                                                                  [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________               FILED
                                                      U.S. COURT OF APPEALS
                                  No. 99-14162          ELEVENTH CIRCUIT
                                                            APR 11, 2001
                           ________________________
                                                          THOMAS K. KAHN
                   D. C.   Docket No. 97-00099 CV-3-WDO-1     CLERK



DEWAYNE DENNEY, HAROLD PINSON, et al.,

                                                     Plaintiffs-Appellants,

                                     versus

THE CITY OF ALBANY, a Municipal
Corporation, JANICE ALLEN JACKSON,
Individually and in her capacity as Manager
for the City of Albany, et al.,

                                                     Defendants-Appellees.

                            ______________________

                                 No. 99-14163
                          ______________________
                    D.C. Docket No. 97-00072-CV-3-WDO-1

DAVID N. POTTER,
                                                     Plaintiff-Appellant,

                                     versus

THE CITY OF ALBANY, a Municipal
Corporation, JANICE ALLEN, Individually and
in her capacity as Manager for the City of Albany, et al.,

                                                                 Defendants-Appellees.
                               ______________________

                     Appeals from the United States District Court
                         for the Middle District of Georgia
                           _________________________
                                  (April 11, 2001)

Before BLACK and MARCUS, Circuit Judges, and HANCOCK*, District Judge.

MARCUS, Circuit Judge:

       Plaintiffs in these consolidated appeals are white firefighters in the City of

Albany, Georgia who contend that the Defendants -- the City of Albany and two

City officials -- impermissibly considered race in denying them promotions to the

position of lieutenant. The district court granted summary judgment in favor of the

Defendants in both cases, finding that the Plaintiffs failed to introduce sufficient

evidence of discriminatory intent. Because the district court did not err in rejecting

Plaintiffs’ Title VII disparate treatment and § 1985(2) conspiracy claims, the only

rulings as to which appellate review has properly been sought, we affirm.

                                              I.

       Appellants are five white firefighters employed by the City of Albany Fire

Department: Dewayne Denney, Harold Pinson, Robert McGee, Edgar Webb, and

       *
         Honorable James H. Hancock, U.S. District Judge for the Northern District of Alabama,
sitting by designation.

                                              2
David Potter. The first four Appellants are Plaintiffs in one lawsuit (appeal no. 99-

14162); Potter is the single Plaintiff in a second lawsuit (appeal no. 99-14163).

The Defendants in both cases are the City; Henry Fields, the City’s black Fire

Chief; and Janice Allen Jackson, the black City Manager.

      As discussed below, Plaintiffs allege that the Defendants, through Chief

Fields, discriminated against them by passing them over for two promotions to

lieutenant given instead to black firefighters Willie Harris and Albert Hayslip. The

five Plaintiffs are similarly situated except for minor variations in their personal

qualifications, and all make the same factual allegations about Defendants’

conduct.

      The relevant facts are largely undisputed. As a result of litigation brought

by black firefighters in the early 1970s, the City’s Fire Department (“Department”)

began to use race as a factor in its promotion decisions. In 1995, the district court

supervising the Department’s promotion process ended the requirement that race

be used as a factor in promotions. Thereafter, the City adopted a revised

promotion policy. That policy required the Fire Department to “be operated in

compliance with Title VII of the Civil Rights Act of 1964 and the City of Albany,

Georgia’s Affirmative Action Plan.” The City’s Affirmative Action Plan (“AA

Plan”) states in pertinent part: “[T]he City of Albany shall recruit, hire, upgrade,


                                           3
train, promote, and administer personnel actions in all job classifications without

regard to race, color, religion, sex, national origin, age or disability.” The

promotion policy also states that “every effort will be made to ensure that . . .

everyone, regardless of race . . . will receive fair treatment during the process.”

The City’s AA Plan does set percentage goals for the representation of blacks

(among other minorities) in certain job classifications; contrary to Plaintiffs’

suggestion, however, there is no indication that these goals are applied as rigid

“quotas” or that race is a permissible factor in the actual promotion decisions.

      Under the revised policy as it operated during the relevant time frame,

firefighters applying for promotion to lieutenant took a written examination,

completed a skills assessment center, and had an oral interview exam with Chief

Fields. The written exam counted for 30% of the overall score; the assessment

center counted for 50%; and the interview exam counted for 20%. Applicants

scoring at least a 70 out of a possible 100 on this three-step qualification exercise

were considered qualified for promotion to the lieutenant position. Once this

process resulted in a pool of qualified applicants, Chief Fields had the authority to

make the final promotional decision. In making the promotion decisions at issue in

this case, Chief Fields did not consider the relative qualification exercise scores of

the applicants in the pool.


                                           4
      Chief Fields’s allegedly discriminatory hiring practices have been challenged

once before. In that instance, (the “Shealy litigation”), the district court -- the same

judge presiding over this case -- found after a bench trial that the City was liable for

discrimination against whites in connection with a 1994 promotion by Chief Fields

for the position of Battalion Chief. Chief Fields testified in that case that his

decision was not motivated by race; the district court found otherwise. In an

unpublished opinion dated March 10, 2000, we affirmed the district court’s finding

of Title VII liability, although we reversed on damages. We held that there was

“ample evidence” to support the district court’s determination of liability, and that

its factual findings were not clearly erroneous. Shealy v. City of Albany, No. 98-

8212 (11th Cir. Mar. 10, 2000), at 4.

       Returning to the matter at hand, in November 1995, the Fire Department

conducted a qualification exercise to identify qualified applicants for vacant

lieutenant positions. Twenty-three applicants completed the examination, and

twenty-one were placed in the pool of qualified applicants, having scored 70 or

better. All of the Plaintiffs qualified for consideration for promotion, as did Harris

and Hayslip. Their scores were: Potter 87; Harris, Hayslip, Pinson, and Webb

80.5; Denney 77; and McGee 73.5. It later was determined that the scores for these

candidates were mistabulated due to inconsistent rounding-off of numbers by Chief


                                            5
Fields.1 As corrected, the scores should have been: Potter 94; Harris 87; Denney

86; Pinson and Webb 83.5; Hayslip 78.5; and McGee 73.5.

