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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-12365 Non-Argument Calendar ________________________
D.C. Docket No. 1:17-cv-00100-MW-GRJ
JACK ANTERIO,
Plaintiff-Appellant,
versus
CITY OF HIGH SPRINGS FLORIDA,
Defendant-Appellee.
________________________
Appeal from the United States District Court for the Northern District of Florida ________________________
(March 8, 2019)
Before MARTIN, ROSENBAUM, and NEWSOM, Circuit Judges.
PER CURIAM: Case: 18-12365 Date Filed: 03/08/2019 Page: 2 of 20
Jack Anterio, a white male, is a former police chief of the City of High
Springs, Florida (the “City”). After he was discharged from that position, he filed
a lawsuit against the City alleging whistleblower retaliation in violation of Fla.
Stat. § 112.3187, and race discrimination in violation of the Florida Civil Rights
Act, Fla. Stat. § 760.10, and Title VII, 42 U.S.C. § 2000e-2(a)(1). The district
court granted summary judgment to the City. Anterio appeals, arguing that
summary judgment wasn’t appropriate because he made disclosures of information
protected by the whistleblower retaliation statute, and because he presented a
“convincing mosaic” of circumstantial evidence that he was fired because of his
race. After careful review, we affirm the grant of summary judgment.
I.
The relevant facts, viewed in the light most favorable to Anterio, are as
follows. In February 2015, the City, a small town outside of Gainesville, hired
Anterio as its police chief. Previously, Anterio had been a police lieutenant in
Hollywood, Florida. He applied for the chief position with the City because he
wanted an opportunity to command an agency, which wasn’t possible in
Hollywood’s 400-person police department. The employment agreement Anterio
signed with City Manager Edwin Booth stated that he could be terminated with or
without cause, and that the city manager was the “sole judge” of his performance.
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Before Anterio was hired, the City’s police department had been run for
approximately one year by an acting police chief, Lieutenant Antoine Sheppard,
the highest-ranking officer in the department, after a previous chief, Steve Holley,
a white male, was fired by Booth. Anterio knew going in to the job that the
department was troubled. He had researched the department and spoken with a
prior police chief (not Holley), who had performed an audit of the department.
The prior chief told Anterio that the department lacked leadership, its policies and
procedures were a mess, and it was unorganized and understaffed. Booth likewise
was aware of these issues, and he asked Anterio to bring leadership, accountability,
direction, and discipline to the police department.
When Anterio took over as chief, he immediately took steps to
professionalize and re-orient the police department. Anterio had high standards
and demanded the same of his subordinates, who included Lieutenant Sheppard, a
black male; Sergeant Dustyn Shenk, a white male; Acting Sergeant Kendrick
Hampton, a black male; and eight or nine police officers. Additionally, Anterio
initiated several community-policing initiatives, including “coffee with the chief”
and a cookie-citation program. The latter program was intended to promote
positive interactions between children and law enforcement. To that end, officers
were directed to issue “citations” for a free cookie to children they saw behaving
well or doing good deeds.
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Many in the community appreciated Anterio’s community-policing
initiatives. But they were “[n]ot popular with the officers,” according to Anterio.
Some officers believed that the cookie citation program was a “waste of time” and
interfered with their other responsibilities. A couple officers did not issue the
required number of citations (five per month) and were disciplined by Anterio for
insubordination, which also wasn’t popular with the officers. For example, Shenk
testified that he was generally in favor of the cookie-citation program but had a
problem with officers being disciplined for insubordination if they didn’t meet a
quota.
Similarly, Anterio’s efforts to professionalize the police department were, at
times, met with resistance and resentment. Several officers offered testimony to
the effect that Anterio was too demanding, not “part of the team,” and quick to
threaten discipline for perceived insubordination. Shenk described him as a
“tyrant.” Other officers, however, expressed no problems with Anterio and
believed he was bringing needed change to the department.
