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                                                                        [DO NOT PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                        No. 16-12059

                               ________________________

                          D.C. Docket No. 0:15-cv-60129-WPD



FRANK VOUDY,

                                                           Plaintiff - Appellant,

versus

SHERIFF OF BROWARD COUNTY FLORIDA,

                                                           Defendant - Appellee.

                               ________________________

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

                                        (July 13, 2017)

Before MARCUS, JILL PRYOR, and SILER, * Circuit Judges.

PER CURIAM:

         *
         Honorable Eugene E. Siler, United States Circuit Judge for the Sixth Circuit, sitting by
designation.
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      Appellant Frank Voudy, a white deputy in the Broward County Sheriff’s

Office, appeals the district court’s grant of summary judgment to Sheriff Scott

Israel on Voudy’s claim that the Sheriff discriminated against him on the basis of

race when the Sheriff failed to promote him to Sergeant. The district court

determined that Voudy failed to make out a prima facie case of discrimination.

Because Voudy did in fact make out a prima facie case of discrimination and the

Sheriff failed to articulate a legitimate, non-discriminatory reason for Voudy’s

non-promotion, we reverse the district court’s judgment.

                              I.      BACKGROUND

      Frank Voudy is a white officer in the Broward County Sheriff’s Office

(BSO). Voudy has been a Deputy Sheriff since 1997 and has been eligible for a

promotion to Sergeant since 2002 but has never been promoted. In 2012, Voudy

took the Sergeant’s Exam, which consisted of a multiple-choice test, a structural

interview, and an oral presentation. The scores of each segment were added

together and each eligible individual taking the exam was ranked based on his or

her total score. Voudy ranked 20th of the 56 individuals eligible for promotion to

Sergeant. Thirty promotions were made based on the 2012 eligibility list. Of

those, 23 were white, three were Hispanic, three were black, and one was multi-

racial. Voudy was the second highest ranked officer who was not ultimately

promoted.


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      The Collective Bargaining Agreement (CBA) between BSO and the Police

Benevolent Association governed the promotion process. The CBA required that

five out of every six Sergeant openings be filled from the then-existing top five

scores on the Sergeant’s exam. This was called the Rule of Five. For Rule of Five

picks, every time a new Sergeant was selected, the next highest person on the

eligibility list moved into the top five. It is therefore possible that a candidate may

be passed over continuously even though he or she scored very highly on the

Sergeant’s Exam. The sixth position is filled at the Sheriff’s discretion without

regard for the Rule of Five.

      Colonel John Dale oversaw the 2012-2014 promotion process at BSO. He

explained that the committee determining promotions followed the Rule of Five

and that for every sixth pick, Sheriff Israel ultimately made the final choice from

the entire list of eligible officers, as opposed to the top five scorers remaining on

the list. Dale testified that for the sixth pick, BSO “looked at it as a flat list”

without regard for ranking. He explained that for the sixth pick, BSO considers

each officer’s file and the comments of his or her supervisors. BSO also considers

each officer’s training record, which to BSO indicates that the employee is

interested in developing his or her skill set, as well as the officer’s last three

performance evaluations, attendance, and disciplinary history. Dale further




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testified that in making promotion decisions, BSO neither had an indication of each

officer’s race or ethnic background nor looked at photographs.

       Two black officers ranked lower than Voudy based on their total scores on

the Sergeant’s Exam—Jeremiah Cooper and Berthill Thomas—were promoted

over him as “sixth picks” by the Sheriff. They were ranked 47th and 50th,

respectively. 1 Although Voudy scored better than Cooper and Thomas on the

Sergeant’s Exam and had substantially more law-enforcement experience, Cooper

and Thomas had better qualifications than Voudy with regard to some of BSO’s

considerations. Nonetheless, Dale could not recall the reasons why Thomas and

Cooper were promoted over Voudy, explaining that it is difficult to remember why

any individual promotion decision was made because so many promotions—to

Sergeant, but also to Captain, Major, and Lieutenant—are determined around the

same time.

