Nicole Guerriero v. City of Delray Beach

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[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 23-10448 Non-Argument Calendar ____________________

NICOLE GUERRIERO, Plaintiff-Appellant, versus CITY OF DELRAY BEACH, JAVARO A. SIMS, individually,

Defendants-Appellees.

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

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At the conclusion of the auditions, the city manager pro- moted Sims to chief. Sims then made permanent appointments to his executive staff. He decided that Guerriero would not continue to serve as chief of internal affairs. Instead, he tapped Lieutenant Scott Privitera, a white man, to fill the role. Sims selected Privitera over Guerriero because he “had more overall law enforcement, management, and leadership experience.” Doc. 76-3 at 5. 2 In addi- tion, Privitera had a “lack of significant disciplinary history” and “fewer sustained findings and disciplinary actions” than Guerriero. Id. at 6–7. Sims made the decision to select Privitera after consult- ing with his two assistant chiefs, each of whom recommended Privitera over Guerriero. Around this time, Sims filled an open captain position. He did not promote Guerriero; instead, he selected David Weath- erspoon, a Black man. Sims selected Weatherspoon because he was a “strong leader[],”was “devoted to community engagement,” and had “more overall law enforcement experience than” Guerriero. Id. at 7. In making this decision, Sims again consulted with his two assistant chiefs, each of whom recommended Weatherspoon over Guerriero. Afterward, Guerriero sued Sims and the City, bringing sex and race discrimination claims under 42 U.S.C. § 1983. Both de- fendants moved for summary judgment. The district court granted the motion. Although Guerriero had “served her community for

² “Doc.” numbers refer to the district court’s docket entries. USCA11 Case: 23-10448 Document: 45-1 Date Filed: 05/21/2024 Page: 4 of 13 USCA11 Case: 23-10448 Document: 45-1 Date Filed: 05/21/2024 Page: 5 of 13 USCA11 Case: 23-10448 Document: 45-1 Date Filed: 05/21/2024 Page: 6 of 13

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anymore.” Id. (internal quotation marks omitted). The court ex- plained that Sims punished Lucas not because of her race but be- cause he was “concerned that this statement could be attributed to the department at a time when the relationship with the public was fragile” and “put into question [her] ability to make good decisions on the job.” Id. The court likewise determined that Sims’s decision not to promote Baker did not create a convincing mosaic. And it noted Olsen’s testimony that “she had never seen . . . Sims show any animosity towards white female police officers.” Id. The court concluded that Guerriero’s evidence was “a long way from” estab- lishing a convincing mosaic. Id. This is Guerriero’s appeal. II. We review de novo a district court’s grant of summary judg- ment, viewing all evidence and drawing all reasonable inferences in favor of the nonmoving party. Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1293 (11th Cir. 2006). Summary judgment is appropriate only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judg- ment as a matter of law.” Fed. R. Civ. P. 56(a). III. The Equal Protection Clause of the Fourteenth Amendment “requires government entities to treat similarly situated people alike.” Campbell v. Rainbow City, 434 F.3d 1306, 1313 (11th Cir. 2006). It “prohibits race and sex discrimination in public employ- ment.” Hornsby-Culpepper v. Ware, 906 F.3d 1302, 1312 (11th Cir.

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2018). An employment discrimination claim against a state actor under the Equal Protection Clause is “subject to the same stand- ard[] of proof and use[s] the same analytical framework as discrim- ination claims brought under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981.” Id. at 1312 n.6. To prevail on a § 1983 employment discrimination claim, an employee must establish, among other things, “the employer’s discriminatory intent.” Id. at 1312. To establish intent, a plaintiff may use either direct or cir- cumstantial evidence. Id. “Direct evidence is evidence that, if be- lieved, proves the existence of discriminatory intent without infer- ence or presumption.” Jefferson v. Sewon Am., Inc., 891 F.3d 911, 921 (11th Cir. 2018) (alterations adopted) (internal quotation marks omitted). “In contrast, circumstantial evidence only suggests, but does not prove, a discriminatory motive.” Id. at 921–22 (internal quotation marks omitted). When a plaintiff relies on circumstantial evidence, she may establish that the defendant acted with discrim- inatory intent through the McDonnell Douglas burden-shifting framework or by presenting a “convincing mosaic of circumstan- tial evidence that would allow a jury to infer intentional discrimi- nation by the decisionmaker.” Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011) (internal quotation marks omitted) (footnote omitted). Here, Guerriero relied on circumstantial evidence only. She argues that a reasonable jury could conclude that Sims intention- ally discriminated against her when he removed her from the

