          Case: 18-12365    Date Filed: 03/08/2019   Page: 1 of 20


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-12365
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 1:17-cv-00100-MW-GRJ



JACK ANTERIO,

                                                            Plaintiff-Appellant,

                                  versus

CITY OF HIGH SPRINGS FLORIDA,

                                                           Defendant-Appellee.

                       ________________________

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

                              (March 8, 2019)

Before MARTIN, ROSENBAUM, and NEWSOM, Circuit Judges.

PER CURIAM:
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      Jack Anterio, a white male, is a former police chief of the City of High

Springs, Florida (the “City”). After he was discharged from that position, he filed

a lawsuit against the City alleging whistleblower retaliation in violation of Fla.

Stat. § 112.3187, and race discrimination in violation of the Florida Civil Rights

Act, Fla. Stat. § 760.10, and Title VII, 42 U.S.C. § 2000e-2(a)(1). The district

court granted summary judgment to the City.        Anterio appeals, arguing that

summary judgment wasn’t appropriate because he made disclosures of information

protected by the whistleblower retaliation statute, and because he presented a

“convincing mosaic” of circumstantial evidence that he was fired because of his

race. After careful review, we affirm the grant of summary judgment.

                                        I.

      The relevant facts, viewed in the light most favorable to Anterio, are as

follows. In February 2015, the City, a small town outside of Gainesville, hired

Anterio as its police chief. Previously, Anterio had been a police lieutenant in

Hollywood, Florida. He applied for the chief position with the City because he

wanted an opportunity to command an agency, which wasn’t possible in

Hollywood’s 400-person police department. The employment agreement Anterio

signed with City Manager Edwin Booth stated that he could be terminated with or

without cause, and that the city manager was the “sole judge” of his performance.




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      Before Anterio was hired, the City’s police department had been run for

approximately one year by an acting police chief, Lieutenant Antoine Sheppard,

the highest-ranking officer in the department, after a previous chief, Steve Holley,

a white male, was fired by Booth. Anterio knew going in to the job that the

department was troubled. He had researched the department and spoken with a

prior police chief (not Holley), who had performed an audit of the department.

The prior chief told Anterio that the department lacked leadership, its policies and

procedures were a mess, and it was unorganized and understaffed. Booth likewise

was aware of these issues, and he asked Anterio to bring leadership, accountability,

direction, and discipline to the police department.

      When Anterio took over as chief, he immediately took steps to

professionalize and re-orient the police department. Anterio had high standards

and demanded the same of his subordinates, who included Lieutenant Sheppard, a

black male; Sergeant Dustyn Shenk, a white male; Acting Sergeant Kendrick

Hampton, a black male; and eight or nine police officers. Additionally, Anterio

initiated several community-policing initiatives, including “coffee with the chief”

and a cookie-citation program.      The latter program was intended to promote

positive interactions between children and law enforcement. To that end, officers

were directed to issue “citations” for a free cookie to children they saw behaving

well or doing good deeds.


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         Many in the community appreciated Anterio’s community-policing

initiatives. But they were “[n]ot popular with the officers,” according to Anterio.

Some officers believed that the cookie citation program was a “waste of time” and

interfered with their other responsibilities. A couple officers did not issue the

required number of citations (five per month) and were disciplined by Anterio for

insubordination, which also wasn’t popular with the officers. For example, Shenk

testified that he was generally in favor of the cookie-citation program but had a

problem with officers being disciplined for insubordination if they didn’t meet a

quota.

         Similarly, Anterio’s efforts to professionalize the police department were, at

times, met with resistance and resentment. Several officers offered testimony to

the effect that Anterio was too demanding, not “part of the team,” and quick to

threaten discipline for perceived insubordination.         Shenk described him as a

“tyrant.”     Other officers, however, expressed no problems with Anterio and

believed he was bringing needed change to the department.

