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                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-15260
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 4:13-cv-00642-WS-CAS



PAMELA CHAMBERS,

                                                           Plaintiff-Appellant,

                                versus

STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION,

                                                         Defendant-Appellee.

                      ________________________

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

                           (September 9, 2015)

Before MARTIN, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM:
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       Paula Chambers appeals the district court’s order granting the Florida

Department of Transportation (“DOT”) summary judgment in her employment-

discrimination case under Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e–2(a)(1) (“Title VII”), and the Florida Civil Rights Act, Fla. Stat.

§ 760.10(1)(a) (“FCRA”). On appeal, Chambers argues that genuine issues of

material fact exist as to whether the DOT’s articulated reason for terminating her

employment—poor work performance for an extended period of time—was a

pretext for race discrimination.1 After careful review, we affirm.

                                                I.

       Chambers worked for the DOT in several capacities from 2004 until her

termination in September 2012. She began in the DOT’s Comptroller’s Office

before being promoted to the DOT’s Office of Work Program in 2008. At some

point, Chambers became a Work Program Analyst (“analyst”) for Statewide

Programs in the Office of Work Program, the position she retained until her

termination.

       Her work as an analyst was more complex than her work in the

Comptroller’s Office, requiring her to conduct independent analysis, make

recommendations, and adapt to changing circumstances. Analysts monitored and


       1
          Chambers also included in her complaint a claim of retaliation under Title VII, 42
U.S.C. § 2000e-3, which the district court dismissed by separate order earlier in the proceedings.
Chambers expressly abandons her retaliation claim on appeal, so we do not address it further.
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analyzed programming and expenditures for statewide programs, and they worked

closely with program managers and district representatives.                      The program

managers and district representatives frequently communicated with Chambers and

relied on her for advice based on reports she would run.

       When she began as an analyst, Chambers and two other analysts, Iman

Ameen and Lee Calhoun, were supervised by Paula Warmath, then Manager of

Statewide Programs.         In March 2011, on their respective annual Employee

Performance Evaluations, Warmath gave the three analysts overall ratings of 2.29

(Chambers), 4.20 (Ameen), and 4.11 (Calhoun). 2

       On Chambers’s evaluation, Warmath commented that the quality of

Chambers’s work “consistently does not achieve the performance expectation for

the position” and was “not at the level that it should be for the length of time that

she has worked in the Office of Work Program.” Further, Warmath stated,

              Ms. Chambers frequently has difficulty demonstrating
              required knowledge of how to perform some of the basic
              requirements of her job. She requires frequent and
              excessive supervision and prompting to complete daily
              work activities. She consistently has had difficulty with
              providing complete, timely and correct work products.
              When asked to update her supervisor on issues that are
              routine and should be addressed daily, she frequently is
       2
          A rating of 3 is the minimum satisfactory rating and means that the “[e]mployee
consistently meets and may occasionally exceed the performance expectation of the position.” A
rating of 2 means that the “[e]mployee exhibits inconsistent job performance, but has the
capacity to improve to meet the performance expectation of the position.” A rating of 4 indicates
that the employee meets and often exceeds expectations. In the evaluations, employees are rated
in various categories, and those individual ratings are used to calculate an overall rating.
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            not able to determine the reports and other supporting
            documentation that [are] needed to perform analysis even
            after receiving detailed and repetitive instruction
            sometimes both [] orally and in writing.

The evaluation reflects that it was reviewed by Kendra Sheffield, Warmath’s

supervisor, who commented, “This is a very analytical position and so far Ms.

Chambers does not show the ability to analyze the data and make

recommendations on her own.” Chambers attributed her poor evaluation to a

hospitalization around that time, missing reports that were not her fault, and a

hostile working environment created by Warmath.

      Due to the unsatisfactory evaluation, Warmath placed Chambers on a 90-day

performance improvement plan (“PIP”). During the PIP period, Chambers met

with Warmath often and Sheffield occasionally to receive coaching and assistance.

