                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                            APRIL 27, 2006
                             No. 05-14384                 THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                    D. C. Docket No. 04-60456-CV-WPD

STEPHANIE TIPPIE,


                                                      Plaintiff-Appellant,

                                  versus

SPACELABS MEDICAL, INC.,

                                                      Defendant-Appellee.


                       ________________________

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


                             (April 27, 2006)


Before BLACK, HULL and MARCUS, Circuit Judges.

PER CURIAM:
      Stephanie Tippie appeals the district court’s order granting summary

judgment in favor of her former employer, Spacelabs Medical, Inc. (Spacelabs), as

to her complaint alleging national origin and gender discrimination in violation of

Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e, et seq.,

and the Florida Civil Rights Act (FCRA), § 760.10, Fla. Stat., and race

discrimination in violation of 42 U.S.C. § 1981. Tippie asserts the district court

erred in granting summary judgment because she presented both direct and

circumstantial evidence to show Spacelabs discriminated against her when it failed

to retain her in the newly created “Product Line Manager” or “Senior Product

Management” positions after the company underwent a reduction-in-force. Tippie

also contends the district court erred in dismissing her § 1981 race discrimination

claim. We affirm the district court.

                                 I. DISCUSSION

A. Standard of Review

      We review “a grant of summary judgment de novo, using the same legal

standard as the district court.” Merritt v. Dillard Paper Co., 120 F.3d 1181, 1184

(11th Cir. 1997). Summary judgment is proper if the pleadings, depositions, and

affidavits show there is no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 106 S. Ct.



                                          2
2548, 2552 (1986) (quoting Fed. R. Civ. P. 56(c)). The evidence, and all

inferences drawn from the facts, must be viewed in the light most favorable to the

non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 106 S.

Ct. 1348, 1356 (1986). “A mere scintilla of evidence in support of the nonmoving

party will not suffice to overcome a motion for summary judgment.” Young v. City

of Palm Bay, 358 F.3d 859, 860 (11th Cir. 2004).

B. Title VII and FCRA 1

       Title VII states, in relevant part, that it is “an unlawful employment practice

for an employer . . . to fail or refuse to hire or to discharge any individual, or

otherwise to discriminate against any individual with respect to his compensation,

terms, conditions, or privileges of employment, because of such individual’s race,

color, religion, sex, or national origin . . . .” 42 U.S.C. § 2000e-2(a). A plaintiff

may prove a claim of discrimination through (1) direct evidence, (2) circumstantial

evidence, or (3) statistical proof. See Earley v. Champion Int’l Corp., 907 F.2d

1077, 1081 (11th Cir. 1990).




       1
         A claim under the FCRA is analyzed under the same standards as a Title VII claim. See
Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385, 1387 (11th Cir. 1998).

                                              3
      1. Product Line Manager position

      Tippie asserts she presented both direct and circumstantial evidence of

discrimination based on Spacelabs’ failure to hire her into the Product Line

Manager position.

             a. Direct evidence

      Tippie contends she presented direct evidence that Spacelabs intentionally

discriminated against her on the basis of her national origin, namely when Jukka

Turtola, the decision-maker in this case, used the phrase “not native” in an e-mail

in which he compared the qualifications of Tippie and Facundo Carrillo, the

individual ultimately selected for the Product Line Manager position. In the

e-mail, Turtola listed “[n]ative in Spanish language” as an important requirement

for the position, and then noted Carrillo was “native in Spanish” whereas Tippie

“speaks some basic Spanish but is not native.”

      “Direct evidence of discrimination is evidence which, if believed, would

prove the existence of a fact in issue without inference or presumption. Only the

most blatant remarks, whose intent could be nothing other than to discriminate on

the basis of [a protected characteristic] constitute direct evidence of

discrimination.” Bass v. Board of County Comm’rs, Orange County, Florida, 256

F.3d 1095, 1105 (11th Cir. 2001) (quotations, alterations, and citations omitted).