Anterio’s chief antagonist was Lieutenant Sheppard. Their relationship was
rocky from the outset. Anterio had difficulty getting Sheppard to follow orders or
instructions, and he believed that Sheppard lacked the leadership, multitasking
abilities, and other skills necessary to serve as second in command. Sheppard, for
his part, thought Anterio was too demanding and had unrealistic expectations.
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Both Anterio and Sheppard raised their respective concerns to Booth.
Anterio and Booth met regularly to discuss “goings-on,” including Anterio’s issues
with Sheppard. In June 2015, Anterio recommended to Booth that Sheppard be
demoted back to sergeant. Booth declined to adopt the recommendation, noting
that Sheppard was related to a city commissioner. A few months later, in
September, Anterio again raised concerns to Booth about Sheppard’s ability to be
second in command. Anterio suggested putting Sheppard in control of the patrol
division, where he seemed to be more comfortable, and promoting to lieutenant—
skipping the rank of sergeant—a newly hired officer named Christopher Stroup.
Stroup was a veteran officer who had worked with Anterio’s son at the Palm Bay
Police Department. Booth again declined, stating that the “union would eat him
alive” if he did as Anterio suggested. Anterio testified that his relationship with
Booth was “very good” until he began raising concerns about Sheppard.
Meanwhile, at a meeting on August 31, 2015, Sheppard told Booth that
morale within the department was down and that Anterio was setting him up for
failure and creating a “hostile work environment.” Sheppard also relayed
information from another officer that Anterio had made racial jokes using the n-
word. Booth spoke with Anterio about these complaints and assured him that
Sheppard was “just crying.” A little over a month later, on October 12, Sheppard
prepared an eight-page memorandum detailing his complaints about Anterio to
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Booth and Jenny Parham, the City Clerk and part-time assistant to Booth. The
memorandum included one small paragraph on the racial-joke allegations.
Meanwhile, two officers in October 2015 made comments to the effect that they
did not expect Anterio to remain as chief for much longer.
When Booth appeared to take no action in response to Sheppard’s
memorandum, Sheppard took his complaints about Anterio to Evelyn Foxx, the
President of the local chapter of the NAACP, on November 4, 2015. This was two
days after Anterio had told Sheppard that he planned to demote him to sergeant.
Sheppard told Foxx that the workload was excessive, that morale was low, and that
Anterio had made racial jokes on two occasions. Foxx, in turn, called Booth and
requested a meeting. She then met with Booth and Mayor Sue Weller. According
to Booth, Foxx stated that the black community was upset and was “going to
march on City Hall.” Booth promised to investigate the complaints and interview
officers within the police department. In the interest of “total transparency,” Booth
agreed to allow Foxx to attend these interviews but not to ask questions. At some
point, members of the press were contacted regarding the allegations against
Anterio.
Anterio found out about Sheppard’s NAACP complaint the following
morning. He then spoke with Booth, who gave him a copy of Sheppard’s
memorandum. Anterio requested an opportunity to respond to the allegations.
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Soon after this meeting, Booth sent an email via Parham to the mayor and
the city commissioners stating, “In discussion with Chief Anterio, it was
determined that High Springs was not a good match for him given the extreme
policing done in Hollywood versus the low key policing in High Springs,” and that
“it would be in the best interest of all involved if Chief Anterio resigns.” About
ten minutes later, this email was forwarded to Anterio, and then, a few minutes
after that, a follow-up email from Parham to the mayor and the commissioners
stated that there had been a “misunderstanding” and that Anterio had “decided to
answer the accusations” and would remain on the job.
On November 9, 2015, Booth told Anterio that he would be placed on
administrative leave with pay while Booth investigated the allegations against him.
Booth stated that he intended to speak with all police officers in the department.
Booth interviewed all, or nearly all, of the officers in the police department
on November 9, with Foxx and an administrative assistant present. It appears that
only one officer reported hearing any racial remarks or slurs from Anterio. None
of the other officers said anything else to suggest that Anterio had acted in a
racially discriminatory way. Yet nearly all officers interviewed reported that
morale within the department was low, and many officers indicated that they were
stressed out and unhappy. Booth never interviewed Anterio regarding these
matters.
