             Case: 14-15077    Date Filed: 06/11/2015   Page: 1 of 6


                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 14-15077
                           Non-Argument Calendar
                         ________________________

                      D.C. Docket No. 9:14-cv-80018-RLR

MARYANN SILVESTRI,

                                                              Plaintiff-Appellant,

                                     versus

JUPITER INLET COLONY, FLORIDA,

                                                             Defendant-Appellee.

                         ________________________

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

                                (June 11, 2015)

Before TJOFLAT, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

      Maryann Silvestri appeals from the district court’s grant of summary

judgment in favor of the town of Jupiter Inlet Colony (the “Town”) in her

employment discrimination suit alleging gender discrimination, raised pursuant to
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42 U.S.C. § 1983. Silvestri essentially argues that (1) the district court applied the

incorrect standard for a prima facie case of discrimination, and its finding

regarding pretext was not factually and legally supported in any event, and (2) she

adequately presented evidence giving rise to an inference that the Town terminated

her because of her gender. After thorough review, we affirm.

      We review a district court’s grant of summary judgment de novo. Rojas v.

Florida, 285 F.3d 1339, 1341 (11th Cir. 2002). Additionally, we may affirm on

any legal ground, regardless of the grounds relied on by the district court.

Cuddeback v. Florida Bd. of Educ., 381 F.3d 1230, 1235 (11th Cir. 2004).

      When a plaintiff attempts to prove intentional discrimination using

circumstantial evidence, we apply the burden shifting framework from McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). Schoenfeld v. Babbitt, 168 F.3d

1257, 1267 (11th Cir. 1999). Under McDonnell Douglas, the plaintiff has the

initial burden of establishing a prima facie case of discrimination. McDonnell

Douglas, 411 U.S. at 802. If the plaintiff does so and the employer articulates a

legitimate, non-discriminatory reason for its action, then the plaintiff must show

that the proffered reason is really a pretext for unlawful discrimination. Texas

Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). The ultimate burden

of persuasion remains with the plaintiff at all times. Id.




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      Pursuant to the third step of McDonnell Douglas, if the employee does not

proffer sufficient evidence to create a genuine issue of material fact regarding

whether the employer’s stated reasons are pretextual, then the employer is entitled

to summary judgment on the employee’s claim. Chapman v. AI Transp., 229 F.3d

1012, 1024-25 (11th Cir. 2000) (en banc). In order for the employee to prove that

a reason is a pretext for discrimination, the employee must show that the

employer’s asserted reason is false, and that discrimination was the real reason. St.

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993).

      Provided that a proffered reason is one that might motivate a reasonable

employer, an employee must meet that reason “head on” and rebut it. Chapman,

229 F.3d at 1030. The employee cannot succeed by simply quarreling with the

wisdom of that reason. Id. Rather, the 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. Combs v. Plantation Patterns, 106 F.3d 1519, 1538

(11th Cir. 1997). The court should, however, be careful not to allow plaintiffs to

simply litigate whether they are, in fact, good employees. Rojas, 285 F.3d at 1342.

Moreover, a stray remark, isolated and unrelated to the challenged employment

decision, standing alone, is insufficient to establish a material fact on pretext. See

id. at 1342-43.


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      Establishing the elements of the McDonnell Douglas framework is not an

essential requirement for a plaintiff to survive summary judgment. See Smith v.

Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011).             Rather, the

plaintiff will always survive summary judgment if she presents circumstantial

evidence that creates a triable issue concerning the employer’s discriminatory

intent. Id. However, 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, Fla., 358 F.3d 859, 860 (11th Cir. 2004); see also Wilson v. B/E

Aerospace, Inc., 376 F.3d 1079, 1092 (11th Cir. 2004).

      Here, even if we render it unnecessary to identify a particular prima facie

formulation -- by assuming arguendo that Silvestri made out her prima facie case --

we conclude that she failed to show that the Town’s reasons for her termination

were pretextual. An employee must take the employer’s stated reasons “head on”

and rebut them. Chapman, 229 F.3d at 1030. Rather than disputing the evidence

or the reasons given by the Town, Silvestri instead argued that the Town gave

changing reasons for her termination. However, the record reveals that the Town

provided consistent reasons for her termination -- both initially and in her

termination letter. Further, Silvestri failed to rebut the Town’s evidence supporting

its reasons for termination, or the mayor’s personnel investigation report.       In

considering Silvestri’s argument that she was a good officer, we do not allow


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plaintiffs to simply litigate whether they are, in fact, good employees. Rojas, 285

F.3d at 1342.

      As for Silvestri’s reliance on an alleged pre-hiring comment by the mayor

which referenced gender, that comment, standing alone, is insufficient to establish

pretext. See id. at 1342-43 (holding that supervisor’s statement to another

employee, not the plaintiff, that the other employee did not deserve her job because

she was a woman was insufficient to show pretext for the plaintiff). As the record

here shows, the mayor made his alleged comment before the Town hired Silvestri,

and the comment was not about Silvestri in particular. As a result, Silvestri did not

demonstrate that the Town’s basis for termination was pretextual.

      Finally, independent of any burden-shifting framework, Silvestri failed to

present evidence giving rise to an inference that the Town intentionally fired her

due to her gender. As we’ve noted above, the Town did not provide changing

reasons for her termination.     Moreover, Silvestri did not dispute many key

statements of material fact relevant to the mayor’s decision to terminate her on

non-discriminatory grounds. And once again, the mayor’s pre-hiring statement,

even if true, was a “stray remark” and too attenuated to defeat summary

judgement. See Young, 358 F.3d at 860 (“A mere scintilla of evidence in support

of the nonmoving party will not suffice to overcome a motion for summary

judgment.”).


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AFFIRMED.




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