Gloetzner v. Lynch (225 F. Supp. 3d 1329, 2016)

ORDER

ANNE C. CONWAY, United States District Judge

This cause comes before the Court on the Motion for Summary Judgment of Defendant Loretta Lynch as Attorney General in her official capacity (Doc. 46), filed on May 18, 2016, to which Plaintiff Michael Gloetzner, filed a Response (Doc. 58), and Defendant has filed a Reply (Doc. 54). After careful consideration of the matter, the Court finds Defendant’s Motion for Summary Judgment (Doc. 46) is due to be GRANTED.

I. BACKGROUND

Plaintiff is currently a Deputy Marshal with the United States Marshals Service (the “Marshals Service” or “Defendant”), where he has been serving as a Deputy Marshal since January 1992. Doe. 50-1 (Gloetzner Dep.) at 6-7; Doc. 48-10 (Glo-etzner Aff.) ¶ 3; Doc. 46-Ex. C at 87. Plaintiff was born in 1966, and was 45 years old at the time he initiated an internal (Equal Employment Opportunity (“EEO”) complaint by seeking counseling from the Marshals Service’s internal EEO Office in June 2012. Doc. 50-1 at 6-7; Doc. 48-10 ¶ 2.

From 2003 through September of 2014, Plaintiff was assigned to the Marshals Service in the Tallahassee Office of the Northern District of Florida (the “Tallahassee Office”). Doc. 48-10 ¶ 3. Prior to transferring to Tallahassee in 2003, Plaintiff had served as a Deputy Marshal in the Southern District of Florida for approximately fourteen years. Doc. 48-10 ¶4. Plaintiff was transferred to the Tallahassee Office in 2003 “against his will” after he received a credible death threat. Doc. 46-Ex. K at 317, 462. Since September 2014, Plaintiff has been assigned to the Marshals Service in the Southern District of New York. Doc. 1 at 6.

Plaintiffs age-related discrimination claims in this case arise out of treatment that occurred between 2012 and 2014 while he was assigned to the Tallahassee Office. Id. During the relevant time period, Plaintiffs direct supervisor in the Tallahassee Office was Supervisory Deputy U.S. Marshal Scott Wilson (born 1971), whose supervisor was Assistant Chief Deputy U.S. Marshal Kelly York (born 1956); York reported to the Chief Deputy United States Marshal Brian Nerney (born 1966) who in turn reported to the United States Marshal Edward Spooner (born 1950). Doc. 46-Ex. A, 220, 234, 248, 269.

In early June 2012, Plaintiff told Assistant Chief Deputy York that he would “really like to go” to training to become a firearms instructor and to fitness training to become a fitness coordinator who would administer fitness evaluations for the office. Doc. 48-10 ¶¶ 9, 11; Doc. 50-1 at 32. Assistant Chief Deputy York asked Plaintiff to “let him know where it was and how much it costs.” Doc. 50-1 at 32.

When Plaintiff asked Supervisory Deputy Wilson on June 19, 2012 for some leave to go to this training, Wilson told Plaintiff that he could not give Plaintiff the leave to attend the training because he was sending two other deputies: Josh Lowery to firearms training and Kerry Phillips to fitness training. Doc. 50-1 at 32-33. According to Plaintiff, when he asked, “[W]hy, I mean I have use or lose [annual leave]?” Supervisory Deputy Wilson replied: “I’m sending Josh [Lowery] to firearms school and Kerry [Phillips] to [fitness instructor] school.” Id. at 32-33. Plaintiff asked, “[E]xcuse me?” to which Wilson replied, “I’m sending them.” Id. at 33. Plaintiff said, “[B]ut you know that I’m the senior guy and I’ve been requesting that forever.” Id. Wilson responded that he wanted to send a newer, younger deputy: “You’re not going to be around for the next twenty years and Josh [Lowery] is ... [I]t’s a cost-effective decision.” Doc. 50-1 at 33; Doc. 48-10, ¶ 9 (“Mr. Wilson told me that he could not send me to firearms instructor school, despite my repeated requests to attend, because he wanted to send a younger deputy who would be around for the next twenty years, unlike me, who was older.”). Deputy Lowery, who attended the firearms training in July 2012 instead of Plaintiff, is now a firearms instructor for the Tallahassee Office. Doc.48-8 at 20; Doc. 48-12 at 36.

Despite Plaintiffs request to attend fitness instructor training, Deputy Kerry Phillips was selected to attend fitness instructor training instead. Assistant Chief Deputy York made the decision to send Deputy Phillips to the fitness instructor training; he did not consider anyone else for the training. Doc. 48-14 (York Dep.) at 41-42. Supervisory Deputy Wilson subsequently assigned Deputy Phillips to an out of town judicial detail in Naples, Florida; Wilson stated to Plaintiff that he assigned Phillips specifically because he is a younger, newer deputy. Doc. 48-10 ¶ 11. Assistant Chief Deputy York subsequently told Plaintiff (after York became aware that Plaintiff had filed an EEO complaint) that he (York) was the one who made the decision to send the younger deputy to training because Wilson had advised York that it would be better to send the newer, younger deputies. Doc. 48-10 ¶ 13.

Plaintiff sought counseling regarding alleged age discrimination from the internal Marshals Service EEO office on June 29, 2012; an EEO counselor was assigned to review Plaintiffs claims on July 3, 2012. Doc. 48-10 ¶ 12; Doc. 46-Ex. A at 63. The firearms instructor training program that Plaintiff had sought to attend took place from July 16, 2012 to July 27, 2012 at the Federal Law Enforcement Training Center in Glynco, Georgia. Doc. 46-Ex. L at 3-6. Plaintiff was on annual leave on July 23, 2012 through July 27, 2012. Doc. 46-Ex. C at 60.

Plaintiff was under investigation by the Marshals Service Office of Internal Affairs from July 5, 2012 through July 30, 2012 for false statements made in connection with three incidents in June 2012. Id.; Doc. 46-Ex. J at 866-60. Plaintiff was referred to Internal Affairs because on June 12 through 18, 2012 he was scheduled to work an operation in Panama City (about a two-hour drive from the Tallahassee Office); although he scheduled extra travel time, he did not attend the June 12 briefing and did not request leave, but his timesheet showed a full eight hour day, and he cost the district an extra expense when he missed the briefing. Id. at 860-61. He was also referred for his misleading statements regarding why he was reviewing video of another deputy in the eellblock (discussed in more detail below), and for reportedly providing conflicting information about destruction of the fleet management gas credit card assigned to his government vehicle. Id. After a review of the allegations, Internal Affairs determined that the matters were best addressed by district management. Id. at 856-67.