Chambers completed the PIP plan in June 2011. In a performance review at the

end of PIP period, Warmath gave Chambers an overall rating of 3.00, which was at

the bottom of the satisfactory performance range. In March 2012, Warmath again

gave Chambers a rating of 3.00 for her annual performance review.

      Warmath retired in June 2012, and Susan Wilson took over as Manager of

Statewide Programs. Around that time, Warmath informed Wilson that Chambers

may need help maintaining her performance. Wilson claimed that she immediately

noticed problems with Chambers’s work performance, and she shared her concerns

with Sheffield. For her part, Chambers contended that Wilson was overly critical
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and hostile and failed to give any meaningful guidance about what Chambers was

doing wrong or how she could improve.

      In July 2012, Wilson sought guidance from the DOT’s Employee Relations

Manager, Robert Framingham, about how to address Chambers’s performance

issues. Framingham told Wilson that a second PIP for the same issue—poor work

performance—was not consistent with DOT policy, and he suggested that

dismissal may be appropriate if Chambers again was not meeting work

expectations. Framingham recommended that Wilson conduct a special evaluation

to confirm Chambers’s poor work performance.

      In early August 2012, the Director of the Office of Work Program, Lisa

Saliba, met with Wilson, Sheffield, and Chambers.          Saliba discussed with

Chambers the concerns about her work performance and advised her that she could

be dismissed if her performance did not improve significantly.

      Wilson completed the special evaluation later in August 2012, giving

Chambers a rating of 2.30, which was below performance standards. Among other

specific comments on the evaluation, Wilson summarized Chambers’s work

performance as follows:

            The work required of this position is varied and complex
            and cyclical in nature (cyclical on an annual basis). Ms.
            Chambers is able to adequately perform the duties which
            are repetitive on a daily basis. However, that is a small
            percentage of the overall duties of this position. Ms.
            Chambers struggles to perform the remaining duties,
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               which are not repetitive and which require independent,
               analytical work. After almost four years in this office,
               Ms. Chambers is still unable to grasp many of the
               fundamentals of the work that she is responsible for
               performing.

Sheffield again reviewed the evaluation, commenting that Chambers was unable to

handle the duties requiring independent analysis and recommendations. Chambers

met with Sheffield and Wilson to talk about the special evaluation on August 21,

2012.       At the meeting, Chambers wrote on the evaluation that she believed

Wilson’s negative review was because of her race, citing an incident several years

before in which Wilson made a “racial comment” about Chambers.

        Regarding the “racial comment” incident, Chambers, who describes herself

as black, elaborated at her deposition and in an affidavit that, in 2008, she was in

an elevator along with two other black DOT employees when Wilson boarded on

the first floor, believing that the elevator was going up. The elevator instead

proceeded to the basement, where one of the employees delivered documents while

Chambers and the other employee held the doors open to allow the employee to

deliver the documents and re-board. When the three black employees left the

elevator on the first floor, Wilson stated “sorry ass niggers” and audibly pressed

the elevator button.3


        3
         Wilson’s denies having made this comment, but we resolve this factual dispute in favor
of Chambers’s account of events. See Mora v. Jackson Mem’l Found., Inc., 597 F.3d 1201, 1203
(11th Cir. 2010) (all reasonable factual doubts are resolved in favor of non-movant).
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      On August 31, 2012, Chambers received a letter informing her that she was

going to be terminated because of poor work performance and that she had a right

to a pre-determination conference. That conference was held on September 7,

2012. According to Saliba, Chambers did not deny the bases for her dismissal at

the conference. After the conference, Chambers was issued a formal notice of

termination for poor performance. Chambers was replaced by a white employee.

                                        II.

      After filing a charge of discrimination and receiving her right-to-sue letter

from the Equal Employment Opportunity Commission, Chambers filed her

complaint in Florida state court. The DOT removed the action to the United States

District Court for the Northern District of Florida and later moved for summary

judgment. The district court granted summary judgment to the DOT, concluding

that Chambers failed to show that the DOT’s legitimate non-discriminatory reason

for her termination—poor work performance over an extended period of time—

was a pretext for intentional discrimination. The court found unpersuasive and

unsupported by the record Chambers’s contention that she was targeted by Wilson

because of her race. Chambers now appeals.

