IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

DOUGLAS McDANIEL,

Plaintiff,

vs. CASE NO. 5:11-cv-14/RS-GRJ

UNITED PARCEL SERVICE, INC.,

Defendant.

_________________________________________/

ORDER

Before me are Defendant‟s Motion for Summary Judgment (Doc. 23), Statement 

of Facts (Doc. 24) and Memorandum (Doc. 25), Plaintiff‟s Response in Opposition 

(Doc. 31), and Defendant‟s Reply (Doc. 36). 

Standard of Review

Summary judgment is appropriate when “there is no genuine issue as to any 

material fact and . . . the movant is entitled to judgment as a matter of law.” Fed. R. Civ. 

P. 56 (c). In other words, the basic issue before the court is “whether the evidence 

presents a sufficient disagreement to require submission to a jury or whether it is so onesided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 

477 U.S. 242, 251, 106 S. Ct. 2505, 2512 (1986). The moving party has the burden of 

showing the absence of a genuine issue as to any material fact, and in deciding whether 

the movant has met this burden, the court must view the movant‟s evidence and all 

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factual inferences arising from it in the light most favorable to the nonmoving party. 

Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970); Fitzpatrick v. City of Atlanta, 2 F.3d 

1112, 1115 (11th Cir. 1993). Thus, if reasonable minds could differ on the inferences 

arising from undisputed facts, then a court should deny summary judgment. Miranda v. B 

& B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (citing Mercantile 

Bank & Trust v. Fidelity & Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985)). However, 

a mere „scintilla‟ of evidence supporting the nonmoving party's position will not suffice; 

there must be enough of a showing that the jury could reasonably find for that party. 

Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 

251). 

II. Background

Plaintiff, a male over age forty, was employed by Defendant UPS as a package 

delivery driver for approximately twenty-five years. (Doc. 1, ¶ 1). In early 2009, 

Plaintiff alleges that “one of Defendant‟s supervisors, Mike Johnson, [informed him] that 

the Defendant had made the decision to terminate older drivers.” Id. at ¶ 8. Plaintiff also 

alleges that Defendant‟s agents harassed him during this period and for approximately 

three years preceding his termination from employment. Plaintiff filed approximately 50 

union grievances against Defendant for the manner in which he was treated. Id. at ¶9. In

March 2009, Defendant terminated Plaintiff‟s employment. Id. at ¶ 10. Plaintiff then 

filed a union grievance challenging the discharge, which resulted in Plaintiff returning to 

work. In May 2009, Defendant again terminated Plaintiff‟s employment. Plaintiff filed 

another union grievance challenging the discharge, which resulted in a ruling by the 

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arbitrator that Defendant did not have the right under the collective bargaining agreement 

to remove Plaintiff from employment. (Doc. 25, p. 10). Plaintiff and Defendant disagree 

what happened next, but Defendant contends that it made contact with Plaintiff to 

reinstate his job and that Plaintiff failed to report to work. Id. at 11. Plaintiff states that 

he was not aware of his reinstatement until after he was discharged for the last time on 

December 28, 2010. (Doc. 31, ¶4). 

III. Analysis

ADEA

The ADEA makes it unlawful for an employer to “discharge any individual . . . 

because of such individual‟s age.” 29 U.S.C. § 623 (a)(1). When a plaintiff alleges 

disparate treatment, “liability depends on whether the protected trait (under the ADEA, 

age) actually motivated the employer's decision.” Reeves v. Sanderson Plumbing Prods., 

530 U.S. 133, 141 (2000) (citing Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)). 

That is, the plaintiff's age must have actually played a role in the employer's decisionmaking process and had a determinative influence on the outcome. Id. 

The framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 

(1973) is used to evaluate those cases based on circumstantial evidence. For those based 

on direct evidence, a different framework is used. 

