           Case: 17-13262   Date Filed: 05/04/2018   Page: 1 of 25


                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 17-13262
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 8:16-cv-00928-JDW-MAP



SHERWIN FRASER,

                                                            Plaintiff-Appellant,

                                  versus

J.C. PENNEY CORPORATION, INC.,

                                                           Defendant-Appellee.

                       ________________________

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

                              (May 4, 2018)

Before TJOFLAT, NEWSOM and HULL, Circuit Judges.

PER CURIAM:
               Case: 17-13262        Date Filed: 05/04/2018      Page: 2 of 25


       Sherwin Fraser appeals the district court’s order granting summary judgment

in favor of his employer J.C. Penney Corp. (“J.C. Penney”), in his employment

discrimination action filed pursuant to Title VII of the Civil Rights Act of 1964

(“Title VII”), 42 U.S.C. § 2000e-2(a), and the Florida Civil Rights Act (“FCRA”),

Fla. Stat. § 760.10. Fraser, who is black and a native of Trinidad and Tobago, still

works for J.C. Penney. Fraser’s lawsuit involves his allegations that J.C. Penney

denied him promotions back in 2012 and 2013 on the basis of his race and national

origin. The district court granted summary judgment to J.C. Penney because

Fraser had not shown that the company’s legitimate nondiscriminatory reasons for

its promotional decisions were pretexts for race and national origin discrimination.

After review, we affirm. 1

                               I. BACKGROUND FACTS

A.     J.C. Penney’s Consolidation of Loss Prevention Positions

       The promotion decisions Plaintiff Fraser contends were discriminatory

occurred in July 2012 and March 2013. At that time, J.C. Penney was undergoing

a company-wide cost-savings measure by consolidating the separate supervisory


       1
         We review the district court’s grant of summary judgment de novo, applying the same
legal standards applied by the district court and construing the evidence in the light most
favorable to the non-moving party. Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253,
1263-64 (11th Cir. 2010). Summary judgment is appropriate “if the movant shows 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 district court’s decision may be affirmed if the result is
correct, even if the court relied upon an incorrect ground or gave a wrong reason.” Alvarez, 610
F.3d at 1264.
                                               2
              Case: 17-13262    Date Filed: 05/04/2018   Page: 3 of 25


loss prevention position, known as the Loss Prevention Manager, at one store and a

nearby store into one new Area Loss Prevention Leader (ALPL) position, which

would then manage those two stores. While the jobs were the same, the person in

the ALPL position would now be over two stores, not just one store. This

consolidation would mean that one of the two Loss Prevention Managers would

lose that particular job.

      The new ALPL positions were not posted either internally or externally.

Rather, as J.C. Penney identified stores that would have positions consolidated, the

human resources department flagged current Loss Prevention Managers whose

jobs would be affected, and those supervisors were automatically listed on an

internal website as the only candidates to be interviewed for the new ALPL

position. J.C. Penney chose to fill the new ALPL positions in this way to

streamline the interview process and minimize disruptions in stores that were not

affected by the initiative.

B.    Plaintiff Fraser’s Employment in the Orlando District

      At the time of this cost-savings consolidation process, Plaintiff Fraser was a

Loss Prevention Manager for J.C. Penney’s store in Lakeland, Florida. Plaintiff

Fraser’s supervisor was Lance Butterfield, the District Loss Prevention Manager,

who was responsible for about seventeen stores in the Orlando district.




                                         3
              Case: 17-13262     Date Filed: 05/04/2018     Page: 4 of 25


Butterfield’s supervisor was the Regional Loss Prevention Director, Marcos

Chapman.

      Generally speaking, Chapman interviewed candidates and made final loss

prevention hiring decisions in his region, but because he was responsible for 14

districts, he relied heavily upon his district loss prevention leaders for

recommendations about internal candidates. Chapman frequently reviewed the

“bench strength” of internal candidates with his district loss prevention managers,

and, when there was an opening in the Orlando district, Butterfield prescreened

internal candidates for Chapman, compiling information about each candidate and

their store and providing short summaries to Chapman. Chapman usually, but not

always, followed Butterfield’s recommendations.