       Qualified applicants were selected for promotion to lieutenant whenever a

lieutenant opening occurred. Chief Fields testified that, in making the promotions,

he considered the following factors: demonstrated leadership, maturity,

interpersonal skills, and a willingness to support management and its policies. In

1995, Chief Fields selected Wesley Pantone (white), Tommy Anderson (white),

Gregory Maze (black), and James Pratt (black) from the qualified list for

promotions to lieutenant.2 None of these promotions are contested as

discriminatory by the Plaintiffs.

       In April 1996, Chief Fields selected Harris to fill an open lieutenant position.

Harris was a 16-year veteran of the Fire Department and had served eight years as

an Apparatus Operations Engineer (“AOE”). Harris’s annual performance

evaluation was extremely favorable:

       Harris spends a lot of his free time studying his job as an A.O.E. He
       never refuses to do anything required of him. AOE W.R. Harris has


       1
         Plaintiffs do not argue that the miscalculations were themselves discriminatory acts or
constitute probative evidence of Fields’s discriminatory intent. Indeed, although Hayslip’s corrected
score dropped 2.0 points. Harris’s score rose a full 7.0 points, belying any suggestion that the errors
were intended to prejudice white candidates.
       2
         Pantone scored 85.5 on the qualification exercise, Anderson scored 95, Maze scored 85, and
Pratt scored 85.

                                                  6
      proven to be a credit to the Albany Fire Department and the City of
      Albany. . . . AOE Harris has a very positive attitude about the Albany
      Fire Department and his job. W.R. Harris is always ready to assist
      anyone and does so without any hesitation. Not only does Harris have
      this attitude on the job, it also reflects over into his everyday life.

Among the qualified applicants for promotion, Chief Fields considered Harris to

possess the greatest level of maturity, leadership skills, interpersonal skills, and

willingness to support Departmental and City management policies.

      In September 1996, Hayslip was likewise promoted to fill a lieutenant

vacancy. Hayslip was a 10-year veteran firefighter with outstanding performance

evaluations. Hayslip also brought years of experience as a sergeant in the Army

Reserve, and had an ability to carry out instructions, a level of maturity, and an

understanding of leadership that Fields says led him to conclude that Hayslip was

the best available candidate for the lieutenant opening. As before, Chief Fields

considered the Plaintiffs for the opening, but thought them less qualified in the

factors that he considered important.

      Subsequently in 1996, Chief Fields selected Kelly Harcrow (white) and

James Ambrose (white) for vacant lieutenant positions from the qualified candidate

pool that included Plaintiffs. Thus, from the pool, Chief Fields selected at least

four whites, as well as four blacks, for promotion.




                                           7
       Plaintiffs filed their lawsuits on May 15 (Potter) and June 6 (Denney, et al.),

1997. In their complaints, Plaintiffs sought relief for disparate treatment and

disparate impact under Title VII, for discrimination in violation of 42 U.S.C. §

1981, and for conspiracy in violation of 42 U.S.C. §§ 1985 and 1986. Plaintiffs

sued Fields and Jackson in their individual as well as official capacities. As

remedies, Plaintiffs requested damages as well as an injunction compelling the City

to use a more objective system for awarding promotions that (in Plaintiffs’ words)

would permit the most qualified candidates to be selected.

       After discovery, Defendants moved for summary judgment. Plaintiffs

opposed the motion, but, as discussed below, at one point did not contest -- indeed,

they concurred in -- Defendants’ asserted “undisputed fact” that Chief Fields did

not consider race in making the promotion decisions. In comprehensive, virtually

identical 23-page orders dated September 24 (Potter) and 29 (Denney, et al.), 1999,

the district court granted summary judgment in Defendants’ favor, and

subsequently entered judgment for the Defendants. Potter v. City of Albany, 68 F.

Supp. 2d 1360 (M.D. Ga. 1999); Denney v. City of Albany, 68 F. Supp. 2d 1369

(M.D. Ga. 1999).3



       3
         In the discussion that follows, the appeals will be spoken of as arising in a single case with
respect to a single district court order.

                                                  8
      In its orders, the district court rejected each of Plaintiffs’ theories of liability.

First, it rejected Plaintiffs’ argument that the qualification exercise process had a

disparate impact on non-blacks in violation of Title VII. The court reasoned that

Plaintiffs failed to show how the three-step process had any impact on their non-

selection, given that all of the Plaintiffs made it past that stage and given the

undisputed evidence that the qualification exercise scores were not considered by

Chief Fields in making the challenged promotion decisions. Second, the district

court found that Plaintiffs did not establish a triable issue on their disparate

treatment claim under Title VII. In particular, the court found that the Plaintiffs’

evidence did not provide a sufficient basis for a jury to conclude that the

legitimate, non-discriminatory reason proffered by the Defendants for the

selections of Harris and Hayslip -- namely, that these candidates were more

qualified -- was a pretext for discrimination.

