Opinion
CASE NO. OO-3376-CIV-SEITZ/BANDSTRA
April 24, 2002
Bret S. Clark, ROSEN,[SLATON CLARK LLP], Miami, FL., Attorney For Plaintiff. Frank G. Burt, Irma Solars, [JORDEN BURT LLP], Miami, FL., Attorney For Defendant. Patrick G. DeBlasio, [JACKSON LEWIS SCHNITZLER KRUPMAN], Miami, FL., Attorney For Defendant.
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
THIS CAUSE is before the Court on Defendants' Motion for Summary Judgment [DE-96J. Plaintiff, Frank Minton ("Minton"), a former insurance sales executive, brought this two-count complaint against his former employers, Defendants American Bankers Insurance Group, Inc. ("ABIG"), American Bankers Life Assurance Company of Florida ("ABLAC"), and Fortis, Inc. ("Fortis"), alleging violations of the Age Discrimination in Employment Act ("ADEA") and the Florida Civil Rights Act ("FCRA"). Minton contends that Defendants terminated his employment based solely upon his age, which was 62 at the time of his termination. However, the undisputed facts reveal that Defendants eliminated Minton's position as part of a corporate restructuring plan designed to achieve cost savings and address fundamental market changes pursuant to a corporate merger. Moreover, it is undisputed that Mignon never inquired about or requested a different position within the company after being notified of the elimination of his position. Because Minton has not demonstrated a prima facie case of age discrimination either through direct, circumstantial, or statistical evidence, Defendants are entitled to summaryjudgment on both counts of Minton's Complaint.
I Factual and Procedural Background
A. Minton's Employment History and the ABIG Merger
On or about October 19, 1982, Minton began working for Defendant ABLAC as Vice President of Bank Marketing. As his career with ABLAC progressed, Minton took on increasing responsibilities and rose to the level of First Senior Vice President. As of August 17, 1999, Minton headed ABLAC's U.S. Sales Centers and Research and Development Department. Minton's responsibilities included managing the development and sales of product lines sold by ABLAC and American Bankers Insurance Company of Florida ("ABIC"), both of which are wholly-owned subsidiaries of Defendant ABIG.
On or about March 5, 1999, ABIG and Greenland Acquisition Corp. ("Greenland"), a subsidiary of Defendant Fortis, agreed that Greenland would acquire the public stock of ABIG, and ABIG would merge into Greenland. On August 18, 1999, the merger took place, and Greenland and Fortis changed their names to ABIG. The events at the heart of this case occurred between March and August of 1999.
Prior to March 5, 1999, Defendant Fortis owned a group of insurance company subsidiaries referred to as the American Security Group ("ASG"). The operations of ABLAC and other subsidiaries owned by ABIG, and the ASG companies operate under a federally registered trademark, "Assurant Group," which has no separate corporate existence.
B. Integration of the Companies
Beginning in March of 1999, Allen Freedman, Chairman of Fortis, appointed Edward O'Hare ("O'Hare"), former Executive Vice President of Fortis, and prospective CEO of the Assurant Group, to begin the integration of the two groups of companies. O'Hare began this process by meeting with various ABIG executives to familiarize himself with ABIG's operations. To facilitate the integration of the ASO Group and ABIG Group of companies, streamline operations and increase cost efficiency in the Assurant Group, O'Hare commissioned a number of Integration Task Forces, comprised of various employees of the ASG and ABIG Groups, to examine the business practices and operations of the various business units involved and make recommendations to facilitate the integration and position the Assurant Group for future growth. In particular, the Sales Task Force was responsible for examining the organization of the sales forces of each of the entities. Although Minton was not included in any of the Integration Task Forces, Jay Fuchs, Minton's direct supervisor served as Co-chair for the Sales Task Force.
Minton contends that because of his experience and success in managing the U.S. Sales Centers and heading the Research and Development Department, he should have been included in the integration process.