As a result of a separate district investigation, on July 27, 2012, Assistant Chief Deputy York issued a letter to Plaintiff proposing a five-day suspension for Plaintiffs failure to follow procedures in apprehending a fugitive three months before, on April 19, 2012. Doc. 46-Ex. I at 30-32; Doc. 46-Ex. M at 64-59. Marshal Spooner issued his final decision on the matter on September 10, 2012, requiring that Plaintiff be suspended for five days. Doc. 46-Ex. A at 189; Doc. 46-Ex. I at 30-32; Doc. 48-10 ¶21. Two days later, the management in the Tallahassee Office first learned that Plaintiff had contacted the Marshals Service EEO office in Washington, D.C. when an EEO investigator contacted by phone Supervisory Deputy Wilson and Chief Deputy Nerney on September 12, 2012. Doc. 46-Ex. A at 58, 189, 223, 237, 251; Doc. 46-Ex. M at 31-37. On September 17, 2012, the EEO Office notified Plaintiff of his right to file a formal complaint. Doc. 46-Ex. M at 2 ¶ 7. On October 3, 2012, Plaintiff filed his formal discrimination complaint with the Marshals Service EEO Office within the Department of Justice. Doc. 50-1 at 65. According to Plaintiff, at some point after this, Assistant Chief Deputy York asked Plaintiff whether he had a “666” under the band-aid on his forehead. Doc. 48-10 ¶ 18.

During the Marshals Service’s internal EEO investigation, Plaintiff alleged that he had been “harassed” by Marshals Service personnel since moving to the Northern District of Florida in 2003. Doc. 46-Ex. G at 119-21. Plaintiff testified that he had been disciplined on several occasions between 2005 and June 2012, but, he contends, these were based on “false” or “unfounded” allegations having to do with his ex-wife. Doc. 46-Ex. P at 98-100. Plaintiff received performance evaluations of “successful” or “excellent” in 2010, 2011, and 2012. Doc. 48-1 to 48-8.

On December 12, 2005, Plaintiff received a letter of instruction for misconduct in the use of unnecessary force against a fugitive and threatening a witness based on an incident on January 14, 2004. Doc. 46-Ex. M at 39-40; Doc. 46-Ex. I at 2-7. On November 2, 2005, Plaintiff was suspended for one day for misconduct and misuse of office based on allegations that Plaintiff used his official position to pressure local police to serve a restraining order on his ex-wife (who simultaneously sought one against him) and allegations that Plaintiff threatened the local police officer to immediately serve the restraining order on her. Doc. 46-Ex. M at 42-44; Doc. 46-Ex. I at 64-66; Doc. 48-10 ¶ 5. From February 25, 2008 to March 15, 2008, Plaintiff was suspended for fourteen days for conduct unbecoming a deputy marshal when he misrepresented himself as his ex-wife on three occasions to gain access to her personal accounts and subsequently threatened her boyfriend. Doc. 46-Ex. M at 46-47; Doc. 46-Ex. I at 8-15. Plaintiff characterizes the latter two incidents as “solely related to the unfortunate and extremely hostile situation” surrounding his contentious divorce and custody battle. Doc. 48-10 ¶¶ 5-6.

From March 26 to March 28, 2012, Plaintiff was suspended for three days, by letter dated February 27, 2012, for failure to follow orders and a verbal altercation with another Deputy Marshal (Marty West), arising out of the handling of evidence (on August 5, September 27, and October 31, 2010) which Plaintiff believed had not been weighed or properly marked. Doc. 46-Ex. M at 49-52; Doc. 46-Ex. I at 16-22; Doc. 48-10 ¶7; Doc. 48-16 (Ner-ney Dep.) at 34.

Plaintiff has also been the subject of at least nine Marshals Service Internal Affairs investigations from 1999 through mid-2012 for: use of unnecessary and excessive force on a fugitive (February 2004); unprofessional conduct (January 2004); issues with a confidential informant (August 2004); conduct unbecoming a deputy marshal related to the service of the restraining order against his ex-wife and his request to the local officer to change his report about their interaction (December 2004); conduct unbecoming a deputy regarding alleged threats to his ex-wife’s boyfriend (July 2005); investigation into allegations of stealing a credit card from his ex-wife (November 2007); conduct unbecoming a deputy based on an incident with Deputy West (January 2011); failure to follow proper procedures for apprehending a fugitive (May 2012); and missing an operational briefing, causing an extra travel expense to the district, falsifying time and attendance sheet, and slandering district management (July 2012). Doc. 46-Ex. J at 1-1603 (Bates No. USMS001930-3532).

Following Plaintiffs filing of his formal EEO complaint with the Marshals Service on October 3, 2012, Plaintiff continued to receive corrective instructions and discipline while in the Tallahassee Office, some of which arose out of his conduct that occurred months prior to his June 29, 2012 EEO counseling and his October 3, 2012 formal EEO complaint.

Plaintiff was not allowed to attend any trainings and was not assigned to any out of town details between December 2012 and February 15, 2013. Doc. 48-10 ¶28. Specifically, Supervisory Deputy Wilson prevented Plaintiff from attending sex offender training on November 6, 2012, and declined to send Plaintiff to an out of town detail on November 29, 2012 even though he was next in line; Wilson sent a younger deputy instead. Doc. 48-10 ¶¶ 26-27; Doc. 48-17 (Kilgore Dep.) at 38. Chief Deputy Nerney also refused to assign Plaintiff to a security detail for Attorney General Holder. Doc. 48-10 ¶ 32. Wilson told Plaintiff that policy prevented such assignments while a deputy is under investigation, and that Internal Affairs forbid any training or out of town details; Plaintiff was assigned more office work while restricted to in-office duty. Id.) Doc. 50-1 at 44-45.

On January 29, 2013, Plaintiff received a letter of instruction (issued by Chief Investigator David Sligh) for Plaintiffs failure to maintain and secure his Marshals Service badge and credentials on October 23, 2012. Doc. 46-Ex. A at 322-28 (Sligh Aft); Doc. 46-Ex. A at 426-37; Doc. 48-10 ¶ 30. The credentials have numbers, issued by the agency, that are unique and specific to each employee and are considered very sensitive government-issued items; Plaintiffs failure to properly secure them was in direct violation of Marshals Service policy directives and standards of conduct based on a concern that they could be used for gaining access to a federal courthouse or other federal facilities and/or in the commission of a crime. Doc. 46-Ex. A at 326.

