          Case: 12-14295   Date Filed: 04/05/2013   Page: 1 of 12


                                                        [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 12-14295
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 6:11-cv-00972-ACC-TBS

DOMINICK LANDOLFI,



                                                           Plaintiff-Appellant,

                                 versus

CITY OF MELBOURNE, FLORIDA,

                                                         Defendant-Appellee,

PAUL FORSBERG, etc.,

                                                         Defendant.

                       ________________________

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

                             (April 5, 2013)

Before MARCUS, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
              Case: 12-14295    Date Filed: 04/05/2013   Page: 2 of 12


      Dominick Landolfi, a reservist with the United States Air Force, appeals the

district court’s grant of the City of Melbourne, Florida’s (“Melbourne”) motion for

summary judgment as to his complaint alleging discrimination based upon his

membership in the Air Force under the Uniformed Services Employment and

Reemployment Rights Act (“USERRA”), 38 U.S.C. § 4311(a). Landolfi alleged

that the City of Melbourne Fire Department (“Fire Department”) discriminated

against him by failing to promote him to Battalion Chief in 2006, 2008, and 2010.

Likewise, he alleged that the Fire Department discriminated against him by failing

to promote him to Assistant Chief of Administration in 2010. The district court

concluded that Landolfi presented sufficient evidence to create a factual question

as to whether his military service motivated the Fire Department’s decisions not to

promote him, but granted summary judgment on the basis that Melbourne

established that the Fire Department would not have promoted him absent such

motivation.

      On appeal, Landolfi argues that he established pretext by demonstrating that

the Fire Department’s justifications for its promotion decisions shifted from the

time of the promotions to the time of litigation, and by creating a credibility issue

by presenting evidence that some of Paul Forsberg’s, the relevant decision-maker,

factual accounts were false. Ultimately, Landolfi argues that he was the most

qualified applicant for the promotions. Melbourne defends the district court’s


                                         2
              Case: 12-14295       Date Filed: 04/05/2013   Page: 3 of 12


judgment, in part, by arguing that Landolfi presented insufficient evidence that his

military service motivated the Fire Department’s promotion decisions.           After

thorough review, we affirm.

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

the evidence in the light most favorable to the non-moving party. Brooks v. Cnty.

Comm’n of Jefferson Cnty., 446 F.3d 1160, 1161-62 (11th Cir. 2006). Summary

judgment is appropriate if the movant shows that no genuine issue of material fact

exists, and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).

The moving party bears the initial burden of demonstrating that no genuine issue of

material fact exists. Brooks, 446 F.3d at 1162; Fitzpatrick v. City of Atlanta, 2

F.3d 1112, 1115 (11th Cir. 1993). Where it bears the burden of proof at trial, the

movant must affirmatively show the absence of a genuine issue of material fact,

and support its motion with credible evidence demonstrating that no reasonable

jury could find for the non-moving party on all of the essential elements of its case.

See Fitzpatrick, 2 F.3d at 1115.

      If the moving party meets its initial burden, the non-movant then bears the

responsibility to demonstrate the existence of a genuine issue of material fact. Id.

at 1116. Where the non-moving party bears the burden of proof, it must make a

sufficient showing on each essential element of his case. See Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986). In the instance in which it does not bear the


                                            3
                Case: 12-14295   Date Filed: 04/05/2013   Page: 4 of 12


burden of proof, the non-movant may avoid summary judgment by presenting

evidence that is sufficient to call into question the inference created by the

movant’s evidence on a particular material fact. Fitzpatrick, 2 F.3d at 1116.

      Under USERRA, a person who is a member of, or has an obligation to

perform service in, a uniformed service may not be denied a promotion on the

basis of his membership or obligation. 38 U.S.C. § 4311(a).            An employer,

therefore, violates USERRA where the individual’s membership or obligation for

service in the uniformed services is a motivating factor in the employer’s failure to

promote the individual, unless the employer proves that it would not have

promoted the individual absent the individual’s membership or obligation. See id.

§ 4311(c)(1).

      Section 4311 requires proof of a discriminatory motive, and we employ the

so called “but for” test. Coffman v. Chugach Support Servs., Inc., 411 F.3d 1231,

1238 (11th Cir. 2005). In order to establish a prima facie case of discrimination,

the plaintiff must demonstrate by a preponderance of the evidence that his military

membership or obligation was a motivating factor in the employer’s decision. See

id. A motivating factor does not necessarily have to be the sole cause for the

employer’s decision, but is defined as one of the factors that a truthful employer

would list as its reasons for its decision. See id. A plaintiff’s military status is a

motivating factor where the employer relied upon, took into account, considered,


                                          4
             Case: 12-14295     Date Filed: 04/05/2013   Page: 5 of 12


or conditioned its decision on that consideration.       Id.   A court can infer a

discriminatory motivation from a variety of considerations, such as: (1) the

temporal proximity between the plaintiff’s military activity and the adverse

employment action; (2) inconsistencies between the proffered reason for the

employer’s decision and other actions of the employer; (3) an employer’s

expressed hostility towards members of the protected class combined with its

knowledge of the plaintiff’s military activity; and (4) disparate treatment of

similarly situated employees. See id. Once the plaintiff meets his prima facie

burden, the employer may establish an affirmative defense by proving by a

preponderance of the evidence that legitimate reasons, standing alone, would have

induced it to take the same adverse action. Id. at 1238-39.