O'Hare visited Minton's office to meet informally with different executives of ABIG in March of 1999. Minton alleges that during this meeting O'Hare asked him about his age and when he planned to retire. (Minton Dep. 44-45). In a subsequent meeting with Eugene Becker ("Becker"), one of Minton's coworkers and a former ABIG executive, O'Hare allegedly remarked that there were "many white-haired Anglos" in upper management at ASG and ABIG and that this fact should be considered in deciding who should be terminated. (Becker Aff. ¶ 7). Moreover, upon informing Becker that he would be terminated, O'Hare allegedly told him that employees over the age of 50 should "re-pot themselves" somewhere else. (Becker Aff. ¶ 11).
Sometime near the end of May 1999 or early June 1999, Minton contacted Gerald Gaston ("Gaston"), then still the CEO of ABIG, to inquire about his future with the new organization. Gaston suggested that Minton speak with Art Heggen, Floyd Denison, or Bruce Camacho ("Camacho"), all three of whom acted as Advisory Committee and Integration Task Force Co-Chairs. Because Camacho would be heading up the business units of the new organization, Minton made an appointment to meet with Camacho on June 22, 1999.
Prior to the June 22, 1999 meeting between Minton and Camacho, O'Hare advised Becker that a decision had been made to terminate his employment after the integration was completed. (Becker Aff. ¶ 11). Gaston also advised Becker that Fortis decided to terminate Jay Fuchs, Minton's immediate supervisor. (Becker Aff. ¶ 12). On June 17, 1999, O'Hare announced that Camacho would be the new head of sales and marketing for the new organization. (Harper Dep. at 98-100, Exh. 9). According to Becker and Litchfield, these changes were the result of a decision to terminate the older employees such as Becker, Minton and Litchfield, in favor of the younger employees such as Camacho and Kevin Klotz ("Klotz"). (Becker Aff. ¶ 11; Litchfield Aff. ¶ 3).
C. Restructuring and Reorganization of the Sales Force
On June 16, 1999, the Sales Task Force recommended that the ABIG Group insurance subsidiaries reorganize and restructure the sales force in anticipation of the new association. (See Sales Integration Task Force Recommendations, Def.'s Exh. 7). In particular, the Sales Task Force recommended reorganizing the sales force by eliminating the regional sales centers. Instead of being responsible for selling all of the company's products in a defined geographic area, the sales personnel would now sell only the products of one market (now called "Channels"). The Sales Task Force based its recommendations upon three main considerations. First, reorganization was necessary, as the sales forces of the different entities were organized in different ways. Second, reorganization would achieve cost savings by eliminating duplicate positions and closing the regional sales centers. And third, reorganization would address fundamental industry changes that had taken place in the distribution channels.
Prior to restructuring, ABIG was organized into several business cells called "markets," each of which was loosely overseen by a Business Board Chairman. Each of the "markets" had a collective sales force that was separately organized, and the sales employees reported separately to Minton, the First Senior Vice President for Sales Centers. The national sales force operated out of several regional sales centers, and was supervised by several Regional Sales Managers who also reported directly to Minton. The Regional Sales Managers and sales force employees did not report directly to their respective Business Board Chairmen.
Five days later, on June 21, 1999, Camacho, as Chief Marketing Executive of the Assurant Group and designated final decision-maker for the reorganization of the ABIG Group sales force, determined that it would be in the best interests of the ABIG Group, as well as the Assurant Group, to implement the recommendations of the Sales Task Force, reorganize the sales force and eliminate the regional sales centers. (O'Hare Dep. at 39; Camacho Dep. at 44-45). The elimination of the regional sales centers and the decision to have the sales force report to the Channel Executives meant the elimination ofMinton's position as First Senior Vice President of Sales Centers.
