Opinion
CASE NO. 02-22548-CIV-ALTONAGA/Bandstra
November 6, 2003
ORDER GRANTING PARTIAL SUMMARY JUDGMENT AND MOTION TO STRIKE, AND SETTING CASE FOR TRIAL
THIS CAUSE came before the Court upon the Motion for Summary Judgment and Memorandum of Law in Support of Motion for Summary Judgment ( D.E. 13) filed by Defendant, The School Board of Miami-Dade County, Florida ("School Board"), on May 16, 2003; and Motion to Strike Portions of Plaintiff's Affidavit and Plaintiff's Response to Defendant's Motion for Summary Judgment ( D.E. 27), filed on June 13, 2003. For the reasons set forth below, the Motion for Summary Judgment is granted in part, and the Motion to Strike is granted in part.
I. INTRODUCTION
Defendant correctly observes in its Reply to Plaintiff's Response to Defendant's Motion for Summary Judgment that Plaintiff, Ricardo J. Pumpido ("Pumpido"), has failed to submit a statement of facts in opposition to the Motion as required by the Local Rules of the Southern District of Florida. Under Local Rule 7.5(B), "[t]he papers opposing a Motion for Summary Judgment shall include a memorandum of law, necessary affidavits, and a single statement of material facts as to which it is contended that there exists a genuine issue to be tried." Also under Local Rule 7.5(D), "[a] 11 material facts set forth in the statement required to be served by the opposing party will be deemed admitted unless controverted by the opposing party's statement, if and only to the extent supported by specific references to the pleadings, depositions, answers to interrogatories, admissions, and affidavits on file with the Court." Pumpido did not comply with the Local Rules, but merely attached to his Response an affidavit and a photocopy of his deposition. Because of Pumpido's noncompliance with the Local Rules, technically, the School Board's statement of facts may be deemed admitted and summary judgment entered. Monsanto Company v. Campuano, 206 F. Supp.2d 1252, 1256-57 (S.D. Fla 2002); Henry v. City of Tallahassee, 216 F. Supp.2d 1299, 1308-9 (N.D. Fla. 2002). Nonetheless, because it is preferable to address the Motion for Summary Judgment on the merits, the School Board's statement of facts shall be deemed admitted only to the extent it is not controverted by the admissible facts presented by Pumpido's affidavit and deposition testimony.
II. FACTUAL BACKGROUND
The facts are taken from Defendant's Material Statement of Facts and are undisputed unless otherwise noted.
Plaintiff, Ricardo J. Pumpido, was born in Cuba in September 1931, and at the time of the filing of his Affidavit in Opposition, was over the age of 71. Pumpido has been employed by the Defendant, School Board, since approximately 1972 as a custodian, and at all material times was working at Hialeah Middle School. He maintained a good relationship with the principal of Hialeah Middle School until the assignment of its current principal, Ms. Montoya. He claims that the terms and conditions of his work environment changed when Montoya was assigned as the principal at Hialeah Middle School.
Ms. Montoya, with input from other school administrators, makes personnel decisions regarding whether custodians should be asked to improve their work performance. Since Ms. Montoya became principal of Hialeah Middle School, she and assistant principal Alex Rizo have criticized Pumpido various times regarding his work performance. The following are examples of the several instances Pumpido's work performance has been addressed by School Board employees.
On February 7, 2001, Montoya sent a memorandum to Pumpido regarding his absences from the work site and his failure to properly clean his assigned areas. On March 16, 2001, Rizo issued a written warning to Pumpido about his poor work performance, and subsequently informed Montoya that Pumpido's reaction to the written warning had been belligerent and defiant. On March 25, 2001, Montoya held a Conference for the Record with Pumpido to discuss, among other things, his deficient job performance and his earlier "aggressive behavior" with Rizo on March 16, 2001. A Conference for the Record is not a disciplinary action.
Pumpido maintains he has suffered severe embarrassment before other School Board employees as a result of this and other numerous Conferences for the Record recorded against him by the Administration. During the March 25, 2001 Conference for the Record, Montoya referred Pumpido to the District Support Agency (Employee Assistance Program or "EAP") based on his earlier reaction to Rizo on March 16, 2001.
On March 12, 2002, Montoya notified Pumpido that he had failed to clean his assigned area properly. On March 15, 2002, Rizo discussed with Pumpido complaints received about the latter's improper cleaning of the Occupational Training Center. Again, on March 18, 2002, Montoya notified Pumpido that on March 15 and 18, 2002, he had failed to clean his assigned areas properly. On March 25, 2002, Montoya held another Conference for the Record with Pumpido to address, among other things, his deficient work performance and the effects and impact of his work performance and behavior on the total school program.