Plaintiff was issued a suspension on February 11, 2013 by United States Marshals Service Chief Inspector Cathy Jones for an incident that occurred eight months prior on June 19, 2012. Doc. 46-Ex. I at 34-42; Doc. 50-1 at 128-33; Doc. 48-10 ¶ 31. Chief Inspector John Whiteloek investigated the allegations against Plaintiff and recommended Plaintiff be suspended for fourteen days for displaying poor judgment and making a misleading statement regarding another deputy. Doc. 46-Ex. A at 299. Plaintiff had told Assistant Chief Deputy York that he saw Deputy Marshal Paul Joanos enter the cell block with a knife in his pocket on June 19, 2012. Doc. 50-1 at 128-33; Doc. 48-10 ¶31. York decided not to refer the allegation against Deputy Joanos for an internal affairs investigation because there was not a formal allegation, and it was a management decision to handle it within the district. Id.) Doc. 48-Ex. 14 at 59.

However, on August 1, 2012, Office of Internal Affairs referred the allegations against Plaintiff for his actions following the June 19, 2012 incident to the Northern District of Florida for review; management at the Tallahassee Office chose Alon-da Guilbeau, Judicial Security Inspector, from the Western District of Louisiana to serve as the fact-finder, and she conducted a review of the allegations. Doc. 46-Ex. A at 299-306. Chief Inspector Whitelock, the Marshals Service Proposing Official for the incident, found that Plaintiff “displayed poor judgment when [he] conducted a personal investigation into the alleged misconduct” of Deputy Joanos. Id. A Court Security Officer (“CSO”) stated in a sworn interview that dui'ing the week of June Ills, 2012 Plaintiff had asked him to review the recorded video of the Tallahassee cell-block to determine if Deputy Joanos had possessed a pocket knife while he was handling a prisoner in the cellblock on June 7, 2012. Id. at 300. The evidence indicated that on June 19, 2012 Plaintiff approached the CSO to see what he had found on the video recordings, but because the CSO was uncomfortable “pitting one deputy against another,” he showed Plaintiff how to retrieve the data himself. Id. When Supervisory Deputy Wilson observed Plaintiff reviewing the video and inquired about the reason, Plaintiff told him it was regarding some missing prisoner money; the CSO subsequently indicated that Plaintiff had not mentioned to him anything about reviewing the video for missing property, only whether Deputy Joanos had a knife in the cellblock. Id.

Chief Inspector Whitelock determined that Plaintiff exceeded his responsibility and “took matters into [his] own hands” by investigating the matter on his own “because [he] was dissatisfied with what [he] perceived to be no action on [his] complaint [against Joanos] by district management.” Id. “[Misconduct investigations are conducted by the Office of Internal Affairs or designated to district or division management—and not to the complaining employee who is dissatisfied with the outcome of his complaint.” Id. at 301.Chief Inspector Whitelock also determined that Plaintiff made a misleading statement to Supervisory Deputy Wilson when he said he was viewing the video because there was an issue regarding missing prisoner money. Id. On February 11, 2013, Chief Inspector Cathy Jones reviewed Whitelock’s November 5, 2012 findings and proposed discipline of Plaintiff, and agreed that Plaintiff should be suspended without pay, but reduced the length of the suspension to a ten day suspension (from fourteen days), scheduled for March 6-15, 2013. Doc. 46-Ex. I at 37-39. Both Jones and Whitelock are employed at USMS Headquarters; neither is part of the management in the Northern District of Florida, and neither has any supervisory authority over Plaintiff. Doc. 46-Ex. M at 62-64.

After Plaintiffs reporting of the allegations of misconduct by Deputy Joanos, Supervisory Deputy Wilson denied Plaintiff the opportunity to act as the acting supervisor deputy marshal “because of the situation” Plaintiff was in; Wilson told Plaintiff that he “could not let [him] do it.” Doc. 50-1 at 85-86; Doc. 48-10 ¶ 31.

On October 21, 2013, Plaintiff was issued a letter of instruction by United States Marshal Service Chief Inspector Cathy Jones arising out of an incident on August 3, 2012, when Plaintiff rode in the front seat of the transport vehicle (against procedure) while providing security during the movement of a prisoner named Holli Prather. Doc. 46-Ex I at 43-50. During a courtroom appearance, Prather had become physically upset and Deputy Lowery claimed that she hit him; Plaintiff calmed Prather down and escorted her back to her cell, and subsequently transported her to the facility in Panama City, Florida in a government vehicle with Deputy Kilgore. Doc. 48-10 ¶¶ 23-24. The Deciding Official, Chief Inspector Cathy Jones, reduced the proposed five-day suspension (from Chief Inspector Whitelock) to a letter of instruction based on mitigating factors which included Assistant Chief Deputy York’s statement that he felt Plaintiffs decision to ride in the front seat with the agitated prisoner in back “was a prudent decision.” Id. at 48-49. The resulting letter of instruction was not placed in Plaintiffs Official Personnel Folder. Id,

Plaintiffs internal EEO case proceeded and, on December 17, 2013, Plaintiff requested a hearing before an EEOC administrative judge. Doc. 50, Ex. G, 41. On February 10, 2014, several of the other operational deputies sent a letter to the Marshals Service Headquarters expressing their concerns about Plaintiff trying to intimidate them and their fear for the personal safety in the workplace. Doc. 48-14 at 12-15; Doc. 46-Ex. H at 5; Doc. 46-Ex. K at 432-37. On February 24, 2014, USMS Headquarters assigned Jim Thompson, United States Marshal for the District of Utah, and Mike Claxton, Marshals Service Chief Inspector, to conduct an on-site office assessment of the Northern District of Florida Tallahassee office (“Tallahassee Office Assessment”) in response to the ongoing personnel issues in the Tallahassee Office and the letter drafted by Plaintiffs fellow deputies. Doc. 46-Ex. H at 1-12. Neither Thompson nor Claxton has any supervisory authority over Plaintiff, and neither has worked in the Northern District of Florida or Tallahassee Office at any time. Doc. 46-Ex. H at 1-12. The Tallahassee Office Assessment dated April 18,2014 stated:

DUSM Gloetzner should not remain in the USMS [Northern District of Florida] Tallahassee office. DUSM Gloetzner, district management and many of the staff express similar conclusions. The lack of confidence and trust between DUSM Gloetzner, the Deputies and management is damaged beyond repair. The positions of the parties are at such an impasse that the viability of working together is not feasible.... DUSM Glo-etzner shows significant signs of stress and should be evaluated by a mental competency exam to determine if he is able to fully perform the duties of a DUSM. DUSM Gloetzner indicated he cannot sleep or eat, that his blood pressure is elevated and he had an appointment to see a psychologist at the end of the same week that the assessment was in N/FL. DUSM Gloetzner expressed that he “cannot take any more of this” when referring to managerial retaliation. One manager indicated that DUSM Glo-etzner had been in his office on a couple of occasions and that DUSM Gloetzner became emotionally upset and cried while they were discussing different matters. From 1998 through March 2014, DUSM Gloetzner has filed 16 OWCP [workers compensation] claims. Six (6) of these OWCP claims were filed within the past two years. District time and attendance records reflect that in 2013 alone, he used 333 hours of sick leave, 20 hours of OWCP leave and was suspended for 64 hours. To date in 2014 (4 months), he has used 51 hours of sick leave and 220 hours of OWCP leave. From 2005 through March 2014, DUSM Gloetzner has had eight (8) closed and two (2) active OI-IA investigations.... Based on the findings in these OI-IA investigations to date, DUSM Gloetzner has received six (6) suspensions (1-day, 14-day, 3-day, 5-day, 14-day, and 5-day) and two (2) Letters of Instruction. Additionally, immediately prior to the Assessment Team’s arrival in [the Northern District of Florida], there were still two (2) active cases pending. The totality of these findings is troublesome and cause for concern.