Direct evidence of discrimination is “evidence which reflects a discriminatory or 

retaliatory attitude correlating to the discrimination or retaliation complained of by the 

employee.” Van Voorhis v. Hillsborough County Bd. of County Comm'rs, 512 F.3d 1296, 

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1300 (11th Cir. 2008) (citations omitted). “Only the most blatant remarks, whose intent 

could be nothing other than to discriminate on the basis of age, . . . constitute direct 

evidence of discrimination.” Id. (citation omitted and punctuation altered). “Remarks by 

non-decisionmakers or remarks unrelated to the decisionmaking process itself are not 

direct evidence of discrimination.” Standard v. A.B.E.L. Servs., 161 F.3d 1318, 1330 

(11th Cir. 1998) (citing E.E.O.C. v. Alton Packaging Corp., 901 F.2d 920, 924 (11th 

Cir.1990)).

Plaintiff contends that the McDonnell Douglas framework does not apply to this 

case because Plaintiff‟s claims are supported by direct evidence of discrimination in the 

form of statements made by Defendant‟s agent Mike Johnson. Plaintiff alleges that Mr. 

Johnson is “one of Defendant‟s supervisors.” (Doc. 1, ¶ 8). Mr. Johnson allegedly stated 

that “the company had decided to terminate older drivers,” and also stated that “the 

company will soon begin to terminate employees over the age of 40.” (Doc. 31, p. 17). 

However, Defendant contends that Mr. Johnson did not supervise Plaintiff and “played 

no role in the decision to discharge plaintiff.” (Doc. 25, p.17). The most 

comprehensive allegation concerning Mr. Johnson‟s status is where Plaintiff, by affidavit, 

stated, “I never said Mike Johnson played a direct role in my firing - only that as a 

supervisor he said that UPS was to get rid of older drivers, among other things. He is a 

supervisor for UPS and he can speak for the company based on his knowledge of 

company practices and plans.” (Doc. 32, p. 21, ¶95). 

Because Plaintiff has not alleged that Mr. Johnson was a decisionmaker in 

Plaintiff‟s termination process, or that Mr. Johnson was Plaintiff‟s actual supervisor, the 

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comments by Mr. Johnson are not direct evidence of age discrimination. See Bass v. Bd. 

of County Comm'rs, Orange County, Fla., 256 F.3d 1095, 1105 (11th Cir.2001) 

(“Remarks by non-decision makers or remarks unrelated to the decision-making process 

itself are not direct evidence of discrimination.”)). Rather, Mr. Johnson‟s comments are 

circumstantial evidence, making the McDonnell Douglas framework applicable.1

Under that framework, a Plaintiff must first establish a prima facie case of 

discrimination. Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir. 2000). Then, the 

burden of production shifts to the Defendant to show a legitimate, nondiscriminatory 

reason for the challenged employment action. Id. 

To establish a prima facie case, Plaintiff must prove that he was (1) a member of 

the protected class; (2) qualified for his current position; (3) subject to adverse 

employment action; and (4) treated less favorable than any younger, similarly situated 

employee. East v. Clayton County, 2011 U.S. App. LEXIS 15925, *18 (11th Cir. 2011) 

(citing Zaben v. Air Prods. & Chems., Inc., 129 F.3d 1453, 1457 (11th Cir. 1997)). Here, 

Defendant acknowledges that Plaintiff has shown all but the fourth element of the prima 

facie case, that of less favorable treatment of a younger comparator. (Doc. 25, p. 15). 

Plaintiff does not address Defendant‟s contention in his memorandum. Supra, note 1. 

However, in the complaint, Plaintiff alleges that he was “treated differently than similarly

 

1

Plaintiff‟s Memorandum in Opposition to the Motion for Summary Judgment (Doc. 31) contends that the 

McDonnell Douglas framework is inappropriate, and does not conduct any analysis under that framework. Plaintiff 

cites a string of cases to buttress his argument. The first case, Haynes v. W.C. Caye & Co., 52 F.3d 928 (11th Cir. 

1995), is distinguishable because the direct evidence was a discriminatory statement from the corporate defendant‟s 

president, here the comment is from a non-decisionmaker. The second case, Caban-Wheeler v. Elsea, 904 F.2d 

1549, 1552 (11th Cir.1990), is distinguishable because the direct evidence was a discriminatory statement from the 

individual who appointed the plaintiff‟s supervisor. The final case, Thompkins v. Morris Brown College, 752 F.2d 

558 (11th Cir. 1985), is distinguishable for the same reasons—the statements came from the president and the vice 

president of the college. 