Morris Salty, Mr. Rizo's replacement from September 5, 2002 through the present, has also accused Pumpido of not cleaning his assigned section. Pumpido maintains such accusations are false because he completed all assigned tasks.
Pumpido claims that Montoya and Rizo orchestrated incidents that occurred on May 9, 2002, October 3 and 8, 2002, November 5, 2002 and January 13, 2003. Pumpido also claims that Montoya and Rizo orchestrated an incident that occurred on October 3, 2002. According to Pumpido, Ernesto Garcia, a fellow custodial worker, and an unknown PTA representative approached him in a very unprofessional and extremely rude manner, and accused him of not cleaning the material storage room. Pumpido further claims that he was treated unfairly on November 7, 2002, when Montoya asked to speak to him in her office. Pumpido claims that he was also treated unfairly on December 9, 2002 when Salty issued him a memorandum for failure to comply with professional responsibilities.
Ms. Montoya admits that she, Rizo, and Salty, have had numerous verbal conferences with Pumpido to discuss his deficient work performance. Ms. Montoya, however, is not authorized to discipline school employees and has never disciplined Pumpido. According to Pumpido, Montoya has accused Pumpido of being insubordinate on those occasions when he responds to false accusations regarding his work performance. The Principal has asked Pumpido his age, when he is going to retire, and has stated that his efficiency was poor and that the job was too much pressure for him.
Similarly, Pumpido claims that Assistant Principal Rizo told Pumpido he should retire or look for another job because Rizo wanted the school clean and Pumpido was not in physical shape to do the work. Pumpido suffered a nervous breakdown and was hospitalized for several hours after Rizo called him into the office and made false accusations against him. Pumpido continues to receive psychiatric treatment after this particular incident.
There are thirteen custodians assigned to Hialeah Middle School — twelve full time employees and one employee under the age of 40. The following are pertinent facts about the custodial staff members at Hialeah Middle School:
• Ernesto Garcia has been assigned to Hialeah Middle School as a full-time Custodian since 1997, and is 63 years old.
• Armando Sotolongo has been assigned to Hialeah Middle School since 1990 and is 67 years old.
• Roosevelt Canada has been assigned to Hialeah Middle School since 1974 and is 57 years old.
• Carlos Ruiz has been assigned to Hialeah Middle School as a full-time Custodian since 1975 and is 62 years old.
• Carlos Martinez has been assigned to Hialeah Middle School as a full-time Custodian since 1994 and is 65 years old.
• Harold Pratt has been assigned to Hialeah Middle School as a full-time Custodian since 1996 and is 58 years old.
• Juan Diez has been assigned to Hialeah Middle School as a full-time Custodian since 1999 and is 62 years old.
• Raul Bermudez has been assigned to Hialeah Middle School as a part-time Custodian since 2000 and is 46 years old.
• Juan Espino has been assigned to Hialeah Middle School as a part-time Custodian since 2000 and is 40 years old.
• Yader Villalta has been assigned to Hialeah Middle School as a part-time Custodian since 2002 and she is 47 years old.
• Mercedes Dominquez has been assigned to Hialeah Middle School as a part-time Custodian since 2000 and she is 48 years old.
• Nery Vila has been assigned to Hialeah Middle School as a full-time custodian since 2000 and she is 58 years old.
• Ronnie Howard has been assigned to Hialeah Middle School as a full-time Custodian since 1996 and is 36 years old.
Pumpido maintains he has been treated differently from other School Board employees who are younger than he, and that he has been threatened with termination of employment. Pumpido claims that other custodians are not criticized about their work performance or subjected to the same level of criticism and persecution as he. However, notwithstanding his claim, it is undisputed that the following are custodial staff members who have been critiqued:
• On February 7, 2001, Montoya issued a memorandum to Juan Espino regarding his absences from the work site and on March 12, 2002, she issued a memorandum to Espino regarding his deficient work performance.
• On February 8, 2001, February 17, 2001 and March 18, 2002, Montoya issued directives to Pratt regarding his continued absences from the work site. On March 28, 2002, Montoya held a Conference for the Record with Pratt regarding his excessive absences from the work site.
• On March 16 and 17, 2002, Rizo issued memoranda to Carlos Martinez regarding his deficient work performance.