         Anterio’s chief antagonist was Lieutenant Sheppard. Their relationship was

rocky from the outset. Anterio had difficulty getting Sheppard to follow orders or

instructions, and he believed that Sheppard lacked the leadership, multitasking

abilities, and other skills necessary to serve as second in command. Sheppard, for

his part, thought Anterio was too demanding and had unrealistic expectations.


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      Both Anterio and Sheppard raised their respective concerns to Booth.

Anterio and Booth met regularly to discuss “goings-on,” including Anterio’s issues

with Sheppard. In June 2015, Anterio recommended to Booth that Sheppard be

demoted back to sergeant. Booth declined to adopt the recommendation, noting

that Sheppard was related to a city commissioner.        A few months later, in

September, Anterio again raised concerns to Booth about Sheppard’s ability to be

second in command. Anterio suggested putting Sheppard in control of the patrol

division, where he seemed to be more comfortable, and promoting to lieutenant—

skipping the rank of sergeant—a newly hired officer named Christopher Stroup.

Stroup was a veteran officer who had worked with Anterio’s son at the Palm Bay

Police Department. Booth again declined, stating that the “union would eat him

alive” if he did as Anterio suggested. Anterio testified that his relationship with

Booth was “very good” until he began raising concerns about Sheppard.

      Meanwhile, at a meeting on August 31, 2015, Sheppard told Booth that

morale within the department was down and that Anterio was setting him up for

failure and creating a “hostile work environment.”         Sheppard also relayed

information from another officer that Anterio had made racial jokes using the n-

word. Booth spoke with Anterio about these complaints and assured him that

Sheppard was “just crying.” A little over a month later, on October 12, Sheppard

prepared an eight-page memorandum detailing his complaints about Anterio to


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Booth and Jenny Parham, the City Clerk and part-time assistant to Booth. The

memorandum included one small paragraph on the racial-joke allegations.

Meanwhile, two officers in October 2015 made comments to the effect that they

did not expect Anterio to remain as chief for much longer.

      When Booth appeared to take no action in response to Sheppard’s

memorandum, Sheppard took his complaints about Anterio to Evelyn Foxx, the

President of the local chapter of the NAACP, on November 4, 2015. This was two

days after Anterio had told Sheppard that he planned to demote him to sergeant.

Sheppard told Foxx that the workload was excessive, that morale was low, and that

Anterio had made racial jokes on two occasions. Foxx, in turn, called Booth and

requested a meeting. She then met with Booth and Mayor Sue Weller. According

to Booth, Foxx stated that the black community was upset and was “going to

march on City Hall.” Booth promised to investigate the complaints and interview

officers within the police department. In the interest of “total transparency,” Booth

agreed to allow Foxx to attend these interviews but not to ask questions. At some

point, members of the press were contacted regarding the allegations against

Anterio.

      Anterio found out about Sheppard’s NAACP complaint the following

morning.    He then spoke with Booth, who gave him a copy of Sheppard’s

memorandum. Anterio requested an opportunity to respond to the allegations.


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      Soon after this meeting, Booth sent an email via Parham to the mayor and

the city commissioners stating, “In discussion with Chief Anterio, it was

determined that High Springs was not a good match for him given the extreme

policing done in Hollywood versus the low key policing in High Springs,” and that

“it would be in the best interest of all involved if Chief Anterio resigns.” About

ten minutes later, this email was forwarded to Anterio, and then, a few minutes

after that, a follow-up email from Parham to the mayor and the commissioners

stated that there had been a “misunderstanding” and that Anterio had “decided to

answer the accusations” and would remain on the job.

      On November 9, 2015, Booth told Anterio that he would be placed on

administrative leave with pay while Booth investigated the allegations against him.

Booth stated that he intended to speak with all police officers in the department.

      Booth interviewed all, or nearly all, of the officers in the police department

on November 9, with Foxx and an administrative assistant present. It appears that

only one officer reported hearing any racial remarks or slurs from Anterio. None

of the other officers said anything else to suggest that Anterio had acted in a

racially discriminatory way.    Yet nearly all officers interviewed reported that

morale within the department was low, and many officers indicated that they were

stressed out and unhappy.      Booth never interviewed Anterio regarding these

matters.


