            Case: 12-14287   Date Filed: 05/01/2013   Page: 1 of 8




                                                          [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 12-14287
                          Non-Argument Calendar
                        ________________________

                    D.C. Docket No. 1:11-cv-21364-PCH



GREGORY L. JOHNSON,

                                                             Plaintiff-Appellant,

                                   versus

SECRETARY, US DEPARTMENT OF VETERANS AFFAIRS,

                                                           Defendant-Appellee.

                        ________________________

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

                               (May 1, 2013)

Before TJOFLAT, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

     Gregory Johnson, a black male, appeals the summary judgment the District
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Court’s granted the U.S. Department of Veterans Affairs (“the VA”) in his

employment discrimination case, filed pursuant to Title VII, 42 U.S.C. § 2000e-16,

and 42 U.S.C. § 1981. Johnson claimed that the VA failed to promote him to a

supervisor position on account of his race. The District Court denied the claim

because Johnson failed to show that the VA’s reason for not promoting him—that

he was not the best candidate for the position—was a pretext for discrimination. 1

He argues that the court erred in making that determination because, among other

things, the panel formed to interview the candidates for the position was

improperly composed and failed to interview him (and others similarly situated) in

violation of the collective bargaining agreement (“CBA”) between the VA and the

American Federation of Government Employees. We affirm.

       We review a district court's grant of summary judgment de novo, viewing

the record and drawing all inferences in favor of the non-moving party. Kernel

Records Oy v. Mosley, 694 F.3d 1294, 1300-01 (11th Cir. 2012). We may affirm

the district court on any adequate ground, however, even if it is other than the one

on which the court relied. Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117

F.3d 1278, 1285 (11th Cir. 1997).

       Summary judgment is proper if the movant shows that there is no genuine
       1
          Johnson also argues that the District Court erred in requiring him to show pretext
because the VA’s race neutral reason for the challenged employment decision was merely post
hoc justification. Johnson did not present this this argument to the District Court; hence, we
decline to address it. See Ramirez v. Secretary, U.S. Dep’t of Transp., 686 F.3d 1239, 1249-50
(11th Cir. 2012).
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issue as to any material fact and that the movant is entitled to judgment as a matter

of law. Fed. R. Civ. P. 56(a). The moving party bears the initial burden of

demonstrating the absence of a genuine dispute of material fact, but “[o]nce the

movant adequately supports its motion, the burden shifts to the nonmoving party to

show that specific facts exist that raise a genuine issue for trial.” Kernel Records

Oy, 694 F.3d at 1300. “Evidence that is merely colorable, or is not significantly

probative of a disputed fact cannot satisfy a party’s burden, and a mere scintilla of

evidence is likewise insufficient.” Id. at 1301 (citations and quotations omitted).

      “Title VII prohibits employers—including the federal government—from

discriminating against employees on the basis of race.” Ramirez v. Secretary, U.S.

Dep’t of Transp., 686 F.3d 1239, 1243 (11th Cir. 2012); 42 U.S.C. § 2000e-16(a).

This provision, § 2000e-16(a), expanded coverage of Title VII to federal

employees to the same extent that it was already applicable to non-federal

employees. Llampallas v. Mini–Circuits, Lab, Inc., 163 F.3d 1236, 1243 (11th

Cir.1998) (citations omitted). Relatedly, under 42 U.S.C. § 1981, an employee has

a right to be free of discrimination by an employer based on race in the

performance of a contract. 42 U.S.C. § 1981(a). These two statutes “have the

same requirements of proof and use the same analytical framework.” Shields v.

Fort James Corp., 305 F.3d 1280, 1282 (11th Cir. 2002).

      In considering whether to grant summary judgment of an employment


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discrimination claim based on circumstantial evidence, as was the case here, the

District Court assesses the claim using the burden-shifting framework set out in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668

(1973). Under McDonnell Douglas, the plaintiff bears the initial burden of

presenting sufficient evidence to allow a reasonable jury to determine that he has

satisfied the elements of his prima facie case. Id. at 802, 93 S.Ct. at 1824. Here,

there is no dispute that Johnson made out a prima facie case—that is, that he

belonged to a protected class based on his race; that he was qualified for and

applied for the open position; that he was not selected; and finally, that the position

was filled by an individual outside his protected class. See Vessels v. Atlanta

Independent School System, 408 F.3d 763, 768 (11th Cir. 2005) (articulating prima

facie elements for discriminatory failure to promote claim). The burden thus

shifted to the VA to produce a legitimate, nondiscriminatory reason for the

employment decision. McDonnell Douglas, 411 U.S. at 802-03, 93 S.Ct. at 1824.

