*3 Before EDMONDSON, Chief Judge, WILSON, Circuit Judge, and ALTONAGA,* District Judge. ALTONAGA, District Judge: appeal, issues this a civil rights raising action claims of discrimination, race are whether the trial court erred in grant- ing summary judgment in favor of Appel- lees, below, Defendants Lynette Young (“COO Young”) and Dennis L. Rubin (“Rubin”), by misapplying the summary judgment standard to presented the facts and on the basis of Appellees’ qualified immunity. agree While we Appellant, with below, Plaintiff Gerard (“Rioux”), that he presented a prima facie case of discrimination and showed sufficient evi- dence of pretext, we find he has not shown Defendants clearly violated estab- law, lished federal and we affirm.
I. BACKGROUND In December Rubin was hired as Fire Chief Atlanta Fire Department (“AFD”). Rubin, male, a Caucasian is the highest-ranking member of the AFD. Rubin’s predecessor appointed Rioux, had male, a Caucasian to the position Depu- ty Fire Chief Operations Field Divi- sion of AFD on a temporary basis in January 2004, Rubin made * Florida, Honorable Cecilia Altonaga, M. United sitting by States designation. Judge District for the Southern District during uncooperative been untruthful Chief Deputy Fire promotion Department Law investigation. The permanent. Sep- investigation its own completed with his concerns shared Rubin’s ofOne reached conclusions 2004 and tember Rioux, in- including personnel, supervisory awith by OPS reached those similar to AFD time of the response the slow
volved Law notably most exceptions, few (“FIU”) getting Unit Investigation Fire lied dur- Rioux had disagreed Department 2,May On fires. scenes investigation. ing the arrived at duty, Rioux off he was although concluded that a fire the scene Rubin, as given reports were Both Lieutenant FIU, including members American African Young, an well as COO *4 too taken (“Austin”), had Austin Michael COO to Rubin recommended woman. Austin, approached Rioux long to arrive. ranks two Rioux be demoted Young that him male, pulled grabbed and a Caucasian “discretionary Chief, the lowest Battalion coat, proceeded and of his lapel by the Young AFD. COO position officer” arriving late fire. him for chastise Rubin’s recommendation. with' concurred incident, Austin filed days after A few in- 28, 2004, was Rioux September On Rioux. against complaint a formal given and decision Appellees’ formed of Professional Stan- AFD Office The Al- report. Department’s Law copy of the investigation an (“OPS”) initiated dards at the his actions believes though Rioux commander The OPS incident. into the any AFD violate fire did not May of Afri- organization of an member was a the basic Rules, dispute does not he Work as the known firefighters American can with Austin of his interaction facts a section The OPS is Brothers Combined. night. Fire of the Chief AFD Office within demotion, the time of Around and Chief by AFD Fire is overseen and position fill vacated sought to Rubin began Shortly OPS after Rubin. Appellee, Michael Chief Deputy Chief. Assistant Young, COO Appellee investigation, its (‘Williams”), Ameri- an African Williams City supervisor and direct Rubin’s Sep- male, sometime testified that can Officer, called Operating Chief Atlanta him, and approached Rubin tember received “she had told Rubin Rubin like- “more than stating after Rubin would mayor received had even the perhaps rank, if Rioux in asked Williams ly” reduce Ivory Young Lee call from telephone accepting be interested would Williams from City Atlanta] [Councilman rejected posi- Williams position.1 ... ... that the Combined the Brothers Williams, also Rubin According to tion. ... was Rioux be- investigation Gerard others on two to Williams identified Although the ing [Rubin].” obstructed too, these, list,” “short Rubin’s allegations favoritism interference ulti- position was The African Americans. meritless, Rubin found against Rubin were (“Wil- Willis mately Nishiama offered over to the investigation also turned lis”), woman. an Asian (“Law Department Law City of Atlanta Department”). Deputy from his Rioux asserts demotion the result was not Battalion Chief Chief completed its OPS July On fire but May at of his actions Rioux had concluded investigation and Young’s desire rather COO Rubin’s AFD Work Rules. least four violated an African American. Rioux with replace Rioux had concluded OPS further deposition. regarding this issue at answering questions 1. Rubin evasive the organization believes of African as a similarly situated high-ranking Afri- American firefighters, Combined, Brothers (former can American firefighter AFD in conjunction with Young, COO convinced Marshal) Fire who was treated differently Austin complaint to file the against Rioux