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      While Anterio was on administrative leave, Sheppard assumed control of the

police department. He suspended the cookie-citation program and stated that he

would be supervising all projects. After Anterio received Sheppard’s email about

project supervision, he called Booth on November 12 to express his belief that the

email was inappropriate. During this phone call, he also advised Booth that he

intended to contact the Florida Department of Law Enforcement (“FDLE”)

regarding various allegations of improper and unlawful conduct by officers within

the police department. Anterio said that he had received complaints that several

officers, including Sheppard, were providing protection for drug dealers and other

individuals committing crimes. Anterio also mentioned an officer’s use of inflated

numbers in a grant application, which Anterio had to correct and resubmit. Booth

advised him to wait for the resolution of the investigation before contacting FDLE.

Anterio said he would, though he did not intend to wait. Anterio ultimately

emailed the allegations to the FDLE on November 17.

      Around the same time, Anterio received a call from Parham stating that

Booth intended to terminate his employment at the next city commission meeting.

Parham stated that, while the racial allegations against him were unfounded, Booth

had determined that he was not the right fit for the agency. On November 19,

Booth handed Anterio a letter stating that they had made the “mutual decision” that

Anterio would be terminating his employment agreement. Anterio didn’t sign the


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letter, and all that Booth said at the time was that Anterio wasn’t the “right fit.”

Anterio received a formal termination letter on November 30.

      Booth testified that Anterio didn’t meet his expectations for a small-town

police chief. According to Booth, Anterio was a “good person” who had some

good ideas, like the cookie-citation program, but he “just wasn’t a small-town

police chief.” Booth expected things “to be quiet,” for “morale to be high,” and for

the chief to take care of any problems that arose. But, according to Booth, “morale

was low,” and Anterio would come to Booth with issues in the police department,

like his problems with Sheppard, instead of handling them on his own. Booth

stated that he did not believe that Anterio was racially motivated in any of his

actions, and he denied feeling pressure to fire Anterio due to the NAACP’s

involvement.

      After Anterio’s termination, Sheppard took over as acting police chief until a

new police chief, Joel DeCoursey, was hired in early December 2015. DeCoursey,

a black male, had recently retired as the police chief of the nearby city of Alachua.

                                         II.

      Anterio’s original complaint, filed in state court, alleged one count of

whistleblower retaliation under Florida state law.       After Anterio amended his

complaint to add claims of race discrimination under Title VII and the Florida

Civil Rights Act, the City removed the action to federal district court. Then,


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following discovery, the City moved for summary judgment. The district court

granted that motion, concluding that Anterio didn’t engage in protected activity

under the whistleblower-retaliation statute and that the evidence failed to support

his claims of race discrimination. Anterio now appeals.

                                       III.

      We review de novo a district court’s order granting summary judgment,

viewing all the evidence and drawing all reasonable inferences in favor of the

non-moving party. Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 767 (11th

Cir. 2005). Summary judgment is appropriate when the record demonstrates 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).

                                        IV.

      We first address Anterio’s Florida whistleblower-retaliation claim.        In

analyzing this state-law claim, we are bound by decisions of Florida appellate

courts on issues of state law unless there is persuasive evidence that the Florida

Supreme Court would rule otherwise. Pendergast v. Sprint Nextel Corp., 592 F.3d

1119, 1133 (11th Cir. 2010).

      Florida’s   whistleblower-retaliation   statute   protects   employees   from

retaliation for making certain disclosures of information about legal violations,

fraud, malfeasance, gross mismanagement, and the like. See Fla. Stat. § 112.3187.


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The statute sets out requirements for the nature of information disclosed, to whom

the information must be disclosed, and how the disclosure must be made. See id.

§ 112.3187(5)–(7). Only the latter two requirements are at issue.

      In general, the information must be disclosed “to any agency or federal

government entity having the authority to investigate, police, manage, or otherwise

remedy the violation or act.”       Fla. Stat. § 112.3187(6).     When, as here, the

disclosure concerns a “local government entity, . . . the information must be

disclosed to a chief executive officer . . . or other appropriate local official.” Id.