• On October 26, 2000 and February 8, 2001, Montoya issued memoranda to Roosevelt Canada, Jr. regarding his absences from the work site and deficient work performance. On February 14, 2001, Montoya received a memorandum from Jackie Viana, a teacher, regarding Canada's failure to clean the portables. On March 6, 2001, Montoya held a Conference for the Record with Canada to discuss, among other things, his excessive absences and deficient job performance. On January 29, and February 8, 2002, Rizo issued memoranda to Canada regarding his deficient work performance.
• On May 29, July 16, and August 5, 2002, Montoya issued memoranda to Ronnie Howard regarding his absences from the work site. On February 12, 2003, Montoya issued Howard a memorandum regarding his excessive absences from the work site. On February 21, 2003, Montoya held a Conference for the Record with Howard wherein she discussed, among other things, his excessive absences from the work site and his deficient job performance.
During the year 2000, Pumpido was absent from work because of illness for 13 days. He took 18 vacations days, 3 personal days and 1.5 days of leave without pay-authorized. During the 2001-2002 school year, Pumpido was absent from work because of illness 11 days. He took 10 vacation days, 1 personal day and 1 day leave without pay-authorized. During the last school year, 2002-2003, Pumpido has been absent from work for illness 6 days and has taken 5 vacation days and 5 personal days. Pumpido has not had a part-time job in years, nor has he taken any affirmative steps toward obtaining one.
On May 17, 2002, Pumpido filed a charge of discrimination against the School Board with the Equal Employment Opportunity Commission ("EEOC"), alleging age discrimination. On August 28, 2002, he filed a one-count complaint against the School Board alleging violations of the Age Discrimination in Employment Act ("ADEA"). The allegations of his complaint make out two categories of claims under the ADEA: age discrimination and hostile work environment. Plaintiff concedes he is not seeking relief on a theory of retaliation.
III. LEGAL DISCUSSION A. Standard for Summary Judgment
Under Federal Rule of Civil Procedure 56(c), a motion for summary judgment "shall be rendered forthwith if 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 feet and that the moving party is entitled to a judgment as a matter of law." The Supreme Court explained the movant's burden in Celotex Corp. v. Catrett, 477 U.S. 317 (1986) as follows:
In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.Id. at 322. The Court further stated that "Rule 56(c) therefore requires a non-moving party to go beyond the pleadings and by [its] own affidavits or by the `depositions, answers to interrogatories, and admissions on file' designate `specific facts showing that there is a genuine issue for trial.'" Id. at 324.
By its very terms, this standard provides that the mere existence of " some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there will be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). An issue is "material" if it is a legal element of the claim under the applicable substantive law which might affect the outcome of the case. Anderson, 477 U.S. at 248; Allen v. Tyson Foods, 121 F.3d 642, 646 (11th Cir. 1997). An issue is "genuine" if the record taken as a whole could lead a rational trier of fact to find for the non-moving party. Allen, 121 F.3d at 646. On a motion for summary judgment, the Court must view all the evidence and all factual inferences drawn therefrom in the light most favorable to the non-moving party, and determine whether that evidence could reasonably sustain a jury verdict. Celotex. 477 U.S. at 322-23; Allen, 121 F.3d at 646.
While the burden on the movant is great, the non-moving party has a duty to present affirmative evidence in order to defeat a properly supported motion for summary judgment. Anderson, 477 U.S. at 252. A mere "scintilla" of evidence in favor of the non-moving party, or evidence that is "merely colorable" or "not significantly probative" is not enough. Id.; see also Mayfield v. Patterson Pump Co., 101 F.3d 1371, 1376 (11th Cir. 1996) (conclusory allegations and conjecture cannot be the basis for denying summary judgment). Moreover, otherwise admissible evidence may be submitted in inadmissible form at the summary judgment stage, although certainly inadmissible hearsay may not be used to defeat summary judgment when hearsay will not be available in an admissible form at trial. See McMillian v. Johnson, 88 F.3d 1573, 1584-85 (11th Cir. 1996); Gaston v. Home Depot USA, Inc., 129 F. Supp.2d 1355, 1361 (S.D. Fla. 2001). When an affidavit or deposition submitted in support of, or in opposition to, a motion for summary judgment contains inadmissible evidence, the court may strike the inadmissible portions of the affidavit or deposition and consider the rest. Gaston, 129 F. Supp.2d at 1361.