C.    Area Loss Prevention Leader Position Available in 2012

      The cost-savings consolidation process did not affect Plaintiff Fraser’s store,

but it did affect other stores in Butterfield’s Orlando district. In April 2012, a new

ALPL position was created for two stores in Kissimmee, Florida and Orlando,

Florida (the Florida Mall). Initially, Chapman selected David Norville, a Loss

Prevention Manager from the Florida Mall for the new ALPL position. The other

candidate for this newly created ALPL position was David Mayberry, who was

black. Fraser does not contend that the initial selection of Norville as the new




                                           4
               Case: 17-13262    Date Filed: 05/04/2018   Page: 5 of 25


ALPL was discriminatory. Shortly after his selection, Norville requested a transfer

to California, and by July 2012 the ALPL position was again open.

      At that time, Butterfield believed his top internal candidate was Greg Miller,

who worked at a store in Daytona, and Plaintiff Fraser was his second best

candidate. Butterfield recommended Miller, who is white and American, to

Chapman for the open ALPL position, and planned to recommend Plaintiff Fraser

if Miller did not accept the position. Butterfield explained that he recommended

Miller because Miller had excelled in several stores due to his communication

skills and ability to train and manage multiple employees. Butterfield also knew

that the new location would significantly shorten Miller’s commute. Butterfield

did not consider letting both Miller and Plaintiff Fraser interview for the position

because Butterfield considered Miller to be his “next person line to move” and his

“strongest candidate at the time.” Chapman agreed with Butterfield’s

recommendation and hired Miller for the ALPL position.

      Meanwhile, Plaintiff Fraser learned about the ALPL opening from Norville,

and, consistent with J.C. Penney policy, advised his store manager that he was

interested in the position. A few minutes later, however, Plaintiff Fraser received a

call from Butterfield informing him that the position had already been filled by

Greg Miller.




                                          5
              Case: 17-13262    Date Filed: 05/04/2018    Page: 6 of 25


      Butterfield, knowing that Plaintiff Fraser was upset about the promotion

decision, offered to help Fraser get ready for the next ALPL opening and

encouraged Fraser to get more training. In an internal email to Plaintiff Fraser’s

store manager in July 2012, Butterfield stated that Fraser’s “next step [was] to a

larger store” and he described Fraser as “next in line for an ALPL position” and

“now the #2 guy in our district.” In October 2012, Butterfield recommended

Plaintiff Fraser for a company development program that would have increased his

chances of promotion.

D.    Two Area Loss Prevention Leader Positions Available in 2013

      In February 2013, J.C. Penney identified two more stores in Butterfield’s

Orlando district for consolidation (Altamonte Springs and Fashion Square Mall),

and human resources listed Lisa Donaldson and Carley Veltri on the internal

website as the affected Loss Prevention Manager employees to be interviewed for

the new ALPL position. Both Donaldson and Veltri are white. Around the same

time, Butterfield learned that Greg Miller, who had developed brain cancer, would

not be returning from medical leave to his ALPL position. Thus, by March 2013,

two ALPL positions were available in the Orlando district, one through the cost-

savings consolidation process and one because Miller had left his ALPL position.

      Initially, Butterfield planned to recommend that Chapman move Plaintiff

Fraser into Greg Miller’s vacant position and expected Donaldson and Veltri to


                                          6
              Case: 17-13262    Date Filed: 05/04/2018   Page: 7 of 25


interview for the newly created ALPL position. Butterfield did not consider

Plaintiff Fraser to be a candidate for the newly created ALPL position because

human resources identified the only candidates for those positions on the internal

website as being Donaldson and Veltri, who were directly affected by the cost-

savings consolidation process. Butterfield, however, called Plaintiff Fraser,

advised him that Miller’s ALPL position would be opening, and told Fraser to get

his resume ready to apply for that position.

      On March 1, 2013, Butterfield received an email advising him of the newly

created APLP position due to cost-savings consolidation and that, per the website,

Donaldson and Veltri (the affected employees) were the candidates. As a result,

Butterfield spoke to someone in the home office to advise them that he actually

had two open ALPL positions including Greg Miller’s now-vacant position.

Butterfield asked if Donaldson and Veltri would be interviewing for both ALPL

positions, and he was told that Donaldson and Veltri could do so.