                                           4
      We conclude Tippie did not present direct evidence of discrimination.

Taken in context, Turtola’s use of the phrase “not native” was a manner of

describing Tippie’s Spanish language abilities, not her national origin. In any

event, because this comment does not “prove the existence of a fact in issue

without inference or presumption,” it is not direct evidence of discrimination. See

Bass, 256 F.3d at 1105; cf. Ferrill v. Parker Group, Inc., 168 F.3d 468, 472 (11th

Cir. 1999) (finding direct evidence of intentional racial discrimination where

employer admitted that it had made job assignments based on race). Because

Turtola’s comment is not a blatant remark “whose intent could be nothing other

than to discriminate,” the district court did not err in finding Tippie failed to

present direct evidence of discrimination. See Bass, 256 F.3d at 1105.

             b. Circumstantial evidence

      We use the burden-shifting framework established in McDonnell Douglas

Corp. v. Green, 93 S. Ct. 1817 (1973), and Texas Dep’t of Cmty. Affairs v.

Burdine, 101 S. Ct. 1089 (1981), in order to evaluate claims based on

circumstantial evidence of discrimination. See Chapman v. AI Transport, 229 F.3d

1012, 1024 (11th Cir. 2000) (en banc). Under this approach, if a plaintiff can

establish a prima facie case of discrimination, the burden of production shifts to

the employer to articulate a legitimate, non-discriminatory reason for the



                                            5
employment decision. McDonnell Douglas, 93 S. Ct. at 1824. If the employer

meets this burden, then the burden shifts back to the plaintiff and merges with the

ultimate burden of persuasion, which “remains at all times with the plaintiff,” and

the plaintiff must “prove by a preponderance of the evidence that the legitimate

reasons offered by the defendant were not its true reasons, but were a pretext for

discrimination.” Burdine, 101 S. Ct. at 1093. A plaintiff can meet this burden

“either directly by persuading the court that a discriminatory reason more likely

motivated the employer or indirectly by showing that the employer’s proffered

explanation is unworthy of credence.” Id. at 1095.

      A plaintiff in a job-reduction case establishes a prima facie case by showing:

      (1) that he was in a protected group and was adversely affected by an
      employment decision; (2) that he was qualified to assume another
      position at the time of discharge or demotion; and (3) evidence by
      which a factfinder might reasonably conclude that the employer
      intended to discriminate in reaching the decision at issue.

Barnes v. Southwest Forest Indus., Inc., 814 F.2d 607, 609 (11th Cir. 1987). In

Jameson v. Arrow Co., an age discrimination case, we noted we generally have

“eschewed an overly strict formulation of the elements of a prima facie case,” and

concluded “where a job for which the plaintiff is qualified, and for which the

plaintiff applies, is available at the time of termination, and the employer offers the

job to an individual outside the protected . . . group, an inference of intentional



                                           6
discrimination is permissible.” 75 F.3d 1528, 1531-32 (11th Cir. 1996); see

also Burdine, 101 S. Ct. at 1094 (noting the plaintiff’s burden of establishing a

prima facie case “is not onerous”).

       We conclude Tippie met her burden of demonstrating a prima facie case of

discrimination based on either her national origin or her gender, and the district

court erred in finding otherwise. Following the reduction-in-force, Tippie was

qualified for and considered for an available position within the company, but

Spacelabs offered the job to Carrillo, who was not American or female. Although

this is not strong evidence, it is sufficient to raise an inference of intentional

discrimination based on either national origin or gender. See Jameson, 75 F.3d at

1531-32.

       Because Tippie has established a prima facie case of discrimination,

Spacelabs has the burden of producing a legitimate, non-discriminatory reason for

the adverse employment action. McDonnell Douglas, 93 S. Ct. at 1824. In this

case, Spacelabs asserted it chose to hire Carrillo instead of Tippie because he was

better qualified for the position based on (1) his experience working for and

running a distributor in Latin America; (2) his greater technical and clinical

training and experience; and (3) his superior language abilities. We conclude this

was a legitimate reason for choosing to hire Carrillo, and therefore, the burden



                                            7
shifts back to Tippie to “prove by a preponderance of the evidence that the

legitimate reasons offered by the defendant were not its true reasons, but were a

pretext for discrimination.” Burdine, 101 S. Ct. at 1093.

