Deputy Clerk) (Entered: 09/01/1998)
25 DEPOSITION of Frank Poer (wj, Deputy Clerk) (Entered: 09/01/1998)
26 DEPOSITION of Don Zumberg (wj, Deputy Clerk) (Entered: 09/01/1998)

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08/28/1998 08/28/1998 08/28/1998 08/28/1998 08/28/1998 09/09/1998 09/15/1998 09/15/1998 09/15/1998 09/18/1998
09/23/1998
09/28/1998 09/28/1998 09/28/1998 09/28/1998 09/28/1998 09/28/1998 10/02/1998 10/02/1998 10/02/1998 10/02/1998

27 DEPOSITION of Kathy Hidalgo (wj, Deputy Clerk) (Entered: 09/01/1998)
28 DEPOSITION of Raymond Loretto (wj, Deputy Clerk) (Entered: 09/01/1998)
29 DEPOSITION of John Gantz (wj, Deputy Clerk) (Entered: 09/01/1998)
30 AFFIDAVIT OF PATRICK MAHONY by Calder Race Course Re: [21-1] notice (wj, Deputy Clerk) (Entered: 09/01/1998)
20 MOTION by Calder Race Course for summary judgment (Former Deputy Clerk) (Entered: 09/17/1998)
31 FINAL report of Mediator. Disposition: impasse (wj, Deputy Clerk) (Entered: 09/14/1998)
32 RESPONSE by Equal Employment to [20-1] motion for summary judgment (Former Deputy Clerk) (Entered: 09/17/1998)
33 AFFIDAVIT of Michael Farrell by Equal Employment in support of [32-1] motion response (Former Deputy Clerk) (Entered: 09/17/1998)
34 Statement of material facts in dispute by Equal Employment (Former Deputy Clerk) (Entered: 09/17/1998)
35 JOINT MOTION by Calder Race Course, Equal Employment to extend time to file joint pretrial stipulation and joint jury instructions (ra, Deputy Clerk) (Entered: 09/23/1998)
36 ORDER granting [35-1] joint motion to extend time to file joint pretrial stipulation and joint jury instructions ( signed by Judge Ursula Ungaro-Benages on 9/23/98) CCAP (sk, Deputy Clerk) (Entered: 09/30/1998)
37 PRETRIAL STIPULATION by Equal Employment, Calder Race Course (sk, Deputy Clerk) (Entered: 10/01/1998)
38 REPLY by Calder Race Course to response to [20-1] motion for summary judgment (sk, Deputy Clerk) (Entered: 10/01/1998)
39 NOTICE of filing depositions of Mahoney, others by Calder Race Course (sk, Deputy Clerk) (Entered: 10/01/1998)
40 DEPOSITION of Patrick Mahoney (sk, Deputy Clerk) (Entered: 10/01/1998)
41 DEPOSITION of Edward Mackey (sk, Deputy Clerk) (Entered: 10/01/1998)
42 DEPOSITION of Betty Comegys (sk, Deputy Clerk) (Entered: 10/01/1998)
43 NOTICE of filing attached proposed verdict form by Calder Race Course (Former Deputy Clerk) (Entered: 10/06/1998)
44 NOTICE of filing attached proposed jury instructions by Calder Race Course (Former Deputy Clerk) (Entered: 10/06/1998)
45 NOTICE of filing proposed jury instuctions and verdict form by Equal Employment (Former Deputy Clerk) (Entered: 10/06/1998)
46 Proposed Jury instructions and verdict form by Equal Employment (Former Deputy Clerk) (Entered: 10/06/1998)

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10/26/1998 10/27/1998 01/12/1999
01/27/1999 02/08/1999 02/22/1999 03/08/1999 03/18/1999 03/31/1999 03/31/1999 03/31/1999 04/30/1999 05/10/1999 05/10/1999 05/10/1999