      As the court saw it, Plaintiffs attempted to show pretext in five ways: “1)

there is a statistical inference that the qualification process was biased; 2) there was

subjectivity in the promotion process; 3) plaintiffs were objectively more qualified

than Harris and Hayslip; 4) the existence of the City’s Affirmative Action Plan

gives rise to an inference of discrimination; and 5) a finding of discrimination in

Shealy shows pretext in this case.” 68 F. Supp. 2d at 1377. With respect to the


                                            9
statistical evidence, the court emphasized that even though Plaintiffs showed that

“whites received, on average, two points less on the oral interview portion of the

process and that, generally speaking, the higher a white candidate scored on the

objective written test and on the objective assessment center, the lower the same

white candidate scored on the subjective interview with Chief Fields,” the critical

fact was that there existed “no significant statistical disparity between blacks and

whites in the total score.” Id. at 1377-78. With respect to the use of subjectivity in

the promotion process, the district court reasoned that under our precedent “‘the

presence of subjectivity is not probative of discrimination,’” id. at 1378 (quoting

Allison v. Western Union Tel. Co., 680 F.2d 1318, 1322 (11th Cir. 1982)), and that

“subjective factors such as supervisory skills (leadership), interpersonal relations,

problem analysis, and oral and written communication skills are required to

perform the duties of the [lieutenant] position.” 68 F. Supp. 2d at 1378.

      With respect to the Plaintiffs’ qualifications relative to those of Harris and

Hayslip, the district court explained that an employer is not required to choose the

“most” qualified candidate for a position, and that “Plaintiffs’ bare claims that they

were more qualified than Harris and Hayslip are not sufficient to show that

Defendants’ legitimate nondiscriminatory reasons were mere pretext for

discrimination.” Id. at 1379. With respect to the implications of the City’s AA


                                          10
Plan, the court observed that the plan prohibited, rather than permitted,

discriminatory promotion practices. Finally, with respect to the Shealy litigation,

the court explained as follows:

      Plaintiffs’ reliance on Shealy [is] misplaced. The Shealy decision was
      rendered in 1997, almost two years after the promotions in question,
      and involved different applicants, a different position, and a different
      selection process. Plaintiffs’ apparent contention that the Shealy
      decision suffices to raise an inference of discrimination with respect to
      promotions in the Albany Fire Department is nonsensical. To
      establish pretext, Plaintiffs must offer evidence to rebut Defendants’
      showing with respect to the Harris and Hayslip promotions, which are
      the promotions at issue in this case. Plaintiffs have failed to do so.

Id. Based on these conclusions, the district court found that Plaintiffs’ disparate

treatment claim failed as a matter of law because Plaintiffs could not show pretext.

      The district court then went on to reject, with little commentary, Plaintiffs’

individual capacity claims against Fields and Jackson under Title VII, on the

ground that Title VII does not permit such claims; and their § 1981 claims, on the

same grounds that it rejected Plaintiffs’ Title VII claim as well as the additional

ground that a discrimination claim against a state actor must proceed under 42

U.S.C. § 1983, not § 1981. Lastly, the court rejected Plaintiffs’ §§ 1985 and 1986

conspiracy claims on the grounds that (1) Plaintiffs’ underlying substantive claims

were without merit; (2) the conspiracy allegations -- which relate to an alleged “de

facto” agreement between Chief Fields and City Manager Jackson to make the


                                          11
promotion process more favorable to blacks -- ran afoul of the “intercorporate

conspiracy” doctrine; and (3) with regard to the § 1986 claim, it was time-barred.

Id. at 1380. These appeals ensued.

                                          II.

      We give plenary review to a district court’s grant of summary judgment.

See Burton v. City of Belle Glade, 178 F.3d 1175, 1186 (11th Cir. 1999).

Summary judgment is proper if “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). A factual dispute

is genuine only “if the evidence is such that a reasonable [factfinder] could return a

verdict” for the non-moving party. United States v. Four Parcels of Real Property,

941 F.2d 1428, 1437 (11th Cir. 1991) (quoting Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248, 106 S. Ct. 2505, 2510-12 (1986)).

      If the non-moving party fails to “make a sufficient showing on an essential

element of her case with respect to which she has the burden of proof,” then the

court must enter summary judgment for the moving party. Celotex Corp. v.

Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2552 (1986). Moreover, when the

non-moving party bears the burden of proof on an issue, the moving party need not


                                          12
“support its motion with affidavits or other similar material negating the

opponent’s claim.” Id. at 323, 106 S. Ct. at 2553. Instead, the moving party

simply may “‘show[]’ -- that is[], point out to the district court -- that there is an

absence of evidence to support the nonmoving party’s case.” Id. at 325, 106 S. Ct.

at 2554 (citation omitted). In assessing whether the movant has met its burden,

“the courts should view the evidence and all factual inferences therefrom in the

light most favorable to the party opposing the motion” and “‘all reasonable doubts

about the facts should be resolved in favor of the non-movant.’” Burton, 178 F.3d

at 1187 (quoting Clemons v. Dougherty County, 684 F.2d 1365, 1368-69 (11th

Cir. 1982) (citations omitted)). We review the district court’s summary judgment

orders in accordance with these familiar standards.4

                                               III.

       At the outset, we must clarify precisely which claims and theories are at

issue in this appeal. Plaintiffs make no mention of their claims for individual

liability under Title VII, for relief under § 1981, and for relief on a conspiracy

theory under § 1986. Because those issues are not briefed, they are deemed

       4
         Plaintiffs cite several older cases for the proposition that “in general, summary judgment
is an inappropriate tool for resolving claims of employment discrimination, which involve nebulous
questions of motivation and intent.” Grigsby v. Reynolds Metals Co., 821 F.2d 590, 595 (11th Cir.
1987). We recently rejected that proposition, explaining that “the summary judgment rule applies
in job discrimination cases just as in other cases.” Chapman v. A.I. Transport, 229 F.3d 1012, 1026
(11th Cir. 2000) (en banc).

                                                13
abandoned. Moreover, although Plaintiffs make a single reference in their brief to

Defendants’ liability on a theory of Title VII disparate impact, they do not discuss

the district court’s analysis on that issue and do not make any legal or factual

argument as to why they have established a disparate impact claim. Accordingly,

we regard the disparate impact claim also as abandoned.5 The causes of action that

remain, therefore, are the Title VII disparate treatment claim and the § 1985

conspiracy claim. For the reasons discussed below, neither of these claims can

withstand summary judgment.