from Rioux after coming under investiga- ultimately Appellees’ influenced deci- tion. Rioux also alleged that Young “took sion to demote Rioux. He also maintains over investigation [Rioux’s] in order to re- that Rubin intended and tried to fill his move Rioux from his position as Deputy position with an American, African only Chief in hopes that an African-American settling on Willis when no African Ameri- replace would him.” of Atlanta can job. candidate would take the was dismissed from the action with preju- Finally, Rioux asserts the disciplinary dice due to the absence of any allegation action taken him was more severe that COO Young was the final policymaker than that imposed years two later on AFD City. for the Chief, (“Dun- Battalion Samuel Dunham ham”), an male, African American for what (“Second Rioux separately filed a lawsuit Rioux contends is similar misconduct. Complaint”) similar alleging claims under Dunham alleged grabbed to have *5 1981 sections against 1988 Rubin indi- arm member, of another AFD an African in vidually and his official capacity. The woman, American when she tried open to count, second under section alleged a refrigerator while leading tour of high denial of Rioux’s equal protection rights school through students an AFD facility. based on Rioux’s contention that similarly grabbing arm, After her Dunham verbally highly-ranked African American members berated complainant the in front of the AFD, of the including Dunham, Samuel students and other firefighters. After an were treated more favorably than Rioux OPS incident, investigation of the Dunham race, based on having despite committed received a six-day suspension and a writ- nearly identical disciplinary infractions to reprimand. ten those Rioux committed. The Second Com- Rioux filed the underlying action in this plaint alleged that Rubin’s to decision de- against case City the of Atlanta and COO mote Rioux “was motivated (“First Young Complaint”) in her individu- race, only not anas act of appeasement to al and capacities, official alleging discrimi- the Brothers Combined and others who nation in of Equal violation the Protection accusing continued him of racism toward Clause.2 The Complaint First alleged a Americans, African but part also as of first count 42 § under against U.S.C. continuing policy, custom, Rubin’s the Young, and this count was merged practice of achieving into Rioux’s and maintaining section 1983 what claim in stated count two.3 perceives First he Complaint as racial balance among the (“Grissom”) identified Nathaniel Grissom upper of ranks AFD.” Const, Equal 2. The provides, Protection XIV, Clause in U.S. § amend. 1. part, relevant that: No Section 1983 State shall “constitutes the any make or enforce law exclusive rem- abridge edy which against shall privileges the state or actors for immu- violations of the States; nities of rights citizens of the United § nor contained County in 1981.” Butts v. life, deprive shall any person Volusia, State (11th of Cir.2000) of liberty, property, process due without of Dist., (citing Jett v. Indep. Dallas Sch. law; deny any person nor its within 701, 731-32, U.S. jurisdiction equal protection of the (1989)). L.Ed.2d 598 laws. ato is entitled moving party and that ac- consolidated court The district Fed. law.” a matter as judgment Rubin and Young and COO against tions 56(c). making assess this in summary judgment R.Civ.P. granted thereafter the evi all “must view ment, the Court challenges Rioux favor. Defendants’ reasonably finding he factual inferences all order court’s dence trial of the portion light most sup- in the evidence evidence sufficient drawn from proffer did Stew discriminatory nonmoving party,” demotion claim favorable port Bridge, that COO conclusion Cheshire Happy trial court’s Herman’s art v. and the (11th Cir.1997), qualified entitled Inc., Rubin were Young in then- them claims doubts immunity for reasonable resolve all and “must non-mov capacities.4 personal facts favor about the Ins. Co. ant,” Omaha United Life DISCUSSION II. Am., Ins. Co. Sun Life appeal: arguments Cir.1990). three raises applying (1) court erred district Through Proving Discrimination B. to Rioux’s standard summary judgment Evidence (2) Circumstantial district arguments; pretext was not a concluding Dunham erred matter, argue the Appellees an initial As (3) Rioux; and comparator suitable es- that Rioux conclusion court’s district summary granting court erred district case of discrimina- facie prima tablished Young in and COO to Rubin judgment Thus, we turn was in error. tory demotion capacities on basis individual their first. to this issue dis- immunity. While claim *6 may prove a plaintiff A they argue the also respects, in all agree direct through discrimination intentional determined improperly district evidence, or evidence, circumstantial facie case of prima had established Rioux Earley v. See proof. through statistical discrimination. 