47 NOTICE of change of attorney's phone number by Equal Employment (sk, Deputy Clerk) (Entered: 10/30/1998)
48 SCHEDULING ORDER setting Pretrial conference for 9:30 1/8/99 ; Calendar call set for 1:00 2/10/99 Jury trial set for 9:00 2/15/99 ( signed by Judge Ursula Ungaro-Benages on 10/23/98) CCAP (sk, Deputy Clerk) (Entered: 10/30/1998)
49 ORDER reset pretrial conference for 10:30 3/26/99 before Judge Ursula Ungaro-Benages , reset calendar call for 1:00 4/21/99 before Judge Ursula Ungaro-Benages , reset Jury trial for 9:00 4/26/99 before Judge Ursula Ungaro-Benages ( signed by Judge Ursula Ungaro-Benages on 1/8/99) CCAP (tb, Deputy Clerk) (Entered: 01/13/1999)
50 ORDER that no later than 2/12/99, the plaintiff shall file an amended statement of material facts ( signed by Judge Ursula Ungaro-Benages on 1/26/99) CCAP (tb, Deputy Clerk) (Entered: 01/29/1999)
51 AMENDED Statement of material facts in dispute by Equal Employment (tb, Deputy Clerk) (Entered: 02/10/1999)
52 MOTION with memorandum in support by Equal Employment for leave to file to compel defendant to supplement its response to number 5 of plaintiffs request for production (Former Deputy Clerk) (Entered: 02/24/1999)
53 MEMORANDUM by Calder Race Course in opposition to [52-1] motion for leave to file to compel defendant to supplement its response to number 5 of plaintiffs request for production (ra, Deputy Clerk) (Entered: 03/12/1999)
54 REPLY by Equal Employment to response to [52-1] motion for leave to file to compel defendant to supplement its response to number 5 of plaintiffs request for production (tb, Deputy Clerk) (Entered: 03/23/1999)
55 ORDER denying [20-1] motion for summary judgment ( signed by Judge Ursula Ungaro-Benages on 3/31/99) CCAP (tb, Deputy Clerk) (Entered: 04/01/1999)
56 ADMINISTRATIVE ORDER closing case ( signed by Judge Ursula Ungaro-Benages on 3/31/99) CCAP (tb, Deputy Clerk) (Entered: 04/01/1999)
CASE CLOSED. Case and Motions no longer referred to Magistrate. (tb, Deputy Clerk) (Entered: 04/01/1999)
57 MOTION by Calder Race Course to Tax Costs (tb, Deputy Clerk) (Entered: 05/04/1999)
58 ORDER of Magistrate Judge reassignment to Magistrate Judge Stephen T. Brown ( signed by Judge Ursula Ungaro-Benages on 5/10/99) CCAP (tb, Deputy Clerk) (Entered: 05/12/1999)
Magistrate identification: Magistrate Judge Stephen T. Brown (tb, Deputy Clerk) (Entered: 05/12/1999)
59 ORDER Referring Motion(s) [57-1] motion to Tax Costs referred to Magistrate Stephen T. Brown ( signed by Judge Ursula Ungaro-Benages on 5/10/99) (tb, Deputy Clerk) (Entered: 05/12/1999)

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05/14/1999 05/19/1999 05/20/1999 05/28/1999 06/04/1999 06/07/1999 06/07/1999 06/14/1999 06/23/1999 06/23/1999
06/29/1999 07/02/1999
07/14/1999 07/14/1999

60 RESPONSE by Equal Employment to [57-1] motion to Tax Costs (tb, Deputy Clerk) (Entered: 05/18/1999)
61 Transcript filed re: Pretrial Conference held 3/29/99 before Judge Ursula Ungaro Benages Volume #: 1 of 1 page 1-49 (ra, Deputy Clerk) (Entered: 05/24/1999)
62 MOTION by Calder Race Course for leave to file certificate of counsel out of time, certificate of counsel and defendant's reply memorandum in support of motion for award of costs (tb, Deputy Clerk) (Entered: 05/26/1999)
63 NOTICE OF APPEAL by Equal Employment of [55-1] order . EOD Date: 4/1/99; Filing Fee: $ FEE NOT PAID; Copies to USCA and Counsel of Record. (Former Deputy Clerk) (Entered: 06/02/1999)
64 ORDER denying [57-1] motion to Tax Costs ( Signed by Magistrate Stephen T. Brown on 6/2/99) CCAP [EOD Date: 6/7/99] (tb, Deputy Clerk) (Entered: 06/07/1999)
65 RESPONSE by Calder Race Course in opposition to [64-1] order (tb, Deputy Clerk) (Entered: 06/08/1999)
65 MOTION by Calder Race Course for reconsideration of [64-1] order (tb, Deputy Clerk) (Entered: 06/08/1999)
NOTICE of Receipt of Transmittal Letter from USCA Re: [63-1] appeal by Equal Employment USCA NUMBER: 99-11532-H (sn, Deputy Clerk) (Entered: 06/30/1999)
66 RESPONSE by Equal Employment in opposition to [65-1] motion for reconsideration of [64-1] order, [65-1] opposition response (tb, Deputy Clerk) (Entered: 06/29/1999)
Appeal Information Sheet re: as to Equal Employment [63-1] appeal by Equal Employment. Transcript of Pre-Trial Proceedings on 3/29/99 requested and filed on 6/23/99. Appeal Record due on 7/7/99. (sn, Deputy Clerk) (Entered: 07/01/1999)
67 REPLY MEMORANDUM by Calder Race Course in support of [66-1] opposition response (tb, Deputy Clerk) (Entered: 07/01/1999)
68 ORDER granting [65-1] motion for reconsideration of [64-1] order vacating [64-1] order pending outcome of appeal ( Signed by Magistrate Stephen T. Brown on 7/2/99) CCAP [EOD Date: 7/8/99] (vp, Deputy Clerk) (Entered: 07/08/1999)
Certificate of readiness as to Equal Employment transmitted to USCA Re: [63-1] appeal by Equal Employment USCA NUMBER: 99-11532-H (Former Deputy Clerk) (Entered: 07/16/1999)
Transmitted record on appeal as to Equal Employment to U.S. Court of Appeals (Miami Office) consisting of 2 volumes of pleadings, 1 volume of transcript, and 2 accordion folders #1 containing DE's #'s 22 thru 27 and #2 DE's #'s 28,29,40,41, & 42: [63-1] appeal by Equal Employment USCA #99-11532-H. (Former Deputy Clerk) (Entered: 07/16/1999)