      On March 4, 2013, after Butterfield informed human resources of Greg

Miller’s open ALPL position, human resources in an email asked Butterfield if that

Miller position should be added to the website. Butterfield responded that it

should. Butterfield stated that he was following direction from the home office

that the two candidates were Donaldson and Veltri.




                                          7
             Case: 17-13262     Date Filed: 05/04/2018   Page: 8 of 25


      At that point, when Greg Miller’s vacant ALPL position was added to the

website, only Donaldson and Veltri (both Loss Prevention Managers) were already

listed and thus they became the candidates for Miller’s position too. Accordingly,

Butterfield and Chapman planned to interview only Veltri and Donaldson for the

two ALPL positions. Plaintiff Fraser was not listed as a candidate on the website

because he worked in a store that was not affected by the cost-savings

consolidation. Although Butterfield knew of Plaintiff Fraser’s interest in pursuing

an ALPL position, he did not tell Chapman or human resources about Fraser.

      Butterfield then advised Plaintiff Fraser that he would not be recommending

Fraser for Greg Miller’s ALPL position, and that instead Donaldson and Veltri

would be interviewed by Chapman. Although Butterfield says he tried to explain

to Plaintiff Fraser that the reason was that Chapman was limited to the candidates

listed on the website, Fraser contends that the only reason Butterfield gave him

was that he thought there had been “some kind of falling-out” between Plaintiff

Fraser and Chapman in the past. Plaintiff Fraser asked Butterfield how he could

get an interview, and Butterfield told him to contact Chapman directly at the home

office.

      On March 5, 2013, Plaintiff Fraser emailed Chapman expressing his interest

in Greg Miller’s vacant ALPL position. Butterfield told Chapman that Plaintiff

Fraser was a strong candidate, but that there was no need to interview him because


                                         8
              Case: 17-13262    Date Filed: 05/04/2018   Page: 9 of 25


they already had two candidates. Even though Chapman agreed that they already

had two good candidates, he decided to interview Plaintiff Fraser, explaining that

“[i]f [Fraser] hits it out of the park, we’ll have a good problem to have.” The next

day, Butterfield advised Plaintiff Fraser that Chapman would interview him on

March 8, 2013.

E.    Butterfield Gives Donaldson and Veltri Interview Questions in Advance

      Within the last two years, J.C. Penney had adopted a new interviewing

method called behavioral interviewing. Behavioral interviewing involved posing

either a hypothetical scenario and asking the candidate how they would handle it or

asking the candidate to give an example of how they had handled a particular kind

of scenario in the past, so there were no predetermined correct answers.

      When Butterfield went to Donaldson’s and Veltri’s stores to tell them of

their interviews, both Donaldson and Veltri expressed reservations to Butterfield

about the interview because they had no experience with this interviewing style.

Consequently, Butterfield explained to each of them what behavioral interviewing

entailed and provided them with interview questions. Veltri also told Butterfield

she was not sure she was prepared for the ALPL position because she had been a

Loss Prevention Manager for only six months, and Butterfield reassured her that

she could learn to do the job. Butterfield asked Veltri’s store manager to conduct a




                                          9
             Case: 17-13262     Date Filed: 05/04/2018   Page: 10 of 25


mock interview and help calm Veltri’s concerns. Butterfield reviewed the

questions with Donaldson himself.

      When Butterfield gave Donaldson and Veltri the interview questions, he did

not yet know that Plaintiff Fraser would also be interviewed. Once Chapman

agreed to interview Plaintiff Fraser, Butterfield had Fraser come to his office to

discuss the interview. Plaintiff Fraser asked his store manager to do a mock

interview with him, and the store manager did. Butterfield said that it did not

occur to him to give Plaintiff Fraser the questions because he knew that Fraser had

received training at J.C. Penney and was certified in how to conduct behavioral

interviews, and Butterfield assumed Fraser would know how to answer the

questions.

