MIAMI DADE CO v. MANSOUR EGHBAL
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Third District Court of Appeal
State of Florida, July Term, A.D. 2010
Opinion filed January 5, 2011.
Not final until disposition of timely filed motion for rehearing.
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Nos. 3D10-1596 & 3D09-3520
Lower Tribunal No. 05-13257
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Miami-Dade County,
Appellant,
vs.
Mansour Eghbal,
Appellee.
Appeals from the Circuit Court for Miami-Dade County, Barbara Areces,
Judge.
R.A. Cuevas, Jr., Miami-Dade County Attorney, and William X. Candela,
Assistant County Attorney, for appellant.
Gary A. Costales, for appellee.
Before GERSTEN and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
PER CURIAM.
Miami-Dade County (“the County”) appeals the trial court’s order denying
the County’s motion for directed verdict and for judgment notwithstanding the
verdict (“the motion”), and final judgment on age discrimination and retaliation
claims. We affirm.
Mansour Eghbal (“Eghbal”), a sixty-nine-year-old County employee,
applied for a promotion four times, but the County did not promote him.
Thereafter, Eghbal sued for age discrimination and retaliation under the Florida
Civil Rights Act (“the FCRA”), sections 760.01-760.11 and 509.902, Florida
Statutes, claiming the County failed to select him for a promotion because of his
age and because he filed an Equal Employment Opportunity Commission
(“EEOC”) complaint.
At trial, the jury found age discrimination in one of the four promotion
applications and retaliation in another promotion application. The County moved
for directed verdict and for judgment notwithstanding the verdict. The trial court
denied the motion. Thereafter, the trial court entered a final judgment in Eghbal’s
favor on the two claims. The County appealed.
On appeal, the County contends that the trial court erred in denying its
motion because Eghbal did not establish a prima facie case of age discrimination
and retaliation. Eghbal asserts that the trial court did not err in denying the motion
because it presented a prima facie case of age discrimination and retaliation for a
jury determination. We agree with Eghbal.
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The standard of review on appeal of the trial court’s ruling on a motion for
directed verdict and for judgment notwithstanding the verdict is de novo. See
Martin Cnty. v. Polivka Paving, Inc., 44 So. 3d 126 (Fla. 4th DCA 2010). An
appellate court must evaluate the evidence in the light most favorable to the nonmoving party, drawing every reasonable inference flowing from the evidence in
the non-moving party’s favor. See Floyd v. Video Barn, Inc., 538 So. 2d 1322
(Fla. 1st DCA 1989). If there is conflicting evidence or if different reasonable
inferences may be drawn from the evidence, then the issue is factual and should be
submitted to the jury for resolution. See Blizzard v. Appliance Direct, Inc., 16 So.
3d 922, 925 (Fla. 5th DCA 2009).
To establish a prima facie case of age discrimination, Eghbal had to prove
that: (1) he was a member of a protected class, i.e., at least forty years of age; (2)
he was otherwise qualified for the positions sought; (3) he was rejected for the
position; and (4) the position was filled by a worker who was substantially younger
than the plaintiff.
Here, Eghbal proved that: (1) he was sixty-nine years old; (2) he was
qualified for the position sought; (3) he was rejected for the position, and (4) the
position was filled by a substantially younger worker. Therefore, because Eghbal
proved a prima facie case of age discrimination, the trial court properly denied the
motion.
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Next, turning to retaliation under the FCRA, an employee must demonstrate:
(1) that he or she engaged in statutorily protected activity, (2) that he or she
suffered adverse employment action, and (3) that the adverse employment action
was causally related to the protected activity. Blizzard, 16 So. 3d at 926.