                                       III.

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

the facts and the reasonable inferences drawn from those facts in the light most


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favorable to the non-moving party. Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d

763, 767 (11th Cir. 2005). Summary judgment should be granted “if the movant

shows 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); see Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 2509-10 (1986).

“[T]here is no issue for trial unless there is sufficient evidence favoring the

nonmoving party for a jury to return a verdict for that party.” Anderson, 477 U.S.

at 249, 106 S. Ct. at 2511. Therefore, summary judgment may be granted “[i]f the

evidence is merely colorable or is not significantly probative.” Id. at 249-50, 106

S. Ct. at 2511 (citations omitted); see Allen v. Tyson Foods, Inc., 121 F.3d 642, 646

(11th Cir. 1997) (stating that a mere scintilla of evidence in support of the

nonmoving party is insufficient to defeat summary judgment).

                                             III.

       Title VII and the FCRA prohibit employers from discriminating against their

employees on the basis of race, among other protected grounds.4                              42

U.S.C. § 2000e–2(a)(1); Fla. Stat. § 760.10(1)(a). Where, as here, the plaintiff

offers only circumstantial evidence of discrimination, we generally apply the

burden-shifting framework from McDonnell Douglas Corp. v. Green, 411 U.S.
       4
          We analyze Chambers’s claim under the FCRA under the same legal framework as her
Title VII claim because the FCRA is patterned after Title VII. See Wilbur v. Corr. Servs. Corp.,
393 F.3d 1192, 1195 n.1 (11th Cir. 2004) (“The Florida Civil Rights Act was patterned after
Title VII, and Florida courts have construed the act in accordance with decisions of federal
courts interpreting Title VII.”).
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792, 93 S. Ct. 1817 (1973). Holland v. Gee, 677 F.3d 1047, 1055 (11th Cir. 2012).

Under this framework, if the plaintiff establishes a prima facie case and the

employer proffers a legitimate, non-discriminatory reason for the adverse

employment decision, the plaintiff may then show that the employer’s proffered

reason was not the true reason but instead was a pretext for discrimination. 5 Id.;

see St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S. Ct. 2742, 2752

(1993) (“[A] reason cannot be proved to be ‘a pretext for discrimination’ unless it

is shown both that the reason was false, and that discrimination was the real

reason.”). At the pretext stage, the plaintiff’s burden of rebutting the employer’s

proffered reason “merges with the plaintiff’s ultimate burden of persuading the

court that the employer intentionally discriminated against her.” Alvarez v. Royal

Atl. Developers, Inc., 610 F.3d 1253, 1265 (11th Cir. 2010).

        Here, only the question of pretext is disputed.6 To show pretext, Chambers

“must       demonstrate      such     weaknesses,        implausibilities,      inconsistencies,

incoherencies, or contradictions in the employer’s proffered legitimate reasons for

        5
           The burden-shifting framework of McDonnell Douglas “is not, and was never intended
to be, the sine qua non for a plaintiff to survive a summary judgment motion in an employment
discrimination case.” Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011).
Rather, a triable issue of fact arises “if the record, viewed in a light most favorable to the
plaintiff, presents a convincing mosaic of circumstantial evidence that would allow a jury to infer
intentional discrimination by the decisionmaker.” Id. (internal quotation marks omitted).
        6
          Chambers also contends that she established a prima facie case of discrimination, but
the district court resolved the case based on her failure to show pretext, and the DOT does not
argue that she failed to establish a prima facie case. Therefore, we assume that Chambers made
out her prima facie case and proceed directly to the question of pretext.
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its action that a reasonable factfinder could find them unworthy of credence.” Id.

(citation and internal quotation marks omitted). Chambers must meet the DOT’s

proffered reason head on and rebut it, and cannot simply recast the reason, quarrel

with the wisdom of the reason, or substitute her own business judgment for the

DOT. See id. at 1265-66.