Doc. 46, Ex. H at 11-12. Plaintiff subsequently underwent a fitness for duty evaluation in Washington D.C. on May 19, 2014 and was placed on administrative leave for approximately three months. Doc. 48-10 ¶ 35.

On June 4, 2014, Plaintiff was issued a letter of caution for conduct unbecoming a deputy marshal after Assistant Chief Deputy York discovered a letter on March 26, 2014 from a federal inmate addressed to Plaintiff which contained inappropriate communication and inferred a quid pro quo relationship between the inmate and Plaintiff, in an effort to reduce the inmate’s sentence and that of the inmate’s incarcerated cousin. Doc. 46-Ex. I at 56-62. Internal Affairs investigated two recorded prison conversations between Plaintiff and the inmate, and there was no evidence that the inmate was a documented informant. Id. at 60. Chief Inspector Sligh found a lack of preponderant evidence that Plaintiff violated USMS Policy Directives, but was concerned by the appearance of an inappropriate relationship with the convicted felon and lack of documentation. Id. at 61. The letter of caution was not considered a formal disciplinary action and was not placed in Plaintiffs official personnel file. Id. at 62.

In Plaintiffs proceedings before the EEOC, on July 1, 2014, following discovery, the Marshals Service filed a motion for summary judgment. Doc. 46-Ex. M at 1. On January 16, 2015, Plaintiff voluntarily withdrew his EEOC Complaint, having filed his civil action in the United States District Court for the Northern District of Florida two weeks before, on December 29, 2014. Doc. 1; Doc. 46-Ex. G at 1-2. On January 21, 2015, the EEOC issued an Order of Voluntary Dismissal. Doc. 46-Ex. G at 1.

In September 2014, the Marshals Service officially reassigned Plaintiff to the Southern District of New York. Doc. 46-Ex. F at 26-27 (plaintiffs acceptance of the reassignment with “reservation of rights”); Doc. 48-8 at 12-13. Plaintiff was not aware there were actually any openings in the Southern District of New York at the time of his transfer (Doc. 48-10 ¶ 36); however, the Marshals Service Human Resources Department, who was actively researching openings and imminent potential openings and retirements in the districts across the country had noted openings in the Southern District of New York and District of New Jersey that could accommodate the transfer of Plaintiffs wife (in asset forfeiture). Doc. 46-Exs. D, E. In tandem with Plaintiffs reassignment, the Marshals Service offered to reassign Plaintiffs wife Heather Gloetzner to the District of New Jersey (Newark), with no change in job or grade, but she declined the reassignment. Doc. 46-Ex. F at 28-29; Doc. 48-10 ¶ 37.

No person in the Northern District of Florida had the power to reassign Plaintiff to another district; only managers at the highest level from Marshals Service Headquarters—such as the director or deputy director—could transfer somebody. Doc. 46-Ex. O (Wilson Dep.) at 24. Plaintiff signed a mobility agreement when he was hired by the Marshals Service. Doc. 48-8 at 90-92.

On December 29, 2014, Plaintiff brought suit in this Court under 29 U.S.C. §§ 621, et seq., Age Discrimination in Employment Act (ADEA) and the United States Constitution for age discrimination and retaliation . Doc. 1 at 1. Pursuant to the ADEA, Plaintiff alleges he has been treated differently than similarly-situated younger employees on the basis of his age and that he has been subject to a hostile work environment on the basis—“at least in part”—of his age. Doc. 1 at 8 (Count I). Additionally, Plaintiff claimed that Defendant retaliated against him when he opposed and complained about the alleged age-based discrimination. Id. at 10 (Count II). Defendant moved for summary judgment on May 18, 2016, Plaintiff responded on July 11, 2016 (after extensions were granted), and Defendant filed a reply on July 20, 2016. Docs. 46, 53, 54. The matter is ripe for decision.

II. STANDARD OF REVIEW

Summary judgment is appropriate when the moving party demonstrates “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 movant must satisfy this initial burden by “identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Norfolk S. Ry. Co. v. Groves, 586 F.3d 1273, 1277 (11th Cir. 2009) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). In response, “a party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citation and quotation marks omitted). Alternatively, the movant is entitled to summary judgment where “the nonmov-ing party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.” Celotex, 477 U.S. at 323, 106 S.Ct. 2548. In deciding whether to grant summary judgment, the Court resolves all ambiguities and draws all permissible factual inferences in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1164 (11th Cir. 2003) (citation omitted); Hairston v. Gainesville Sun Pub. Co., 9 F.3d 913, 918 (11th Cir. 1993).

III. ANALYSIS

The ADEA prohibits an employer from discriminating against any employee regarding compensation, terms of employment, or privileges of his job on the basis of age, if the employee is at least 40 years of age. 29 U.S.C. §§ 623(a)(1), 631(a). The ADEA applies to federal workers in most respects. 29 U.S.C. § 633a. However, a federal employee suing under the ADEA is not entitled to a jury trial. See Lehman v. Nakshian, 453 U.S. 156, 162, 101 S.Ct. 2698, 69 L.Ed.2d 548 (1981) (although ADEA authorizes a jury trial in civil actions against private employers and state and local governments, Congress did not grant right to jury trial to federal employees suing under the ADEA).

In Gross v. FBL Financial Services, Inc., 557 U.S. 167, 176, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009), the Supreme Court held that the language “because of’ in the ADEA requires a plaintiff to prove that discrimination was the “but-for” cause of the adverse employment action. See id. (explaining that the claim “cannot succeed unless the employee’s protected trait actually played a role in [the employer’s decision-making] process and had a determinative influence on the outcome”) (citing Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 1706, 123 L.Ed.2d 338 (1993)). The burden of persuasion is on the plaintiff to show that “age was the ‘but-for’ cause of the employer’s adverse action.” Gross, 557 U.S. at 177, 129 S.Ct. 2343 (2009).