      A plaintiff may establish pretext indirectly by showing that an employer’s

proffered reason for its decision is unworthy of credence. Jackson v. State of Ala.

Tenure Comm’n, 405 F.3d 1276, 1289 (11th Cir. 2005). Under this analysis,

courts must evaluate whether the plaintiff demonstrated such weaknesses,

implausibilities, inconsistencies, incoherencies, or contradictions in the proffered

reason so that a reasonable factfinder could conclude that it is unworthy of credit.

Id.   Proof that an employer’s justification is unworthy of credence may be

probative of discrimination, and may, therefore, permit a factfinder to reasonably




                                         5
             Case: 12-14295     Date Filed: 04/05/2013   Page: 6 of 12


find discrimination. See Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133,

147-48 (2000).

      We have held that an employer’s “shifting reasons” permitted the jury to

conclude that its justifications for its decision were unworthy of credence, thereby

allowing it to infer discrimination. See Cleveland v. Home Shopping Network,

Inc., 369 F.3d 1189, 1194-95 (11th Cir. 2004); see also Bechtel Const. Co. v. Sec’y

of Labor, 50 F.3d 926, 928-31, 934-35 (11th Cir. 1995) (holding that the

employer’s shifting reasons demonstrated pretext inasmuch as it initially denied

that the employee’s performance contributed to his termination, but later argued

that the employee’s performance was the sole reason for its decision).

Nonetheless, additional, but undisclosed, reasons for an employer’s decision do not

demonstrate pretext. See Tidwell v. Carter Prod., 135 F.3d 1422, 1428 (11th Cir.

1998). Thus, we have concluded that the plaintiff failed to show pretext where,

although the employer offered differing explanations for its decision, its reasons

were not necessarily inconsistent. See Zaben v. Air Prod. & Chemicals, Inc., 129

F.3d 1453, 1458-59 (11th Cir. 1997).

      To begin with, we agree that Landolfi presented sufficient evidence that his

military service was a motivating factor in the Fire Department’s promotion

decisions. We also agree, however, that the Fire Department presented sufficient

evidence that it would not have promoted Landolfi absent any improper motivation


                                         6
              Case: 12-14295      Date Filed: 04/05/2013   Page: 7 of 12


regarding his military service in light of his untrustworthiness and disruptiveness.

As the record shows, Landolfi conceded that the Battalion Chief and Assistant

Chief of Administration positions required that their occupants work considerably

and extensively with each other, and that they hold the Fire Chief’s trust. The job

descriptions of both positions corroborate Landolfi’s concessions, and decision-

maker Paul Forsberg testified that he felt that the abilities to work with staff, make

good decisions, and exercise good judgment were important aspects of the

Battalion Chief and Assistant Chief of Administration positions.           Moreover,

Forsberg believed that successful candidates should be reliable and trustworthy,

and get along with their peers.

      Despite these qualifications, however, Melbourne presented significant

evidence that Forsberg, among others, did not believe that Landolfi was

trustworthy, made good decisions, exercised good judgment, or could work with

others. Forsberg and another decision-maker, Tom Flamm, both cited a number of

incidents corroborating this belief. While these factors are, as Landolfi argues,

subjective, personal qualities heavily factor into employment decisions concerning

supervisory positions. See Chapman v. AI Transport, 229 F.3d 1012, 1033-34

(11th Cir. 2000) (en banc).

      Additionally, Melbourne presented evidence that the Fire Department failed

to promote Landolfi because he had comparatively less experience or skills than


                                           7
              Case: 12-14295     Date Filed: 04/05/2013    Page: 8 of 12


the successful candidates, or scored lower on each stage of the promotion process.

Forsberg and Robert Apel, an Assistant Fire Chief, testified to the successful

candidates’ experience and skills, and it was undisputed that Landolfi ranked

second in all stages of the 2010 Battalion Chief promotion process.

      While Landolfi responds to Melbourne’s presentation by arguing that its

asserted reasons for the Fire Department’s promotion decisions are pretext

inasmuch as they were shifting or based upon false accounts, he has not

sufficiently demonstrated pretext. First, he has not demonstrated that the Fire

Department’s reasons have shifted so as to permit a reasonable jury to infer

pretext. Landolfi’s argument largely operates on the premise that Melbourne’s

only proffered justifications for its decisions at the litigation stage were that he was

untrustworthy and disruptive.           While Melbourne proffered           that   these

considerations did play a role in the promotion decisions, it also proffered that

those decisions rested on, in part, a comparison of the candidates’ skills and

qualifications.