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situated younger employees.” (Doc. 1, ¶ 16). He contends that younger drivers were 

allowed to take lunch breaks in areas that were marginally removed from their assigned 

route, while he was disciplined for doing the same thing. Id. at ¶ 7. Similarly, he 

contends that younger drivers were not harassed like he was. Id. 

These bare statements are not enough. To make a prima facie case, Plaintiff must 

“show that the employees are similarly situated in all relevant respects.” See Knight v. 

Baptist Hosp. of Miami, Inc., 330 F.3d 1313, 1316 (11th Cir. 2003) (citation and 

quotations omitted). “In determining whether employees are similarly situated . . . it is 

necessary to consider whether the employees are involved in or accused of the same or 

similar conduct and are disciplined in different ways.” Id. Plaintiff has not brought forth 

evidence of any younger employees who were similarly situated with analogous 

disciplinary infractions such as Defendant‟s accusation that Plaintiff committed “gross 

insubordination” by failing to follow the numerous instructions of his on-car supervisor 

which culminated in the Sherriff‟s office being called to the scene mid-route. (Doc. 24, 

¶¶52-70). 

Where a plaintiff establishes a prima facie case, the burden of production shifts to 

the Defendant to show a legitimate, nondiscriminatory reason for the challenged 

employment action. If the Defendant satisfies this requirement, the burden then shifts 

back to the plaintiff to show that the proffered reason in pretext for unlawful 

discrimination. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). 

Here, presuming that Plaintiff had made a prima facie case, Plaintiff could not 

satisfy the remainder of the requirements. Defendant claims that Plaintiff‟s “gross 

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insubordination” was the legitimate reason for Plaintiff‟s discharge. (Doc. 25, p. 15). 

Given the record of alleged insubordination, this reason is legitimate. Plaintiff, thus, 

must demonstrate that this reason is pretext. Plaintiff does not dispute that at the time of 

his discharge, 30 out of 41 of Defendant‟s drivers in the Panama City area were age 40 or 

older. (Doc. 25, p.17). Of those thirty, seven where older than Plaintiff. Id. Plaintiff 

does not contend that any of the older drivers suffered adverse actions or were terminated 

because of their age. The fact that numerous protected class members were not subjected 

to termination raises a strong inference that age was not the motivator behind 

Defendant‟s actions. 

For these reasons, even in the light most favorable to Plaintiff, Plaintiff has failed 

to sufficiently allege that he was the victim of age discrimination. 

Retaliation

The ADEA makes it unlawful for an employer to retaliate against an individual 

because that person has opposed a practice made unlawful by the ADEA. 29 U.S.C. § 

623(d). The Florida Civil Rights Act has a similar provision. See FLA. STAT.

§760.10(7). In order to state claims for discriminatory retaliation, a plaintiff must present 

evidence that: (1) he engaged in statutorily protected conduct; (2) he was adversely 

affected by an employment decision; and (3) there was a causal connection between the 

statutorily protected conduct and the adverse employment decision. Drago v. Jenne, 453 

F.3d 1301, 1307 (11th Cir. 2006). 

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Only after Plaintiff makes this prima facie case of discriminatory retaliation does 

the burden shift to the defendant to rebut the presumption of retaliation by producing 

legitimate reasons for the adverse employment action. Nichols v. CSG Sys., 245 Fed. 

Appx. 937, 940 (11th Cir. 2007). Should the defendant carry the burden of production by 

offering legitimate reasons for the action, the presumption raised by the prima facie case 

is rebutted and drops from the case. At that point, the burden remains with the employee 

to prove by a preponderance of the evidence that the reasons offered by the employer 

were a pretext for retaliation. Id. 

Defendant contends that Plaintiff has not established a prima facie case because he 

has not shown that he engaged in protected activity or that there was a causal connection. 