B. The Undisputed Material Facts Do Not Make Out a Prima Facie Case of Age Discrimination
The ADEA provides that: "it shall be unlawful for an employee to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623 (A)(1). To defeat summary judgment, Pumpido has the initial burden of establishing a prima facie case of discrimination. Johnson v. Scotty's lnc., 119 F. Supp.2d 1276, 1284 (M.D. Fla. 2000). He can do this with direct or circumstantial evidence of discrimination. Id.; see also Bass v. Bd. County Commissioners, Orange County, 256 F.3d 1095 (11th Cir. 2001).
Direct evidence of discrimination is "evidence which, if believed, would prove the existence of a fact [in issue] without inference or presumption." Carter v. City of Miami, 870 F.2d 578, 581-82 (11th Cir. 1989). It is also "`composed of only the most blatant remarks, where intent could be nothing other than to discriminate' on the basis of some impermissible factor." Schoenfeld v. Babbitt, 168 F.3d 1257, 1266 (11th Cir. 1999) (quoting Carter, 870 F.2d at 582). Viewing the facts in the light most favorable to the Plaintiff, the only possible "direct" evidence of discrimination consists of suggestions or hints by Principal Montoya and Assistant Principal Rizo that Pumpido may be too old for the rigors of the job. For example, Principal Montoya told Pumpido "that [his] efficiency in the job was going down, if [he] was thinking in the retirement [sic], because . . . at [his] age, it's too much pressure for [him]. . . ." (Pumpido Dep. at 47). Rizo reminded Pumpido, "`You know, Mr. Pumpido, you should retire, because it's too much for you. You know we need this school real clean,' . . . `And you are not — you are not physically in shape to do your job.'" (Pumpido Dep. at 47-48).
While these statements do refer to Plaintiff's age, they are not the type of evidence, which if believed, would prove the existence of discrimination without inference or presumption. Moreover, Plaintiff has not offered sufficient direct evidence that he was discriminated against because of his age given that these statements were not even made during some decision-making process. See Standard v. A.B.E.L Services, Inc., 161 F.3d 1318, 1331 (11th Cir. 1998) (if decision maker's discriminatory statement is unrelated to employment decision at issue, the statement does not constitute direct evidence of discrimination, but may constitute circumstantial evidence).
Where a plaintiff presents only circumstantial evidence of discrimination, as here, a motion for summary judgment is analyzed under the shifting burden approach adopted by the Supreme Court in Texas v. Department of Community Affairs v. Burdine, 450 U.S. 248 (1981) and McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). To establish age discrimination with circumstantial evidence, Pumpido must prove that he was: (1) a member of a protected class; (2) qualified for the position; (3) subjected to an adverse employment action; and (4) was replaced by a person outside the protected class or suffered from disparate treatment because of membership in the protected class. Kelliher v. Venerman, 313 F.3d 1270, 1275 (11th Cir. 2002). The parties concede that Plaintiff can establish the first two elements. However, no material issues of fact have been presented as to the third or fourth prongs to preclude a finding that Pumpido fails to establish a prima facie case of age discrimination.
1. No evidence has been presented as to the existence of an adverse employment action
An adverse employment action is a significant change in employment status, such as hiring, firing, demoting, denying a promotion, or a decision causing a significant change in benefits, usually resulting in direct economic harm. Burlington Indus. v. Ellerth, 524 U.S. 742, 761 (1998). It is "the ultimate employment decision, such as a discharge or failure to hire, or other conduct that alters the employee's compensation, terms, conditions, or privileges of employment, deprives him or her of employment opportunities, or adversely affects his or her status as an employee." Padron v. Bell South Telecomm., Inc. 196 F. Supp.2d 1250, 1259 (S.D. Fla. 2002). Typically, a "tangible employment action `inflicts direct economic harm' and `requires an official act of the enterprise, a company act." Hansen v. Perry Tech., 206 F. Supp.2d 1223, 1235 (S.D. Fla. 2002) (quoting Ellerth, 524 U.S. at 762). Financial impact is relevant to the determination of what constitutes a tangible employment action. Id. at 1238.
Furthermore,
[T]o prove adverse employment action in a case under Title VII's anti-discrimination clause, an employee must show a serious and material change in the terms, conditions, or privileges of employment. . . . the employee's subjective view of the significance and adversity of the employer's action is not controlling, the employment action must be materially adverse as viewed by a reasonable person in the circumstances.Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1239 (11th Cir. 2001) (emphasis in original). An action "is not adverse merely because the employee dislikes it or disagrees with it." Doe v. Dekalb County School District, 145 F.3d 1441, 1449 (11th Cir. 1998).