      As she did before the district court, Chambers argues that she has shown

pretext because Wilson’s specific criticisms of her work performance were

inaccurate or exaggerated, she was treated worse than similarly situated non-black

employees, the DOT did not follow its “progressive disciplinary policy” before

firing her, and Wilson previously used a racial slur in Chambers’s presence. She

also broadly contends that the district court erred in applying the summary-

judgment standard by not viewing the evidence in her favor.

      Overall, we agree with the district court that Chambers’s evidence does not

create a triable issue on whether the DOT’s legitimate non-discriminatory reason

for her termination was a pretext for unlawful discrimination. See Hicks, 509 U.S.

at 515, 113 S. Ct. at 2752; see Anderson, 477 U.S. at 249, 106 S. Ct. at 2511.

Chambers presents only one piece of evidence suggesting that the DOT’s proffered

reason may have actually been a pretext for racial discrimination:        Wilson’s

alleged racial slur about Chambers and two other black employees in 2008. This

discriminatory comment, unrelated to the employment decision, certainly


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contributes to a circumstantial showing of discriminatory animus.           Rojas v.

Florida, 285 F.3d 1339, 1343 (11th Cir. 2002). But Wilson’s isolated comment,

made nearly four years before the termination decision, when Wilson was not

Chambers’s supervisor, is insufficient on its own to establish a material fact on

pretext. See id.; see also Scott v. Suncoast Beverage Sales, Ltd., 295 F.3d 1223,

1229 (11th Cir. 2002) (“Although a comment unrelated to a termination decision

may contribute to a circumstantial case for pretext, it will usually not be sufficient

absent some additional evidence supporting a finding of pretext.” (citation

omitted)).

      Chambers has presented no other evidence of pretext sufficient to create a

genuine issue of fact.      She does argue at length that Wilson “concocted”

Chambers’s alleged poor work performance in order to have her fired, contending

that Wilson’s complaints about the quality of her work are unfounded, mistaken, or

overblown, and she contends that she rebutted each of the particular examples

Wilson cited as demonstrating Chambers’s poor performance.                In essence,

Chambers claims that Wilson wrongly evaluated her job performance.

      “[B]ut the fact that [Chambers] thinks more highly of her performance than

her employer does is beside the point.” Alvarez, 610 F.3d at 1266. Whether

Wilson accurately assessed Chambers’s job performance is not our inquiry, and

“we must be careful not to allow Title VII plaintiffs simply to litigate whether they


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are, in fact, good employees.” Id. (quoting Rojas, 285 F.3d at 1342). Our inquiry

into pretext focuses on the employer’s beliefs, not the employee’s. Id. at 1265.

Thus, the central question is whether Wilson and the DOT actually were

dissatisfied with her for non-discriminatory reasons, “even if mistakenly or

unfairly so, or instead merely used those complaints about [Chambers] as cover for

discriminating against her because of her [race].” Id.; see Moore v. Sears, Roebuck

& Co., 683 F.2d 1321, 1323 n.4 (11th Cir. 1982) (“[F]or an employer to prevail the

jury need not determine that the employer was correct in its assessment of the

employee’s performance; it need only determine that the defendant in good faith

believed plaintiff's performance to be unsatisfactory . . . .”). Our role is to prevent

unlawful employment practices, not to second-guess employers’ business

judgments. See Rojas, 285 F.3d at 1342.

      Even assuming that Wilson inaccurately or unfairly scrutinized and

evaluated her work performance, Chambers has not presented evidence suggesting

that Wilson was not honestly dissatisfied with Chambers’s work. See Alvarez, 610

F.3d at 1265. For starters, this is not a case where an employee with a good

employment history suddenly began receiving poor evaluations when a new

supervisor came on. Cf. Damon v. Fleming Supermarkets of Florida, Inc., 196

F.3d 1354, 1361-65 (11th Cir. 1999) (finding sufficient evidence of pretext where

an older store manager began receiving negative evaluations from a new


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supervisor, where the factual basis of the poor evaluation was challenged and there

was other evidence of discrimination, including a pattern of the supervisor’s

termination of older, experienced store managers for similar reasons and

replacement of them with younger employees). Though, even if that were the case,

it would not necessarily be evidence of pretext. See Rojas, 285 F.3d at 1343

(noting that different supervisors may permissibly impose different evaluation

standards).

