             Case: 15-12927    Date Filed: 09/02/2016   Page: 1 of 13


                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 15-12927
                            Non-Argument Calendar
                          ________________________

                    D.C. Docket No. 4:14-cv-00440-RH-CAS

CHANTELLE DISHMAN,

                                                             Plaintiff-Appellant,

                                      versus

STATE OF FLORIDA DEPARTMENT OF JUVENILE JUSTICE,

                                                             Defendant-Appellee.
                          ________________________

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

                               (September 2, 2016)



Before MARTIN, JORDAN and JILL PRYOR, Circuit Judges.

PER CURIAM:

      This case arises out of a decision by the State of Florida Department of

Juvenile Justice (“Department”) not to promote its employee Chantelle Dishman.
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After a white employee was selected for a promotion, Dishman, who is black, sued

the Department alleging racial discrimination. The district court entered summary

judgment in favor of the Department because Dishman failed to demonstrate that

the Department’s legitimate non-discriminatory reason for promoting the white

employee was pretextual. We agree with the district court and therefore affirm.

                     I.    Factual and Procedural Background

      Dishman began working for the Department in 2000. She became the

supervisor of the Department’s Central Communications Center (“CCC”), which

runs the hotline used to report all incidents involving youths under the agency’s

supervision, in 2007. When an incident is reported to the hotline, the CCC assigns

the incident to another division for investigation. Dishman was responsible for

supervising the CCC employees.

      When the Department internally restructured and created an Incident

Operations Center (“IOC”) in 2013 as part of an effort to reform the Department’s

monitoring and management programs, the Department needed to fill the position

of IOC director. The IOC director is responsible for overseeing the CCC

supervisor and analysts from three other departments. The IOC director’s

responsibilities are broader than those of the CCC supervisor because the IOC

director is responsible for not only ensuring the timely reporting of incidents but

also identifying systemic issues and proposing improvements.


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       The responsibility of interviewing candidates for the IOC director position

fell upon Robert Munson, the Department’s Inspector General. Munson

understood that although he was responsible for selecting the top two candidates,

he lacked authority to make a final decision. Instead, either Alex Kelly, the

Department’s Chief of Staff, or Christy Daly, the Department’s Deputy Secretary,

had final say over the hiring of the IOC director.

       Munson, as part of a panel of Department employees, interviewed five

candidates for the IOC director position, including Dishman and Holly Johnson, a

white Department employee responsible for overseeing the investigation of

incidents reported to the hotline that occurred in Department facilities and

residential units. The panel asked each candidate the same set of questions, and

each panel member scored the candidates based upon their responses. When the

scores were tabulated, Dishman received the highest score and Johnson the second

highest.

       After the interviews were completed, Munson told Dishman that she had

received the highest score. Dishman claims that Munson also told her that she had

been selected as IOC director. Munson denies telling Dishman that she had the

job.

       In a meeting after the interviews, Kelly and Munson discussed the interview

process. When Kelly reviewed the questions the panel asked, he found that the


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panel failed to ask about the skills required for success in the IOC director position.

Although Kelly determined that the panel had identified the two top candidates, he

decided that another round of interviews was necessary to evaluate whether

Dishman or Johnson was the better candidate. Although Kelly claims he stated in

this meeting that the interview questions were insufficient, Munson denies it.

      Kelly, Daly, and another senior Department leader interviewed Dishman and

Johnson. Kelly explained that the purpose of the interviews was to identify which

candidate was better qualified across four criteria: subject matter knowledge;

ability to communicate effectively to colleagues, program staff, and leadership;

ability to be a change manager in human relations; and ability to be a change

manager in the types and uses of data. Johnson outperformed Dishman in the

second interview. Dishman repeatedly told the interviewers that she essentially

was already performing the functions of the IOC director and failed to identify new

ideas she would implement, while Johnson articulated ideas about how she would

improve reporting and analysis of incidents. The interviewers unanimously

selected Johnson for the position of IOC director.

      Dishman sued the Department in Florida state court asserting a race

discrimination claim under 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.




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§ 760.10(1)(a).1 After the Department removed the case to federal court and the

parties completed discovery, the Department moved for summary judgment. At a

hearing, the district court orally granted the Department’s summary judgment

motion. This is Dishman’s appeal.

                              II.     Standard of Review

       We review a grant of summary judgment de novo and “draw all inferences

and review all evidence in the light most favorable to the non-moving party,” here

Dishman. Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1318 (11th

Cir. 2012) (internal quotation marks omitted). 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). A dispute regarding a

material fact is genuine “if the evidence is such that a reasonable jury could return

a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986).