An “appropriate local official” is “an official or official entity who is affiliated with

the violating governmental entity and has the authority to investigate, police,

manage, or otherwise remedy the violation or act by the violating governmental

entity.” Rustowicz v. North Broward Hosp. Dist., 174 So. 3d 414, 424 (Fla. Dist.

Ct. App. 2015) (emphasis added). The FDLE, a state agency, is not affiliated with

the violating local governmental entity and therefore is not an “appropriate local

official.” Quintini v. Panama City Hous. Auth., 102 So. 3d 688, 690 (Fla. Dist. Ct.

App. 2012) (“FDLE is a state agency, not a local official.”).

      The form of disclosure matters as well. To be protected, an employee must

make a disclosure in the ways specified in the statute, including “any written

complaint to [the employee’s] supervisory officials.” Fla. Stat. § 112.3187(7).

Under the plain language of this clause, an employee is protected only if a


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complaint to a supervisory official is made in writing. Crouch v. Public Service

Comm’n, 913 So. 2d 111, 111 (Fla. Dist. Ct. App. 2005).

      Here, the district court properly granted summary judgment against Anterio

on his Florida whistleblower-retaliation claim. Anterio argues that his written

report to the FDLE is protected because the FDLE had the authority to investigate

and remedy the information he disclosed.         But because this case concerns

information about a “local government entity,” the statute required Anterio to

make his disclosures to an “appropriate local official” affiliated with the violating

governmental entity, which the FDLE is not.          See Fla. Stat. § 112.3187(6);

Rustowicz, 174 So. 3d at 424; Quintini, 102 So. 3d at 690.

      Nor did Anterio make a “written complaint” to City Manager Booth, his

supervisory official. See Fla. Stat. § 112.3187(7); Crouch, 913 So. 2d at 111.

Anterio responds that the statute also protects oral disclosures made by an

employee “requested to participate in an investigation, hearing, or other inquiry

conducted by any agency or federal government entity.” Fla. Stat. § 112.3187(7).

He says that his oral disclosures to Booth count under this clause. But Anterio was

not “requested to participate” in any type of inquiry during which he disclosed the

information about potential unlawful conduct by his officers. While we do not

attempt in this case to define the scope of this clause, we are confident that it

requires something more than the informal discussions that occurred here between


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Anterio and Booth. See id. So Anterio’s proposed alternative for protection is

unpersuasive.

      For these reasons, the district court was correct to grant summary judgment

on this claim.

                                         V.

      We next consider Anterio’s claims of discrimination under Title VII and the

FCRA, which we analyze jointly. See Holland v. Gee, 677 F.3d 1047, 1054 n.1

(11th Cir. 2012) (analysis of a claim under the FCRA mirrors the analysis of a

Title VII claim). Ordinarily, we evaluate claims of employment discrimination

based on circumstantial evidence, which is all we have here, using the burden-

shifting framework derived from McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973).

      But this framework is not the sole means to establish a triable issue of

discrimination. A Title VII plaintiff can always survive summary judgment by

presenting circumstantial evidence that creates a triable issue concerning the

employer’s discriminatory intent. Smith v. Lockheed-Martin Corp., 644 F.3d 1321,

1328 (11th Cir. 2011). Such “[a] triable issue exists 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

decision-maker.” Id. (quotation marks omitted). The phrase “convincing mosaic”


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is not a legal test but rather a metaphor to illustrate that the evidence should be

viewed as a whole, not “sorted into boxes,” to determine whether it creates an

inference of unlawful discrimination. See Ortiz v. Werner Enters., Inc., 834 F.3d

760, 764–65 (7th Cir. 2016).