While Minton's primary responsibility was to head the sales force, he also had a secondary role as a supervisor of the ABIG Research and Development Department. However, as the former "markets" were reorganized into "channels," responsibility for new product development was redistributed among the channels. As a result, the Channel Executives assumed the supervisory responsibility for new product development. After reorganization, Peter McNally ("McNally") became the Group Senior Vice President of New Business Development and Dodge McFall ("McFall") became the Senior Vice President of New Business Development. Both McNally and McFall had years of experience in product and business development at ASG, as well as Kodak and Pepsi. (Camacho Dep. at 36-38).
D. Minton's Termination
The next day, on June 22, 1999, Camacho met with Minton and allegedly told him that his "days are over," and that the company wanted "fresh new blood." (Minton Dep. at 19-22). Minton also testified that Camacho told him that his position "had been eliminated." (Minton Dep. at 23). At this meeting, Minton attempted to convince Camacho that it would be a poor business decision to eliminate the sales centers, reorganize the sales force and change the reporting structure of the sales force. Notwithstanding Minton's efforts to convince Camacho otherwise, on August 17, 1999, Camacho gave Minton written notice that due to the merger, his position as head of the Sales Force and Research and Development at ABIG would be eliminated as of August 18, 1999. On October 25, 1999, the effective date of his termination, Minton was 62 years of age.
Minton admitted at his deposition that he knew Camacho was considering restructuring the sales force: At this meeting he said that he was considering restructuring the sales force. The sales force at this point in time had a direct reporting relationship to me, and he was interested in reviewing whether it should be restructured and report to each of the different business units. And so I advised him at that point in time that he may want to consider that, reconsider that position, and that I would have each of the regional sales vice presidents write a letter to him stating their position why they thought that would have been a mistake. (Minton Dep. at 22-23)
Minton contends that prior to his June 22, 1999 meeting with Camacho, O'Hare had already decided to terminate him. Minton asserts that "this fact may be inferred from [O'Hare's testimony on May 25, 1999] before the Florida Department of Insurance during which he testified in response to questioning about Fortis' intent concerning the continued employment of people employed in sales at Miami, that there were two such employees, [Becker and Fuchs], that Fortis `cannot do without.'" (Pl's Statement of Material Facts ¶ 12).
While Minton's last day of employment was August 17, 1999, he technically remained on the payroll until October 25, 2999. This was done to correlate his date of hire (October 25, 1982) with his date of termination so as to provide him with greater retirement benefits. Minton's birth date is October 18, 1937.
Although he was aware that his position was eliminated, Minton never requested another position in the new company and never returned to the office after August 18, 1999. (Minton Dep. at 59-60; 89). Minton explained at his deposition that he never inquired as to the prospect of another position with the company because it was a "foregone conclusion" that he would not be hired for an alternative position. However, other employees, such as Stephen Davidson ("Davidson"), a Regional Marketing Manager and head of the Southwest Regional Sales Center at the time of the reorganization, took proactive steps to secure a new position within the reorganized company. (Davidson Dep. at 10-22). Davidson contacted Manny Beccerra, the Channel Executive for the Retail Market, expressed an interest in becoming the National Sales Manager for the Retail Market after reorganization, and ultimately obtained the new position. (U.).
Minton admitted during his deposition:
Q Did you go to anyone after learning of your termination and say hey, this would be a good job for me. I could fit in elsewhere in the company?
A No, [didnot.
Q Is there any reason why you didn't do that?
A It was a foregone conclusion. Again, it was — nothing would have been available. (Minton Dep. at 59-60).
E. Minton Takes Legal Action
After his termination, Minton timely filed a charge with the Equal Employment Opportunity Commission ("EEOC") and the Florida Commission on Human Relations ("FCHR"), alleging that he was discharged because ofhis age in violation of the ADEA. After investigating the charge, the EEOC concluded that there was insufficient evidence that any of the Defendants unlawfully discriminated against Minton based on his age. On September 11, 2000, Minton filed his Complaint alleging violations of the ADEA (Count I) and the Florida Civil Rights Act (Count II).