                                                A.

       We first address Plaintiffs’ disparate treatment claim. Plaintiffs essentially

contend that the Defendants -- specifically the sole decision-maker, Chief Fields --

treated them differently based on their white race when he selected their black

counterparts, Harris and Hayslip, for the two lieutenant openings in question.

Plaintiffs do not suggest that Harris and Hayslip were unqualified for the

promotions, but argue that a reasonable jury could conclude that Fields selected

those firefighters not because they were better qualified, but rather because they

are, as he is, black.




       5
        In any event, we see no error in the district court’s rejection of these abandoned claims.

                                                14
      The framework for analyzing Plaintiffs’ Title VII disparate treatment claim

is well-settled. As we recently explained in EEOC v. Joe’s Stone Crab, Inc., 220

F.3d 1263, 1286 (11th Cir. 2000):

             There are two theories of intentional discrimination under Title
      VII: disparate treatment and pattern or practice discrimination.
      Disparate treatment claims require proof of discriminatory intent
      either through direct or circumstantial evidence. See [Harris v. Shelby
      County Bd. of Educ., 99 F.3d 1078, 1083 (11th Cir. 1996)] (observing
      that a “‘plaintiff must, by either direct or circumstantial evidence,
      demonstrate by a preponderance of the evidence that the employer had
      a discriminatory intent’” to prove a disparate treatment claim)
      (quoting Batey v. Stone, 24 F.3d 1330, 1334 (11th Cir. 1994)).
      “Direct evidence is evidence that establishes the existence of
      discriminatory intent behind the employment decision without any
      inference or presumption.” Standard v. A.B.E.L. Servs., Inc., 161
      F.3d 1318, 1330 (11th Cir. 1998) (citing Carter v. City of Miami, 870
      F.2d 578, 580-81 (11th Cir. 1989)). Absent direct evidence, a plaintiff
      may prove intentional discrimination through the familiar McDonnell
      Douglas paradigm for circumstantial evidence claims.

Under the rubric of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct.

1817 (1973), “[t]o establish a prima facie case of discriminatory failure to promote,

a plaintiff must prove: (1) that he is a member of a protected class; (2) that he was

qualified for and applied for the promotion; (3) that he was rejected; and (4) that

other equally or less qualified employees who were not members of the protected

class were promoted.” Combs v. Plantation Patterns, 106 F.3d 1519, 1539 n.11

(11th Cir. 1997) (citing Wu v. Thomas, 847 F.2d 1480, 1483 (11th Cir. 1988)).

Once these elements are established, the defendant has the burden of producing a

                                          15
legitimate, non-discriminatory reason for the challenged employment action. See,

e.g., Holifield v. Reno, 115 F.3d 1555, 1564 (11th Cir. 1997) (citing Texas Dep’t

of Cmty. Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089 (1981)).

      If such a reason is produced, a plaintiff then has the ultimate burden of

proving the reason to be a pretext for unlawful discrimination. See, e.g., Holifield,

115 F.3d at 1565; Combs, 106 F.3d at 1528 (plaintiff “has the opportunity to

discredit the defendant’s proffered reasons for its decision”). In Reeves v.

Sanderson Plumbing Products, Inc., 530 U.S. 133, 148, 120 S. Ct. 2097, 2109

(2000), the Supreme Court explained that “a plaintiff’s prima facie case, combined

with sufficient evidence to find that the employer’s asserted justification is false,

may permit the trier of fact to conclude that the employer unlawfully

discriminated” and be sufficient to withstand a motion for judgment as a matter of

law. “Whether judgment as a matter of law is appropriate in any particular case

will depend on a number of factors. Those include the strength of the plaintiff’s

prima facie case, the probative value of the proof that the employer’s explanation is

false, and any other evidence that supports the employer’s case and that properly

may be considered on a motion for judgment as a matter of law.” Id.

      Here, there is no real dispute that Plaintiffs have introduced sufficient

evidence to support their prima facie case. Nor is there a genuine dispute that


                                          16
Defendants have articulated legitimate, non-discriminatory reasons for the

promotion of Harris and Hayslip instead of the Plaintiffs. Chief Fields testified

that he considered Harris to possess the greatest level of maturity, leadership skills,

interpersonal skills, and willingness to support the fire department and city

management and policies -- the factors that Chief Fields considered dispositive in

choosing among the pool of qualified applicants. Similarly, Chief Fields testified

that he selected Hayslip based on the recommendations of other senior firefighters

and because he felt that Hayslip showed the most leadership potential. The issue

on appeal, therefore, boils down to the sufficiency of Plaintiffs’ evidence of

pretext.

      As they did in the district court, Plaintiffs rely primarily on five points to

show that Chief Fields’s decisions were actually motivated by race and, in

particular, a desire to promote black firefighters over whites: (1) statistical

evidence that Chief Fields scored black candidates higher on the oral phase of the

qualification exercise than he did white candidates, even though white candidates

scored higher on the “objective” phases of that process; (2) Defendants’ decision to

make the hiring process largely subjective; (3) evidence that the Plaintiffs were

more qualified than Harris and Hayslip, both objectively and under the subjective

criteria articulated by Chief Fields; (4) the fact that the City’s affirmative action


                                           17
plan sets hiring and promotion goals favoring blacks; and (5) the fact that a district

court (subsequently affirmed by this Court) rejected Chief Fields’s race-neutral

explanation for the allegedly discriminatory promotion decision at issue in the

Shealy litigation.

      Each of those issues is discussed below. Beforehand, however, there is a

threshold barrier to Plaintiffs’ pretext argument. Defendants contend -- without

contradiction or even explanation by Plaintiffs -- that Plaintiffs have admitted that

Chief Fields “did not consider race” in making the challenged decisions. The

admission occurred in connection with Defendants’ Statement of Material Facts in

Support of the City Defendants’ Motion for Summary Judgment (filed in nearly

identical form in both lawsuits). In that document, Defendants listed as Fact Nos.