A plaintiff may establish a prima facie case of age discrimination .and retaliation by providing either direct evidence of discriminatory intent by the defendant or by providing circumstantial evidence. Sims v. MVM, Inc., 704 F.3d 1327, 1332 (11th Cir. 2013); Mora v. Jackson Mem. Found., Inc., 597 F.3d 1201, 1204 (Uth Cir. 2010). Even after the Supreme Court’s decision in Gross, the Eleventh Circuit has continued to evaluate ADEA claims based on circumstantial evidence of discrimination using the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Compare Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir. 2000) (en banc) with Kragor v. Takeda Pharm. Am., Inc., 702 F.3d 1304, 1307 (11th Cir. 2012).

Under the McDonnell Douglas framework, a plaintiff must first establish a prima facie case of discrimination. Chapman, 229 F.3d at 1024. Next, the defendant must articulate a legitimate, non-discriminatory reason for the challenged employment action. Id. If the defendant articulates one or more such reasons, the plaintiff is afforded an opportunity to show that the employer’s stated reason is a pretext for discrimination. See Kragor, 702 F.3d at 1307 (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)); McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825; Tex. Dep't of Comm. Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The burden of persuasion always remains on the plaintiff in an ADEA case to proffer evidence sufficient to permit a reasonable fact finder to conclude that the discriminatory animus was the “but-for” cause of the adverse employment action. See Gross, 557 U.S. at 173, 129 S.Ct. 2343 (holding that it is improper to shift the burden of persuasion to the defendant in an , age-discrimination case). If the employer offers a legitimate, non-discriminatory reason, the employee is afforded an opportunity to show that the employer’s stated , reason is a pretext for discrimination. Kragor, 702 F.3d at 1308. Throughout this entire process, the ultimate burden of persuasion remains on the employee. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-07, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993).

Assuming for purposes of this motion that a hostile work environment claim is cognizable under the ADEA, a plaintiff must show that (1) he belongs to a protected group; (2) he was subjected to unwelcome harassment; (3) the harassment was based on a protected characteristic of the employee; (4) the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment; and (5) the employer is responsible for such environment under either a theory of vicarious or of direct liability. Clark v. S. Broward Hosp. Dist., 601 Fed.Appx. 886, 898-99 (11th Cir. 2015). With regard to the element of causation, a plaintiff must show that the protected activity {e.g. filing an EEO action) was the but-for cause of the discriminatory or retaliatory hostile work environment. Clark, 601 Fed.Appx. at 899; Sims v. MVM, Inc., 704 F.3d 1327, 1334 (but-for causation required for age discrimination claims).

The requirement that the harassment be “severe or pervasive” contains an objective and a subjective component, and the behavior must result in both an environment that a reasonable person would find hostile or abusive and an environment that the victim subjectively perceived to be abusive. Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002). To establish this, a plaintiff must show that “the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Rojas v. Florida, 285 F.3d 1339, 1344 (11th Cir. 2002) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). “To evaluate the objective severity of an allegedly retaliatory hostile work environment, we consider the totality of the circumstances, including whether the conduct was frequent, severe, physically threatening, humiliating, merely an offensive utterance, and whether it unreasonably interfered with the employee’s job performance.” Gowski v. Peake, 682 F.3d 1299, 1312-13 (11th Cir. 2012). But discrete acts, such as termination or the failure to promote, cannot alone form the basis of a hostile-work-environment claim. See McCann v. Tillman, 526 F.3d 1370, 1378 (11th Cir. 2008) (noting that a hostile-work-environment claim addresses the cumulative nature of the conduct and not the specific discrete act).

1. Timeliness of claims

As an initial matter, Defendant contends that the Cburt should dismiss Plaintiffs claims to the extent they are based on alleged events that occurred on or before Wednesday May 16, 2012-which is more than 45 days prior to Plaintiffs initiation of his EEO contact on Friday, June 29, 2012. Doc. 46-Ex. A at 37. These events include incidents with a fellow Deputy Marty West and Chief Deputy Nemey, which occurred in August and October 2011, and a suspension in February 2012 by Marshal Spooner effective March 26 through March 28, 2012. Plaintiff also contends that certain supervisors made threats against him in 2012 before Plaintiffs June 29, 2012 complaint, Doc. 1 ¶ 17.

“Under ... the ADEA,- federal employees are required to initiate administrative review of any alleged discriminatory or retaliatory conduct with the appropriate agency within 45 days of the alleged discriminatory act.” Smithers v. Wynne, 319 Fed.Appx. 755, 756-57 (11th Cir. 2008) (citing 29 U.S.C. -§ 633a(b); 42 U.S.C. § 2000e-16(b); 29 C.F.R. § 1614.105(a)(1)). “[Discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges.... The clock for the charging period starts when the discrete unlawful practice takes place.” Smithers, 319 Fed.Appx. at 756-57 (citation omitted).

Plaintiff apparently concedes that the incidents which took place prior to May 16, 2012 are not actionable in a disparate treatment claim:

Ultimately, while Plaintiff disagreed with the discipline imposed as part of the incident with Mr. West, and while that treatment is undoubtedly indicative of a hostile and retaliatory work environment, the disparate actions that affected Plaintiff financially and in terms of performance and promotion began with his non-selection in June 2012 and being told that he was not allowed to participate in promotional opportunities because he was too old.

Doc. 53 at 11-12. Accordingly, Plaintiffs allegations of age-based disparate treatment are thus limited to a single incident: being passed over or “non-selected” for firearms and fitness training on June 19, 2012 based on his age.

2. Hostile Work Environment (Age-Based)

As to Plaintiffs claims of hostile work environment based on age, he alleges in Count I: he “has been subject to hostility and poor treatment on the basis, at least in part, of his age.” Doc.l • at 9 (emphasis added). A plaintiff is required to show that the harassment was based on his membership in the protected group, in this case age, and it was “severe or pervasive enough to alter the terms and conditions of employment and create a hostile or abusive working environment.” Jones v. UPS Ground Freight, 683 F.3d 1283, 1292 (11th Cir. 2012) (“Only conduct that is ‘based on’ a protected category, such as [age], may be considered in a hostile work environment analysis.”). “Innocuous statements or conduct, or boorish ones that do not relate to the [age] of the actor or of the offended party (the plaintiff), are not counted.” Jones, 683 F.3d at 1292 (citation omitted).