Courts examine FCRA claims in the same manner as ADEA claims. Thus, if there is no liability under the ADEA, there is no liability under FCRA. See Kossow v. St. Thomas University. Inc., 42 F. Supp.2d 1312, 1313 n. 1 (S.D. Fla. 1999), affd 251 F.3d 160 (11th Cir. 2002).
F. Statistical Evidence
As of June 30, 2999, the ABIG Group and its Domestic Subsidiaries employed a total of 106 individuals at the level of Vice President or higher ("Executives"). (Baker Decl. ¶¶ 9-16, Attached Exhs.). Of those 106 Executives, 88 were age forty or older. (Id.). During the Reduction in Force in question, 30 Executives were laid off. Of the 30 Executives who were laid off, 27 were at least forty years of age.
This classification includes all employees that are similarly situated to Minton.
Defendants hired Mary Dunn Baker, Ph.D., a labor economist, to conduct a statistical analysis of whether, based upon the 106 similarly situated executives, there was support for Minton's allegation that Defendants over-selected Vice Presidents and higher level executives who were in Minton's protected age group for termination during Defendants' REF. Dr. Baker concluded that:
[T]he statistical analyses of selections for REF show that the actual number of protected class executives RiFed from each business unit is "in-line" with the number expected, given their representation among executives. When the analyses are aggregated across the units, the data fail to reveal a pattern of over-selecting protected class executives for RIF. Therefore, the data do not provide any statistical support whatsoever for an allegation that executives who were members of the protected age group were terminated as a result of the merger in numbers disproportionate to their representation.
(Baker, Expert Report at 11-12).
Minton also hired his own expert, Michael J. Piette, Ph.D., a labor economist, to statistical ly evaluate the pattern of terminations with respect to age, if any, resulting from Defendants' REF. However, unlike Dr. Baker, who based her analysis upon executives similarly situated to Minton, Dr. Piette based his statistical analysis on a list of 91 RIFed employees from positions ranging from Accounting Clerk and Administrative Assistantto Vice President and Senior Vice President. (Piette, Expert Report at 3, Table 1, App. B). Having analyzed an entirely different set of data, Dr. Piette concluded that his findings "provide statistical support for the allegation that older workers were terminated as a result of the merger and acquisition in numbers greatly disproportionate to their representation in the workforce." (Id. at 9).
II Discussion
A. Standard of Review
Summary judgment is appropriate when "the pleadings . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 247 (1986). Once the moving party demonstrates the absence of a genuine issue of material fact, the non-moving party must "come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)). Accepting this evidence as truthful, the Court must view the record and all factual inferences therefrom in the light most favorable to the non-moving party and decide whether "`the evidence presents a sufficient disagreement to require submission to ajury or whether it isso one-sided that one party must prevail as a matter of law.'" Allen v. Tyson Foods. Inc., 121 F.3d 642, 646 (11th Cir. 1997) (quoting Anderson, 477 U.S. at 251-52).
B. The ADEA
The ADEA provides, in relevant part, that it shall be unlawful for an employer to "discharge any individual . . . because of such individual's age." 29 U.S.C. § 623 (a)(1). A plaintiff may establish a prima fade case of age discrimination in one of three ways: (1) by presenting direct evidence of discriminatory intent; (2) by presenting circumstantial evidence using the burden-shifting paradigm set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); or (3) by demonstrating through statistics a pattern of discrimination. Earley v. Champion Int'l Corp., 907 F.2d 1077, 1081 (11th Cir. 1990).
1. Direct Evidence of Discrimination
Direct evidence of discrimination is evidence that reflects "a discriminatory or retalitory attitude correlating to the discrimination or retaliation complained of by the employee." Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354. 1358-59 (11th Cir. 1999) (quoting Carter v. Three Springs Residential Treatment. 132 F.3d 635. 641 (11th Cir. 1998)). Such evidence must indicate that the adverse employment decision was motivated by the decision-maker's intent to discriminate based on age. Damon, 196 F.3d at 1358-59. As a result, "only the most blatant remarks, whose intent could be nothing other than to discriminate on the basis of age" will constitute direct evidence of discrimination. Id.(quoting Early, 907 F.2d at 1081-82). An example of direct evidence of age discrimination is an employer's memorandum stating "Fire [him] — he is too old." Damon, 196 F.3d at 1359 (quotingEarly, 907 F.2d at 1082).