                                     III.   Discussion

       A.     The McDonnell-Douglas Framework

       Dishman alleges that she was terminated on the basis of race in violation of

Title VII. Because she relies on circumstantial evidence to prove her race


       1
       Because the FCRA analysis mirrors that of Title VII, we need not address Dishman’s
FCRA claim separately. Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385, 1387 (11th Cir.
1998).
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discrimination claim, we use the three-part framework set forth in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973), to evaluate her claim at the

summary judgment stage. Underwood v. Perry Cty. Comm’n, 431 F.3d 788, 794

(11th Cir. 2005).

      At the first step of the McDonnell-Douglas framework, the plaintiff must

“establish by a preponderance of the evidence a prima facie case of

discrimination.” Kidd v. Mando Am. Corp., 731 F.3d 1196, 1202 (11th Cir. 2013).

Because the Department concedes that Dishman established a prima facie case, we

presume that race motivated the Department to select Johnson over Dishman for

the IOC director position. See Smith v. Lockheed-Martin, 644 F.3d 1321, 1325

(11th Cir. 2011).

      At the second step, the employer must introduce evidence of “some

legitimate, non-discriminatory reason” for its employment decision. Id. (internal

quotation marks omitted). The Department met this burden by coming forward

with evidence that it selected Johnson over Dishman because Johnson’s

performance at the second round of interviews showed she was more qualified.

The Department also put forth a legitimate, non-discriminatory reason for adding a

second round of interviews after Kelly discovered the first panel’s questions failed

to capture the position’s role and responsibilities in the reorganized Department.




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As such, the Department rebutted the presumption raised by the prima facie case.

See id. at 1325-26.

      At the third step, the employee must show that the employer’s proffered

reason is a “pretext for unlawful discrimination.” Id. at 1326. To demonstrate

pretext, an employee must show such “weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the employer’s proffered

legitimate reasons for its action that a reasonable factfinder could find them

unworthy of credence.” Jackson v. Ala. State Tenure Comm’n, 405 F.3d 1276,

1289 (11th Cir. 2005) (internal quotation marks omitted). At this step, the

employee must meet the employer’s reason “head on and rebut it.” Chapman v. AI

Transport, 229 F.3d 1012, 1030 (11th Cir. 2000) (en banc).

      In some cases, the rejection of the defendant’s proffered reasons and the

elements of the prima facie case “will permit the trier of fact to infer the ultimate

fact of intentional discrimination.” Reeves v. Sanderson Plumbing Prods., Inc.,

530 U.S. 133, 147 (2000) (internal quotation marks omitted). In these cases, “once

the employer’s justification has been eliminated, discrimination may well be the

most likely alternative explanation, especially since the employer is in the best

position to put forth the actual reason for its decision.” Id.; see Kragor v. Takeda

Pharm. Am., Inc., 702 F.3d 1304, 1308-09 (11th Cir. 2012) (“If a plaintiff

produces sufficient evidence that the employer’s proffered reason is merely


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pretextual, that evidence may sometimes be enough to preclude summary judgment

in favor of the employer.”).

      But in other cases, establishing the falsity of the employer’s stated reason

will be insufficient to establish discrimination because “although the plaintiff has

established a prima facie case and set forth sufficient evidence to reject the

defendant’s explanation, no rational factfinder could conclude that the action was

discriminatory.” Reeves, 530 U.S. at 148. To survive summary judgment, an

employee must do more than establish the falsity of the employer’s proffered

reason when the employee “created only a weak issue of fact as to whether the

employer’s reason was untrue and there was abundant and uncontroverted

independent evidence that no discrimination had occurred.” Id. at 147.

      Dishman sets forth a number of arguments about why the Department’s

proffered reasons for holding a second round of interviews and then selecting

Johnson were pretextual. Having carefully considered each of Dishman’s

arguments and the record, we conclude that no reasonable factfinder, viewing all

the evidence in the light most favorable to Dishman, could determine that the

Department’s reasons were unworthy of credence.

      Dishman first asserts that she established pretext because she was better

qualified than Johnson for the position. But Johnson and Dishman were in many

ways similarly qualified: each had prior supervisory experience in the Department


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and a college degree. Indeed, after interviewing each candidate, Munson’s panel

rated Dishman and Johnson similarly, with only a slight edge to Dishman. “In the

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

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

he coveted.” Springer v. Convergys Customer Mgmt. Grp. Inc., 509 F.3d 1344,

1349 (11th Cir. 2007) (alteration in original) (internal quotation marks omitted).

Instead, the plaintiff must prove that the disparity in qualifications was “of such

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

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

(internal quotation marks omitted); see also Rowell v. BellSouth Corp., 433 F.3d

794, 798 (11th Cir. 2005) (“It is by now axiomatic that we cannot second-guess the

business decisions of an employer.”). Simply put, we cannot say that the disparity

in qualifications was so great that no reasonable person could have selected

Johnson over Dishman.