Defendant argues that Plaintiff has failed to state a claim for age-based discriminatory hostile work environment because he has not offered any evidence of a but-for causal connection between the alleged harassment and his age. Plaintiff alleges a solitary act of ape-based discrimination-that he was not selected for firearms and fitness trainings in June 2012. Plaintiff testified that he suffered no age discrimination of any kind prior to June 19, 2012. Doc. 46-Ex. P at 21. Defendant also argues the fact that Plaintiff is younger than Marshal Spooner, Chief Deputy Nerney, and Assistant Chief Deputy York is additional evidence that the Tallahassee Office was not an environment that was “hostile” to employees of Plaintiffs age (over 40).

Plaintiff fails to respond to Defendant’s points regarding the incongruity of showing a “severe and pervasive” hostile environment, when there is but a single incident of age-based discrimination alleged. See, e.g., Mosley-Coleman v. Potter, No. CV-809-033, 2009 WL 1811552 (S.D. Ga. June 24, 2009) (holding a single isolated incident of yelling and criticism insufficient as it was not “so severe or pervasive so as to create a discriminatory, abusive working environment”); Crawford v. Medina General Hosp., 96 F.3d 830, 836 (6th Cir. 1996) (holding two remarks about “women over 55 working” and “old people” by supervisor were offensive utterances insufficient to constitute a pervasive environment based on age as opposed to “a simple clash of personalities”); cf. Kassner v. 2nd Avenue Deli., Inc., 496 F.3d 229 (2d Cir. 2007) (holding that 79-year-old waitress stated a claim for ADEA hostile work environment against restaurant owner who repeatedly made degrading comments including “drop dead,” “retire early,” “take off all of that make-up,” and “take off your wig”).

Plaintiffs response (Doc. 53) is limited to retaliationrbased hostile environment that he argues existed in “the wake of Plaintiffs EEO complaint.” Doe. 53 at 16. Plaintiff has failed to make out a discriminatory hostile work environment claim based on his age, and summary judgment is warranted on any such claim. The Court addresses separately below the allegations of retaliation-based hostile work environment.

3. Disparate Treatment Age-Based Discrimination

A Direct Evidence of Discrimination

Plaintiff alleges that Supervisory Deputy Wilson’s statement that he was sending a newer, younger deputy to the firearms instructor training is direct evidence of age discrimination. Direct evidence of discrimination reflects a “discriminatory or retaliatory attitude correlating to the discrimination or retaliation complained of by the employee” which “if believed, proves [the] existence of [a] fact without inference or presumption.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004) (citations and internal quotation marks omitted). “[0]nly the most blatant remarks, whose intent could mean nothing other than to discriminate on the basis of some impermissible factor constitute direct evidence of discrimination. If the alleged statement suggests, but does not prove, a discriminatory motive, then it is circumstantial evidence.” Id.; Castle v. Sangamo Weston, Inc, 837 F.2d 1550, 1558 n.13 (11th Cir. 1988) (giving as an example of direct evidence of age discrimination, a scrap of paper reading, “Fire Rollins-she is too old”); cf. Kilpatrick v. Tyson Foods, Inc., 268 Fed.Appx. 860 (11th Cir. 2008) (holding email from manager that said he “do[es] understand [Kilpatrick’s] years of service with the company but at this point [Kilpatrick] is not effectively doing his position” was not direct evidence of discrimination); Damon v. Fleming Supermarkets Of Fla., Inc., 196 F.3d 1354, 1359 (11th Cir. 1999) (decision-maker’s comment that “the company needed ... young men ... to be promoted” did not constitute direct evidence of age discrimination).

A plaintiff can only rely on remarks as direct evidence of discrimination if they were uttered by the decision-maker in the challenged action himself, or, at the very least, by a person somehow involved in, or having an influence on, the decisional process. See Cardelle v. Miami Beach Fraternal Order of Police, 593 Fed.Appx. 898, 901 (11th Cir. 2014) (threats of job loss, age-based slurs, and statement that older employees should “move on” made by non-decision-makers could not suffice as direct evidence of age discrimination); Mitchell v. USBI Co., 186 F.3d 1352, 1355 (11th Cir. 1999) (holding that statements by non-decisionmakers do not raise an inference of discrimination); Holifield v. Reno, 115 F.3d 1555, 1563-64 (11th Cir. 1997) (“The biases of one who neither makes nor influences the challenged personnel decision are not probative in an employment discrimination case”).

Plaintiff contends that his supervisor, Supervisory Deputy Wilson, said he did not choose Plaintiff for the firearms training because he “wanted to send a younger deputy” who would “be around for the next twenty years.” Doc. 53. Plaintiff argues that this statement is direct evidence of intentional discrimination against him on the basis of age, and such direct evidence dispenses with the need to evaluate a prima facie case of discrimination.

However, “[bjecause age and years of service are analytically distinct, an employer can take account of one while ignoring the other, and thus it is incorrect to say that a decision based on years of service is necessarily ‘age based.’ ” Hazen Paper Co. v. Biggins, 507 U.S. 604, 611, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993). In Dilla v. West, the trial court found the hiring decision-maker’s statement that he would prefer to hire a 30-to 35-year-old for the disputed air traffic controller position supported “a reasonable inference that the plaintiffs’ ages—and associated stereotypical thinking regarding older employees, namely that they are more likely to refee in the near future—influenced the decision to select a younger man for the vacancy,” but was not direct evidence of age discrimination. 4 F.Supp.2d 1130, 1139 (M.D. Ala. 1998), aff'd, 179 F.3d 1348 (11th Cir. 1999) (“Reliance on factors correlated with age does not by itself constitute age discrimination but purported reliance on such factors may be a pretext for discrimination.”). The court explained:

[T]he fact that such a conclusion depended upon the drawing of inferences from [decisionmaker’s] statement undermined any attempt to characterize the statement as direct evidence, especially when viewed in the context of a conversation about the potential imminent retirement of a large percentage of [his] workforce, the statement was susceptible to differing interpretations: [He] may have been expressing his desire to offer the position to younger candidates because they would be [less] likely to retire quickly and thus potentially leave him short-staffed at an inconvenient time, or he may merely have been expressing his desire to hire someone with less civil service experience who would be statutorily-ineligible to retire for a long period of time, and who would therefore offer the high degree of ‘continuity* he sought in a candidate. Because it finds that the statement is subject to either of these interpretations, the latter of which is untainted by unlawful age bias, the court cannot conclude that the statement constitutes direct evidence of age discrimination.

Id. As Judge Thompson observed, “consideration of a job candidate’s retirement eligibility is permissible and does not constitute unlawful age discrimination unless accompanied by a reliance upon inaccurate and denigrating age-based stereotypes.” Id. at 1139 n.10 (citing Hazen Payer, 507 U.S. 604, 113 S.Ct. 1701, 123 L.Ed.2d 338). Similarly, in this case, Supervisory Deputy Wilson said he chose Deputy Lowery, who had one year of experience, instead of Plaintiff for the firearms training because he wanted to send a younger deputy who would be “around for the next twenty years,” which he deemed a more “cost-effective decision”; York sent Deputy Phillips, also a less experienced deputy, to the fitness training based on Wilson’s recommendation that it would be better to send the “newer, younger deputies.”