18-19: “When evaluating qualified candidates for promotion, Chief Fields

evaluated a number of factors, including the candidates’ work histories, certificates

and classes taken, leadership, maturity, interpersonal skills, and job performance.

The Chief did not consider race” (emphasis added). In their subsequent

Memorandum of Law in Support of Response to Defendants’ Motion for Summary

Judgment (again, filed in nearly identical form in both cases), Plaintiffs admitted

that those statements, among others, “are true statements of objective facts”

(emphasis added). Denney, et al.’s Memorandum of Law in Support of Response


                                          18
to Defendants’ Motion for Summary Judgment, Mar. 4, 1999, at 2; Potter’s

Memorandum of Law in Support of Response to Defendants’ Motion for Summary

Judgment, Mar. 4, 1999, at 2.

       These admissions flatly contradict Plaintiffs’ theory that race was the

motivating factor in the challenged promotion decisions, and are plainly

incompatible with a claim of Title VII disparate treatment liability. We could

decide the appeal on this basis alone. See Jones v. Gerwens, 874 F.2d 1534, 1537

n.3 (11th Cir. 1989) (treating fact as conceded, in accordance with local district

court rule, where party opposing summary judgment failed to controvert the fact as

described in the movant’s statement of undisputed material facts); see also

American Nat’l Bank v. FDIC, 710 F.2d 1528, 1536 (11th Cir. 1983) (applying

doctrine of judicial estoppel, which applies “to the calculated assertion of divergent

sworn positions”). We do not do so, because Plaintiffs’ claims fail regardless of

the effect of their admissions.6 Nevertheless, the admissions are at the very least an

additional piece of record evidence undermining Plaintiffs’ claims of pretext and

supporting the district court’s entry of summary judgment.




       6
        We also recognize that, at other points in the record, Plaintiffs clearly articulated their
position that Chief Fields considered race in making the challenged promotion decisions.

                                                19
      Turning to Plaintiffs’ arguments regarding pretext, we first address their

statistical evidence. Like the district court, we find that this evidence would not

have significant probative value to a reasonable jury. Plaintiffs’ expert, Dr. Cook,

examined the 1995 qualification exercise for lieutenant openings, and calculated

that Chief Fields scored black candidates higher on the interview portion of the

three-stage exercise than he did white candidates. Moreover, asserted Cook, Chief

Fields did so even though white candidates scored higher on the “objective” phases

of that process (entailing the written test and the assessment center). As Plaintiffs

see it, this evidence demonstrates that Fields was biased toward blacks, even to the

point of “race norming” the qualification exercise to ensure blacks would advance

to the qualified applicant pool.

      Defendants counter that Plaintiffs’ statistical evidence is incomplete and

misleading. First, they observe that Dr. Cook himself conceded -- as the record

shows and as any reasonable person would assume -- that the oral exam explored

topics and job skills different from those evaluated during the other two stages of

the qualification exercise. Defendants insist that this is exactly what explains the

scoring disparities highlighted by Dr. Cook. Second, Defendants’ statistical

expert, Dr. Peterson, concluded that, overall, qualified black applicants were

selected for promotion at a rate statistically insignificant from the rate at which


                                          20
qualified white applicants were promoted. This fact undermines any suggestion

that Chief Fields was rigging the process in favor of blacks. Third, Defendants

point out that, according to Cook, the same statistical disparity between blacks and

whites on the oral exam occurred in a subsequent year (1997), when Chief Fields

was not involved in the interview process at all. Finally, Defendants stress that it is

undisputed that the actual decisions challenged in this case were made without

consideration of qualified candidates’ relative scores on the qualification exercise.

For these reasons, Defendants maintain, and we agree, that on this record Cook’s

statistical evidence does not constitute sufficiently developed proof of pretext to

allow the Plaintiffs to overcome summary judgment. While in a different case

statistical evidence of the kind marshaled by the Plaintiffs might support an

inference of discrimination, it is insufficient on this record to avoid summary

judgment.

      Next, Plaintiffs cite as evidence of pretext the fact that, after the qualification

exercise, the hiring process became purely subjective. Plaintiffs do not squarely

challenge the legitimacy of the subjective factors considered by Chief Fields.

Instead, the concern appears to be that the largely “objective” bar to qualifying for

further consideration was set so low as to be almost useless in weeding out

applicants, and that the individual qualification exercise scores dropped out of the


                                          21
picture once the pool of qualified applicants was established. According to

Plaintiffs, the decision to make the promotion process so dependent upon

“unreviewable” subjective factors, rather than objective data, itself constitutes

proof of an intent to discriminate.

      This argument is unconvincing. Absent evidence that subjective hiring

criteria were used as a mask for discrimination, the fact that an employer based a

hiring or promotion decision on purely subjective criteria will rarely, if ever, prove

pretext under Title VII or other federal employment discrimination statutes. See

Allison, 680 F.2d at 1322 (“An employer’s decision may properly be based on

subjective factors.”); see also Risher v. Aldridge, 889 F.2d 592, 597 (5th Cir. 1989)

(rejecting Title VII claim despite plaintiff’s argument that employer improperly

considered only subjective factors rather than the objective factors, and explaining

that “[s]ubjective criteria necessarily and legitimately enter into personnel

decisions involving supervisory positions”). Plaintiffs themselves rightly concede

that “it is [not] per se improper to utilize subjective promotional standards; indeed,

for higher level executive and managerial promotions, subjective factors may play

a very substantial role.”