       Voudy had a more extensive disciplinary history than either Cooper or

Thomas. Internal Affairs had lodged three cases against Voudy in his time on the

force, two in 2000 and one in 2004. Each resulted in a written reprimand. By

contrast, Thomas had been disciplined twice in his time on the force, both times


       1
         We note that the ranking allowed for ties between two officers—for example, there
were two officers ranked seventh, with another officer ranked eighth. So Voudy’s ranking of
20th does not mean that there were only 19 officers ranked higher than he was. The precise
number of officers with a higher rank than Voudy, Cooper, or Thomas is immaterial to Voudy’s
claim, however: there is no doubt that Voudy was ranked substantially higher than Cooper or
Thomas.
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resulting in counseling and training. Cooper had been disciplined once, resulting

in counseling.

      Moreover, unlike Voudy, Cooper and Thomas had specialized training

certifications. Thomas had cross-certification in Law Enforcement and

Detention/Corrections and successfully completed a Police Motorcycle Operator

Course. Cooper was certified as a Field Training Officer after extensive

coursework and also completed several months of training in the District Criminal

Investigations Unit.

      Thomas also had more positive performance evaluations than Voudy.

Voudy’s 2010-2013 performance evaluations showed an approximately even mix

of “Exceeds Expectations” ratings and “Meets Expectations” ratings. By contrast,

in 2011-2012 and 2012-2013, Thomas received “Exceeds Expectations” ratings for

8 of 10 categories, and in 2010-2011 he received “Exceeds Expectations” in all 10

categories. Cooper’s last three performance evaluations were on par with Voudy’s.

Neither Cooper’s nor Thomas’s performance evaluations contained negative

comments from their supervisors, but Voudy’s 2011-2012 performance evaluation

noted that he could “increase his initiative and work output in the area of FI cards

and arrests,” and his 2012-2013 evaluation provided that Voudy’s “pro-activity is




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not high as it pertains to arrests and traffic enforcement.” Voudy Performance

Evaluations, Doc. 21-16 at 3, 5. 2

       Voudy filed suit against the Sheriff alleging that Cooper and Thomas were

selected over him because of race, in violation of Title VII of the Civil Rights Act

of 1964, 42 U.S.C. § 2000e-2(a)(1), and the Florida Civil Rights Act (FCRA), Fla.

Stat. § 760.10 et seq. 3 The district court granted summary judgment to the Sheriff,

concluding that Voudy failed to establish a prima facie case of discrimination.

Voudy now appeals.

                             II.    STANDARD OF REVIEW

       “This court reviews a district court’s grant of summary judgment de novo,

applying the same legal standards used by the district court.” Galvez v. Bruce,

552 F.3d 1238, 1241 (11th Cir. 2008). We view the evidence and all factual

inferences arising from the evidence in the light most favorable to the nonmoving

party. See id. Summary judgment is appropriate when “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). Mere speculation is insufficient to create a genuine



       2
          Citations to “Doc. __” refer to numbered docket entries in the district court record in
this case.
       3
         Voudy also raised age discrimination claims against the Sheriff under the Age
Discrimination in Employment Act and FCRA. The district court granted summary judgment to
the Sheriff on these claims. Voudy does not appeal that decision.


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dispute of material fact. See Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1181 (11th

Cir. 2005).

                                  III.   DISCUSSION

       Because Voudy has provided no direct evidence of discrimination, we assess

his Title VII claim under the burden shifting framework outlined in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973).4 “Under the McDonnell Douglas

framework, a plaintiff first must show an inference of discriminatory intent, and

thus carries the initial burden of establishing a prima facie case of discrimination.”

Brooks v. Cty. Comm’n of Jefferson Cty., Ala., 446 F.3d 1160, 1162 (11th Cir.