      Second, Dishman contends that Kelly’s decision to abandon the original

hiring process and hold another round of interviews is evidence of pretext. But

even if the Department changed its hiring process after the first round of

interviews, an employer’s failure to follow its own internal policies “does not

necessarily indicate racial discrimination.” See Springer, 509 F.3d at 1350. Here,

the Department set forth a legitimate, non-discriminatory reason why it added a


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second round of interviews. As Kelly explained, he added the second round of

interviews because the questions asked by the first panel failed to reflect the

responsibilities of the IOC director.2

       Although Dishman argues that the Department has given shifting

explanations why it added a second round of interviews and that the second round

of interviews were added merely as a pretext to discriminate against her, we

disagree. Kelly’s stated reason for adding a second round of interviews has

remained consistent. Moreover, the questions asked by the second interview panel

addressed all the responsibilities of the IOC director, which further supports the

conclusion that Kelly added the second round of interviews to determine who

could better perform those responsibilities.

       Dishman asserts that Kelly’s testimony that he added a second round of

interviews because he was unsatisfied with the questions asked in the first round is

contradicted by Munson’s testimony that there was always going to be a two-stage

interview process.3 But the record does not support Dishman’s position: Munson


       2
          We acknowledge that there is a disputed issue of fact about whether Kelly told Munson
that the first interview panel’s questions were insufficient. But this disputed issue of fact is
immaterial because it does not rebut head on the Department’s assertion that a second round of
interviews was necessary because the questions the first panel asked were insufficient. See
Chapman, 229 F.3d at 1037.
        3
          Dishman also contends that inconsistent testimony about who had the ultimate hiring
authority for the IOC director position calls into question the Department’s proffered
justifications for selecting Johnson. Again, the record does not support her position. Even
viewing all the evidence in the light most favorable to Dishman, no reasonable jury could
conclude that Munson had the ultimate hiring authority for the IOC director. Munson testified
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denied he was told at the start of the hiring process that there would be two rounds

of interviews.

       Dishman argues that the Department’s explanation that it added a second

round of interviews to evaluate the candidates’ communication skills is unworthy

of credence because there is evidence that both Dishman and Johnson were

perceived in the Department as having difficulty communicating effectively. But

evidence of the candidates’ past difficulties with effective communication does not

contradict the Department’s assertion that a second round of interviews was needed

to evaluate their communication skills. Indeed, if both candidates were weak

communicators, it follows that the Department would want to address

communication skills in the interview to be sure that it selected the stronger

candidate.

       Dishman also argues that because the interviewers took few notes, the

second round of interviews was a sham. But a reasonable jury could not conclude

from the paucity of notes that the Department did not convene the second round of

interviews to evaluate Dishman and Johnson based on questions that reflected the

skills required for the director position.


that he lacked that authority. And Kelly testified that either he or the Deputy Secretary had to
approve the hiring decision. Dishman argues that because Kelly or the Deputy Secretary could
have given electronic approval of a candidate selected by Munson, Munson actually had final
decision making authority. But we fail to see how a reasonable jury could conclude from the fact
that Kelly or the Deputy Secretary could give their final approval electronically that Munson was
the ultimate decisionmaker.
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        Finally, Dishman argues that the Department’s proffered justification for

selecting Johnson was pretextual because the second interview panel relied on

subjective, not objective, standards to select Johnson. But we have previously held

that employers may rely on subjective criteria when making employment decisions

and recognized that subjective factors may weigh “heavily” in employment

decisions for supervisory positions. Chapman, 229 F.3d at 1033-34. Accordingly,

we conclude that Dishman failed to show pretext because no reasonable jury could

conclude that the Department’s proffered reasons for conducting a second round of

interviews and selecting Johnson were unworthy of credence.

        Even assuming that a reasonable jury could conclude that the Department’s

stated reasons were false, no rational factfinder could conclude that the

Department’s actions were discriminatory. This is because Dishman, at best, has

created a weak issue of fact as to whether the Department’s proffered reasons were

untrue and there is “abundant and uncontroverted independent evidence that no

discrimination had occurred.” Reeves, 530 U.S. at 147. 4

                                        IV.     Conclusion

       Because the district court properly granted summary judgment to the

Department, we affirm.

        4
        Dishman also argues that the district court erred in granting summary because the
Department failed to include any citations to the record in its summary judgment motion. But
Dishman failed to raise this issue in the district court, and we will not consider it for the first time
on appeal. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004).
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AFFIRMED.




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