Here, there was evidence to prove retaliation, to-wit, (1) Eghbal was
engaged in a statutorily protected activity, filing the EEOC charges; (2) Eghbal’s
adverse employment action was that he was denied the promotion; and (3) causal
relation was established when Eghbal testified that the promotion decision makers
knew of his lawsuit because “when something happens like that this, my case, it
spreads around immediately in the County.” This became apparent when one of
the promotion decision makers stated in his notes that Eghbal thought he was,
“extremely unfairly treated with county.” Therefore, since there was evidence
concerning the retaliation, the trial court correctly denied the motion and allowed
the jury to make the factual determination.
Accordingly, we affirm the trial court’s order denying the County’s motion
and the final judgment.
Affirmed.
GERSTEN and SUAREZ, JJ., concur.
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Miami-Dade County v. Mansouf Eghbal
Case Nos.: 3D10-1596 & 09-3520
SCHWARTZ, Senior Judge (dissenting).
I do not believe the evidence is sufficient to demonstrate an indispensible
element of a retaliation claim: that is, that the decision makers actually knew of the
employee’s complaint so that their adverse action could have been causally related
to that protected activity. See Gibbons v. State Pub. Emps. Relations Comm’n,
702 So. 2d 536, 537 (Fla. 2d DCA 1997) (“The plaintiff, at a minimum, must
establish that the employer was aware of the protected expression when it took the
adverse employment action.”); see also Johnson v. State of Florida, Dep’t of Elder
Affairs, 2010 WL 1328995, 2 (N.D.Fla. 2010) (“A court will not presume that a
decisionmaker was motivated to retaliate by something unknown to him or her.”);
Brown v. Sybase, Inc., 287 F.Supp.2d 1330, 1347 (S.D.Fla. 2003).
In this regard, it is undisputed that (a) Eghbal never told any of the three
panel members, either specifically or impliedly, that he had made such a complaint
and (b) two of the three stated, in unimpeached and uncontradicted testimony, that
they were not aware of it. We have previously held that mere circumstantial
evidence cannot overcome uncontradicted direct evidence to the contrary. See
Alan & Alan, Inc. v. Gulfstream Car Wash, Inc., 385 So. 2d 121, 123 (Fla. 3d
DCA 1980) (“[A] fact cannot be established by circumstantial evidence which is
perfectly consistent with direct, uncontradicted, reasonable and unimpeached
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testimony that the fact does not exist.”). This rule is applicable in spades to this
case in which the only even circumstantial evidence to which Eghbal and the
majority can point approaches if it does not reach the non-existent:
1. The panelist’s note that Eghbal considered himself “unfairly treated” by
the County is a wildly uncertain observation which does not speak to the existence
of a prior complaint at all and indeed more clearly referred to the claim of age
discrimination which he had insisted upon but was rejected by the jury.
2. Eghbal’s statement that “when something happens like this, my case, it
spreads around immediately in the County. . .[a]nd almost everybody knows about
it” is likewise too speculative to warrant any consideration.
Simply put, a
statement that everyone must know something is no evidence that anyone in
particular actually does. see also Morris v. New York Dep’t of Correctional
Servs., No. 91-CV-634, 1995 WL 21647, at 9-10 (N.D.N.Y. Jan.17, 1995) (claim
that plaintiff's support of co-worker's discrimination claim was “common
knowledge” insufficient to prove defendant's knowledge of protected activity);
Long v. AT & T Information Systems, Inc., 733 F.Supp. 188, 205, 205 (S.D.N.Y.
1990) (claim that retaliating employees knew of protected activity from
“familiarity with office gossip” insufficient to create an issue of fact as to their
knowledge)); Hayden v. Atlanta Newspapers, 534 F.Supp. 1166 (N.D.Ga. 1982)
(summary judgment granted where plaintiff merely alleged that it was logical to
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assume that person who took adverse action had knowledge of protected activity);
see generally Russell v. KSL Hotel Corp., 887 So. 2d 372, 379 (Fla. 3d DCA
2004) (“the plaintiff must show a defendant's awareness with more evidence than
mere curious timing coupled with speculative possibilities”).
These items, taken individually or collectively, did not justify the verdict and
judgment below. See Alan & Alan, Inc., 385 So. 2d at 123.
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