F.    Interviews and Hiring Decisions by Chapman

      Chapman interviewed Donaldson and Veltri on March 6, 2013, two days

before he interviewed Plaintiff Fraser. Chapman did not offer any positions until

all three interviews were completed. Chapman knew when he interviewed

Donaldson and Veltri that he would hire the best qualified of the two for the newly

created ALPL position. Although Chapman would have discussed with Butterfield

the basic store data for each candidate—such as external and internal

apprehensions, inventory shrinkage rates, returns and refunds—Chapman

explained that his biggest concern at the time of the interviews was to find


                                          10
             Case: 17-13262    Date Filed: 05/04/2018   Page: 11 of 25


someone with strong leadership and communication skills because an ALPL would

need to lead two stores, with a loss prevention team in each store, and thus had

double the responsibility. During all three interviews, Chapman used an interview

guide created by J.C. Penney with the same scripted questions. Unbeknownst to

Chapman, the questions he asked Veltri and Donaldson in their interviews were

identical to the questions Butterfield had already provided them.

      After Chapman interviewed Donaldson and Veltri, Chapman believed, based

on their interviews and his discussions with Butterfield, that he had “two good

candidates to fill the two vacant positions” and that Donaldson was the stronger

candidate of the two. Nonetheless, Chapman still wanted to see how Plaintiff

Fraser would do in his interview. Plaintiff Fraser’s interview did not go well,

however. In response to Chapman’s questions, Fraser repeatedly gave examples of

his work in 2006 and 2007 as a Receiving Supervisor, before he had switched to

loss prevention, and Fraser did not discuss current examples of his work with his

loss prevention team at the Lakeland store.

      Based in large part on their interview performances, Chapman ultimately

decided to hire Donaldson for the newly created ALPL position (which was only

available to Donaldson and Veltri) and Veltri for Greg Miller’s vacant ALPL

positions. During the interviews and hiring decision, Chapman was unaware that

Butterfield had given Donaldson and Veltri any questions ahead of time. Later,


                                         11
             Case: 17-13262     Date Filed: 05/04/2018    Page: 12 of 25


when Chapman learned what Butterfield had done, Chapman verbally disciplined

Butterfield and told Butterfield that, while he could help candidates prepare for

interviews by asking them sample questions, he could not give them copies of the

actual questions.

      A few days after the interviews, Butterfield called Plaintiff Fraser to inform

him he did not receive the ALPL position, reviewed his performance in the

interview with him, and gave Fraser suggestions on how to improve his interview

skills. Butterfield told Plaintiff Fraser he wanted to prepare Fraser for a future

position and encouraged Fraser to interview for J.C. Penney’s 2014 development

program.

G.    Fraser’s Continued Employment with J.C. Penney

      Plaintiff Fraser remained in his Loss Prevention Manager position at the

Lakeland store until the spring of 2014. At that time, J.C. Penney determined that

the Florida Mall store was too large to be consolidated with another store and

needed its own loss prevention manager. Butterfield notified Fraser of the

opening, and, on March 16, 2014, after an interview with a J.C. Penney recruiter,

Chapman selected Fraser for the new Florida Mall Loss Prevention Manager

position. In Butterfield’s 2016 performance evaluation of Plaintiff Fraser,

Butterfield continued to recommend Fraser for J.C. Penney’s development

program (which Fraser declined to pursue) and stated that his goal was to ensure


                                          12
              Case: 17-13262      Date Filed: 05/04/2018     Page: 13 of 25


Fraser was ready for a position as a District Loss Prevent Manager position by

2017.

                            II. GENERAL PRINCIPLES

        As Fraser relies on circumstantial evidence to prove his race and national

origin discrimination claims, we use the McDonnell Douglas burden-shifting

framework to evaluate his claims at the summary judgment stage. Springer v.

Convergys Customer Mgmt. Grp Inc., 509 F.3d 1344, 1347 (11th Cir. 2007). 2

Under the McDonnell Douglas framework, the plaintiff bears the initial burden of

establishing a prima facie case of discrimination. Alvarez v. Royal Atl.