1077, 1081 F.2d Corp., Int’l 907 Champion Orange v. (11th Cir.1990); Burke-Fowler Review A. Standard of (11th 1319, Fla., 1322-23 447 F.3d County, of sum grant review Court’s Cir.2006) (two dis of intentional theories novo, evidence de with judgment is mary disparate are VII under Title crimination favorable to light most in the considered or pattern discrimination treatment Aerospace, See, v. e.g., Wilson Rioux. B/E discrimination; treat disparate practice Cir.2004). (11th 1079, Inc., 1085 F.3d 376 direct may with proven be ment claims “if the is rendered Summary judgment evidence). offered Rioux circumstantial inter answers depositions, pleadings, of support in evidence only circumstantial file, together on and admissions rogatories, discrimination, and maintained claim of his affidavits, any, that there- if show with the that he papers summary judgment in his any material fact as to issue genuine is no briefs, did he brief, nor City’s dismissal in by Appellees in their 4. noted As argument. contrary at oral arguments clarify a view appears abandoned his to have concerning against Thus, any claim capacity appeal issues regarding of official Atlanta). (a City judgment of summary grant claim Rubin trial of court's 159, Graham, 165- 473 Kentucky U.S. See v. City abandoned. is deemed favor of 3099, (1985) 66, L.Ed.2d 114 87 Alabaster, 105 S.Ct. Greenbriar, 881 v. Ltd. is, (official actuality, suit capacity suit Cir.1989) (issues 1570, (11th n. 6 entity the government indi- against the local waived). argued appeal are deemed challenges represents). Rioux neither vidual brought this “solely consolidated case un- In the step last of the burden-shifting der the Douglas McDonnell analysis, circumstantial if the employer meets “its burden analysis.” evidence Consequently, production, we use presumption of discrimi burden-shifting framework rebutted, established nation is and the inquiry ‘pro Green, in McDonnell Douglas Corp. v. 411 ceeds to a new level of specificity,’ in which 792, 802-05, 1817, U.S. 93 S.Ct. 36 L.Ed.2d plaintiff must show that the proffered (1973), the sufficiency evaluate reason really pretext is a for unlawful dis his claim.5 Id. at crimination.” (quoting 1272-73 Tex Dep’t as Cmty. Burdine, v. Affairs Under the Douglas McDonnell frame- 248, 255, U.S. 101 S.Ct. 67 L.Ed.2d work, plaintiff must show an inference of (1981)). The focused inquiry discriminatory intent, and therefore car- step last requires plaintiff to demon ries an initial burden of establishing a strate weaknesses, “such implausibilities, prima facie case discrimination. Id. at inconsistencies, incoherencies, or contra 802, 93 S.Ct. Presenting prima dictions employer’s proffered legiti facie case is not onerous as it requires only mate reasons its action that a reason plaintiff that the establish facts adequate able factfinder could find them unworthy permit an inference of discrimination. of credence.” Combs v. Plantation Pat Reno, v. 115 F.3d Holifield terns, Cir.1997) (11th Cir.1997) (citations omitted). (internal quotation marks and citation omitted). The successful prima assertion of a facie case then “creates rebuttable presump- 1. Prima Facie Case
tion that the employer unlawfully discrimi-
nated against”
plaintiff.
E.E.O.C.
More than one formulation of the
Crabs, Inc.,
Joe’s Stone
elements of prima
facie case exist. The
(11th Cir.2002)
(citing U.S. Postal
Court
Douglas
McDonnell
recognized
Aikens,
Serv. Bd. Governors v.
460 U.S.
this when it articulated four
for a
elements
711, 714,
1276 discriminatory demotion for facie test ma discrimination employment of case facie Eaton, Inc., Sheaffer, v. Sturniolo employ- an from following a demotion based on by articulated the test from plaintiff the which differs requires misconduct ee’s plaintiff the protected requires a it “(1) belongs to in that Appellants he that show (1) of job; the is a member for that: he (2) qualified class; was to demonstrate he employer (2) the (3) class; for which he was misconduct protected the a (4) mis- similar demoted; same or (3) the him was he was job; demoted similarly situated to that which replaced conduct he the demotion following similarly in, was not but engaged employee class. protected his outside someone Dep’t v. Alabama for.” Moore disciplined (11th Cir.1994); also see 1023, 1025 F.3d (11th 235, 238 Corr., Fed.Appx. Bd. County, Georgia v. Clinch Hinson Cir.2005) Holifield, (citing Cir.2000) (11th Educ., F.3d Children Dep’t v. 1562); Lathem accord involving in case same standard (applying (11th Servs., F.3d Youth & demotion). discriminatory