The first time that Plaintiff complained of age discrimination was May 11, 2009, 

subsequent to his 2009 discharges but prior to the his final discharge in 2010. Plaintiff 

filed a charge of discrimination with the FCHR in November 2009 covering the first two 

terminations. There is no dispute that this claim has been administratively exhausted. 

See 29 U.S.C. §626(d). A second charge of discrimination was filed during the pendency 

of case, on August 22, 2011, covering the final 2010 discharge. (Doc. 31, p.9). This 

claim has not yet been resolved by the FCHR. 

Defendant asserts that the case is not ripe for judicial review because the 2010 

claim has not been exhausted. Similarly, they assert that Plaintiff cannot show that he 

engaged in protected activity because the only claim that has been exhausted preceded 

age discrimination complaints. Because the first claim has been exhausted, it is 

unnecessary for the second claim to also be exhausted. See Thomas v. Miami Dade Pub. 

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Health Trust, 369 Fed. Appx. 19, 23 (11th Cir. 2010) (unpublished) (citing Gupta v. East 

Texas State Univ., 654 F.2d 411, 414 (5th Cir. Unit A 1981) (“It is unnecessary for a 

plaintiff to exhaust administrative remedies prior to urging a retaliation claim growing 

out of an earlier charge; the district court has ancillary jurisdiction to hear such a claim 

when it grows out of an administrative charge that is properly before the court.”). 

Presuming that Plaintiff could establish a prima facie case of retaliation, the fact 

that Plaintiff does not adequately address the legitimate reasons for the adverse action is 

fatal. Where, as here, the Defendant offers legitimate reasons, the plaintiff has the burden 

to show that the employer's proffered reasons for taking the adverse action were actually 

a pretext for prohibited retaliatory conduct. Sullivan v. AMTRAK, 170 F.3d 1056, 1059 

(11th Cir. 1999). See also Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1277 (11th 

Cir. 2008) (“The plaintiff bears the ultimate burden of proving retaliation by a 

preponderance of the evidence and that the reason provided by the employer is a pretext 

for prohibited retaliatory conduct.”). 

Again, Defendant contends that the reason Plaintiff was dismissed is because of 

insubordination. To succeed, Plaintiff must establish “such weaknesses, implausibilities, 

inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate 

reasons for its action that a reasonable factfinder could find them unworthy of credence." 

Silvera v. Orange County Sch. Bd., 244 F.3d 1253, 1258 (11th Cir. 2001) (citing Combs 

v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir.1997)). Plaintiff offers little in the 

way of pretext argument. Plaintiff contends that the Eleventh Circuit in a recent 

unpublished case, Benefield v. Fulton Co., 130 Fed. Appx. 308, 314 (11th Cir. 2005), has 

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limited the burden in establishing pretext to mere showing that the employer was aware

of the protected expression. (See Doc. 31, p. 23).2I do not read Benefield to alter the 

longstanding requirements to show pretext. In affirming the dismissal of a retaliation 

claim, the Court stated that the plaintiff did not prove pretext because she, “failed to 

produce evidence showing that other employees who had not filed a complaint . . . did 

not suffer a similar [adverse employment action.]” Benefield, 130 Fed. Appx. at 315. 

What happened in Benefield is exactly what happened here--Plaintiff has failed to 

produce evidence showing disparate treatment. 

IT IS ORDERED: 

1. Defendant‟s Motion for Summary Judgment (Doc. 23) is GRANTED. 

2. This case is dismissed with prejudice. 

3. All pending motions are denied as moot. 

ORDERED on September 26, 2011.

/S/ Richard Smoak 

RICHARD SMOAK

UNITED STATES DISTRICT JUDGE

 

2

“The Eleventh Circuit limited an employee‟s burden in establishing the pretextual nature of an employer‟s 

proffered nondiscriminatory reason in the context of retaliation as follows: „At a minimum, however, a plaintiff 

must establish that the employer was actually aware of the protected expression at the time it took the adverse 

employment action.‟” (Doc. 31, p. 23) (punctuation altered) (Citing Benefield v. Fulton Co., 130 Fed. Appx. 308, 

314 (11th Cir. 2005)). 

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