Supervisory Deputy Wilson may have been expressing, as explained in Dilla, a “desire to send a person who would be statutorily-ineligible to retire for a long period of time.” See Hazen Paper, 507 U.S. at 611, 113 S.Ct. 1701 (holding a decision based on years of service is not necessarily “age based” or violates the ADEA because age and years of service are analytically distinct). Under either interpretation, the Court is required to draw an inference. Accordingly, the statement is circumstantial evidence and not direct evidence; thus, the Court will use the burden-shifting framework from McDonnell Douglas to assess the circumstantial evidence. Moreover, Plaintiff devotes the majority of his discussion to an analysis of circumstantial evidence of discrimination and mentions “direct” evidence only in passing and without citation to any relevant authority. Doc. 53 at 15.

B. Circumstantial Evidence

As explained above, to evaluate ADEA claims based on circumstantial evidence, the Eleventh Circuit employs the McDonnell Douglas-Burdine framework. See Kragor v. Takeda Pharms. Am., Inc., 702 F.3d 1304, 1308 (11th Cir. 2012) (applying McDonnell Douglas framework to an ADEA claim). In the McDonnell Douglas analysis, the plaintiff first must establish a prima facie case of age discrimination by showing that the plaintiff was “(1) a member of a protected age class (over 40), (2) was qualified for the job or benefit at issue, (3) was subjected to an adverse employment action, and (4) was treated less favorably than similarly-situated employees who are not members of the protected class. Chapman, 229 F.3d at 1024.

Defendant concedes that Plaintiff established two of the four elements of the McDonnell Douglas framework. Plaintiff is a member of a protected class based on his age, forty-five years old at the time he was denied the training; and he was qualified to attend the firearms training and the fitness training. See Doc. 53 at 5. The two elements that Defendant does contest are whether Plaintiff was subjected to an adverse employment action when he was not selected to attend the trainings and whether he was treated less favorably than similarly-situated younger employees. Id.

1) Adverse employment action

Defendant first contends that summary judgment is warranted on Plaintiffs claims of disparate treatment, i.e., his non-selection for firearms and fitness training, because he has failed to allege an “adverse action” based on age discrimination. Plaintiff contends that he can show he was subject to an adverse action when he was denied the opportunity to participate in the firearms training and fitness training because it had a measurable impact on his career.

The parties both rely on Davis v. Town of Lake Park, Florida, as defining an “adverse employment action” for purposes of employment discrimination claims as 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.” 245 F.3d 1232, 1239 (11th Cir. 2001) (“to support a claim ... the employer’s action must impact the terms, conditions, or privileges of the plaintiffs job in a real and demonstrable way.”). “[N]ot all conduct by an employer negatively affecting an employee constitutes adverse employment action.” Id. “[T]he asserted impact cannot be speculative and must at least have a tangible adverse effect on the plaintiffs employment.” Id. An employee bears the burden of showing “a serious and material change in the terms, conditions, or privileges of employment.” Id.

Defendant argues that Plaintiff has not alleged any concrete facts showing that Defendant’s selection of Deputy Lowery for firearms training in the summer of 2012 resulted in any objective tangible harm in a term, condition, or privilege of Plaintiffs employment and Plaintiff did not suffer any decrease in work hours, salary, or other tangible benefits. Plaintiff argues that denial of the opportunity to complete the two trainings had a “measurable impact” on Plaintiffs career and these trainings were not merely opportunities to gain additional knowledge or skills, but resulted in actual, tangible job duties once completed. Doc. 53 at 13. As a result of his selection for firearms instructor school, Plaintiff argues that Deputy Lowery became the firearms instructor in Tallahassee and was able to offer training and examinations to fellow deputies. Similarly, as a result of his selection for fitness school, Deputy Phillips was able to offer fitness evaluations to other deputies.

The Court finds that Defendant’s nonselection of Plaintiff for the firearms and fitness trainings were not “adverse employment actions” for purposes of the ADEA. The Eleventh Circuit has cautioned that “applying the adverse action requirement carefully is especially important when the plaintiffs claim is predicated on his disagreement with his employer’s reassignment of job tasks.” Davis, 245 F.3d at 1244 (“[w]ork assignment claims strike at the very heart of an employer’s business judgment and expertise because they challenge an employer’s ability to allocate its assets in response to shifting and competing market priorities”). When a change in assignments or duties is not accompanied by any tangible harm, courts are reluctant to hold that the change amounts to an adverse employment action. Id. at 1244-45 (citing Mungin v. Katten Muchin & Zavis, 116 F.3d 1549, 1557 (D.C. Cir. 1997) (“agreeing with other circuits [which] have held that changes in assignments or work-related duties do not ordinarily constitute adverse employment decisions if unaccompanied by a decrease in salary or work hour changes”)). Defendant’s nonselection of Plaintiff for the two trainings did not impact his job title, salary, or benefits in any way. Plaintiff has failed to establish that Defendant’s denial of training had any tangible harm or impact on his employment. See Davis, 245 F.3d at 1244-45 (Title VII is not designed to make federal courts “sit as a super personnel department that reexamines an entity’s business decisions”); see also Higdon v. Jackson, 393 F.3d 1211, 1219 (11th Cir. 2004) (“an employment action ... is not adverse merely because the employee dislikes or disagrees with it and not everything that makes an employee unhappy is an actionable adverse action”).

Under the ADEA, “the denial of professional training opportunities may constitute an adverse employment action, but only where an employee can show ‘material harm’ from the denial, ‘such as a failure to promote or a loss of career advancement opportunities.’” Trachtenberg v. Department of Educ. of City of New York, 937 F.Supp.2d 460, 468 (S.D.N.Y. 2013) (holding teacher failed to show an adverse employment action because she had not shown any negative consequences resulting from the alleged denial of professional training); cf. Colon-Fontánez v. Municipality of San Juan, 671 F.Supp.2d 300, 333 (D.P.R. 2009) (noting that even if the employer had intentionally prevented the employee’s participation in a training workshop such conduct would not constitute an adverse employment action under Title VII); aff'd, 660 F.3d 17 (1st Cir. 2011).

In this case, Plaintiff has not provided any evidence that his non-selection for the two trainings led to a decrease in his salary, changes in his work hours, or other material harm. Davis, 245 F.3d at 124-45 (rejecting as “adverse employment actions” a police officer’s loss of “officer in charge” designations which he argued diminished his prestige and deprived him of experience which might make him more likely to obtain (as yet unsought) promotions in the future). In Summers v. Winter, the Eleventh Circuit rejected a police officer’s contention that his required participation in a new training program— five days long and occurring once per year—constituted “a serious and material change in the terras, conditions, or privileges of employment” such that it was an adverse employment action. 303 Fed.Appx. 716, 719 (11th Cir. 2008).