claiming teacher Cir.1999). racial discrimination Where Hinson, the demotions In Sturniolo rules of work alleged application is discipline claimed were unrelated there and where employee, an discipline received than severe that more discipline not did employee no claim In Sturniolo similarly situated. by others here, rules, plain- then as the work violate case, Hinson, present in the unlike in miscon- engaged “that he tiff show must similarly situated claim no there was outside person to that of duct similar viola- a similar committed had employee disciplinary class, ... protected treated rules, been had work but tion of more against him enforced measures favorably plaintiffs. than the more the oth- enforced than those severe miscon- in similar engaged always who persons er maintained Rioux has While Gerwens, 874 (citing Jones employ Id. duct.” that another complaints in his two Cir.1989)). but was to him similarly situated ee was (Grissom than he severely less disciplined fa- prima this formulation Under and Dunham Complaint, First abili- challenge Rioux’s case, Appellees cie the com Second), has raised appears it he element, pertaining ty to the third meet an element not as parator issue is, a simi- comparator, showing rather, as evi showing, but prima facie who committed employee larly-situated step of the third rules, pretext, who dence but of work same violation burden-shifting Douglas severely than Rioux. We McDonnell disciplined less Orange e.g., Silvera v. challenge and framework. agree Appellees’ with Board, has that Rioux County School trial court’s conclusion *8 examined, Cir.2001) (where as em- similarly-situated court a presented such Thus, if the pre of showing below. explained complainant’s as ployee, of part the could required, disparate any was text, third there was element whether showing. facie prima employee not his similarly meet situated of a treatment race); Douglas, McDonnell aof different facie a prima of formulation Another (“Especially U.S. in however, case, been articulated has “would showing pretext of to a relevant” of discrimination raising cases claims involved employees that white be evidence demoted, it this is and plaintiff where a is comparable of petitioner in acts court the district other formulation re ... nevertheless seriousness he sat- asserts applied Appellant and that rehired.”); Pilot Sparks v. tained or pri- the applied court isfied. The district Carriers, Inc., Freight replace candidates to Rioux contained (11th Cir.1987) n. 20 (noting that compara three black firefighters, and Rubin at may tor evidence be used to show pretext). tempted to recruit a black officer- Williams&emdash;to We, too, sufficiency address the (4) replace Rioux; Rubin felt comparator evidence our examination of pressure from the AFD power black struc pretext, rather than as an element of ture to harshly discipline Rioux, amidst prima case, Rioux’s facie recognizing that allegations from the Brothers Combined it always is not possible for high-ranking that Rubin would favor Rioux following employees to find comparators. suitable earlier and harsh treatment Rubin had Holifield, 1563 given Grissom, to a black chief accused of (“[T]here are only a limited number of (treatment taking bribes the Brothers potential ‘similarly employees’ situated of); (5) Combined had been critical higher when supervisory level positions for aggressive response the delayed AFD’s involved.”). medical Indeed, doctors are arrival at May the 2004 fire was prompt this Court previously has stated that “[i]f ed himself, Rubin who had told Rioux plaintiff a to show the existence fails the Fire Investigation Unit needed to re similarly situated employee, summary spond (6) fires; more quickly to an infer judgment is appropriate where no other ence could be drawn that Austin goad was evidence discrimination present.” is ed into filing grievance the against Rioux Id. at 1562 (emphasis original). by members of the Combined; Brothers (7) Here, while agree we differences Rioux has manner and degree presented comparator, investigating it the Rioux undisputed incident as com that he pared has shown he is a the incident involving member of a proposed class; protected comparator (8) he Dunham; evidence job; demoted; he was showing Dunham was a following discretionary offi demotion, subject he cer replaced by someone same rules supervi sor&emdash;Rubin&emdash;as class, protected outside his an Asian Amer- who committed a Moreover, ican woman. similar offense absence of Rioux’s but who was similarly-situated employee, differently treated with respect as we in explain below, further vestigation of he has also come incident disciplinary forward with “other action taken evidence of discrimi- thereafter.