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While Anterio was on administrative leave, Sheppard assumed control of the
police department. He suspended the cookie-citation program and stated that he
would be supervising all projects. After Anterio received Sheppard’s email about
project supervision, he called Booth on November 12 to express his belief that the
email was inappropriate. During this phone call, he also advised Booth that he
intended to contact the Florida Department of Law Enforcement (“FDLE”)
regarding various allegations of improper and unlawful conduct by officers within
the police department. Anterio said that he had received complaints that several
officers, including Sheppard, were providing protection for drug dealers and other
individuals committing crimes. Anterio also mentioned an officer’s use of inflated
numbers in a grant application, which Anterio had to correct and resubmit. Booth
advised him to wait for the resolution of the investigation before contacting FDLE.
Anterio said he would, though he did not intend to wait. Anterio ultimately
emailed the allegations to the FDLE on November 17.
Around the same time, Anterio received a call from Parham stating that
Booth intended to terminate his employment at the next city commission meeting.
Parham stated that, while the racial allegations against him were unfounded, Booth
had determined that he was not the right fit for the agency. On November 19,
Booth handed Anterio a letter stating that they had made the “mutual decision” that
Anterio would be terminating his employment agreement. Anterio didn’t sign the
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letter, and all that Booth said at the time was that Anterio wasn’t the “right fit.”
Anterio received a formal termination letter on November 30.
Booth testified that Anterio didn’t meet his expectations for a small-town
police chief. According to Booth, Anterio was a “good person” who had some
good ideas, like the cookie-citation program, but he “just wasn’t a small-town
police chief.” Booth expected things “to be quiet,” for “morale to be high,” and for
the chief to take care of any problems that arose. But, according to Booth, “morale
was low,” and Anterio would come to Booth with issues in the police department,
like his problems with Sheppard, instead of handling them on his own. Booth
stated that he did not believe that Anterio was racially motivated in any of his
actions, and he denied feeling pressure to fire Anterio due to the NAACP’s
involvement.
After Anterio’s termination, Sheppard took over as acting police chief until a
new police chief, Joel DeCoursey, was hired in early December 2015. DeCoursey,
a black male, had recently retired as the police chief of the nearby city of Alachua.
II.
Anterio’s original complaint, filed in state court, alleged one count of
whistleblower retaliation under Florida state law. After Anterio amended his
complaint to add claims of race discrimination under Title VII and the Florida
Civil Rights Act, the City removed the action to federal district court. Then,
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following discovery, the City moved for summary judgment. The district court
granted that motion, concluding that Anterio didn’t engage in protected activity
under the whistleblower-retaliation statute and that the evidence failed to support
his claims of race discrimination. Anterio now appeals.
III.
We review de novo a district court’s order granting summary judgment,
viewing all the evidence and drawing all reasonable inferences in favor of the
non-moving party. Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 767 (11th
Cir. 2005). Summary judgment is appropriate when the record demonstrates that
there is no genuine dispute as to any material fact, and the movant is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a).
IV.
We first address Anterio’s Florida whistleblower-retaliation claim. In
analyzing this state-law claim, we are bound by decisions of Florida appellate
courts on issues of state law unless there is persuasive evidence that the Florida
Supreme Court would rule otherwise. Pendergast v. Sprint Nextel Corp., 592 F.3d
1119, 1133 (11th Cir. 2010).
Florida’s whistleblower-retaliation statute protects employees from
retaliation for making certain disclosures of information about legal violations,
fraud, malfeasance, gross mismanagement, and the like. See Fla. Stat. § 112.3187.
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The statute sets out requirements for the nature of information disclosed, to whom
the information must be disclosed, and how the disclosure must be made. See id.
§ 112.3187(5)–(7). Only the latter two requirements are at issue.
In general, the information must be disclosed “to any agency or federal
government entity having the authority to investigate, police, manage, or otherwise
remedy the violation or act.” Fla. Stat. § 112.3187(6). When, as here, the
disclosure concerns a “local government entity, . . . the information must be
disclosed to a chief executive officer . . . or other appropriate local official.” Id.