      As we recently explained in Chapman:

      A subjective reason can constitute a legally sufficient, legitimate,
      nondiscriminatory reason under the McDonnell Douglas/Burdine

                                          22
       analysis. Indeed, subjective evaluations of a job candidate are often
       critical to the decisionmaking process, and if anything, are becoming
       more so in our increasingly service-oriented economy. . . . Personal
       qualities . . . factor heavily into employment decisions concerning
       supervisory or professional positions. Traits such as “common sense,
       good judgment, originality, ambition, loyalty, and tact” often must be
       assessed primarily in a subjective fashion, Watson v. Fort Worth Bank
       & Trust, 487 U.S. 977, 991, 108 S. Ct. 2777, 2787 (1988), yet they are
       essential to an individual’s success in a supervisory or professional
       position. See id. at 999, 108 S. Ct. at 2791 (“It would be a most
       radical interpretation of Title VII for a court to enjoin use of an
       historically settled process and plainly relevant criteria largely
       because they lead to decisions which are difficult for a court to
       review.”). It is inconceivable that Congress intended
       anti-discrimination statutes to deprive an employer of the ability to
       rely on important criteria in its employment decisions merely because
       those criteria are only capable of subjective evaluation. See Watson
       [], 487 U.S. at 999, 108 S. Ct. at 2791. To phrase it differently,
       subjective reasons are not the red-headed stepchildren of proffered
       nondiscriminatory explanations for employment decisions. Subjective
       reasons can be just as valid as objective reasons. . . . 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.

229 F.3d at 1033-34 (citations omitted).7

       As Chapman makes clear, an employer’s use of subjective factors in making

a hiring or promotion decision does not raise a red flag. Certainly nothing in our


       7
         Plaintiffs cite Howard v. BP Oil Co., Inc., 32 F.3d 520, 525 (11th Cir. 1994) for the
proposition that courts view “subjective . . . criteria with greater scrutiny than [they] would if [the
defendant] strictly followed written criteria” in making an employment decision. That proposition
“does not change the fact that [the plaintiff still] must introduce evidence of discrimination.” Id.
Moreover, Howard pre-dates this Court’s recent en banc opinion in Chapman, which confirmed
beyond doubt the appropriateness of an employer using legitimate, non-discriminatory subjective
factors in its decision-making.

                                                  23
precedent establishes that an employer’s reliance upon legitimate, job-related

subjective considerations suggests in its own right an intent to facilitate

discrimination. To reiterate, Plaintiffs do not squarely challenge the legitimacy of

the specific criteria that Fields asserts he took into account in deciding who to

promote. Defendants’ expert, Dr. Austin, endorsed the appropriateness of those

criteria, and Plaintiffs did not contradict that evidence, other than to propose that

the process should have relied more heavily on objective data such as the written

test scores from the qualification exercise. Although Plaintiffs, as noted below,

disagree with how the various candidates stacked up under the criteria considered

by Chief Fields, they completely fail to show discriminatory intent in the selection

of those criteria or in the choice to focus on those criteria and correspondingly

downplay “objective” data from the qualification exercise.8 Simply put, the fact

that Chief Fields’s decisions were based on subjective considerations, such as a

candidate’s leadership ability and maturity, does not by itself advance Plaintiffs’

pretext argument.

        Plaintiffs next assert that they were more qualified to be promoted to

lieutenant than Harris or Hayslip. Our precedent, however, requires a strong


        8
         It is not a federal court’s role to decide the wisdom of those kinds of choices, so long as they
are not discriminatory in purpose or effect. See Combs, 106 F.3d at 1543 (stressing that “federal
courts do not sit to second-guess the business judgment of employers”).

                                                   24
showing of a disparity in qualifications in order for an inference of discrimination

to arise. As we recently explained: “In a failure to promote case, a plaintiff cannot

prove pretext by simply showing that she was better qualified than the individual

who received the position that she wanted. . . . ‘[D]isparities in qualifications are

not enough in and of themselves to demonstrate discriminatory intent unless those

disparities are so apparent as virtually to jump off the page and slap you in the

face.’” Lee v. GTE Florida, Inc., 226 F.3d 1249, 1253-54 (11th Cir. 2000)

(quoting Deines v. Texas Dept. of Protective and Regulatory Servs., 164 F.3d 277,

280 (5th Cir. 1999)); accord, Alexander v. Fulton County, 207 F.3d 1303, 1339-40

(11th Cir. 2000).

      Not only do Plaintiffs fail to acknowledge this case law, which makes clear

that they ultimately must do more to show pretext than prove that they are better

qualified than Harris and Hayslip, but they also fail to mount a persuasive showing

that they are, in fact, better qualified. Plaintiffs fail completely to explain why they

believe that Webb and McGee were more qualified than Harris and Hayslip. As

for Pinson, Plaintiffs assert only that he had relatively more “training” and had

served as an “acting Lieutenant.” But Defendants correctly counter that training

was only one of the considerations taken into account by Chief Fields, and

Plaintiffs make no effort to explain how Pinson was more qualified, let alone


                                          25
substantially more qualified, with respect to the other considerations (such as

leadership, communications skills, support for management, and so forth) relied

upon by Fields.

      With respect to Denney, Plaintiffs assert that he was more qualified because

he scored higher than Harris during the qualification exercise on the written exam

and the assessment center, and, unlike Hayslip, had experience supervising

stations. But Plaintiffs do not explain how Denney’s limited supervisory

experience makes him so much more qualified to be a lieutenant than Harris and

Hayslip; Plaintiffs do not, for example, dispute the two black candidates’

superiority in other areas considered by Chief Fields (indeed, Plaintiffs make little

effort to undermine the “fit” between Harris’s and Hayslip’s qualifications and the

criteria articulated by Chief Fields). The fact that Denney scored higher than

Harris in two of the three stages of the qualifications exercise does not carry a great

deal of weight in this case. Under the Department’s promotion policy,

qualification exercise scores mattered only for purposes of determining the pool of

qualified candidates. After that, other criteria were determinative. Unless we were

to find that this policy was itself irrational or motivated by discriminatory intent --

an argument unsupported on this record -- then Denney’s relatively higher scores




                                           26
on the “objective” portion of qualification exercise would not prove that he is more

qualified, let alone substantially more qualified, to be a lieutenant.