Although a blatant statement such as "fire him — he is too old" constitutes direct evidence of discrimination, it is well-established in this Circuit that stray, vague utterances that lack explicit intent to discriminate, do not constitute direct evidence of age discrimination. See Beaver v. Ravonier. lnc., 200 F.3d 723, 729 n. 4 (11th Cir. 1999) (holding that an employer's statements that the employer wanted to attract "younger, engineer-type employees or supervisors" and that one could tell the age of the workforce "by looking at all the bald heads out there," did not constitute direct evidence of discrimination); Damon, 196 F.3d at 1359 (holding that the statement "what the company needed was aggressive young men like [the hired employee] to be promoted" did not constitute direct evidence of discrimination); Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1329 (11th Cir. 1998) (holding that the statement "older people have more go wrong was "too vague to prove even generalized discriminatory ammus"); Early, 907 F.2d at 108 1-82 (holding that documents and charts that refer to the ages or birth dates of employees are not direct evidence of discrimination because such documentary evidence is "so attenuated and weak as to be at best merely colorable and not significantly probative").
The "direct evidence" that Minton alleges is in the form of allegedly discriminatory comments by various individuals at ABJG and Fortis. Specifically, Minton claims that in March 1999, O'Hare asked him about his age and when he planned to retire. Minton contends that in subsequent meetings, O'Hare told Becker, Minton's co-worker, that there were "many white-haired Anglos" in upper management, and that employees over the age of 50 should "re-pot themselves" somewhere else. Minton further asserts that on June 22, 1999, Camacho told him that his "days are over" and that the company wanted "fresh new blood." Such stray remarks, however, are simply too vague and too attenuated to constitute direct evidence of age discrimination as a matter of law. See Beaver, 200 F.3d at 729; Damon, 196 F.3d at 1359; Standard, 161 F.3d at 1329; Early, 907 F.2d at 1081-82. Consequently, Minton cannot establish a prima facie case of age discrimination based on direct evidence.
2. Circumstantial Evidence of Discrimination
In the alternative, Minton attempts to offer circumstantial evidence that Defendants discriminated against him based on age. To establish a prima facie case of age discrimination based on circumstantial evidence in the context of a Reduction In Force ("RIF"), the plaintiff must show: (1) that he was a member of a protected age group and was adversely affected by an employment decision; (2) that he was qualified for the position held at the time of discharge; and (3) evidence by which a fact finder could reasonably conclude that the employer intended to discriminate on the basis of age in reaching that decision. Zaben v. Air Prods Chems. Inc., 129 F.3d 1453, 1457 (11th Cir. 1997); Standard, 161 F.3d at 1329. Moreover, if the plaintiff's particularjob position was completely eliminated for nondiscriminatory reasons, the plaintiff must demonstrate that he was qualified for another available job, not merely that he was qualified for his current job position. Earley. 907 F.2d at 1082-83.
a. Minton Has Not Established a Prima Fade Case of Age Discrimination
Defendants concede that Minton was a member of a protected age group, was adversely affected by an employment decision, and that he was qualified for the position held at the time of discharge. Thus, the critical issue is whether Minton has set forth sufficient evidence by which a fact finder could reasonably conclude that Defendants intended to discriminate against Minton on the basis of his age in discharging him.Zaben, 129 F.3d at 1457.
Based on the evidence in the record, no fact finder could reasonably conclude that Defendants intentionally discriminated against Minton because of his age. Minton admitted in his own deposition, in recounting a conversation with Camacho, that he was aware that as a result of the ABIG-Greenland/Fortis merger, his position as First Senior Vice President-Sales Centers might be eliminated:
[Camacho] said he was considering restructuring the sales force. The sales force at this point in time had a direct reporting relationship to me, and he was interested in reviewing whether it should be restructured and report to each of the different business units. And so I advised him . . . that he may want to . . . reconsider that position . . . .