Developers, Inc., 610 F.3d 1253, 1264 (11th Cir. 2010). If the plaintiff does so, a

presumption of discrimination arises, and the burden shifts to the employer to

articulate a legitimate, nondiscriminatory reason for the challenged employment

action. Id. If the employer carries its burden of production by proffering such a

reason, the presumption is rebutted and the plaintiff then must show that the

employer’s reason was pretext for discrimination. Id. While intermediate burdens

shift back and forth, the ultimate burden of persuading the trier of fact that the




        2
        See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1756 (1973); Tex.
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089 (1981).
                                             13
               Case: 17-13262      Date Filed: 05/04/2018       Page: 14 of 25


employer intentionally discriminated against the plaintiff remains with the

plaintiff. Id.3

       As in the district court, on appeal the parties do not dispute that Fraser

established a prima facie case of discrimination as to each ALPL promotion, and

that J.C. Penney articulated legitimate, nondiscriminatory reasons for each of its

decisions not to promote Fraser to the ALPL positions. Specifically, as to the 2012

decision, Plaintiff Fraser was not considered for the ALPL position because Greg

Miller was considered the stronger candidate due to his prior work experience in

multiple stores, positive relationships with coworkers, and job proficiency, and

because the new store location would significantly decreased Miller’s commute

time. As to the 2013 decisions, Plaintiff Fraser was not eligible for the newly

created ALPL position because that position was a result of the costs-savings

consolidation process and Fraser was not an affected employee. Additionally,

Plaintiff Fraser was not selected for Greg Miller’s now-vacant position because

Fraser performed poorly in his interview.

       Thus, the only issue is whether Fraser submitted evidence at summary

judgment from which a reasonable jury could find that J.C. Penney’s reasons were



       3
         Because the FCRA, like Title VII, makes it unlawful for an employer to discriminate on
the basis of protected factors such as race or national origin, claims under the FCRA are
analyzed under the same framework as Title VII claims. See Jones v. United Space All., L.L.C.,
494 F.3d 1306, 1310 (11th Cir. 2007). Thus, we need not address Fraser’s FCRA claim
separately
                                              14
             Case: 17-13262     Date Filed: 05/04/2018   Page: 15 of 25


“not its true reasons, but were a pretext for discrimination.” See Tex. Dep’t of

Cmty. Affairs v. Burdine, 450 U.S. 248, 252, 101 S. Ct. 1089, 1093 (1981). A

plaintiff can show that an employer’s reasons were pretext “by revealing such

weaknesses, implausibilities, inconsistencies, incoherencies or contradictions” in

the employer’s proffered reason such that “a reasonable factfinder could find them

unworthy of credence.” Springer, 509 F.3d at 1348 (quotation marks omitted).

“However, a reason is not pretext for discrimination ‘unless it is shown both that

the reason was false, and that discrimination was the real reason.” Id. at 1349

(quoting Brooks v. Cty. Comm’n of Jefferson Cty., 446 F.3d 1160, 1163 (11th Cir.

2006)); see also Alvarez, 610 F.3d at 1264 (citing Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 148, 120 S. Ct. 2097, 2109 (2000)).

      To show pretext, the plaintiff must meet the employer’s reason head on and

rebut it; he cannot simply recast the reason, quarrel with its wisdom, or substitute

his own business judgment for that of his employers. See Alvarez, 610 F.3d at

1265-66. In the promotion context specifically, “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.” Springer, 509 F.3d at 1349

(internal quotation marks omitted). Rather, the disparities in qualifications must be

“of such weight and significance that no reasonable person, in the exercise of




                                          15
               Case: 17-13262        Date Filed: 05/04/2018       Page: 16 of 25


impartial judgment, could have chosen the candidate selected over the plaintiff.”

Id. (internal quotation marks omitted).4

               III. FRASER’S FAILURE TO PROMOTE CLAIMS

       Here, Fraser did not show that J.C. Penney’s reasons for its decisions not to

promote Fraser in either 2012 or 2013 were false or that the real reason was

discrimination.

A.     2012 ALPL Position

       As to the 2012 ALPL position, Plaintiff Fraser did not present evidence to

rebut the testimony of Chapman and Butterfield that they routinely assessed the

“bench strength” of Butterfield’s internal candidates even before an opening

existed, that Butterfield had already identified Greg Miller as the top candidate for

the next promotional opportunity based on merit, and that Butterfield considered

Plaintiff Fraser to be the second best candidate and planned to recommend him if

Miller did not accept the position. In fact, Plaintiff Fraser testified that, in his