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internal affairs chief position and did not promote her to captain. She says that for each decision she introduced sufficient evidence to survive summary judgment under the McDonnell-Douglas frame- work or under a convincing mosaic theory. We disagree. We begin with Guerriero’s argument based on the McDon- nell-Douglas framework. Under this framework, a plaintiff must first establish a prima facie case of discrimination. See Lewis v. City of Un- ion City, 918 F.3d 1213, 1220 (11th Cir. 2019) (en banc). To establish a prima facie case, she must show that (1) “she belong[ed] to a pro- tected class,” (2) “she was subjected to an adverse employment ac- tion,” (3) “she was qualified to perform the job in question,” and (4) the “employer treated similarly situated employees outside her class more favorably.” Id. at 1220–21 (internal quotation marks omitted). To meet the “similarly situated” requirement, the plain- tiff must show that the comparator was similarly situated “in all material respects.” Id. at 1226 (internal quotation marks omitted). “Ordinarily,” a similarly situated comparator “will have engaged in the same basic conduct (or misconduct) as the plaintiff” and “will share the plaintiff’s employment or disciplinary history.” Id. at 1227–28. In the failure to promote context, to satisfy the fourth re- quirement of the prima facie case, the plaintiff must show that “the position was filled with an individual outside the protected class.” Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 768 (11th Cir. 2005). 3

3 The parties sharply disagree about whether, to establish a prima facie case in

the failure-to-promote context, the employee also must show that the individ- ual who received the promotion was equally or less qualified. We need not

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If the plaintiff establishes a prima facie case, the burden then shifts to the defendant to “articulate a legitimate, nondiscrimina- tory reason for its actions.” Lewis, 918 F.3d at 1221. If the defendant carries this burden, the “plaintiff must then demonstrate that the defendant’s proffered reason was merely a pretext for unlawful dis- crimination.” Id. To establish pretext, the plaintiff “must present significant probative evidence sufficient to permit a reasonable fact finder to conclude that the discriminatory animus was the but-for cause of the adverse employment action.” Owens v. Governor’s Off. of Student Achievement, 52 F.4th 1327, 1338 (11th Cir. 2022) (internal quotation marks and citation omitted). The plaintiff must show “such weak- nesses, implausibilities, inconsistencies, incoherencies, or contra- dictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of cre- dence.” Id. (internal quotation marks omitted). When considering pretext, we “do not sit as a super-personnel department that reex- amines an entity’s business decisions.” Id. (internal quotation marks omitted). A court may not “find pretext by simply quarreling with the wisdom” of the employer’s reasons. Id. (internal quotation marks omitted). To establish pretext in the context of a promotion or demotion decision, the plaintiff “must show that the disparities

resolve this question. Even assuming Guerriero is correct that she was not re- quired to show that Privitera and Weatherspoon were equally or less qualified at the prima facie case stage, Sims and the City nevertheless were entitled to summary judgment under the McDonnell-Douglas framework because, as we explain later, she failed to establish pretext.