       Tippie attempts to show pretext in a number of ways, including (1) directly,

by alleging that she was more qualified for the position; (2) indirectly, by showing

that the decision-making process was unworthy of credence; and (3) indirectly, by

showing shifting justifications for the adverse employment action. Tippie failed to

raise a genuine issue of material fact regarding whether Spacelabs’ reasons were

pretext, and she failed to produce sufficient evidence to meet her ultimate burden

of proving by a preponderance of the evidence the adverse employment action was

based on discriminatory animus. Tippie cannot show Spacelabs’ reasons were

pretext by arguing she was more qualified for the position. Although it is possible

to show pretext by asserting superior qualifications, a plaintiff will only be

successful if the “disparities in qualifications [are] 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.” Cooper v.

Southern Co., 390 F.3d 695, 732 (11th Cir. 2004) (quotations and citation omitted),

cert. denied, 126 S. Ct. 478 (2005).2 In this case, Tippie was unable to show her


       2
          In Ash v. Tyson Foods, Inc., the Supreme Court held this Court’s precedent requiring the
disparity in qualifications be “so apparent as virtually to jump off the page and slap you in the face,”

                                                   8
qualifications were so much better than Carrillo’s that no reasonable person could

have chosen Carrillo for the position. Tippie’s other attempts at showing pretext

also fail, as our independent review of the record shows Spacelabs’ reasons for

selecting Carrillo would motivate a reasonable employer and were consistent

throughout the entire process. Accordingly, we affirm the district court’s grant of

summary judgment to Spacelabs as to this issue.

       2. Senior Product Management position

       Tippie asserts she also presented both direct and circumstantial evidence of

discrimination with respect to Spacelabs failure to hire her into the Senior Product

Management position. As discussed above, Tippie failed to present any direct

evidence of discrimination, and thus, must proceed under the McDonnell Douglas

burden-shifting framework used to evaluate circumstantial evidence.

       The district court did not err in concluding Tippie failed to establish a prima

facie case of discrimination with respect to the Senior Product Management

position. Tippie did not demonstrate, under the second prong of the prima facie

analysis, that she was qualified to assume the position because she did not have an

engineering degree or sufficient technical knowledge of the products.




to be unhelpful and imprecise. 126 S. Ct. 1195 (2006). In Ash, the Supreme Court cited, without
articulating an exact standard, the standard quoted above. Id.

                                              9
B. Dismissal of race discrimination claim under 42 U.S.C. § 1981

      Tippie asserts the district court erred in dismissing her claim of race

discrimination under 42 U.S.C. § 1981 after finding the claim was premised

entirely on discrimination based on her national origin, not her race. “Section 1981

prohibits intentional race discrimination in the making and enforcement of public

and private contracts, including employment contracts.” Ferrill v. Parker Group,

Inc., 168 F.3d 468, 472 (11th Cir. 1999); see also Saint Francis College v. Al-

Khazraji, 107 S. Ct. 2022, 2026 (1987) (noting § 1981 has been construed to forbid

all “racial” discrimination in the making of contracts). “All persons . . . shall have

the right . . . to make and enforce contracts, to sue, be parties, give evidence, and to

the full and equal benefit of all laws and proceedings for the security of persons

and property as is enjoyed by white citizens . . . .” 42 U.S.C. § 1981(a). By its

very terms, § 1981 applies to claims of discrimination based on race, not national

origin. See id.

      The district court did not err in dismissing Tippie’s § 1981 race

discrimination claim because her only alleged evidence of discrimination was

based on the fact that she is not a native of Latin America. This is a claim based on

her national origin, not her race. Accordingly, the district court did not err in

dismissing this claim as not cognizable under 42 U.S.C. § 1981.



                                           10
                                II. CONCLUSION

      Tippie failed to raise a genuine issue of material fact on her claims of

discrimination. The district court did not err in granting Spacelabs’ motion for

summary judgment.

      AFFIRMED.




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