      For example, the Fire Department proffered at the time of the decision that it

did not promote Landolfi to Battalion Chief in 2006 because his past work

experience was at a lower level than candidate Frank Avilla. This is entirely

consistent with Forsberg’s later testimony regarding his justification for selecting

Avilla, which included a specific account of Avilla’s experience and


                                           8
               Case: 12-14295    Date Filed: 04/05/2013    Page: 9 of 12


accomplishments. Similarly, the Fire Department proffered in 2008 that it did not

promote Landolfi to Battalion Chief because his skill level was lower than

candidate Carl Rethwisch’s.       Again, this is consistent with Forsberg’s later

testimony regarding his justifications for selecting Rethwisch, which included a

specific account of Rethwisch’s experience and accomplishments.             Moreover,

Forsberg testified that he considered that Landolfi’s deficiencies, including the lack

of trust, spoke to his skill level, which is consistent with the Fire Department’s

initial proffer.

       Moreover, the Fire Department initially proffered that it did not promote

Landolfi to Assistant Chief of Administration in 2010 because his experience was

less related than Apel’s. This is entirely consistent with Forsberg’s later review of

Apel’s experience and accomplishments, and his comparison to Landolfi’s

experience and accomplishments. Particularly, Forsberg cited Apel’s experience in

preparing budgets and writing grants, and it was undisputed that Apel’s experience

in those areas exceeded Landolfi’s experience.         Finally, it is undisputed that

Landolfi placed second in all stages of the 2010 Battalion Chief promotion process,

which is consistent with the Fire Department’s initial justification of its decision to

promote candidate Dave Waite.

       While the Fire Department did not initially proffer, at least explicitly, that it

failed to promote Landolfi based upon his perceived untrustworthiness and


                                           9
             Case: 12-14295      Date Filed: 04/05/2013    Page: 10 of 12


disruptiveness, the Fire Department has, in light of the above discussion,

consistently asserted its initial justifications for failing to promote Landolfi. Thus,

the Fire Department’s justifications have not shifted, and a reasonable jury, at

most, could find that the additional justifications that Landolfi was untrustworthy

and disruptive were additional, but undisclosed, reasons that will not demonstrate

pretext. See Tidwell, 135 F.3d at 1428; Zaben, 129 F.3d at 1458-59. It is also

worth noting that the Fire Department informed Landolfi in May 2011 -- before

Landolfi filed his complaint -- that it passed him over for promotions due to some

poor decisions, which is consistent with its proffer to the district court.

      Landolfi also argues that he established pretext through the testimony of

firefighters Ryan Spencer, Darrell Sipplen, Thomas Michaud, and Keith Maxwell

testimonies, which he argues creates a credibility question regarding Forsberg’s

justifications for his promotion decisions. Forsberg’s testimony, however, was

largely vague, and in some instances he could not remember the specifics of the

underlying issue.     Moreover, there appears to be some consistency between

accounts. For example, Forsberg testified that Spencer sought to be transferred off

of Landolfi’s shift, and Spencer testified to a negative atmosphere within

Landolfi’s crew and his desire to trade shifts.           Ultimately, the evidence is

insufficient to permit a reasonable jury to conclude from that basis alone that the

entirety of Forsberg’s justifications for the promotion decisions were untrue.


                                           10
             Case: 12-14295     Date Filed: 04/05/2013   Page: 11 of 12


      Landolfi correctly argues, however, that Jim Stables’s testimony directly

contradicts Forsberg’s testimony.      Contrary to Forsberg’s testimony, Stables

denied ever telling Forsberg that Landolfi exposed himself to a mentally

handicapped individual. Forsberg, however, testified that he heard the account

from a number of different people, and only identified Stables as one such person.

Landolfi has offered no challenge to the evidence that Forsberg heard the same

account from other individuals as well. Thus, the inconsistency is not one that

would permit a reasonable jury to conclude that the entirety of Forsberg’s

justifications for the promotion decisions were false.

      In light of the insufficient showing of pretext, Landolfi has left unchallenged

Melbourne’s evidence that Forsberg, among others, believed that Landolfi was not

trustworthy, did not make good decisions, did not exercise good judgment, and

could not work with others.       Those qualities were necessary aspects of the

Battalion Chief and Assistant Chief of Administration positions, and, to whatever

extent Landolfi presented evidence that his technical qualifications exceeded those

of the successful candidates, it is undisputed that those qualifications only

established a baseline to ensure the candidate could perform the job.         Given

Landolfi’s deficiencies, which the successful candidates did not suffer from,

Melbourne sufficiently established that no juror could conclude that the Fire




                                         11
            Case: 12-14295   Date Filed: 04/05/2013   Page: 12 of 12


Department would have promoted Landolfi absent improper motivations.

Accordingly, we affirm.

      AFFIRMED.




                                      12