2006). “The plaintiff’s successful assertion of a prima facie case creates a

rebuttable presumption that the employer unlawfully discriminated against

h[im].” Id. (internal quotation marks omitted). “Second, if the plaintiff

successfully demonstrates a prima facie case, the burden then shifts to the

employer to produce evidence that its action was taken for a legitimate, non-

discriminatory reason.” Id. “[O]nce the employer meets its burden of production

by proffering a legitimate, non-discriminatory reason, thereby rebutting the

presumption of discrimination, [ ] [our] inquiry proceeds to a new level of

specificity, in which the plaintiff must show that the proffered reason really is a

pretext for unlawful discrimination.” Id. (internal quotation marks omitted).

       4
         We evaluate Voudy’s FCRA claim under the same standards as his Title VII claim. See
Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1271 (11th Cir. 2010).
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      The district court determined that Voudy failed at the first stage—that is, it

ruled that Voudy failed to make out a prima facie case of discrimination. In doing

so, however, the district court applied the incorrect legal standard. The district

court required Voudy to show that (1) he was a member of a protected class, (2) he

was qualified and applied for the promotion, (3) he was rejected despite his

qualifications, and (4) other equally or less qualified employees outside of the

protected class were promoted. D. Ct. Op., Doc. 33 at 4. It then concluded that

Voudy failed to make out a prima facie case because he failed to show that he was

equally or more qualified than Cooper or Thomas.

      This was error. In Walker v. Mortham, 158 F.3d 1177, 1186 (11th Cir.

1998), we addressed conflicting panel opinions concerning the elements of a prima

facie case in failure to promote cases. While a number of our decisions employed

the standard used by the district court in this case—requiring plaintiffs to show, at

the prima facie case stage, that other equally or less qualified employees were

promoted over them—other cases required plaintiffs to show only that the position

was filled with a person outside the plaintiff’s protected class. Id. We determined

that both our prior precedent rule and an independent assessment of which standard

best comported with Supreme Court precedent required only that a plaintiff show




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that the position was filled by someone outside his protected class. Id. at 1193.5

At least at the prima facie case stage, a plaintiff need not show that the candidate

who received the promotion was equally or less qualified than the plaintiff.

       Consequently, to make out a prima facie case, Voudy was required to show

that: (1) he was a member of a protected class; (2) he sought and was qualified for

a promotion; (3) despite his qualifications he was rejected; and (4) after his

rejection, his employer either continued to attempt to fill the positions or in fact

filled the positions with persons outside of his protected class. Id. at 1186. Voudy

has established each of these elements. By virtue of performing sufficiently well

on the Sergeant’s Exam, Voudy was eligible for promotion and therefore was at

least minimally qualified for the position he sought. Voudy, who is white, was

nonetheless rejected as a “sixth pick” in favor of Thomas and Cooper, who are

black. Consequently, the district court erred in finding that Voudy failed to make

out a prima facie case of discrimination.

       Voudy having made a prima facie case, the burden then shifted to the Sheriff

“to produce evidence that its action was taken for a legitimate, non-

discriminatory reason.” Brooks, 446 F.3d at 1162. “The defendant need not

persuade the court that it was actually motivated by the proffered reason, but need


       5
         We recognize that a number of our decisions continued to apply the incorrect prima
facie case test even after Walker. Nonetheless, Walker’s thorough assessment of the appropriate
standard is controlling.
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only present evidence raising a genuine issue of fact as to whether it discriminated

against the plaintiff.” Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1265

(11th Cir. 2010). “However, the defendant’s response must frame the factual issue

with sufficient clarity so that the plaintiff will have a full and fair opportunity to

demonstrate pretext.” Id. (internal quotation marks omitted). “The defendant may

not satisfy its burden by presenting a hypothetical reason for the employment

decision in question.” Walker, 158 F.3d at 1184.

      Although the Sheriff’s burden is “exceedingly light,” Vessels v. Atlanta

Indep. Sch. Sys., 408 F.3d 763, 770 (11th Cir. 2005) (internal quotation marks

omitted), we conclude that he failed to adequately articulate a legitimate, non-

discriminatory reason for promoting Thomas and Cooper over Voudy. No BSO

employee has identified any reason why Thomas and Cooper were promoted or

Voudy was not promoted. Dale was unable to recall anything about why Voudy

was not promoted:

      Q. Okay. . . . [C]an you state as to whether or not Deputy Cooper was
      more qualified for this position than Deputy Voudy?