In a denial of training case similar to Plaintiffs situation, the district court in Casey v. Mabus held that the denial of a police instructor certification training did not constitute an adverse employment action. 878 F.Supp.2d 175, 184 (D.D.C. 2012). Although the police officer speculated that the training would have enabled her to more fully carry out her duties and increase her potential for career advancement, the denial of her participation in planning and teaching the training courses did not rise to the level of an adverse action “absent some concrete factual allegation that her training deficit imposed a tangible harm on the terms, conditions, or privileges of her employment.” Casey, 878 F.Supp.2d at 184.

Here, Plaintiff contends that the two trainings “served a very tangible purpose, and provided skills valued by supervising employees far above any run-of-the-mill lecture. Essentially attending and completing these trainings guaranteed additional job responsibilities and duties,” such as giving fitness evaluations or firearms training and examinations. Doc. 53 at 13. In this case, Plaintiff fails to demonstrate how the lack of firearm or fitness training resulted in material harm to him in the terms, conditions, or privileges of his employment, aside from a theoretical argument that he would be “guaranteed additional job responsibilities and duties.” Such an argument does not explain the tangible harm to the terms, conditions, or privileges of his employment. See Casey, 878 F.Supp.2d at 184 (“Although it is logical in the abstract to think that more training' results in higher quality work and better career opportunities, the plaintiff alleges no facts to demonstrate how these added trainings would have materially affected her employment.”). Defendant is entitled to summary judgment on Plaintiffs disparate treatment age-based claim because he has failed to show that the denial of training was “an adverse employment action.”

2) Lack of comparators

Defendant alternatively contends that Plaintiff cannot make out a prima facie case of age discrimination because he has not identified a similarly-situated comparator who was treated more favorably. Generally, the employee who a plaintiff identifies as a comparator must be “similarly-situated” in all relevant respects. Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1091 (11th Cir. 2004); Trask v. Secretary Dept. of Veterans Affairs, 822 F.3d 1179 (11th Cir. 2016). The comparator must be “nearly identical” to the plaintiff to prevent a court from second-guessing a reasonable decision by the employer. Id. Thus, in order for Plaintiff in this case to establish a prima facie case for unlawful disparate treatment, he must show that a similarly-situated individual outside of his protected class was selected to attend the firearms and fitness trainings for which Plaintiff was not selected. See Maynard v. Bd. of Regents, 342 F.3d 1281, 1289 (11th Cir. 2003).

Defendant contends that Plaintiff has not demonstrated that he was similarly-situated in comparison-to Deputies Lowery and Phillips, each of whom was a newer deputy with fewer collateral duties than Plaintiff; as a deputy in the Tallahassee Office since 2003 (and several years of additional experience in another office), he had more collateral duties than the newer deputies who had only been in the Tallahassee office for approximately one year as of 2012. Deputy Lowery, at the time of the firearms training, had been employed by the Marshals Service for approximately one year. Doc. 46-Ex. N at 6-7. In the summer of 2012, Deputy Lowery’s only two collateral duties were Motor Vehicles and “Less than Lethal Instructor,” and Deputy Phillips had a single collateral duty as “Property Management.” Doc, 46-Ex. M at 33-35; Doc. 46-Ex. N at 6-7. In contrast, at the time of the firearms training in the summer of 2012, Plaintiff had been a deputy for 20 years and was assigned to five collateral duties: (a) Sex Offender Investigations Coordinator; (b) Less than Lethal Instructor; (c) Protective Investigations Coordinator; (d) Community Detention Officer; and (e) Seized Assets Coordinator. Doc. 46-Ex. M at 33-35. Plaintiff does not dispute the disparity in the collateral duties between Plaintiff and the newer deputies, but argues they were all considered “deputy marshals” and thus “expected to perform the same range of tasks as well as collateral duties” which would make them sufficiently “nearly identical” to serve as comparators for purposes of the ADEA.

Courts do make a distinction in assessing comparators between supervisors in positions with greater responsibilities and lower level employees, finding the two positions are not similarly-situated. See, e.g., Vasquez v. Cty. of Los Angeles, 349 F.3d 634, 641 & n.16 (9th Cir. 2003), as amended (Jan. 2, 2004) (employees in supervisory positions are generally deemed not to be similarly-situated to lower level employees); Jones v. Denver Post Corp., 203 F.3d 748, 753 (10th Cir. 2000) (finding employee and his supervisor were not similarly-situated for purposes of race discrimination claim). On the other hand, “individuals are similarly-situated when they have similar jobs and display similar conduct.” Vasquez, 349 F.3d at 641. In Brillinger v. City of Lake Worth, an ADEA disparate treatment-discipline case brought by a sergeant with eighteen years experience, the Eleventh Circuit held that less-experienced police officers with fewer years on the force and lower rank, as well as limited instances of prior discipline relative to the plaintiff, were not appropriate comparators. 317 Fed.Appx. 871, 876 (11th Cir. 2008).

Defendant also contends that Plaintiff was not similarly-situated in that he was previously scheduled to, and did, attend a week-long sex offender training in Washington, D.C. from June 25-29, 2012, as the only representative from the Tallahassee Office (Doc. 46, Ex. A at 360) and he was thus not in a position to attend a second out-of-town firearms training two weeks later, from July 16 through July 27, 2012, in Glynco, Georgia. Doc. 46, Ex. L at 3-6. Plaintiff was also on annual leave from July 23 and July 27,2012, and under investigation by Internal Affairs from July 5, 2012 through July 30, 2012. Ex. C, 60. The Internal Affairs investigation involved a credit card used for gas purchases that Plaintiff “accidentally cut up.” Doc. 48-12 at 63-66. At the time, Plaintiff was also on a stress-related work restriction, and according to Plaintiff, the “ÚSMS Medical Division did not want [him] placed in any unintentionally stressful situations.” See Doc. 48-12 at 65; Doc. 48-10 ¶ 8.

Plaintiff does not directly respond to Defendant’s factual arguments, but instead cites an inapposite footnote in McCann v. Tillman, 526 F.3d 1370, 1374 n.4 (11th Cir. 2008), as stating that “ ‘nearly identical,’ does not mean ‘exactly identical’ and ‘a range of comparators may suffice.’ ” Doc. 53 at 13. The McCann footnote does not really help Plaintiff in that the panel rejected the plaintiff-police officer’s argument that “similar” conduct was s