The actions which Pumpido maintains are a "tangible employment action" for purposes of the third prong of the circumstantial evidence analysis are undisputed. The only issue presented then is a legal one of whether they constitute an adverse employment action. The following events are presented as adverse employment actions: Pumpido has been summoned on several occasions to Conferences for the Record, he has been referred to the Employee Assistance Program, he has been threatened with termination from employment, and his superiors have been constantly "picking on" him regarding his work performance. Plaintiff admits he has not suffered `loss of income or benefits simpliciter." (Resp. to Def.'s Mot. Summ. J. ¶ 10). He has, however, "suffered severe mental distress and embarrassment and has had to seek medical attention." Id.
None of the actions complained of here rises to the level of an adverse employment action. Being summoned to Conferences for the Record, which are not considered disciplinary, and which did not result in discipline, do not constitute adverse employment actions. Referring the Plaintiff to the Employee Assistance Program, threatening him with termination, or complaining to him about his work performance, too, do not rise to the level required for a finding of an adverse employment action. There have been no changes to Pumpido's compensation, terms, conditions or privileges of employment. See Davis, 245 F.3d at 1245 (negative job performance memoranda placed in plaintiffs file, which plaintiff claimed were "unwarranted" and "diminished his prestige and self-esteem," and which did not result in the loss of pay or benefits or in disciplinary action, were not covered by Title VII.). While Pumpido may not be happy about the complained-of events, "not everything that makes an employee unhappy is an actionable adverse employment action." DeKalb County School Dist., 145 F.3d at 1449 (quoting Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996)). See also Miller v. Bunce, 60 F. Supp.2d 620 (S.D. Tex. 1999) (150 trivial acts alleged by professor to be retaliatory did not constitute adverse employment action).
Pumpido continues to work at the same school, with the same responsibilities and salary. It has been Pumpido's choice not to take vacation time to which he was entitled; not the Defendant's. Plaintiff has admitted that he has not sought nor been denied opportunities of seeking part-time work elsewhere by the Defendant. Moreover, additional part-time work is not included within the terms or conditions of his employment. No criticisms of his work performance have been accompanied by tangible job consequences, and thus summary judgment is appropriate for the failure of plaintiff to create an issue of fact with respect to this prong. Dunn v. City of Tallahassee, No. 4:01CV228-WS, 2002 WL 1979128 *7 (N.D. Fla. July 5, 2002) (granting summary judgment where plaintiff did not present facts to show that criticisms of job performance resulted in tangible job consequences); Gonzalez v. Fla. Dept. Of Highway Safety Motor Vehicles, 237 F. Supp.2d 1338 (S.D. Fla. 2002) (finding summary judgment appropriate where plaintiff did not present evidence that performance evaluations were used as basis for any action against him).
2. No material facts are in dispute as to the absence of disparate treatment
As to the "similarly situated" prong of the prima facie case, Pumpido "must show that there were employees, not within his protected class, who were similarly situated in all relevant respects, but who were treated more favorably." Gaston, 129 F. Supp.2d at 1368. "A plaintiff must show that a person is similarly situated in all relevant aspects in order to make a prima facie case." LeBlanc v. TJX Companies, Inc., 214 F. Supp.2d 1319, 1325 (S.D. Fla. 2002). Where an employee has failed to show the existence of a similarly situated employee and has not presented other evidence of discrimination, summary judgment for the employer is appropriate. Id. at 1326 (citing Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). To establish this prong, Pumpido must present evidence that a younger employee, outside his protected class, and who is similarly situated in all relevant aspects, was treated more favorably than he was or that he was replaced by a member outside of his protected class. Because he has not been terminated, Pumpido cannot establish the latter circumstance.
Pumpido does not put forth facts to controvert the Defendant's evidence that the other custodians at Hialeah Middle School, too, have received memoranda or Conferences for the Record regarding deficient work performance. Defendant's uncontroverted factual detail concerning its custodians lists only one custodian under the age of 40. Principal Montoya also issued four memoranda to, and held a conference with, the only custodian under the age of 40. Plaintiff has simply not put forward any disputed facts to show that this similarly situated employee has been treated more favorably than he. The nature of the offenses committed by the one custodian outside the protected class and the nature of the punishments received by him are nearly identical to those received by Pumpido. Summary judgment is therefore appropriate on this ground as well given that Pumpido cannot establish disparate treatment based on his age.