      Rather, the evidence is that Chambers was, at best, an inconsistent performer

as an analyst. She received a negative performance review from Warmath in

March 2011, before any alleged discrimination began, which is consistent with

Wilson’s August 2012 evaluation. Although Chambers then received satisfactory

ratings from Warmath in June 2011 and March 2012, she received the minimal

acceptable ratings. Moreover, Warmath testified that she felt, nonetheless, that

Chambers “was a borderline employee.” Warmath stated that she gave Chambers

“the benefit of the doubt” in her March 2012 evaluation because Warmath “had

seen some potential on some days that maybe she would be able [to] continue to

improve.” Warmath also told Wilson that Chambers may need help maintaining

her performance. Given that Chambers had been previously evaluated as below

standards or as at the minimum level of meeting standards, Wilson’s poor




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evaluation of Chambers does not suggest pretext in these circumstances. Cf. Rojas,

285 F.3d at 1343.

      Chambers also claims that pretext based on the assertion that she was treated

differently than similarly situated employees. She contends that, from the moment

Wilson became her supervisor, Wilson was abusive, hostile, and overly critical,

and that she generally treated Chambers worse than Ameen and Calhoun, who are

outside of Chambers’s protected class. For example, Chambers alleged, during

group meetings, Wilson would give sarcastic answers or comments to Chambers’s

questions, but not to those of her co-workers. Wilson once told Chambers that she

was wasting other people’s time when she asked questions. Chambers also points

to Kimberly Ferrell, a budget director who was demoted and transferred as the

result of a budgetary error, as a comparator outside of her protected class who was

treated differently.

      For disparate treatment of employees outside of the plaintiff’s protected

class to constitute circumstantial evidence of discrimination, “[t]he plaintiff and the

employee she 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).

“The comparator must be nearly identical to the plaintiff to prevent courts from

second-guessing a reasonable decision by the employer.” Id.




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      Here, Chambers cannot show pretext through the DOT’s disparate treatment

of comparators because her proffered comparators were not similarly situated to

her—none had a history of poor work performance. Warmath’s testimony reflects

that Ameen and Calhoun performed at a higher level than Chambers and were

regarded as experts in their respective program areas. Neither employee had been

placed on a PIP nor required the level of assistance that both Warmath and Wilson

described Chambers as needing. As for Ferrell, she was a higher-level employee

who was not supervised by Wilson and was not terminated by Saliba. In addition,

although Chambers asserts that Ferrell was demoted, but not terminated, for a

budgetary error, the evidence does not reflect that Chambers was terminated solely

because of a budgetary error. Rather, the budgetary error identified by Wilson was

just one of many examples she cited as informing her evaluation of Chambers’s

deficient work performance. In short, Chambers has not shown that she was

treated worse than a similarly situated employee outside of her protected class.

      Finally, although an employer’s failure to follow its own policies may be

evidence of pretext, Morrison v. Booth, 763 F.2d 1366, 1374 (11th Cir. 1985)

(“Departures from normal procedures may be suggestive of discrimination.”),

Chambers has not shown that the DOT’s alleged failure to follow its disciplinary

policy supports a finding of pretext in this case. The disciplinary policy confers

substantial discretion on the decision maker as to whether and when to invoke the


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various disciplinary options identified in the policy, including dismissal, and

Chambers offered no evidence showing that the DOT applied the policy differently

to Chambers than it did to other employees.

       Having found no evidence sufficient to create a genuine issue of fact on

pretext, we affirm the district court’s entry of summary judgment in favor of the

DOT.

       AFFIRMED.




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