(Minton Dep. at 22-23). Whether or not Minton approved of the sales force reorganization is irrelevant, especially where the change in the Defendants' reporting structure and elimination of the regional sales centers were legitimate business decisions. It is not this Court's role to second-guess the legitimate business decisions of the Defendants where there is no evidence of discriminatory intent. Beaver, 200 F.3d at 728.
Although Minton clearly understood that his position of First Senior Vice President-Sales Centers would be eliminated as part of the corporate restructuring, Minton alleges that his position was not eliminated, but that Defendants merely renamed the position and assigned it to Bernard Unterreiner ("Unterreiner"). However, the undisputed evidence reveals that Unterreiner held a new position, Vice President of Sales Development and Training, a position which did not require him to supervise the day-today operations of the sales force. (Unterreiner Dep. at 25-29). Under the restructuring, the sales and marketing personnel who previously reported to Minton now reported directly to their respective National Sales Managers and Channel Executives. (Id.). Thus, because Unterreiner's duties and responsibilities differed from those of the position occupied by Minton, no reasonable fact finder could conclude that Minton's position was merely renamed and filled by a younger employee.
Minton also contends that Defendants discriminated against him by discharging him as supervisor of ABIG Research and Development. However, similar to the sales force restructuring, Defendants reorganized the research and development structure and shifted primary responsibility for new product development to the Channel Executives. (Camacho Dep. at 25-29). Moreover, the two employees who held supervisory positions in the New Business Development Department had significant experience in product and business development, and were both over the age of forty, and thus within Minton's protected age class. (Camacho Dep. at 36-3 8). Therefore, no reasonable fact finder could conclude that the restructuring of the research and development department and the selection of two supervisors within Minton's protected class was motivated by discriminatory intent.
Finally, Minton claims that Defendants discriminated against him by not offering him another job after his position was eliminated. It is well-established, however, that the ADEA does not require employers to maintain "interdepartmental transfer programs during a RIF or to transfer or rehire laid-off workers in the protected age group as a matter of course." Beaver, 200 F.3d at 729 (citing Jameson v. Arrow Co., 75 F.3d 1528, 1533 (11th Cir. 1996)). Nonetheless, if Minton had applied for a replacement job for which he was qualified and which was available at the time of his termination, Defendants would have been obligated to consider him for that position. Beaver, 200 F.3d at 729. The undisputed facts reveal, however, that Minton admittedly did not request or apply for another job within the company. (Minton Dep. at 59-60). Thus, no reasonable fact finder could conclude that Defendants intentionally discriminated against him, especially in light of his unwillingness to apply for or request another position.
b. Defendants Have Articulated a Legitimate, Non-Discriminatory Reason for Minton's Termination
Even if Minton could establish a prima facie case of age discrimination, the burden shifts to Defendants to articulate a legitimate, non-discriminatory reason for his termination. Zaben, 129 F.3d at 1457. A corporate reorganization resulting in a RIF and the elimination of a position is a legitimate, nondiscriminatory reason forterminating an employee. Tidwell v. Carter Prods., 135 F.3d 1422, 1426 (11th Cir. 1998). Defendants' REF and corporate restructuring resulting from the ABIG-Greenland/Fortis merger is clearly a legitimate, non-discriminatory reason for eliminating Minton's position and terminating his employment.