      A plaintiff may raise a reasonable inference of discriminatory intent “by

offering evidence that [the employer] more likely than not acted with a

discriminatory motive, or by showing that its proffered reasons are not credible,

unless the record conclusively shows that the real motive was a non-proffered

reason that is non-discriminatory.” Alvarez v. Royal Atlantic Developers, Inc., 610

F.3d 1253, 1265 (11th Cir. 2010). To show that an employer’s reason is not

credible, the employee must meet that reason head on and rebut it; he may not

merely quarrel with the wisdom of that reason. Chapman v. AI Transp., 229 F.3d

1012, 1030 (11th Cir. 2000) (en banc).       A plaintiff may do so by showing

“weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in

the employer’s rationale.”     Holland, 677 F.3d at 1055–56 (quotation marks

omitted). When analyzing the employer’s reasons, however, “it is not our role to

second-guess the wisdom of an employer’s business decisions—indeed the wisdom

of them is irrelevant—as long as those decisions were not made with a

discriminatory motive.” Alvarez, 610 F.3d at 1266.




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      Anterio argues that he presented a “convincing mosaic” of circumstantial

evidence showing that he was terminated based on his race. Citing an officer’s

testimony that Sheppard had said he would “play the race card” when “backed into

a corner,” Anterio contends that Sheppard and other officers in his “close circle”

conspired to oust him as chief by bringing to the NAACP false accusations that he

used a racial slur. Viewing this evidence against the “decade-long history of racial

tensions and discriminatory conduct” against white employees within the police

department, Anterio contends, amply establishes that Booth was motivated by

Anterio’s race and by pressure from the NAACP when he fired Anterio as police

chief. We are not persuaded by Anterio’s theory.

      The district court properly granted summary judgment to the City on

Anterio’s race-discrimination claims. At best, Anterio’s evidence establishes that

Sheppard and other officers, as of sometime in October 2015, were planning to

push Anterio out as police chief because they were unhappy with his community-

policing initiatives and management style. In furtherance of that plan, Sheppard

contacted the NAACP to ensure that their complaints received publicity and to

force a decision by Booth.     And his complaints to the NAACP included an

inflammatory accusation of racial jokes and use of the n-word—an accusation we

assume for present purposes was fabricated by one of the officers.




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      Even crediting this version of events, however, no reasonable jury could

conclude that Booth was motivated by Anterio’s race when he made the decision to

terminate Anterio’s employment. Nothing in the record suggests that Booth’s

stated reason for terminating Anterio—that he wasn’t the right fit for the position—

was untruthful or a pretext for discrimination. After Sheppard complained to the

NAACP, Booth, who possessed the sole authority to hire and fire Anterio and to

judge his performance, independently investigated the allegations by interviewing

officers in the department. And it is undisputed that, during these interviews,

Booth heard from numerous officers—including those without any clear

connection to Sheppard’s “close circle”—that morale within the department was

low because of Anterio. This evidence, along with testimony from numerous

officers along similar lines, is fully consistent with Booth’s explanation of his

reasons for concluding that, while the racial accusations against Anterio were

unfounded, Anterio didn’t meet his expectations for being a “small-town police

chief.” In short, Anterio has offered no evidence to rebut Booth’s stated reasons

for dismissing him as police chief. See Chapman, 229 F.3d at 1030; Holland, 677

F.3d at 1055–56.

      Anterio’s attempt to hold Booth responsible for Sheppard’s alleged animus

fails for at least two reasons. To begin with, there is little to suggest that Sheppard

targeted Anterio because of his race. The bulk of Sheppard’s complaints to Booth


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and the NAACP concerned low morale in the department and Anterio’s

management style. As noted above, undisputed evidence in the record reflects that

these were real and legitimate concerns for a number of officers.

      And even assuming a discriminatory animus could be imputed to Sheppard,

there is no basis in the record to transfer that animus to the termination decision.