An “appropriate local official” is “an official or official entity who is affiliated with
the violating governmental entity and has the authority to investigate, police,
manage, or otherwise remedy the violation or act by the violating governmental
entity.” Rustowicz v. North Broward Hosp. Dist., 174 So. 3d 414, 424 (Fla. Dist.
Ct. App. 2015) (emphasis added). The FDLE, a state agency, is not affiliated with
the violating local governmental entity and therefore is not an “appropriate local
official.” Quintini v. Panama City Hous. Auth., 102 So. 3d 688, 690 (Fla. Dist. Ct.
App. 2012) (“FDLE is a state agency, not a local official.”).
The form of disclosure matters as well. To be protected, an employee must
make a disclosure in the ways specified in the statute, including “any written
complaint to [the employee’s] supervisory officials.” Fla. Stat. § 112.3187(7).
Under the plain language of this clause, an employee is protected only if a
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complaint to a supervisory official is made in writing. Crouch v. Public Service
Comm’n, 913 So. 2d 111, 111 (Fla. Dist. Ct. App. 2005).
Here, the district court properly granted summary judgment against Anterio
on his Florida whistleblower-retaliation claim. Anterio argues that his written
report to the FDLE is protected because the FDLE had the authority to investigate
and remedy the information he disclosed. But because this case concerns
information about a “local government entity,” the statute required Anterio to
make his disclosures to an “appropriate local official” affiliated with the violating
governmental entity, which the FDLE is not. See Fla. Stat. § 112.3187(6);
Rustowicz, 174 So. 3d at 424; Quintini, 102 So. 3d at 690.
Nor did Anterio make a “written complaint” to City Manager Booth, his
supervisory official. See Fla. Stat. § 112.3187(7); Crouch, 913 So. 2d at 111.
Anterio responds that the statute also protects oral disclosures made by an
employee “requested to participate in an investigation, hearing, or other inquiry
conducted by any agency or federal government entity.” Fla. Stat. § 112.3187(7).
He says that his oral disclosures to Booth count under this clause. But Anterio was
not “requested to participate” in any type of inquiry during which he disclosed the
information about potential unlawful conduct by his officers. While we do not
attempt in this case to define the scope of this clause, we are confident that it
requires something more than the informal discussions that occurred here between
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Anterio and Booth. See id. So Anterio’s proposed alternative for protection is
unpersuasive.
For these reasons, the district court was correct to grant summary judgment
on this claim.
V.
We next consider Anterio’s claims of discrimination under Title VII and the
FCRA, which we analyze jointly. See Holland v. Gee, 677 F.3d 1047, 1054 n.1
(11th Cir. 2012) (analysis of a claim under the FCRA mirrors the analysis of a
Title VII claim). Ordinarily, we evaluate claims of employment discrimination
based on circumstantial evidence, which is all we have here, using the burden-
shifting framework derived from McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973).
But this framework is not the sole means to establish a triable issue of
discrimination. A Title VII plaintiff can always survive summary judgment by
presenting circumstantial evidence that creates a triable issue concerning the
employer’s discriminatory intent. Smith v. Lockheed-Martin Corp., 644 F.3d 1321,
1328 (11th Cir. 2011). Such “[a] triable issue exists if the record, viewed in a light
most favorable to the plaintiff, presents a convincing mosaic of circumstantial
evidence that would allow a jury to infer intentional discrimination by the
decision-maker.” Id. (quotation marks omitted). The phrase “convincing mosaic”
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is not a legal test but rather a metaphor to illustrate that the evidence should be
viewed as a whole, not “sorted into boxes,” to determine whether it creates an
inference of unlawful discrimination. See Ortiz v. Werner Enters., Inc., 834 F.3d
760, 764–65 (7th Cir. 2016).
