        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                              ELLIOT YARO,
                                Appellant,

                                      v.

               SCOTT J. ISRAEL, in his official capacity as
                      Sheriff of Broward County,
                                Appellee.

                               No. 4D17-928

                            [February 14, 2018]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; David A. Haimes, Judge; L.T. Case No. CACE15-001267
(08).

   G. Ware Cornell, Jr. of Cornell & Associates, P.A., Weston, for appellant.

   Carmen Rodriguez of the Law Offices of Carmen Rodriguez, P.A.,
Palmetto Bay, for appellee.

WARNER, J.

   Appellant sued the Broward County Sheriff for disability and age
discrimination after he was demoted from his position as a child protective
investigator with the Sheriff’s office. The trial court granted summary
judgment in favor of the sheriff on both claims. While we agree that
summary judgment on appellant’s disability discrimination claim was
correct based upon the deposition testimony of appellant which
contradicted the allegations of his complaint, we reverse the summary
judgment on appellant’s age discrimination claim.

   We review a trial court’s grant of summary judgment de novo. Soncoast
Cmty. Church of Boca Raton, Inc. v. Travis Boating Ctr. of Fla., Inc., 981 So.
2d 654, 655 (Fla. 4th DCA 2008).

      [A] party moving for summary judgment must show
      conclusively the absence of any genuine issue of material fact,
      and the court must draw every possible inference in favor of
      the party against whom a summary judgment is sought. A
      summary judgment should not be granted unless the facts are
      so crystalized that nothing remains but questions of law.

Id. (quoting Craven v. TRG-Boynton Beach, Ltd., 925 So. 2d 476, 479-80
(Fla. 4th DCA 2006)). “Summary judgment is proper if there is no genuine
issue of material fact and if the moving party is entitled to a judgment as
a matter of law.” Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.
2d 126, 130 (Fla. 2000).

    For a case of age discrimination, the plaintiff must first make a showing
of discriminatory treatment. He or she does that by proving: 1) the plaintiff
is a member of a protected class, i.e., at least forty years of age; 2) the
plaintiff is otherwise qualified for the position; 3) the plaintiff was
discharged (or demoted) from the position; and 4) the position was filled
by a person who was substantially younger than the plaintiff. Reeves v.
Sanderson Plumbing Prod., Inc., 530 U.S. 133, 142 (2000); City of
Hollywood v. Hogan, 986 So. 2d 634, 641 (Fla. 4th DCA 2008). This may
also be accomplished by showing direct evidence of discrimination such
as a discriminatory statement by the decision-maker. Damon v. Fleming
Supermarkets of Fla., Inc., 196 F.3d 1354, 1359 (11th Cir.1999).

   Once a plaintiff establishes a prima facie case, there is a rebuttable
presumption of unlawful discrimination. Lin v. Demings, 219 So. 3d 124,
125 (Fla. 5th DCA 2017). The burden of production then shifts “to the
employer to produce a legitimate nondiscriminatory reason for the adverse
employment action.” Id. If the employer does so, then to survive summary
judgment the employee must demonstrate that there is a genuine issue of
material fact that the employer’s nondiscriminatory reasons were
pretextual. Id. In short, the plaintiff must present evidence that the
employer’s nondiscriminatory “reasons articulated were false and that the
discrimination was the real reason for the defendant’s actions.” See City
of Miami v. Hervis, 65 So. 3d 1110, 1117 (Fla. 3d DCA 2011) (emphasis in
original). “[I]f the record raises even the slightest doubt that an issue might
exist, that doubt must be resolved against the moving party and summary
judgment must be denied.” Lin, 219 So. 3d at 125.

   In this case, appellant’s complaint alleged the necessary elements of
age discrimination. He was sixty-two years old and qualified for his
position; the BSO discharged him; and younger persons were hired to fill
his position. A rebuttable presumption of age discrimination arose. BSO
then proffered a legitimate nondiscriminatory reason for his discharge.
BSO first pointed to his unfitness for the job based upon doctor’s
examinations. However, BSO required him to attend four different
examinations before one doctor concluded he was unfit as a precautionary


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measure, from which it could be inferred that BSO was searching for a
reason to let him go. In this litigation, BSO relied on poor work
performance as a reason for their action, although this was never raised
at the time of his demotion. Even assuming these were legitimate non-
discriminatory reasons for his discharge, appellant offered evidence that
they were pretextual. He testified that a BSO Major told him that BSO had
to demote him to use his salary to pay new child protective investigators.
Appellant also testified that other older employees’ positions were filled by
a new, younger group of investigators.

    Because this evidence raised at least a slight doubt as to the reason for
appellant’s demotion, the court erred in granting summary judgment on
the age discrimination claim. See Lin, 219 So. 3d at 125. We, therefore,
affirm the dismissal of the disability discrimination claim, but reverse
summary judgment on the age discrimination claim.

   Affirmed in part; reversed in part and remanded for further proceedings.

TAYLOR and DAMOORGIAN, JJ., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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