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07/29/1999 08/16/1999 08/17/1999 09/02/1999 09/13/1999 09/15/1999 09/27/1999 12/15/1999
03/04/2002

ACKNOWLEDGMENT of receipt by U.S.C.A. of: C.O.R on 7/19/99 U.S.C.A. # 99-11532-H (nc, Deputy Clerk) (Entered: 08/02/1999)
69 MOTION by Calder Race Course for award of Costs (tb, Deputy Clerk) (Entered: 08/17/1999)
70 ORDER Referring Motion(s) [69-1] motion for award of Costs referred to Magistrate Stephen T. Brown ( signed by Judge Ursula Ungaro-Benages on 8/17/99) [EOD Date: 8/19/99] (tb, Deputy Clerk) (Entered: 08/19/1999)
71 RESPONSE by Equal Employment to [69-1] motion for award of Costs (tb, Deputy Clerk) (Entered: 09/03/1999)
72 REPLY MEMORANDUM by Calder Race Course in support of [69-1] motion for award of Costs (tb, Deputy Clerk) (Entered: 09/15/1999)
73 ORDER of dismissal from USCA (certified copy) dismissing [63-1] appeal pursuant to appellant's motion for voluntary dismissal USCA #: 99-11532-HH USCA Order Date: 9/7/99 (Former Deputy Clerk) (Entered: 09/23/1999)
74 ORDER granting [69-1] motion for award of Costs ( Signed by Magistrate Stephen T. Brown on 9/24/99) CCAP [EOD Date: 9/28/99] (tb, Deputy Clerk) (Entered: 09/28/1999)
75 ORDER denying as moot [62-1] motion for leave to file certificate of counsel out of time, certificate of counsel and defendant's reply memorandum in support of motion for award of costs ( Signed by Judge Ursula Ungaro-Benages on 12/15/99) CCAP [EOD Date: 12/16/99] (tb, Deputy Clerk) (Entered: 12/16/1999)
Record on appeal returned from U.S. Court of Appeals (Miami Office) consisting of 2 volumes of pleadings, 1 volume of transcript, and 2 accordion folders: [63-1] appeal by Equal Employment USCA #: 99-11532-HH (Former Deputy Clerk) (Entered: 03/05/2002)

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Docket Report

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Billable Pages: 4

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eeoc 1:97-cv-04223-UU 0.32

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 US Court of Appeals for the Eleventh Circuit

http://pacer.ca11.uscourts.gov/CHMSDKTP.FWX
United States Court of Appeals for the Eleventh Circuit
56 Forsyth Street, N.W. Atlanta, GA 30303-2289
(404) 335-6100

99-11532-HH EEOC v. Calder Race Course, Inc.

Closed
Docket #: 99-11532-HH Short Style: EEOC v. Calder Race Course, Inc. Docket Date: 06/07/1999 Lead Case:
Agency: Nature of Suit: Civil Rights: Employment
Misc. Type: Clerk: Caruso, Joe
Clerk Phone: (404) 335-6177

District Information

Docket #: 97-04223-CV-UUB Judge: Ursula Ungaro

Dkt Date: 12/18/1997

District: Florida-Southern

NOA Date: 05/28/1999

Office: SFL-Miami

Secondary Case Information

Docket #: Judge: Dkt Date: / /
Case Relationships

Docket # Short Style Relation Status

Pending Motions
No Pending Motions

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US Court of Appeals for the Eleventh Circuit

http://pacer.ca11.uscourts.gov/CHMSDKTP.FWX
United States Court of Appeals for the Eleventh Circuit
56 Forsyth Street, N.W. Atlanta, GA 30303-2289
(404) 335-6100

99-11532-HH EEOC v. Calder Race Course, Inc.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff-Appellant,
versus
CALDER RACE COURSE, INC.,
Defendant-Appellee.
United States Court OF Appeals FOR the Eleventh Circuit
56 Forsyth Street, N.W. Atlanta, GA 30303-2289
(404) 335-6100

99-11532-HH EEOC v. Calder Race Course, Inc.