nation.” The foregoing categories evidence, view,
In Rioux’s combined with Rioux satisfying district im- the Stur properly niolo and prima discounted the following Hinson facie evidence test for dis from which an criminatory demotion, inference of lead discrimination us to conclude (1) could be found: that Rioux prima Rubin tried to satisfied his maintain facie show racial AFD, ing balance at under maintaining Douglas. McDonnell tracking race spreadsheet personnel de- 2. Legitimate Reason/Pretext cisions, Rioux’s, including regularly he presented (2) political superiors; parties agree Because Appel- Rubin had discussions with Atlanta lees had a legitimate, nondiscriminatory Councilman, (“Coun- Ivory Young, Lee Jr. reason for Rioux’s following demotion *9 Young”), cilman in which Rubin reviewed OPS and Law Department investigations, spreadsheet the expressed his desire presumption the of discrimination is elimi to particular achieve a nated, racial balance of see Vessels Atlanta Indep. Sch. among (11th the 50/50 AFD discre- Sys., 763, black/white 408 F.3d Cir.2005), 771 (3) ranks; tionary Rubin’s “short list” of accordingly we turn to inqui- the “focused” to pretext of evidence is sufficient Atlanta pretext. of showing concerning ry Appellees summary judgment. survive inqui “The Silvera, at 1258. 244 F.3d Vessels, court as the district distinguish employ the upon centers pretext ry into in that the did, plaintiff that ground on the own employee’s beliefs, not the er’s pieces three at least additional case offered Holi performance.” of his perceptions racial omitted). allegedly addition to (citations of evidence in at 1565 field, defendant, in by statements the ly-tinged weakness must demonstrate plaintiff The they assert can whom contrast employer’s implausibilities es In fur any additional evidence. not offer action reasons for its proffered legitimate cite position, of this support ther factfinder to a reasonable for sufficient racially- Silvera, a series of decisions which reasons. See the disbelieve held to be alone Combs, statements tinged (quoting F.3d at 1258 of genuine a issue create insufficient to 1538). not plaintiffs burden the It is See, e.g., Kin pretext. material fact as an regarding suspicion a merely to raise Trustees, App’x F. v. Bd. motive, demon caid rather but improper of (11th Cir.2006); Birming Riley v. material 816-17 issue of genuine is a there strate Educ., Fed.Appx. ham Bd. reason proffered employer’s fact that the of (11th Cir.2005). that argue Appellees also Chap pretextual. was for his demotion the correctly discounted the district court 1024-25 Transp., 229 AI man v. Young, and testi Cir.2000). testimony of Councilman role of Com mony regarding the Brothers that none of concluded court The district the investigation, as Rioux bined by Rioux7 submitted the other evidence Ap- that contradicts assertion record issue of genuine create a was sufficient by agenda of influenced pellees were proffered as to whether material fact parties. of either these pretextual. demotion for his was reason state- uncontroverted Rioux submitted catego- the two general We now address stating latter’s belief by in his ments Rubin presented Rioux ries of evidence the AFD composition of the racial Appellees’ legitimate show effort to composition the racial reflect should pretext was for his demotion reason concluding generally. City of Atlanta consists category The first discrimination. insufficient, the district this identi- evidence evidentiary matters of the first six standing for interpreted Vessels as could infer jury from which by fied Rioux racially that evidence proposition in- category The second discrimination. coupled with must be tinged Dunham. statements proposed comparator, volves his of discrimi- evidence other circumstantial (i) that Race Motivated Rioux’s Claim summary judgment. nation to survive Demotion Decision Rubin’s state- distinguished district court makeup racial regarding the ments decision Citing the Eleventh Circuit’s issue Ves- AFD from the statements at Vessels, argues F.3d at sels, concluding that Rubin’s statements ex- of statements Rubin his submission particu- for a express preference did per- AFD’s conform pressing desire court con- The district group.8 lar racial City racial make-up sonnel to the 133, 143, Prods., Inc., Plumbing 530 U.S. permitted to consider 7. The trier fact is (2000). L.Ed.2d 105 S.Ct. establishing plaintiff's prima facie evidence on the drawn case and inferences therefrom aware that undisputed proffered that Rubin It is the defendant's issue of whether American. 60% African Atlanta Reeves v. Sanderson pretextual. reason is *10 eluded total sum of the evidence When position Rubin offered Rioux’s to question Appellees’ Williams, did not call into prof- Rubin told Williams he been had fered reason for Rioux’s demotion and “instructed to take some actions with Chief speculation. amounted to mere While Rioux.” In deposition, his Rubin only ad- “speculation” may accurately describe mitted to offering position first Rioux’s Rioux, by some factual assertions other Williams being repeatedly after pressed to factual support assertions find in the rec- confirm that fact.