      Finally, with respect to Potter, it is true that he received the highest overall

score, by some margin, on the qualification exercise relative to Harris, Hayslip, and

the other Plaintiffs. Plaintiffs also observe that in his most recent performance

evaluation Potter received seven marks of “very effective,” while Harris received

only three. As Defendants observe, however, the qualification exercise is not

intended to gauge a candidate’s ability on all of the skills necessary to be a

lieutenant; it is intended to gauge some skills solely for the purpose of determining

which candidates move forward in the promotion process. Thus, it does not follow

from Potter’s relatively higher scores that he was substantially more qualified.

Moreover, Defendants persuasively observe that Potter’s evaluations contained

fluctuations akin to those of Harris and Hayslip. In addition, Defendants point out

that Hayslip’s evaluations emphasized that he “goes the extra mile,” a

characterization not found on Potter’s evaluation, and also that Hayslip (unlike

Potter) received a “very effective” mark for interpersonal skills -- one of the

criteria especially valued by Chief Fields.

      In the end, although one perhaps could argue that Potter was indeed the best

candidate on paper, the evidence marshaled by the Plaintiffs does not demonstrate


                                           27
that he was so much more qualified than his black counterparts that a reasonable

jury, on this record, could infer discrimination from the mere fact of his non-

selection. Such a showing is even less evident for the other four Plaintiffs. As we

often have said, Title VII is not designed to make federal courts “‘sit as a

super-personnel department that reexamines an entity’s business decisions.’”

Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991). We do not

ask whether the employer selected the “most” qualified candidate, but only

whether it selected the candidate based on an unlawful motive. See, e.g.,

Alexander, 207 F.3d at 1339.

      Plaintiffs’ next evidence of pretext relates to the City’s affirmative action

plan, and the fact that it sets goals (which Plaintiffs inaccurately describe as rigid

“quotas”) for the hiring of blacks and members of other protected groups. Courts

have been extremely wary of citing lawful affirmative action plans as evidence of

an employer’s pretext. See, e.g., Christensen v. Equitable Life Assur. Soc’y, 767

F.2d 340, 343 (7th Cir. 1985) (“[A] lawful affirmative action program is not

evidence of discrimination against the majority. National policy permits the use of

voluntary affirmative action programs to remedy the legacy of discrimination. For

the courts to discourage the use of such programs by treating them as evidence in

themselves of the very discrimination they are designed to eradicate would be


                                           28
improper.”) (citing Parker v. Baltimore & Ohio R.R. Co., 652 F.2d 1012, 1017

(D.C. Cir. 1981)). Although Plaintiffs repeatedly profess their view that the City’s

AA Plan is illegal, they do not seek to have the plan invalidated, and do not assert

that the plan is under attack elsewhere. The setting of goals for minority hiring or

promotion can be lawful. See, e.g., Peightal v. Metropolitan Dade County, 26 F.3d

1545 (11th Cir. 1994). Moreover, the City’s AA Plan expressly states that

promotions and similar hiring decisions are to be made without regard to race.

Plaintiffs do not come close to making the kind of showing necessary for this

Court to declare the City’s AA Plan unlawful.

      In any event, there is no evidence that Chief Fields, in making the

challenged promotion decisions, considered the City’s AA Plan, let alone thought

that by promoting Harris and Hayslip he would help fulfill some plan-mandated

quota. The AA Plan, in short, is not evidence upon which a reasonable jury, on

this record, could find pretext.

      This Court’s recent opinion in Bass v. Board of County Commissioners, 99-

10579, -- F.3d -- (11th Cir. Feb. 21, 2001), is not to the contrary. In Bass, we

vacated a grant of summary judgment in a discrimination case due in part to

evidence that the employer acted pursuant to an affirmative action plan in making

the challenged hiring decision. We observed that “while the mere existence of an


                                         29
affirmative action plan does not constitute direct evidence of discrimination, the

existence of a plan combined with other circumstances of the type present in this

case make available to a jury the reasonable inference that the employer was acting

pursuant to the plan despite statements to the contrary from the decisionmakers

involved.” Id., slip op. at 1475. Here, there is no evidence that Chief Fields made

the challenged promotion decisions pursuant to or in compliance with the City’s

affirmative action plan; nor do Plaintiffs make a reasoned attempt to show, as they

would have to show in that circumstance, that the City’s plan is invalid under Title

VII or the Constitution. In addition, the circumstantial evidence of discrimination

was significantly more compelling in Bass than it is here. Among other things, in

that case it was undisputed that the individual selected for the position was

unqualified, and that the defendant deviated from its normal practices in selecting

the individual. Those facts, which in Bass inexorably pointed toward the

conclusion that the defendant did (despite its denials) act pursuant to its affirmative

action plan, are not present on this record. For all of these reasons, Bass does not

help the Plaintiffs.9



        9
          Nor does Bass advance the Plaintiffs’ attack on the subjectivity of the Department’s
promotion process. On the contrary, citing Chapman, we held in Bass that the employer had
articulated with sufficient clarity and specificity its subjective rationale for not hiring the plaintiff.
Id., slip op. at 1468-69.

                                                   30
      Plaintiffs’ final argument for pretext concerns the determination in Shealy

that Fields, contrary to his testimony and the City’s argument in that case,

discriminated against white candidates in making a promotion decision in 1994 for

the position of Battalion Chief. Defendants contend that this fact has little

probative value in this case, because it concerned a different position and occurred

two years before the decisions at issue here. The district court also observed that

the Shealy case involved different applicants and a different selection process.

Those key distinctions may not totally deprive the Shealy finding of its persuasive

force as evidence of Fields’s intent to discriminate against whites; a key similarity

is that Shealy involved the same actor making the same kind of personnel decision.