c. Minton Has Failed to Establish Pretext
Once the employer has articulated a legitimate, non-discriminatory reason for terminating the plaintiff, the burden shifts back to the plaintiff to "introduce significantly probative evidence showing that the asserted reason is merely a pretext for discrimination." Zaben, F.3d at 1457. The Court must evaluate whether the plaintiff has demonstrated "such weaknesses, implausibil ities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of credence." Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997). It is insufficient for the plaintiff to merely allege pretext.Earley, 907 F.2d at 1084 n. 5. Minton must proffer sufficient evidence to create a genuine issue of material fact regarding whether Defendants' reasons are pretextual. Chapman v. Al Trans., 229 F.3d 1012. 1024-25 (11th Cir. 2000). Minton may not merely recast Defendants' proffered non-discriminatory reasons or substitute his own business judgment for that of his former employer. Id. at 1030. Because Defendants have offered a legitimate, non-discriminatory reason for terminating him, Minton must "meet that reason head on and rebut it, and [he] cannot succeed by simply quarreling with the wisdom of that reason." Id. "No matter how medieval a firm's practices, no matterhow high-handed its decisional process, no matterhow mistaken the firm's managers, the ADEA does not interfere."Id.
Here, Minton has not demonstrated that Defendants' decision to restructure and reorganize the sales force which eliminated his position was guided by anything other than a desire to increase the efficiency of Defendants' sales force and cut costs. Although Minton speculates that Defendants' restructuring was merely a pretext for eliminating older workers, Defendants' desire to increase the efficiency of their company is a legitimate, non-discriminatory reason for eliminating certain jobs.Beaver, 200 F.3d at 728. Moreover, Minton's allegation that Defendants' failure to offer him another position is evidence of pretext is entirely without merit in light of Minton's admission that he never expressed an interest in, or inquired about other positions within the company. (Minton Dep. at 59-60). Accordingly, Minton has failed to establish pretext, as he has not produced any probative evidence showing that Defendants' asserted reason for eliminating his position was merely a pretext for discrimination. Zaben, 129 F.3d at 1457.
3. Statistical Evidence of Discrimination
In addition to direct and circumstantial evidence, Minton alleges that statistics reveal that Defendants engaged in a pattern and practice of age discrimination by targeting older workers for termination under the REF. To establish a prima facie case of age discrimination based on statistical evidence in the context of a RIF, Minton's statistics must demonstrate "discriminatory intent." Baker v. Sears Roebuck Co., 903 F.2d 1515, 1521 (11th Cir. 1990); Greene v. Loewenstein. Inc., 99 F. Supp.2d 1373, 1378 n. 6 (S.D. Fla. 2000). Moreover, it is well-established that any statistical analysis must be based upon a comparison of similarly situated employees. Watkins v. Sverdrup Tech., Inc., 153 F.3d 1308, 13 25-16 (11th Cir. 1998); Toth v. McDonnell Douglas Aerospace Servs. Co., 31 F. Supp.2d 1347, 1354 (M.D. Fla. 1998). In order to be similarly situated in the context of a RIF, the employees in question must have common qualities, including but not limited to analogous attributes, experience, education, skills, specialties and qualifications. See Radue v. Kimberly-Clark Corp., 219 F.3d 612, 618 (7th Cir. 2000); Furr v. Seagate Tech., Inc., 82 F.3d 980, 987 (10th Cir. 1996).
Minton's proffered statistical analysis fails to comply with this well-established requirement that statistical analyses conducted within the age discrimination context be performed on similarly situated employees. Indeed, Minton's expert concedes that the 91 RiFed individuals included in his statistical analysis range from accounting clerks and administrative assistants to vice presidents and senior vice presidents. Such a disparate analysis is contrary to well-established law. Watkins, 153 F.3d at 13 15-16; Toth, 31 F. Supp.2d at 1354; Radue, 219 F.3d at 618. Thus, M inton's statistical analysis and conclusions are not probative of whether Defendants intentionally discriminated against him on the basis of his age in restructuring Defendants' sales force, and Minton has failed to establish a statistical basis for his claim.
Conclusion
Based upon the foregoing reasons, it is hereby
ORDERED that:
(1) Defendants' Motion for Summary Judgment [DE-96] is GRANTED; and
(2) All pending motions not otherwise ruled upon are DENIED as MOOT and this case is CLOSED.