A plaintiff may raise a reasonable inference of discriminatory intent “by
offering evidence that [the employer] more likely than not acted with a
discriminatory motive, or by showing that its proffered reasons are not credible,
unless the record conclusively shows that the real motive was a non-proffered
reason that is non-discriminatory.” Alvarez v. Royal Atlantic Developers, Inc., 610
F.3d 1253, 1265 (11th Cir. 2010). To show that an employer’s reason is not
credible, the employee must meet that reason head on and rebut it; he may not
merely quarrel with the wisdom of that reason. Chapman v. AI Transp., 229 F.3d
1012, 1030 (11th Cir. 2000) (en banc). A plaintiff may do so by showing
“weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in
the employer’s rationale.” Holland, 677 F.3d at 1055–56 (quotation marks
omitted). When analyzing the employer’s reasons, however, “it is not our role to
second-guess the wisdom of an employer’s business decisions—indeed the wisdom
of them is irrelevant—as long as those decisions were not made with a
discriminatory motive.” Alvarez, 610 F.3d at 1266.
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Anterio argues that he presented a “convincing mosaic” of circumstantial
evidence showing that he was terminated based on his race. Citing an officer’s
testimony that Sheppard had said he would “play the race card” when “backed into
a corner,” Anterio contends that Sheppard and other officers in his “close circle”
conspired to oust him as chief by bringing to the NAACP false accusations that he
used a racial slur. Viewing this evidence against the “decade-long history of racial
tensions and discriminatory conduct” against white employees within the police
department, Anterio contends, amply establishes that Booth was motivated by
Anterio’s race and by pressure from the NAACP when he fired Anterio as police
chief. We are not persuaded by Anterio’s theory.
The district court properly granted summary judgment to the City on
Anterio’s race-discrimination claims. At best, Anterio’s evidence establishes that
Sheppard and other officers, as of sometime in October 2015, were planning to
push Anterio out as police chief because they were unhappy with his community-
policing initiatives and management style. In furtherance of that plan, Sheppard
contacted the NAACP to ensure that their complaints received publicity and to
force a decision by Booth. And his complaints to the NAACP included an
inflammatory accusation of racial jokes and use of the n-word—an accusation we
assume for present purposes was fabricated by one of the officers.
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Even crediting this version of events, however, no reasonable jury could
conclude that Booth was motivated by Anterio’s race when he made the decision to
terminate Anterio’s employment. Nothing in the record suggests that Booth’s
stated reason for terminating Anterio—that he wasn’t the right fit for the position—
was untruthful or a pretext for discrimination. After Sheppard complained to the
NAACP, Booth, who possessed the sole authority to hire and fire Anterio and to
judge his performance, independently investigated the allegations by interviewing
officers in the department. And it is undisputed that, during these interviews,
Booth heard from numerous officers—including those without any clear
connection to Sheppard’s “close circle”—that morale within the department was
low because of Anterio. This evidence, along with testimony from numerous
officers along similar lines, is fully consistent with Booth’s explanation of his
reasons for concluding that, while the racial accusations against Anterio were
unfounded, Anterio didn’t meet his expectations for being a “small-town police
chief.” In short, Anterio has offered no evidence to rebut Booth’s stated reasons
for dismissing him as police chief. See Chapman, 229 F.3d at 1030; Holland, 677
F.3d at 1055–56.
Anterio’s attempt to hold Booth responsible for Sheppard’s alleged animus
fails for at least two reasons. To begin with, there is little to suggest that Sheppard
targeted Anterio because of his race. The bulk of Sheppard’s complaints to Booth
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and the NAACP concerned low morale in the department and Anterio’s
management style. As noted above, undisputed evidence in the record reflects that
these were real and legitimate concerns for a number of officers.
And even assuming a discriminatory animus could be imputed to Sheppard,
there is no basis in the record to transfer that animus to the termination decision.