       4
         Fraser points out that the district court’s summary judgment order stated that to show
pretext, any disparity in qualifications between candidates must be so great “as virtually to jump
off the page and slap you in the face,” an articulation of the standard the Supreme Court has
rejected. See Ashe v. Tyson Foods, Inc., 546 U.S. 454, 457, 126 S. Ct. 1195, 1197 (2006)
(rejecting this wording as an “unhelpful and imprecise” elaboration of the standard and
remanding for a better articulation of the standard). The correctly articulated standard in this
Circuit is that the “‘disparities in qualifications must be of such weight and significance that no
reasonable person, in the exercise of impartial judgment, could have chosen the candidate
selected over the plaintiff for the job in question.’” Id. at 1197, 126 S. Ct. 1197 (quoting Cooper
v. Southern Co., 390 F.3d 685, 732 (11th Cir. 2004)). Applying the correct standard, we find no
reversible error in the district court’s granting of summary judgment to J.C. Penney for the
reasons discussed in this opinion.
                                                16
              Case: 17-13262   Date Filed: 05/04/2018   Page: 17 of 25


position as Loss Prevention Manager at the Lakeland store, he likewise was

“constantly looking” at store employees for possible advancement and that when a

position on his loss prevention team opened up, he would approach store

employees who showed potential and offer them the position.

      Plaintiff Fraser also presented no evidence that he was more qualified than

Miller, much less that he was so much more qualified than Miller that no

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

over Fraser. Moreover, Plaintiff Fraser presented no evidence to dispute

Butterfield’s particular reasons for recommending Miller to Chapman—that Miller

had worked at multiple stores, had excellent communication skills, and was good

at training and managing multiple employees and that the promotion would

significantly shorten Miller’s commute time, allowing him to spend more time in

the stores.

B.    2013 ALPL Positions

      As to the 2013 promotions, Plaintiff Fraser does not dispute that it was J.C.

Penney’s policy during the cost-savings consolidation process to consider only

those Loss Prevention Managers who were affected by the consolidation as

candidates for the newly created ALPL positions. Thus, it is undisputed that

Plaintiff Fraser was not a candidate for the newly created ALPL position ultimately

given to Donaldson. Instead, when he interviewed, Plaintiff Fraser was vying for


                                         17
               Case: 17-13262       Date Filed: 05/04/2018      Page: 18 of 25


only one position, the ALPL position vacated by Greg Miller (which Veltri

ultimately received). 5

       Chapman’s reason for not choosing Plaintiff Fraser for Greg Miller’s now-

vacated ALPL position was Fraser’s poor performance during his interview. We

have held that a subjective reason, including interview performance, qualifies as a

“legally sufficient, legitimate, nondiscriminatory reason if the defendant articulates

a clear and reasonably specific factual basis upon which it based its subjective

opinion.” See Chapman v. AI Transp., 229 F.3d 1012, 1034 (11th Cir. 2000) (en

banc). Plaintiff Fraser does not contend that he performed well during the

interview or dispute Chapman’s specific criticisms of his interview performance.

Thus, Fraser has not shown that J.C. Penney’s proffered reason for not promoting

Fraser to Greg Miller’s ALPL position was false.

       Plaintiff Fraser argues that he showed Chapman’s reason was pretext by

presenting evidence that Fraser’s qualifications were superior to those of

Donaldson and Veltri, stressing in particular the shrinkage rate at his Lakeland

store. But, Chapman did not choose either Donaldson or Veltri over Plaintiff

Fraser because they were more qualified or because they had better shrinkage rates.

In his deposition, Chapman explained that while he would have discussed some of

       5
        If Veltri had not been selected for Miller’s job, her position as a Loss Prevention
Manager would have been eliminated through the cost-savings consolidation process, and she
would have lost that job, but Veltri would have been moved into her previous position as a Loss
Prevention Officer.
                                               18
             Case: 17-13262    Date Filed: 05/04/2018   Page: 19 of 25


the candidates’ store metrics with Butterfield before the interviews, he was more

concerned with the candidates’ leadership and communication skills. Similarly,

Butterfield testified that he did not provide Chapman with more detailed store

numbers for the three candidates because Chapman was going to make his decision

based on the interviews.