C. Disputed Material Facts Exist As to Pumpido's Hostile Work Environment Claim
While the Eleventh Circuit has not squarely addressed whether claims for hostile work environment based on age are actionable, other circuits have recognized these claims. Madiedo v. Miami-Dade County, 2000 WL 1763845, *5 (S.D. Fla. June 1, 2000) (citing E.E.O.C. v. Massey Yardley Chrysler Plymouth, Inc. 117 F.3d 1244, 1249 (11th Cir. 1997). In evaluating hostile work environment claims based on age, courts apply the same standards of Title VII claims. Id. Thus, to withstand a motion for summary judgment on a hostile work environment claim, Pumpido must show: (1) that he is at least 40 years old, (2) that he was subject to harassment based on his age; (3) that the harassment complained of was "sufficiently severe or pervasive" to alter the conditions of his employment and; (4) that there exists some basis for liability on the part of the School Board. Id. (citing Crawford v. Medina General Hospital, 96 F.3d 830 (6th Cir. 1996)). The objective severity of a harassment claim is evaluated using the following factors:
(1) frequency of the conduct, (2) severity of the conduct, (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance, and (4) whether the conduct unreasonably interferes with the employee's job performance.Le Blanc, 214 F. Supp.2d at 1332.
The factual averments made by Pumpido in both his affidavit and deposition show a relationship between the negative comments about his work performance and his age. In the context of critiquing his work, Principal Montoya and Vice Principal Rizo have told Pumpido he is too old for the work and have suggested to him retirement. Pumpido maintains he suffered a nervous breakdown and has sought medical attention because of the stress associated with the negative remarks coupled with hints about his age.
In evaluating hostile work environment claims, courts are to "determine whether an environment is sufficiently hostile or abusive by `looking at all the circumstances,'" including the four factors noted above. Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23(1993)). Without references to his advanced age, the criticisms Pumpido complains of would be insufficient to trigger a hostile work environment claim predicated on age discrimination. Cf. LeBlanc, 214 F. Supp.2d at 1332 (finding that Plaintiff did not establish that harassment was based on a protected characteristic). However, on occasion the critiques went in tandem with remarks about his age and suggested retirement, and thus were more than isolated, and were perceived by Pumpido as humiliating.
It is well established that on a motion for judgment as a matter of law if there is "evidence of such quality and weight that reasonable and fair-minded [persons] in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury. . . . It is the function of the jury as the traditional finder of facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses." Watts v. Great Atl. Pac. Tea Co., 842 F.2d 307, 309-10 (11th Cir. 1988) (citations omitted) (emphasis in original). Material factual issues exist, therefore, precluding summary judgment on the hostile work environment claim.
D. Statute of Limitations Defense is Precluded by Factual Dispute
Defendant correctly observes that under the ADEA, a charge must be filed within 300 days after the "alleged unlawful practice has occurred." Roy v. Amoco Oil Co., 747 F. Supp. 661, 665 (S.D. Fla. 1990). The initial "discrimination" occurred in June, 2000. The next allegedly discriminatory acts are undisputed to have occurred starting on February 7, 2001. Pumpido filed his EEOC charge on May 17, 2002. The claim would thus appear to be time-barred.
Plaintiff, however, relies on the exception recognized in Beavers v. American Cast Iron Pipe Co., 975 F.2d 792, 798 (11th Cir. 1992), that continuing violations may toll the commencement of the limitations period. Whether the acts which create a hostile work environment are continuous acts, rather than separate incidents to which a time bar may be applied, constitute factual disputes which preclude the entry of summary judgment on this ground.
IV. CONCLUSION
For the foregoing reasons, it is
ORDERED AND ADJUDGED as follows
1. Defendant's Motion ( D.E. 13) is GRANTED IN PART with respect to Plaintiff's claim of Age Discrimination. Summary Judgment is denied with respect to Plaintiff's claim for hostile work environment.
2. Defendant's Motion to Strike ( D.E. 27) is GRANTED IN PART. The undersigned has only considered those portions of Pumpido's Affidavit which are not inadmissible as hearsay. Paragraphs 6-10 and 16-19 of the Affidavit are stricken. See, e.g. Gaston, 129 F. Supp.2d at 1361 (court may strike inadmissible portions of affidavit and admit the rest).
3. This case is reset for the two-week trial period commencing December 15, 2003. The parties shall appear for Calendar Call on December 9, 2003, at 9:00 a.m.,
DONE AND ORDERED.