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between the successful applicant’s and her own qualifications were of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff.” Brooks v. Cnty. Comm’r of Jefferson Cnty., 446 F.3d 1160, 1163 (11th Cir. 2006) (internal quotation marks omit- ted). Here, even assuming that Guerriero established a prima fa- cie case of discrimination regarding Sims’s decisions to remove her as chief of internal affairs and not to promote her to captain, her claims fail because she has not shown that his legitimate, non-dis- criminatory reasons for selecting Privitera as internal affairs chief and Weatherspoon as captain were pretextual. Sims advanced a legitimate, non-discriminatory reason for removing Guerriero as internal affairs chief and replacing her with Privitera: he viewed Privitera as more qualified. Sims explained that Privitera had “more overall law enforcement, management, and leadership experience” than Guerriero. Doc. 76-3 at 5. Guerri- ero argues that this stated reason was merely a pretext for discrim- ination. After considering the record before us, which shows that Privitera had more experience as an officer, more overall investiga- tive experience, and previously managed more than 40 officers, we cannot say that the disparities between Guerriero’s qualifications and Privitera’s qualifications were so stark that no reasonable per- son could have chosen him over her. See Brooks, 446 F.3d at 1163. We reach a similar conclusion on Sims’s decision to promote Weatherspoon to captain. Sims articulated a legitimate, non-

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discriminatory reason for his selection of Weatherspoon over Guerriero: he viewed Weatherspoon as the better qualified candi- date because he was a strong leader who had more “overall law enforcement experience.” Doc. 76-3 at 7. Guerriero argues that this stated reason was merely a pre- text because Weatherspoon was actually the less-qualified candi- date who had past performance problems. But given that Weath- erspoon had served with the department for longer that Guerriero and had significant experience in community engagement, the dis- parities in qualification were not so severe that “no reasonable per- son could have chosen [Weatherspoon] over her.” Brooks, 446 F.3d. at 1163; see also Lee v. GTE Fla., Inc., 226 F.3d 1249, 1255 (11th Cir. 2000) (holding that evidence showing that plaintiff was “clearly more qualified” in one area relevant for the job did not establish that employer’s decision to promote a different employee was pre- textual). Because Guerriero failed to show that Sims’s reasons for se- lecting Privitera as internal affairs chief or Weatherspoon as captain were pretextual, we conclude that Sims and the City were entitled to summary judgment under the McDonnell-Douglas framework. We now turn to whether Guerriero established a convincing mosaic that would support an inference of discriminatory intent. Even when a plaintiff cannot satisfy the McDonnell-Douglas frame- work, she still may survive summary judgment by coming forward with “a convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination by the

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decisionmaker.” Smith, 644 F.3d at 1328 (internal quotation marks omitted) (footnote omitted). Evidence that is likely be probative in establishing a convincing mosaic includes evidence of “(1) suspi- cious timing, ambiguous statements, or other information from which discriminatory intent may be inferred, (2) systematically bet- ter treatment of similarly situated employees, and (3) pretext.” Tynes v. Fla. Dep’t of Juv. Just., 88 F.4th 939, 946 n.2 (11th Cir. 2023) (internal quotation marks omitted). Guerriero argues that she presented a convincing mosaic of circumstantial evidence that would allow a jury to infer that Sims decided to remove her as internal affairs chief and not to promote her to captain because of her race or gender. She says that Sims repeatedly discriminated against white women, pointing to his treatment of Lucas, Baker, and Olsen. We are not persuaded. Although Guerriero argues that Sims’s decision to discipline Lucas was based on her race or gender, the record reflects that Sims disciplined Lucas after she made an inflammatory post on social media about the Black Lives Matter movement, which had the potential to upset community relations and demonstrated poor judgment. In addition, although Sims de- cided not to promote Baker to sergeant, 4 he awarded promotions

⁴ Like Guerriero, Baker sued Sims and the City for discrimination. We recently

affirmed the district court’s grant of summary judgment to Sims and the City. See Baker v. City of Delray Beach, No. 23-10760, 2024 WL 1107093 (11th Cir. Mar. 14, 2024) (unpublished). We explained that Sims’s legitimate nondiscrimina- tory reason for not promoting Baker was that at the time of the decision she was the subject of an internal affairs investigation arising out of allegations that

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to other women, including white women. As to Olsen, the record reflects only that she left the department when Sims was selected as chief over her. We agree with the district court that Guerriero’s evidence about Lucas, Baker, and Olsen falls far short of establish- ing a convincing mosaic. After carefully reviewing the record, we conclude that no reasonable jury could find that Sims intentionally discriminated against Guerriero based on her race or gender when he replaced her as chief of internal affairs and passed her over for the promotion to captain. We thus agree with the district court that Sims and the City were entitled to summary judgment. AFFIRMED.

she had misused her position, submitted false overtime claims, and made false statements. Id. at *2. Although Baker ultimately was exonerated, we con- cluded that she had failed to demonstrate that Sims’s decision not to promote an officer who was the subject of an ongoing investigation was pretextual. Id.