In certain circumstances, causation may be established, under the “cat’s paw”
doctrine, when a decisionmaker followed a biased recommendation from a non-
decisionmaker without independently investigating the complaint. Stimpson v. City
of Tuscaloosa, 186 F.3d 1328, 1332 (11th Cir. 1999). In such a case, the
recommender uses the decisionmaker as a mere conduit, or cat’s paw, to give
effect to his discriminatory animus. Id. If, however, a decisionmaker conducts its
own evaluation and makes an independent decision, the decision is free of the taint
of a biased subordinate employee. Pennington v. City of Huntsville, 261 F.3d
1262, 1270–71 (11th Cir. 2001). Here, the cat’s paw theory does not apply under
our precedent because Booth conducted an independent investigation into
Sheppard’s allegations and made an independent decision to terminate Anterio
based on non-discriminatory reasons.
The Supreme Court’s decision in Staub v. Proctor Hospital does not require
a different result. 562 U.S. 411 (2011). In Staub, the Supreme Court, in
addressing a discrimination claim under the Uniformed Services Employment and
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Reemployment Rights Act, concluded that an independent investigation did not
relieve an employer of fault where the supervisor’s biased act was intended to
cause and proximately caused an adverse employment action. Id. at 422.
Nonetheless, the Supreme Court stated there can be no proximate cause, and
therefore no liability, if the adverse action is entirely justified apart from the biased
supervisor’s recommendation. Id. at 421–22.
Assuming Staub applies here, the undisputed evidence in the record
indicates that any alleged bias from Sheppard was not the proximate cause of
Anterio’s termination. 1 As explained above, undisputed evidence reflects that
Anterio’s management style was not popular and that morale within the department
was low. These facts formed the basis, in large part, for Booth’s conclusion that
Anterio was not the right fit for the department. Further, Anterio offers no
evidence to rebut Booth’s testimony that he did not give credence to the racial
accusations and that they played no role in his decision. Accordingly, Booth’s
ultimate decision to terminate Anterio was “entirely justified” by the undisputed
evidence in the record, apart from any bias tainting Sheppard’s initial complaints.
See Staub, 562 U.S. at 421–22.
1 We have not addressed the viability of the independent-investigation defense in a race- discrimination case since the Supreme Court’s decision in Staub. Nor have we considered whether the discriminatory act of a non-supervisory employee, like Sheppard, could make an employer liable under a cat’s paw theory. We find it unnecessary to resolve these issues here. 18 Case: 18-12365 Date Filed: 03/08/2019 Page: 19 of 20
Anterio’s other evidence is insufficient to create a triable issue of
discrimination. Anterio asserts that discriminatory intent may be inferred from the
fact that Anterio was replaced first by Sheppard, a black male who did not meet the
education requirements for the chief position, and then by DeCoursey, a black
male who was paid a higher salary than Anterio. Neither fact is probative of
discrimination on this record, however. Sheppard had served as acting chief for
nearly a year before Anterio was hired, so his brief resumption of that role after
Anterio was fired does not indicate discrimination or pretext. As for DeCoursey,
he was well-qualified for the position, having served as police chief of a nearby
city for several years—a qualification Anterio did not bring to the position, so the
slight disparity in salaries cannot reasonably be attributed to race discrimination.
With regard to Anterio’s reliance on the City’s supposed history of treating
white employees worse than black employees, he did not preserve this argument by
raising it in his briefing at summary judgment. See Resolution Trust Corp. v.
Dunmar Corp., 43 F.3d 587, 598 (11th Cir. 1995) (en banc) (“Well-settled
precedent provides that arguments not raised at the district court level will
generally not be considered on appeal.”). We therefore decline to review it. Nor,
in any case, do we find that Anterio’s historical evidence is enough to create a
genuine issue of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
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249–50 (1986) (“If the evidence is merely colorable, or is not significantly
probative, summary judgment may be granted.” (citations omitted)).
Finally, we agree with the district court that “although Anterio perceives that
he was treated unfairly—particularly given his impression that he was hired to
correct problems that existed in the High Springs Police Department and was
seemingly fired for attempting to do just that—such perceived unfairness is not the
same as unlawful discrimination. See Alvarez, 610 F.3d at 1266. Having
concluded that undisputed evidence demonstrates that Anterio was terminated for
non-discriminatory reasons, we affirm the grant of summary judgment in favor of
the City.
AFFIRMED.