           Case: 14-10582   Date Filed: 02/19/2015   Page: 1 of 5


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-10582
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 0:12-cv-61933-RSR


BRUCE AYALA,

                                                              Plaintiff-Appellant,

                                  versus

SHERIFF, BROWARD COUNTY FLORIDA,
Al Lambert in his official capacity,

                                                          Defendant-Appellee.

                      ________________________

               Appeal from the United States District court
                  for the Southern District of Florida
                     ________________________

                            (February 19, 2015)

Before WILSON, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
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      Bruce Ayala appeals the grant of summary judgment for his former

employer, the Sheriff of Broward County, Florida. Ayala brought suit under the

Age Discrimination in Employment Act, 29 U.S.C. § 621, and the Florida Civil

Rights Act of 1992 (FCRA), Fla. Stat. Ann. § 760.01. Ayala averred that the

Sheriff eliminated his position in the crime lab as part of a reduction in force (RIF)

based on his age. The district court concluded that Ayala failed to establish a

prima facie case of age discrimination because he did not show that he was

qualified for another available position at the time of the RIF. Ayala contends this

was error, because he was qualified to assume two other positions: one held by

Deborah Friedman, a younger employee whom the Sheriff retained, and a vacant

position. After a thorough review of the record, we affirm.

      We review de novo the grant of summary judgment, viewing the evidence in

the light most favorable to the nonmoving party. Castleberry v. Goldome Credit

Corp., 408 F.3d 773, 785 (11th Cir. 2005). Summary judgment is appropriate “if

the movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

      The ADEA forbids discharging an employee who is at least 40 years of age

“because of” the employee’s age. See 29 U.S.C. §§ 623(a)(1), 631(a). To prevail

on an age-discrimination claim, “[a] plaintiff must prove by a preponderance of the

evidence (which may be direct or circumstantial), that age was the ‘but-for’ cause


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of the challenged employer decision.” Gross v. FBL Fin. Servs., Inc., 557 U.S.

167, 177–78, 129 S. Ct. 2343, 2351 (2009). The FCRA makes it unlawful to

“discharge or to fail or refuse to hire any individual . . . because of” that

individual’s age. Fla. Stat. Ann. § 760.10(1)(a). “Age discrimination claims

brought under the Florida Civil Rights Act have been considered within the same

framework used to decide actions brought pursuant to the ADEA.” Zaben v. Air

Prods. & Chems., Inc., 129 F.3d 1453, 1455 n.2 (11th Cir. 1997) (per curiam).

      Where, as here, a plaintiff seeks to establish age discrimination through

circumstantial evidence, the district court uses the burden-shifting framework

established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817

(1973). See Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir. 2000) (en

banc). Under this framework, if a plaintiff establishes a prima facie case of

discrimination, the defendant must articulate a legitimate, nondiscriminatory

reason for its employment decision; in response, the plaintiff is afforded an

opportunity to show that the reason is a pretext for discrimination. Id.; McDonnell

Douglas, 411 U.S. at 804, 93 S. Ct. at 1825.

      A plaintiff may establish a prima facie case of age discrimination in the RIF

context by showing that: (1) he was in a protected age group and was adversely

affected by an employment decision; (2) he was qualified for his current position

or to assume another available position at the time of discharge; and (3) the


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evidence could lead a factfinder reasonably to conclude that the employer intended

to discriminate on the basis of age. Smith v. J. Smith Lanier & Co., 352 F.3d

1342, 1344 (11th Cir. 2003) (per curiam). Here, the district court did not err in

holding that Ayala failed to establish a prima facie case of age discrimination.

Ayala did not show the second element of the prima facie case—that he was

qualified to assume another available position at the time of his discharge. 1

       The ADEA “does not mandate that employers establish an interdepartmental

transfer program during the course of an RIF, or impose any added burden on

employers to transfer or rehire laid-off workers in the protected age group as a

matter of course.” Id. (alteration adopted) (citation omitted). The Act “simply

provides that a discharged employee who applies for a job for which she is

qualified and which is available at the time of her termination must be considered

for that job along with all other candidates, and cannot be denied the position based

upon her age.” Id. at 1344–45 (quotation omitted). “Nothing in the ADEA

requires that younger employees be fired so that employees in the protected age

group can be hired.” Earley, 907 F.2d at 1083 (alteration adopted) (citation

omitted).


1
 Showing that he was qualified for his current position would not satisfy this element. “Where a
particular job position is entirely eliminated for nondiscriminatory reasons, for plaintiff to prevail
against his employer he must show that he was qualified for another available job with that
employer; qualification for his current position is not enough.” Earley v. Champion Int’l Corp.,
907 F.2d 1077, 1082–83 (11th Cir. 1990).

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      Ayala points to two positions, but neither satisfies the second element of the

prima facie case: one position was unavailable, and he did not apply for the other.

Friedman took her job in 2009, before Ayala’s termination in 2010. So that

position was not available to Ayala. And Ayala admitted that he did not apply for

the vacant position. See Smith, 352 F.3d at 1345 (discussing an employee’s

“obligation to actually apply for a specific position”). Ayala did not show that he

was qualified for another available position at the time he was discharged, so the

district court properly held that he did not show a prima facie case of age

discrimination.

      AFFIRMED.




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