ord. Rioux maintains Rubin adheres ato de
Considering evidence, all the a reason- facto and unwritten affirmative poli- action able factfinder could prof- cy, determine the and an inference can be drawn legitimate fered reason for Rioux’s two- Rioux was demoted as part of the overall step demotion—an during altercation strategy of balancing.9 race pres- Rubin which Rioux seeking to impress upon ents a copy spreadsheet of his two to three his subordinates Rubin’s own year directive re- times a to Councilman Young; if garding responding more quickly to fires— Rubin were up to show at a meeting with- only was not actually event that moti- out documentation promotions on burden, vated Appellees. Rioux’s again, race, the basis of Councilman Young was to demonstrate weaknesses implau- or “would have made a more formal inquiry sibilities proffered legitimate reason and would required have that some docu- so permit jury as to a rational to conclude mentation provided by be the administra- explanation that the given was not the real tion.” response question, “How reason, or that the reason stated in- far away from balance between 50/50 sufficient to warrant action. adverse African Americans and you Caucasians do Combs, 1528; 106 F.3d at think promotions Carter get would have to before Springs Treatment, Three Residential you upon yourself would take it say Cir.1998). something to Chief Rubin ... ?” Council- admitted, man Young “If we get- started Rioux maintains that May between ting in percentiles the low percent September Brothers Combined below that.” and Councilman Young brought pressure Appellees. Dixon, bear on Cameron Taken together and viewed light Combined, President of the Brothers had most say, favorable we cannot meetings with Young COO to complain upon based foregoing summary of ad- about the Rioux investigation evidence, and about ditional that Rioux has not satis- process Rubin’s new for promoting cap- fied his of presenting burden disputed tains. Dixon complained to Young COO facts showing by were motivated about by vindictive attacks a discriminatory Rubin reason selecting the managers. Councilman, too, black level received, Rioux discipline con- contacted Young any COO and left a trast message discipline he could or would regarding the matter of have Chief with received the absence of the race- her. Young pressure based COO then asked exerted. Rubin to bring up her personnel moves, to date on (ii) Comparator Dunham as a and to also prepared be to update her on involving incident Rioux and ac- argument Rioux’s supporting second tions as a taken result. burden showing pretext, that Dunham 9. Rioux's demotion was recorded Rubin's Ms. was recorded Willis as the routine spreadsheet appointment as an of a Cauca- appointment of an Asian American. sian to Section Chief. replacement
1280 should employee discipline each as to was what employee who similarly-situated was a follow Rioux receive. favorably than more treated however, misconduct, fails.
ing similar regarding following facts The are employees whether determine “[T]o ranks respective Dunham’s and Rioux’s ‘whether situated, evaluate similarly we undisputed. are job responsibilities in or accused involved are employees highest Rioux, posi held the second who and are conduct or similar same of the Dunham, who held AFD, and tion in ” ways.’ Burke- disciplined different just among both highest, were the fourth Manicc Fowler, (quoting at 1323 447 F.3d department in a discretionary officers 40 Brown, 1368 F.3d ia 1,200 Prior to members. approximately Cir.1999) marks (citations quotation a Battalion demotion, was Dunham omitted)). an comparator employee A Battal approximately are There Chief. ‘in all plaintiff] “similarly [to situated ” A Battalion AFD. Chief in the ion Chiefs Wilson, at respects.’ relevant of fire stations a handful oversees typically 1562). Holifield, (quoting “ people. and less than compara of the quality ‘quantity and nearly identical be [must] misconduct tor’s demotion, was one Rioux to his Prior second-guessing from courts prevent Chiefs, second in Deputy Fire only three and con decisions reasonable employers’ Deputy As to Chief Rubin. command ” Burke- oranges.’ fusing apples with for five bat- Chief, responsible Rioux was Manicc Fowler, (quoting at 1323 stations, pieces talions, 35 fire (citation omitted). 1368) ia, 171 F.3d at appointments All AFD chief equipment. mis merely “similar” Misconduct discretionary; chiefs serve at are plaintiff is insuf disciplined of the conduct Rubin, a pleasure. After Chief Rubin’s ficient. Id. at n. highest level of su- has the Deputy Chief two Rioux advanced pleadings, In his Only Deputy AFD. in the pervision At and Dunham. comparators, Grissom when he is absent. fill in for Rubin Chiefs Court, and before this summary judgment him or would not consider Deputy A Chief compa- only Dunham as a proposes Rioux status as Bat- to have the same herself court argues that the district rator. Rioux Deputy Chief. or an Assistant talion Chief Dunham was improperly determined than responsibilities greater have Chiefs it fo- comparator because appropriate an Chiefs, hundreds of supervise Battalion differences between superficial cused on paid are more. people, more positions within employees’ respective more was Deputy Chief promotion court contends the the AFD. Rioux promotions be- than his other meaningful “nature instead on have focused should top profes- of his rising to the cause it was nature and the of the offenses committed sion. Silvera, 244 imposed.” punishments of the charges differences As district Appellees assert the F.3d at 1259. Dunham, Appel- Rioux and against levied Dunham, a properly determined found to while lees submit Chief, compa- not a suitable Battalion AFD work rules one of the have violated Chief, of: Deputy rator to because Dunham was in the workplace, violence on (1) respec- in their differences the material Compliance Department The Law not. (2) the job responsibilities; tive rank and actions that Rioux’s concluded Unit charges differences levied AFD violated four different May (3) them; differing nature of two rules and sections work the different identities investigations and 2006, Dunham was In March decision Code. making a final of the individuals *12 by charged violating OPS with AFD work level professionalism and who are ex- conduct, courtesy, rules and truthful- pected to set the standard of conduct for ness. department. the
Finally, Appellees argue that different
Neither Rubin nor
Young
COO
selected
responsible
decisionmakers were
for the
charges
Rioux and Dunham were
imposed
Dunham,
sanctions
on Rioux and
violated,
found to have
and
charges
and each incident
investigated
differ were not the same. Dunham was neither
Silvera,
ently.