Nevertheless, the distinctions are important, and weigh heavily against attaching a

great deal of probative value to the Shealy litigation. More generally, courts are

reluctant to consider “prior bad acts” in this context where those acts do not relate

directly to the plaintiffs. See Earley v. Champion Int’l Corp., 907 F.2d 1077, 1082

(11th Cir. 1990) (Defendants’ preparation of documents referring to ages or birth

dates of employees not significant evidence of unlawful discriminatory intent in

age discrimination case where plaintiffs’ jobs were eliminated in a reduction-in-

force and thus “[n]one of the documents relate to specific actions taken towards




                                          31
plaintiffs because of plaintiffs’ age”).10 Finally, we think it especially notable that

it was the same district judge who heard Shealy who concluded in this case that the

outcome in Shealy did not constitute meaningful evidence of Fields’s

discriminatory intent. In these circumstances, we do not believe that the findings

in Shealy are sufficient to push the Plaintiffs past summary judgment.

       For all of the foregoing reasons, viewing the record as a whole, Plaintiffs

have come forward with insufficient persuasive evidence to convince a reasonable

jury that Fields’s asserted reasons for awarding these promotions to Harris and

Hayslip were a pretext for intentional discrimination against whites. Accordingly,

we would affirm the district court’s entry of summary judgment on the Title VII

disparate treatment claim even if we were to discount totally Plaintiffs’ damaging

admissions.

                                                 B.

       Plaintiffs’ conspiracy claim under § 1985 requires little separate discussion.

In a single paragraph, Plaintiffs contend that the district court improperly rejected

their conspiracy allegations under 42 U.S.C. § 1985. As Plaintiffs see it, there is a


       10
         It is not at all clear that this evidence would be admissible under Fed. R. Evid. 401, 403,
and 404(b). In considering a summary judgment motion, a court may only consider evidence that
is admissible or that could be presented in an admissible form. See Pritchard v. Southern Co. Servs.,
92 F.3d 1130, 1135 (11th Cir. 1996). The district court did not come at the issue from the standpoint
of admissibility, however, and we need not do so ourselves.

                                                 32
“de facto” conspiracy between the City Manager (Jackson) and Chief Fields to

increase the role of subjective evaluation in the promotion process. The unstated,

but apparent, implication is that these individuals have done so to make it easier for

the Department to promote blacks at the expense of whites’ constitutional and

statutory rights to equal treatment. Plaintiffs also at times allege a conspiracy to

“deny relief through the internal grievance process to those who have raised

reverse discrimination claims.” Plaintiffs do not expressly identify any perceived

error in the district court’s analysis.

       The elements of a cause of action under § 1985(3) -- which is the

subdivision of § 1985 seemingly at issue here -- are “(1) a conspiracy; (2) for the

purpose of depriving, either directly or indirectly, any person or class of persons of

the equal protection of the laws, or of equal privileges and immunities under the

laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either

injured in his person or property or deprived of any right or privilege of a citizen of

the United States.” Lucero v. Operation Rescue, 954 F.2d 624, 627 (11th Cir.

1992) (citing United Brotherhood of Carpenters & Joiners of America, Local 610

v. Scott, 463 U.S. 825, 828-29, 103 S. Ct. 3352, 3356 (1983)). Having concluded

that Plaintiffs’ substantive claims fail on the merits, their conspiracy claim fails as




                                           33
well because Plaintiffs would not have been “deprived of any rights or privilege”

by the Defendants’ allegedly wrongful acts.

       Moreover, Plaintiffs’ conspiracy claim fails under the intracorporate

conspiracy doctrine. “The intracorporate conspiracy doctrine holds that acts of

corporate agents are attributed to the corporation itself, thereby negating the

multiplicity of actors necessary for the formation of a conspiracy. Simply put,

under the doctrine, a corporation cannot conspire with its employees, and its

employees, when acting in the scope of their employment, cannot conspire among

themselves.” McAndrew v. Lockheed Martin Corp., 206 F.3d 1031, 1036 (11th

Cir. 2000) (en banc). The doctrine applies to public entities such as the City and its

personnel. See Dickerson v. Alachua County Comm’n, 200 F.3d 761, 768 (11th

Cir. 2000) (rejecting employee’s § 1985(3) claim on that basis where employee

alleged civil conspiracy among solely County employees); Chambliss v. Foote, 562

F.2d 1015 (5th Cir. 1977), aff’g, 421 F. Supp. 12, 15 (E.D. La. 1976) (applying

intracorporate conspiracy doctrine to shield the public university from § 1985(3)

liability in a civil conspiracy claim); compare McAndrew, 206 F.3d at 1038-39

(doctrine inapplicable to criminal conspiracy allegations under § 1985(2)).11 Here,

       11
         The single case cited by Plaintiffs, Park v. City of Atlanta, 120 F.3d 1157 (11th Cir. 1997)
is inapposite. That decision states that a person need not participate in a § 1985 conspiracy to be
liable under § 1986 for failing to prevent the conspiracy. Here, Plaintiffs have waived their claim
under § 1986 by failing to so much as mention that statute in their brief; in any event, there is no

                                                 34
the only two conspirators identified by Plaintiffs -- Fields and Jackson -- are both

City employees; no outsiders are alleged to be involved. The alleged subject of

their conspiracy -- non-criminal manipulation of the promotion process to deprive

white employees of promotional opportunities -- relates to their performance of

their official, not personal, duties. Accordingly, because Fields and Jackson were

both effectively acting as the City itself when they entered into their alleged illicit

agreement, there can be no claim against them under § 1985, and the district

court’s rejection of that claim, like its rejection of the Title VII claim, must be

affirmed.

       AFFIRMED.




actionable § 1985 conspiracy and no underlying substantive violation of law.

                                              35