      We recognize that both Chapman and Butterfield readily admitted that some

of Plaintiff Fraser’s performance measures were very good and better than

Donaldson’s and Veltri’s performance measures. But, they also explained that the

candidates’ metrics had to be examined in context to evaluate how well each

performed in his or her particular store and that each candidate had strengths and

weaknesses. In any event, Plaintiff Fraser, by arguing about the candidates’ store

metrics, is merely recasting J.C. Penney’s proffered reason for not picking

Fraser—his poor interview performance—and is quibbling with the wisdom of that

reason, neither of which can show pretext. See Alvarez, 610 F.3d at 1265-66.

C.    Fraser’s “Cat’s Paw” Argument

      Rather than rebut head on Chapman’s reason for not choosing Plaintiff

Fraser for Greg Miller’s now-vacant ALPL position, Plaintiff Fraser instead argues

that Chapman was merely Butterfield’s “cat’s paw” and that a jury could infer

Butterfield had a discriminatory motive. Under the cat’s paw theory, causation

may be established if the plaintiff shows that the decisionmaker, although not


                                         19
             Case: 17-13262     Date Filed: 05/04/2018   Page: 20 of 25


biased, followed another’s biased recommendation for termination without

independently investigating the complaint against an employee. See Stimpson v.

City of Tuscaloosa, 186 F.3d 1328, 1332 (11th Cir. 1999) (citing Llampallas v.

Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1249 (11th Cir. 1998)); see also Staub v.

Proctor Hosp., 562 U.S. 411, 420-21, 131 S. Ct. 1186, 1193 (2011) (involving a

claim of military discrimination under the Uniformed Services Employment and

Reemployment Rights Act). Here, applying the cat’s paw theory to Fraser’s

promotion claims, we conclude that J.C. Penney could be liable for failure to

promote if, as Fraser argues, Butterfield had a discriminatory bias and then in turn

influenced Chapman in his promotion decisions as to Fraser.

      As to Butterfield’s discriminatory bias, Plaintiff Fraser points to these

actions by Butterfield: (1) when Greg Miller’s ALPL position opened up,

Butterfield instructed Human Resources to add it to the internal website, which

meant only Donaldson and Veltri were listed as candidates for the position even

though that opening was due to Miller’s brain cancer and not a result of the cost-

savings consolidation process; (2) Butterfield did not tell Human Resources or

Chapman about Fraser’s interest in Greg Miller’s ALPL position; (3) after Fraser

emailed Chapman asking for an interview, Butterfield suggested that Fraser did not

need to be interviewed because the website already had the two candidates of

Donaldson and Veltri; and (4) and Butterfield provided the interview questions to


                                         20
             Case: 17-13262     Date Filed: 05/04/2018    Page: 21 of 25


Donaldson and Veltri, something he had never done before, and then made sure

they were prepared for the interview—all things he did not do for Fraser.

      Fraser, however, takes these items out of context and ignores many other

undisputed facts that show Butterfield tried to help Fraser too and was not acting in

a discriminatory manner. As plaintiff Fraser acknowledges, Butterfield

consistently gave Fraser high marks on his performance evaluations and positive

feedback about his work, encouraged Fraser to pursue advancement and take on

additional responsibilities, and repeatedly recommended Fraser for J.C. Penney’s

leadership development program so that Fraser could advance.

      Further, it is undisputed that at the time of the 2013 ALPL openings,

Butterfield considered Plaintiff Fraser to be his next candidate in line for an ALPL

position. When Butterfield learned that Miller would be unable to return from his

medical leave, Butterfield initially identified Plaintiff Fraser as the only candidate

and told Fraser he planned to recommend him to Chapman for the position.

Indeed, Butterfield initially, and without prompting, told Plaintiff Fraser of the

Miller opening and to prepare his resume. It was only after Butterfield learned of

the other, newly created ALPL position, for which only Donaldson and Veltri

could be candidates, and after the home office told Butterfield to list both ALPL

openings together on the internal website, that Butterfield believed he could no

longer recommend Plaintiff Fraser to Chapman. Moreover, once Donaldson and


                                          21
             Case: 17-13262     Date Filed: 05/04/2018    Page: 22 of 25


Veltri were identified on the website as the only candidates for both ALPL

positions, Chapman and Butterfield made no effort to interview any other

candidates, inside or outside the company. Nonetheless, Butterfield suggested

Plaintiff Fraser reach out to Chapman directly to ask for an interview, which

worked. Plaintiff Fraser got an interview with Chapman.