Appellant Equal Employment Opportunity Commission Address Not On File No Briefing Information Found. Fees: Not Required on 06.07.1999
Appellee Calder Race Course, Inc. Address Not On File

Appellant Attorney
Jennifer S. Goldstein 1801 L ST NW WASHINGTON, DC 20507-0001 (202) 663-4733 No Briefing Information Found.
Appellee Attorney
Teresa Ragatz Isicoff, Ragatz & Koenigsberg, P.A. 1200 BRICKELL AVE STE 1900 MIAMI, FL 33131-3257 (305) 373-3232 ragatz@irlaw.com

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US Court of Appeals for the Eleventh Circuit

http://pacer.ca11.uscourts.gov/CHMSDKTP.FWX

Initial Service
Eve G. Lowe Two South Biscayne Blvd., Suite 2700 Miami, FL 33131 305/530-6386
Michael J. Farrell 2 S. Biscayne Blvd, 2700 One Biscayne Tower Miami, FL 33131 (305) 530-6010
C. Gregory Stewart 1100 NEW YORK AVE NW STE 500W WASHINGTON, DC 20005-3934
Gwendolyn R. Reams 2 S. Biscayne Blvd., Suite 2700 Miami, FL 33131
Gilbert Carrillo ONE BISCAYNE TOWER 2 S BISCAYNE BLVD STE 2700 MIAMI, FL 33131-1804 (305) 530-6008

No Briefing Information Found. Eric D. Isicoff Isicoff, Ragatz & Koenigsberg, P.A. 1200 BRICKELL AVE STE 1900 MIAMI, FL 33131-3257 (305) 373-3232 isicoff@irlaw.com No Briefing Information Found.
United States Court of Appeals for the Eleventh Circuit
56 Forsyth Street, N.W. Atlanta, GA 30303-2289
(404) 335-6100

99-11532-HH EEOC v. Calder Race Course, Inc.

File Date 06/08/1999 Staff Attorney Jurisdiction 06/09/1999 Briefing Notice Issued

Entry

Party

Pending No No

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US Court of Appeals for the Eleventh Circuit

http://pacer.ca11.uscourts.gov/CHMSDKTP.FWX

06/09/1999

DKT7 (Docketing 7) issued. G. cc: Farrell, Michael J. cc:

cc: Juenke, Carlos cc: Lowe, Eve Ragatz, Teresa cc: Isicoff, Eric D.

No

06/09/1999

DKT7 (Docketing 7) issued. G. cc: Farrell, Michael J. cc:

cc: Juenke, Carlos cc: Lowe, Eve Ragatz, Teresa cc: Isicoff, Eric D.

No

06/11/1999 Probable Jurisdiction Noted:

No

06/17/1999 Appearance Form Submitted: Jennifer Goldstein

Jennifer S. Goldstein

No

06/18/1999 Motion for Extension to File Appellant Brief

No

06/18/1999 Civil Appeal Statement Form

No

06/22/1999 Appearance Form Submitted: Eric D. Isicoff

Eric D. Isicoff No

06/22/1999 Appearance Form Submitted: Teresa Ragatz

Teresa Ragatz No

06/25/1999

Motion for Extension to GRANTED/NFE/SMG.

File

Appellant

Brief

to

7/23/99

is

No

MOT2 (Motion - Court Action) issued. cc: Lowe, Eve G. cc:

Farrell, Michael J. cc: Ragatz, Teresa cc: Isicoff, Eric D. cc:

06/28/1999 Stewart, C. Gregory cc: Reams, Gwendolyn R. cc: Carrillo -

No

EEOC, Gilbert cc: Goldstein, Jennifer cc: Ungaro-Benages,

Ursula

07/19/1999 Certificate of Readiness

No

07/26/1999

Motion to Dismiss Appeal: Appellant-Equal Employment Opportunity Commission, (Atty: Jennifer Goldstein)

Equal

Employment Opportunity

No

Commission

Motion to Dismiss Appeal: Appellant-Equal Employment

09/07/1999 Opportunity Commission, (Atty: Jennifer Goldstein) is

No

GRANTED/ERC/RB/

DIS-4 (Dismissal 4 Letter) issued. cc: Goldstein, Jennifer cc:

09/07/1999

Ragatz, Teresa cc: Eve G. cc: Farrell,

Isicoff, Eric D. To: Juenke, Carlos cc: Lowe, Michael J. cc: Stewart, C. Gregory cc:

No

Reams, Gwendolyn R. cc: Carrillo, Gilbert

03/04/2002 REC3 (Record - Return) issued. To: Maddox, Clarence

No

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