           Case: 19-10138   Date Filed: 10/04/2019   Page: 1 of 7


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-10138
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 4:17-cv-00200-CDL



RODERICK JOLIVETTE,

                                                            Plaintiff-Appellant,

                                 versus

CITY OF AMERICUS, GA,


                                                          Defendant-Appellee.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Georgia
                     ________________________

                            (October 4, 2019)

Before WILLIAM PRYOR, MARTIN and BRANCH, Circuit Judges.

PER CURIAM:
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      Roderick Jolivette appeals the summary judgment against his complaint that

the City of Americus, Georgia, refused to hire him as Fire Chief because he was

African-American and in retaliation for suing his former employer for unlawful

employment practices, in violation of Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e-2(a), and of his right to the free and equal benefit of all laws, id.

§ 1981. Jolivette also complained about being subject to different terms and

conditions of employment, id. §§ 2000e-2(a), 2000e-3(a), 1981, but he has

abandoned any challenge to the dismissal of that claim. Hamilton v. Southland

Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir. 2012). The district court ruled

that the legitimate, nondiscriminatory reasons the City proffered for hiring Roger

Bivins, a Caucasian man, were not pretexts for discrimination and retaliation. We

affirm.

      We review de novo a summary judgment. Alvarez v. Royal Atl. Developers,

Inc., 610 F.3d 1253, 1263 (11th Cir. 2010). 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).

      An employer is prohibited from discriminating against an applicant because

of his race or because he has opposed an unlawful employment practice. 42 U.S.C.

§ 2000e-2(a)(1), 3(a); id. § 1981. Jolivette relies on circumstantial evidence to




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prove his claims of discrimination and retaliation under the burden-shifting

approach provided in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

      The City presented evidence that it had legitimate, nondiscriminatory

reasons for hiring Bivins instead of Jolivette. The City submitted an affidavit from

its final decisionmaker, Steve Kennedy, who stated that he hired Bivins based on

his “combination of education, training, and experience,” his “overall experience

and qualifications,” his “intimate knowledge of the [Americus] Fire Department

and its personnel,” his “enthusiasm for the job,” his “performance during his

interviews and receipt of higher interview scores” and his “efficiency, positivity,

and ambitiousness.” Bivins served the Department for 15 years as a firefighter,

engineer, and captain, followed by 10 years as its Battalion Chief. His resume also

listed numerous certifications that he had acquired as a fire officer, a fire control

instructor, and a safety officer and for emergency training and planning.

      As Kennedy averred, the interviewers overwhelmingly preferred Bivins.

Interviewers consisted of local officials, the outgoing Fire Chief, firefighters, and

fire chiefs from other locales. Of the 28 interviewers who submitted opinions by

email, 20 ranked Bivins as their choice for Fire Chief, two ranked Bivins as tied for

the position, and none ranked Jolivette as their first choice. The interviewers

favored Bivins because he was “rooted in Americus,” “his work history was more

stable than any other candidate,” “[h]e already ha[d] a pulse on the department”


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and an “aware[ness] of the current status and . . . needs . . . to move the department

forward,” he collaborated with other city agencies, and he had strategic long-term

plans for the Department and its employees. The interviewers also commended

Bivins for “always striving to better the dept. and the city,” “work[ing] his way up

through the Americus Fire Department,” “work[ing] hard to maintain respect and

trust,” “tak[ing] the initiative to seek further education,” and being “passionate

about his job . . . .”

       The City was entitled to rely on subjective hiring criteria in making its hiring

decision. “A subjective reason is a legally sufficient, legitimate, nondiscriminatory

reason if the defendant articulates a clear and reasonably specific factual basis

upon which it based its subjective opinion.” Chapman v. AI Transp., 229 F.3d

1012, 1034 (11th Cir. 2000). Kennedy and the interviewers favored Bivins based

on his stable employment history with the City, his enthusiasm, and his strategic

plans for and intention to remain with the Department. See id. at 1033–34. And the

interviewers relied on similar subjective factors to give Jolivette a low ranking.

Interviewers disfavored Jolivette because of his evasive responses, his shortsighted

one-year plan for the City, and his intent to retire in five years. Even the two

interviewers who expressed a preference for hiring an African-American candidate

ranked Jolivette last due to his demeanor and his responses.




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       The evidence provided by the City required Jolivette to prove that the

reasons given for the hiring decision were pretextual. See Alvarez, 610 F.3d at

1264. Jolivette could not “recast [any] reason but [had to] meet it head on and

rebut it.” See Holland v. Gee, 677 F.3d 1047, 1055 (11th Cir. 2012) (quoting

Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1088 (11th Cir. 2004)). He had to

identify “weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions in the employer’s rationale.” Id. at 1055–56 (internal quotation

marks and citation omitted).

       Jolivette argues that the disparity in qualifications creates a material dispute

about whether the criteria used by the City was pretextual. See Ash v. Tyson Foods,

Inc., 546 U.S. 454, 457 (2006) (“[Q]ualifications evidence may suffice . . . to show

pretext.”). Jolivette cannot just “assert[] baldly that [he] was better qualified . . . .”

Wilson, 376 F.3d at 1090. He must “show that the disparities between [Bivins’s]

and [his] own qualifications were of such weight and significance that no

reasonable person, in the exercise of impartial judgment, could have chosen

[Bivins] over [him].” See Brooks v. Cty. Comm’n of Jefferson Cty., Ala., 446 F.3d

1160, 1163 (11th Cir. 2006) (internal quotation marks and citation omitted).

       Jolivette argues that the reasons proffered for hiring Bivins are unworthy of

credence because he lacked the academic credentials to serve as Fire Chief, but the

policies of the City allowed it to hire Bivins based on his “relative qualifications.”


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See Springer v. Convergys Customer Mgmt. Grp. Inc., 509 F.3d 1344, 1350 (11th

Cir. 2007). Although Jolivette possessed a bachelor’s degree, as required in the job

posting, the City policies weighed equally candidates who possessed an

“equivalent combination of education, training, and experience.” Dee Jones, the

human resources director for the City, testified that Bivins qualified for the

position of Fire Chief “because of the[] totality” of his skills, experience, and

education, as provided for in the job posting and “our job description.” Jolivette

does not dispute that Bivins possessed skills, experience, and abilities that

“substitute[d] for a lack of a college degree.” See Springer, 509 F.3d at 1349.

      Jolivette likens his situation to Bass v. Board of County Commissioners, 256

F.3d 1095 (11th Cir. 2001), and Vessels v. Atlanta Independent School Systems,

408 F.3d 763 (11th Cir. 2005), but his comparison is inapt. The plaintiffs in Bass

and Vessels proved pretext by establishing that the hirees were unqualified. 256

F.3d at 1107; 408 F.3d at 772. In contrast to those hirees, Bivins was qualified to

serve as Fire Chief. Jolivette failed to prove that the reason proffered for hiring

Bivins—his combined education and experience—is false.

      Jolivette also argues that the reasons the City gave are unworthy of credence

because it argued on summary judgment that he was unqualified due to lacking

certifications as a “Fire Engineer” and an “Advanced Emergency Medical

Technician,” but the City did not reject Jolivette on the basis he was unqualified.


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To the contrary, Dee Jones testified that “[t]he specialized training, . . .

professional affiliations, education [and] experience” listed on Jolivette’s resume

was impressive. And Jones responded, “no,” when asked if “there [was] any

question whether Mr. Jolivette met the preferred qualifications of the job.”

      We AFFIRM the summary judgment in favor of the City.




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