      Finally, though plaintiff Fraser relies on the isolated fact that Butterfield

provided the interview questions to Donaldson and Veltri (but not to Fraser) before

the interview, Fraser takes that fact out of context and fails to demonstrate how this

is evidence of discriminatory motive. Butterfield offered an innocent explanation

for why he gave the interview questions to Donaldson and Veltri, but not to

Plaintiff Fraser—that Fraser was familiar with behavioral interviewing and

Donaldson and Veltri were not. Plaintiff Fraser has not presented any evidence to

dispute this explanation. The record reflects that Plaintiff Fraser had received

training in how to conduct behavioral interviewing, but that Donaldson and Veltri,

who had not received training, were nervous about their interviews. Furthermore,

Butterfield said that, although it did not occur to him to give the questions to

Plaintiff Fraser, he would have given them to Fraser “[i]n a heartbeat” if Fraser had

asked for them. While Butterfield’s admitted conduct shows poor judgment, it




                                          22
               Case: 17-13262        Date Filed: 05/04/2018       Page: 23 of 25


does not show discrimination, especially given Butterfield’s consistent history of

trying to help Fraser. 6

             IV. EEOC REASONABLE CAUSE DETERMINATION

       Finally, to show discriminatory intent, Plaintiff Fraser relied on the Equal

Employment Opportunity Commission’s (“EEOC”) right-to-sue letter finding

reasonable cause to believe a Title VII violation had occurred. The EEOC’s letter

stated that Fraser’s allegations had merit because, although J.C. Penney said that

Fraser was not selected for the 2013 ALPL position because of poor interview

performance, Fraser was the most senior and most qualified candidate. The letter

pointed out that J.C. Penney had promoted Fraser six times in nine years and stated

that Fraser’s store metrics were better than the other two candidates’ store metrics

and that Fraser had met his 2012 store performance goals, while the other two

candidates had not. The letter also noted that the other two applicants were given

interview questions ahead of time and “prepped on how to answer” them.

       On appeal, Plaintiff Fraser contends that the district court failed to

adequately consider the EEOC’s letter. In its summary judgment order, the district

court noted that it must consider the EEOC’s letter as evidence, but that it was not




       6
         Fraser admits that Butterfield never made any inappropriate comments regarding his
race or national origin. Although Fraser relies on Veltri’s testimony, Veltri also said she had
heard Butterfield say positive, not negative, things about Fraser.
                                                23
             Case: 17-13262     Date Filed: 05/04/2018    Page: 24 of 25


required to defer to the EEOC’s legal conclusions. The district court stated that the

letter was “considered, but as discussed, Fraser fails to demonstrate pretext.”

      The district court was not required to defer to the EEOC’s reasonable cause

determination. Rather, the district court was required to review the summary

judgment evidence de novo to determine whether it presented a genuine issue of

material fact. See Barfield v. Orange Cty., 911 F.2d 644, 649-50 (11th Cir. 1990)

(holding that the district court has discretion to decide whether to admit an EEOC

determination during a jury trial and is “guided by such considerations as whether

the report contains legal conclusions, in addition to its factual content”); Moore v.

Devine, 767 F.2d 1541, 1549-51 (11th Cir. 1985) (explaining that, because the

parties are entitled to a de novo trial, the district court cannot be bound by an

EEOC determination), modified on reh’g, 780 F.2d 1559, 1560 (11th Cir. 1986

(clarifying that EEOC determinations for federal employees are different and may

be binding on the courts).

      In its summary judgment order, the district court addressed the facts the

EEOC relied upon to reach its determination—each candidate’s store shrinkage

rate and Butterfield’s actions in giving Donaldson and Veltri the interview

questions—and concluded that those facts, along with others not discussed in the

EEOC letter, did not show pretext for discrimination. The district court was not

required to address the EEOC’s letter further.


                                          24
            Case: 17-13262     Date Filed: 05/04/2018   Page: 25 of 25


                               V. CONCLUSION

      For the forgoing reasons, we affirm the district court’s order granting

summary judgment to J.C. Penney on Plaintiff Fraser’s Title VII and FCRA

claims.

      AFFIRMED.




                                         25