Footnotes

[2] Opinion of the Court 23-10448 D.C. Docket No. 9:21-cv-82075-DMM ____________________ Before ROSENBAUM, JILL PRYOR, and BRANCH, Circuit Judges. PER CURIAM: Nicole Guerriero appeals the district court’s order granting summary judgment to her employer, the City of Delray Beach, and its former chief of police, Javaro Sims, on her race and sex discrim- ination claims. After careful consideration, we affirm. I. Guerriero, a white woman, has worked for the City’s police department for more than 20 years. 1 She was initially hired as a road patrol officer and eventually rose to the rank of lieutenant. Guerriero’s claims in this case arise out of incidents that oc- curred when the City selected a new police chief. The city manager decided that two assistant chiefs—Sims, a Black man, and Mary Ol- sen, a white woman of Cuban heritage—would audition for the chief position by each serving in the role for three months. Olsen, who auditioned first, appointed Guerriero as acting chief of inter- nal affairs. When Sims had his audition, he kept Guerriero in that role. 1 Because we write only for the parties, who are already familiar with the facts and proceedings in the case, we include only what is necessary to explain our decision.

[4] Opinion of the Court 23-10448 many years and was most likely qualified for the positions at issue,” the district court concluded, no reasonable jury could find that Sims “acted with a discriminatory purpose” when he removed her as chief of internal affairs and decided not to promote her to cap- tain. Doc. 107 at 12. In deciding whether there was sufficient evidence of discrim- inatory intent, the district court considered the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S.

[792] (1973), as well as whether Guerriero had introduced a convinc- ing mosaic of evidence that would support an inference of discrim- ination. Regarding the McDonnell-Douglas framework, the court concluded that Guerriero failed to establish a prima facie case of discrimination because she had not shown that she was treated less favorably than a similarly-situated individual outside her protected class. For the internal affairs position, the court determined that Guerriero was not similarly situated to Privitera because he had worked for the department longer, managed more employees, and had fewer sustained findings in internal investigations. And for the captain position, the court concluded that she was not similarly sit- uated to Weatherspoon because he had worked for the department for longer, served as lieutenant for longer, and had fewer sustained findings in internal investigations. But even if Guerriero had established a prima facie case of discrimination, the district court concluded, Sims and the City still would be entitled to summary judgment under the McDonnell- Douglas framework. The court explained that Sims had advanced 23-10448 Opinion of the Court 5 legitimate, non-discriminatory reasons for selecting Privitera as chief of internal affairs and Weatherspoon as captain: their superior qualifications. Because Guerriero failed to show that “no reasona- ble person, in the exercise of impartial judgment, could have cho- sen” Privitera or Weatherspoon over her, the district court con- cluded that she had not shown pretext. Doc. 107 at 10 (internal quotation marks omitted). Thus, she “fail[ed] to raise a triable issue of fact under” McDonnell Douglas. Id. The court then turned to whether Guerriero had established a “convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination.” Id. (internal quotation marks omitted). To support her convincing mosaic theory, Guerri- ero pointed to evidence about how Sims treated other white women. He disciplined Nicole Lucas, a white female officer, and decided not to promote Stephanie Baker, another white female of- ficer. In addition, Guerriero pointed out that Olsen left the depart- ment after she was not selected for the chief position. The district court concluded that Guerriero had not come forward with a convincing mosaic of circumstantial evidence. It noted that in his tenure as chief Sims “promoted a diverse set of officers: three white (one being Hispanic) females, one black fe- male, seventeen white males, and two black males.” Id. at 11. Alt- hough Guerriero argued that Sims had punished Lucas because of her race or gender, the record showed that she was suspended for publishing an inflammatory social media post that read, “Fuck eve- ryone who says black lives matter. I can’t take your fucking bullshit