Here, the selection of the candidate deemed to be the most qualified, even if based

on the subjective criteria of the decisionmaker, was legally sufficient to meet the

VA’s burden of production. See Springer v. Convergys Customer Mgmt. Group,

Inc., 509 F.3d 1344, 1348-1350 (11th Cir. 2007).

      Since the VA satisfied this burden of production, Johnson had to come

forward with evidence sufficient to permit a reasonable fact finder to conclude that


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the reasons the VA gave were pretextual. Texas Dep’t of Community Affairs v.

Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). He

could do so by demonstrating “such weaknesses, implausibilities, inconsistencies,

incoherencies or contradictions in [the VA’s] proffered legitimate reasons for its

actions that a reasonable factfinder could find them unworthy of credence.”

Springer, 509 F.3d at 1348. Importantly, conclusory allegations of discrimination,

without more, are insufficient to show pretext. Mayfield v. Patterson Pump Co.,

101 F.3d 1371, 1376 (11th Cir. 1996). Moreover, “[a] reason is not pretext for

discrimination unless it is shown both that the reason was false, and that

discrimination was the real reason.” Brooks v. County Comm’n of Jefferson

County, 446 F.3d 1160, 1163 (11th Cir. 2006) (emphasis in original and quotations

omitted).

      When analyzing the issue of pretext, the “[f]ederal courts do not sit as a

super-personnel department that reexamines an entity's business decisions.”

Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000) (en banc)

(quotations omitted). Regarding the use of subjective evaluations of a job

candidate’s qualifications, we have stated that “subjective evaluations of a job

candidate are often critical to the decisionmaking process.” Id. at 1033. “Personal

qualities also factor heavily into employment decisions concerning supervisory or

professional positions.” Id. Although an interview may be critical in evaluating a


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candidate’s personal qualities, it may not be necessary where the decisionmaker

has first-hand knowledge of the candidate. See Springer, 509 F.3d at 1350. In the

context of a promotion, “a plaintiff cannot prove pretext by simply arguing or even

by showing that he was better qualified than the [person] who received the position

he coveted. A plaintiff must show not merely that the defendant's employment

decisions were mistaken but that they were in fact motivated by race.” Brooks,

446 F.3d at 1163 (quotations omitted). To show pretext by a disparity in

qualifications, Johnson had to show that “the disparities between the successful

applicant’s and his own qualifications were of such weight and significance that no

reasonable person, in the exercise of impartial judgment, could have chosen the

candidate selected over [him].” Springer, 509 F.3d at 1349 (quotation omitted).

Even where an employer violates internal policies in a hiring decision, it does not

necessarily indicate racial discrimination. See id.

      Here, the District Court determined that Johnson failed to rebut the VA’s

nondiscriminatory rationale for its decision and thus failed to raise an inference of

pretext. We find no error in its determination. As the court recognized, even if the

interview panel’s composition and its failure to interview Johnson constituted

violations of the collective bargaining agreement (“CBA”) between the VA and the

American Federation of Government Employees, a breach of internal policies

alone does not amount to a showing of pretext. See Springer, 509 F.3d at 1350.


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Moreover, notwithstanding any such violations, the VA presented a valid

nondiscriminatory reason for declining to interview the internal candidates, namely

management’s personal familiarity with each. See id. Indeed, Johnson even

admitted that he had been interviewed for the open position three times previously,

including once or twice by his second-line supervisor, who was also the

recommending official for the open position.

      Moreover, while the panel included an individual from a different division

not intimately familiar with the responsibilities of the Supervisory USRO position

to which Johnson applied, that individual was a last minute substitution owing to

an emergency and there is no indication in the record that he harbored a racially

discriminatory intent. As for the qualifications matrix used to evaluate Johnson

and the other internal candidates, there does not appear to be any evidence that it

was first utilized in this instance, but even if so, there is nothing suspect in the

criteria employed—i.e., the quality of the candidates’ applications, their

supervisory experience, and an overall HR rating. While these factors certainly

allowed for a large measure of subjective evaluation, that is permitted under Title

VII. Chapman, 229 F.3d at 1033.

      Next, it does not follow, as Johnson contends, from the fact that his

personnel record does not recount any notable deficiencies in attention to detail

and communication skills—two qualifications important for the open position


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alluded to by management—that he was more qualified in these respects than was

the external candidate who was hired. But even assuming that Johnson was more

qualified, the disparity between the two was not so great that no reasonable person

could have passed over him. Finally, the recommending official’s alleged

statement, when read in context, appears benign. It may, to be sure, signal a lack

of confidence in Johnson and the other internal candidates, but it does not suggest

that the official’s assessment was premised on account of race.

      For these reasons, the judgment of the District Court is

      AFFIRMED.




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