See
F.3d at 1261 n. 5 charged with nor found to have violated an
(“[Differences in
by
treatment
different AFD workplace violence rule. As Rioux
supervisors or decision makers can seldom correctly
out,
points
the most important
be the basis for a viable claim of discrimi
factors in
comparator
analysis in the
nation”)
Gerwens,
(citing Jones v.
874 disciplinary context are the nature of the
(11th Cir.1989)).
Appel
offenses committed and the nature of the
that,
lees assert
directly
whereas Rubin
punishments
Silvera,
imposed.
punishment
determined Rioux’s
based on at 1259.
comparator’s
“[T]he
misconduct
Department
the OPS and Law
reports,
nearly
must be
identical to
plaintiffs
in
(a
discipline
six-day
Dunham’s
suspension
prevent
order to
courts from second-guess-
reprimand)
letter of
was determined
ing employers’ reasonable decisions and
by a
OPS,
Section Chief of
Cindy
(cita-
confusing apples
oranges.”
with
Id.
Thompson,
only
submitted to Rubin
omitted).
tion and
quotation
internal
marks
approval
later.
The standard for similar
fairly
conduct is a
one,
rigorous
here,
are
persuaded
We
while the
Dunham
incidents
comparator
certainly
similar,
was not a valid
appear
on the
basis
be
the offenses
arguments
first two
by Ap
advanced
Rioux and Dunham
charged
were
with
pellees concerning the material
Moore,
differences were different.
137 Fed.Appx. at
respective
men’s
job
(“We
ranks and
re
have previously held that a dif-
sponsibilities and the
differences
ference in the charged
can pre-
offenses
charges levied against
Admittedly,
them.
comparison
clude a
for Title
pur-
VII
job
differences in
plaintiff
ranks between a
poses.”).
not,
employee
and another
are
in and of
Appellees’ argument that different deci-
themselves, dispositive as to whether the
sionmakers
responsible
for disciplin
may
two individuals
be compared for pur
(an
ing Rioux
argument
and Dunham
not
poses of
evaluating
discrimination claim.
order)
considered in the district court’s
Lathem,
(different
job
F.3d at 793
unpersuasive. See Anderson v. WBMG-
Here,
dispositive).
however,
titles not
(11th Cir.2001)
565-66
clearly matters,
rank
as Rioux was one of
(different supervisors
dispositive).
not
It
only
highest-ranked
three of the
members
instance,
is undisputed, for
that all discre
AFD,
reporting directly
to Rubin.
tionary
ultimately
officers
the AFD
contrast,
In
position
Dunham held a
pleasure
Chief,
serve at the
of the Fire
one,
but two levels distant from
Rubin, and even as Appellees contend that
position
women,
shared
30 men and
directly
Rubin was not
involved
consequently, significantly removed from
Dunham,
investigation they concede it
Rubin.
It cannot be said that conduct that
was necessary
approve
for him to
the ulti
might be tolerated or
pro
treated with
imposed.
mate sanction
gressive discipline at lower ranks must be
similarly accepted
Dunham,
from the
discipline
Chiefs imme
whose
was meted
advisors,
diate
Rioux’s,
who are held to a higher
years
out two
following
cannot
Moreover,
must show
plaintiff
Rioux Id.
comparator
assist
a valid
serve as
Nevertheless,
violation was
establishing
as stat-
the law
pretext.
showing
words,
of an unwritten
ed,
evidence
Id.
other
clearly
other
established.
ex-
plan
pressures
right
action
must
suffi
affirmative
contours of the
be
“[t]he
and Council-
by Brothers Combined
erted
official
that a reasonable
ciently clear
Rubin’s offer
along with
Young,
man
doing
he is
that what
would understand
*13
and eva-
African American
to an
position
Saucier,
at
533
right.”
that
U.S.
violates
offer, are suf-
that
regarding
answers
sive
v.
202,
(quoting Anderson
121
2151
S.Ct.
with re-
Rioux’s burden
satisfy
ficient to
635, 640, 107 S.Ct.