In certain circumstances, causation may be established, under the “cat’s paw”

doctrine, when a decisionmaker followed a biased recommendation from a non-

decisionmaker without independently investigating the complaint. Stimpson v. City

of Tuscaloosa, 186 F.3d 1328, 1332 (11th Cir. 1999).          In such a case, the

recommender uses the decisionmaker as a mere conduit, or cat’s paw, to give

effect to his discriminatory animus. Id. If, however, a decisionmaker conducts its

own evaluation and makes an independent decision, the decision is free of the taint

of a biased subordinate employee. Pennington v. City of Huntsville, 261 F.3d

1262, 1270–71 (11th Cir. 2001). Here, the cat’s paw theory does not apply under

our precedent because Booth conducted an independent investigation into

Sheppard’s allegations and made an independent decision to terminate Anterio

based on non-discriminatory reasons.

      The Supreme Court’s decision in Staub v. Proctor Hospital does not require

a different result.   562 U.S. 411 (2011).      In Staub, the Supreme Court, in

addressing a discrimination claim under the Uniformed Services Employment and


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Reemployment Rights Act, concluded that an independent investigation did not

relieve an employer of fault where the supervisor’s biased act was intended to

cause and proximately caused an adverse employment action.                        Id. at 422.

Nonetheless, the Supreme Court stated there can be no proximate cause, and

therefore no liability, if the adverse action is entirely justified apart from the biased

supervisor’s recommendation. Id. at 421–22.

       Assuming Staub applies here, the undisputed evidence in the record

indicates that any alleged bias from Sheppard was not the proximate cause of

Anterio’s termination. 1 As explained above, undisputed evidence reflects that

Anterio’s management style was not popular and that morale within the department

was low. These facts formed the basis, in large part, for Booth’s conclusion that

Anterio was not the right fit for the department.              Further, Anterio offers no

evidence to rebut Booth’s testimony that he did not give credence to the racial

accusations and that they played no role in his decision. Accordingly, Booth’s

ultimate decision to terminate Anterio was “entirely justified” by the undisputed

evidence in the record, apart from any bias tainting Sheppard’s initial complaints.

See Staub, 562 U.S. at 421–22.




       1
         We have not addressed the viability of the independent-investigation defense in a race-
discrimination case since the Supreme Court’s decision in Staub. Nor have we considered
whether the discriminatory act of a non-supervisory employee, like Sheppard, could make an
employer liable under a cat’s paw theory. We find it unnecessary to resolve these issues here.
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      Anterio’s other evidence is insufficient to create a triable issue of

discrimination. Anterio asserts that discriminatory intent may be inferred from the

fact that Anterio was replaced first by Sheppard, a black male who did not meet the

education requirements for the chief position, and then by DeCoursey, a black

male who was paid a higher salary than Anterio. Neither fact is probative of

discrimination on this record, however. Sheppard had served as acting chief for

nearly a year before Anterio was hired, so his brief resumption of that role after

Anterio was fired does not indicate discrimination or pretext. As for DeCoursey,

he was well-qualified for the position, having served as police chief of a nearby

city for several years—a qualification Anterio did not bring to the position, so the

slight disparity in salaries cannot reasonably be attributed to race discrimination.

      With regard to Anterio’s reliance on the City’s supposed history of treating

white employees worse than black employees, he did not preserve this argument by

raising it in his briefing at summary judgment. See Resolution Trust Corp. v.

Dunmar Corp., 43 F.3d 587, 598 (11th Cir. 1995) (en banc) (“Well-settled

precedent provides that arguments not raised at the district court level will

generally not be considered on appeal.”). We therefore decline to review it. Nor,

in any case, do we find that Anterio’s historical evidence is enough to create a

genuine issue of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,




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249–50 (1986) (“If the evidence is merely colorable, or is not significantly

probative, summary judgment may be granted.” (citations omitted)).

      Finally, we agree with the district court that “although Anterio perceives that

he was treated unfairly—particularly given his impression that he was hired to

correct problems that existed in the High Springs Police Department and was

seemingly fired for attempting to do just that—such perceived unfairness is not the

same as unlawful discrimination.      See Alvarez, 610 F.3d at 1266.         Having

concluded that undisputed evidence demonstrates that Anterio was terminated for

non-discriminatory reasons, we affirm the grant of summary judgment in favor of

the City.

      AFFIRMED.




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