      A. I don’t recall the conversation on the list or—you know, I’ll be
      honest with you, I only recognize probably a handful of names off the
      list. So in a side-by-side comparison, again, it’s considered to be a
      flat list. The contract allows the Sheriff to pick basically anyone he
      wants. . . .

      Q. Well, in this particular case can you give me any parameters as to
      the factors indicate influencing the command staff decision that
      Deputy Cooper was chosen over Deputy Voudy?
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      A. We’ve had many of these conversations. Again, the names don’t
      mean a lot to me because I don’t know many of them individually.
      We’ll typically pick multiple sergeants in one list along with
      lieutenants, and then we’ll have other meetings on, you know,
      captains and majors, so I don’t recall the individual conversation as to
      when we were discussing Mr. Voudy or Mr. Cooper.

Dale Dep., Doc. 22-2 at 14, 19. Nor was Colonel Alvin Pollock, another decision

maker, able to identify a reason that Thomas and Cooper were promoted over

Voudy:

      Q. Okay. . . . [C]an you, sitting here today, can you give me any
      reason as to why Deputy Voudy was not promoted as part of the
      promotion selection process?

      A. No, I could not, sir.

Pollock Dep., Doc. 22-3 at 17.

      Instead, Dale testified to various criteria that BSO considered when

determining promotions, including: education, training, assignments and

certifications, disciplinary history, ranking on the Sergeant’s Exam, performance

evaluations, law-enforcement experience, and attendance. But neither Dale nor

any other witness explained how these criteria were weighted or which ones were a

factor in the decision to promote Thomas and Cooper over Voudy. It appears from

the record that some of the criteria militated in favor of promoting Voudy over

Thomas and Cooper. For example, Voudy ranked higher than both Thomas and

Cooper on the Sergeant’s Exam and Voudy had 11 more years of experience in


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BSO’s Department of Law Enforcement than Cooper. But other criteria—training,

certifications, disciplinary history, and performance evaluations—appear to cut

against Voudy in comparison to Thomas and/or Cooper. For other considerations

that Dale identified, such as education and attendance, we simply have no evidence

or insufficient evidence in the record. Without any evidence indicating how the

identified criteria were weighed or considered in Voudy’s case, we can do no more

than speculate as to why Thomas and Cooper were promoted while Voudy was

not.

       It is not enough for the employer to say that general categories provide a

backdrop for its decision-making process, but not tell us which categories were

relied upon in this particular case. “[A]bstract terms as to what might have

motivated the decision-maker” are insufficient to meet the defendant’s burden of

articulation. Walker, 158 F.3d at 1181 n.8; see also Increase Minority

Participation by Affirmative Change Today of Nw. Fla., Inc. v. Firestone, 893 F.2d

1189, 1193-94 (11th Cir. 1990) (rejecting the notion that “evidence showing

dissimilarities in two applicants’ records” suffices to meet a defendant’s burden of

articulation). In the absence of any statement from the employer or its decision

makers explaining the reasons for its decision, we cannot hypothesize the

employer’s reasons and then use that speculation to find that the employer carried




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its burden of articulating a “clear and reasonably specific non-discriminatory basis

for its actions.” Vessels, 408 F.3d at 770 (internal quotation marks omitted).

      Because Voudy established a prima facie case of discrimination and the

Sheriff failed to rebut it by articulating a legitimate, non-discriminatory reason for

Voudy’s non-promotion, the district court erred in granting summary judgment to

the Sheriff.

                                IV.   CONCLUSION

      For the foregoing reasons, we reverse the district court’s grant of summary

judgment to the defendant and remand for proceedings consistent with this

opinion.

      REVERSED AND REMANDED.




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