483 U.S.
Creighton,
pretext.
spect
(1987)).
3034,
rele
L.Ed.2d 523
The
97
clear
“it would
inquiry is whether
be
vant
Immunity
Qualified
C.
Defense
that his conduct
officer
to reasonable
defense of
Appellees’
turn to
nowWe
the situation he confronted.”
unlawful in
in the indi
immunity, interposed
qualified
omitted).
(citation
Thus,
objective
“[i]f
Id.
money damages.
claims for
capacity
vidual
predict
the time
observers cannot
—at
government
immunity protects
“[(Qualified
act was
lawful
official acts—whether
discretionary funct
performing
officials
adjudi
full
not,
must await
and the answer
civil trials and
from the burdens
ions10
fu
years
in a district court
cation
Johnson,
v.
88
liability,” McMillian
from
ture,
immunity from
the official deserves
Cir.1996)
(11th
1554, 1562
(citing Las
F.3d
Foy v. Hol
damages.”
liability
civil
Univ., 28 F.3d
Alabama A&M
v.
siter
Cir.1996)
(11th
1528,
ston, 94
1534
F.3d
Cir.1994) (en banc)),
(11th
1146,
“[i]n
1149
510,
Holloway, 510
(citing Elder v.
U.S.
only
Id.
It is
exceptional
all
cases.”
but
1019,
513-15,
Anderson,
mixed motives
remained the law
tivations)
approach
law does
correct
pre-existing
n. 26. And
case must
at 1296
circuit.
the merits
this
dictate
favor, the defen-
a defendant is
plaintiffs
Stanley
reiterated
so
be decided
immunity.
only
immunity
where
qualified
is entitled
dant
entitled
establishes that
undisputably
“the record
F.3d at 1534-35.
motivated, at
in fact
the defendant
Foy
used in
reasoning
Tracking the
considerations.”
by lawful
part,
least
summary judgment
denial
reverse
(emphasis
original).
at 1296
Id.
immunity
interposed
where
find that it
defense,
jury could
here no
aas
inquiry
objective reasonableness
for
fire chief
have been unlawful
would
man-
following
proceeded
Stanley
officer to do
operating
city’s chief
and the
Chadwick,
had
police,
the chief of
ner.
lacked dis
they had
did if
Appellees
as
Stanley,
police
officer
cause to resent
jury
1535. No
Id. at
criminatory intent.
named
as
years before
Chadwick
had
who
chief and
fire
that a reasonable
find
could
after
investigation. Years
in an
suspect
never have
would
operating officer
chief
remarks,
following several
Stanley’s
discriminatory
for
Rioux but
demoted
incidents,
terminat-
Chadwick
disciplinary
here,
Foy,
inas
The record
intent.
Id.
Stanley brought a section
Stanley, and
ed
establishes
undisputably
of his first amend-
1983 action
violation
*15
part by lawful
least in
at
were motivated
of the denial of
The
rights.
ment
reversal
by
indepen
the
supported
justifications,
quali-
on
summary judgment
a motion
by OPS and
conducted
investigations
dent
undisputed
immunity
on two
fied
rested
investigations which
Department,
the Law
First,
undisputably es-
facts.
record
part
were not a
two decisionmakers
these
objectively valid reasons ex-
that
tablished
they
is no evidence
there
of and which
took, because
step
for the
Chadwick
isted
n. 9. McMil
Id.
manipulated.
at
Cf.
discipline that
underlying
the incidents
(affirming trial court
lian,
F.3d 1554
did in fact take
led to the termination
genu
where
summary judgment
denial
Thus,
it
jury
“no
could find
place.
as to reasons
fact existed
ine issues of
to terminate
would have been unlawful
row,
on death
in
plaintiff
placed
officials
retaliatory
Stanley as
did absent
Chadwick
officers lied
whether
part, due to issue of
at
motive.” Id.
reasons).
their
concerning
Second,
appro-
summary judgment was
ap-
framework was
Foy analytical
The
undisputably es-
the record
priate because
case,
to a mixed motives
plied
Stanley
in
motivated, at
tablished
Chadwick
pronounce-
Court
following
Supreme
by
in
lawful considerations
part,
least
Britton, 523 U.S.
in
ment
Crawford-El
four-year
A
disciplinary incidents.
of the
ing.
this record immunity could not
worry motive, just an unlawful no mixed
apply:
discriminatory one. DEVINE, Petitioner- R.
William
Appellant, America,
UNITED STATES
Respondent-Appellee.
No. 07-11206
Non-Argument Calendar. Appeals, States Court of
United
Eleventh Circuit. 20, 2008.
March