Case: 19-10138 Date Filed: 10/04/2019 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-10138 Non-Argument Calendar ________________________
D.C. Docket No. 4:17-cv-00200-CDL
RODERICK JOLIVETTE,
Plaintiff-Appellant,
versus
CITY OF AMERICUS, GA,
Defendant-Appellee.
________________________
Appeal from the United States District Court for the Middle District of Georgia ________________________
(October 4, 2019)
Before WILLIAM PRYOR, MARTIN and BRANCH, Circuit Judges.
PER CURIAM: Case: 19-10138 Date Filed: 10/04/2019 Page: 2 of 7
Roderick Jolivette appeals the summary judgment against his complaint that
the City of Americus, Georgia, refused to hire him as Fire Chief because he was
African-American and in retaliation for suing his former employer for unlawful
employment practices, in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e-2(a), and of his right to the free and equal benefit of all laws, id.
§ 1981. Jolivette also complained about being subject to different terms and
conditions of employment, id. §§ 2000e-2(a), 2000e-3(a), 1981, but he has
abandoned any challenge to the dismissal of that claim. Hamilton v. Southland
Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir. 2012). The district court ruled
that the legitimate, nondiscriminatory reasons the City proffered for hiring Roger
Bivins, a Caucasian man, were not pretexts for discrimination and retaliation. We
affirm.
We review de novo a summary judgment. Alvarez v. Royal Atl. Developers,
Inc., 610 F.3d 1253, 1263 (11th Cir. 2010). Summary judgment is appropriate
when “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).
An employer is prohibited from discriminating against an applicant because
of his race or because he has opposed an unlawful employment practice. 42 U.S.C.
§ 2000e-2(a)(1), 3(a); id. § 1981. Jolivette relies on circumstantial evidence to
2 Case: 19-10138 Date Filed: 10/04/2019 Page: 3 of 7
prove his claims of discrimination and retaliation under the burden-shifting
approach provided in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
The City presented evidence that it had legitimate, nondiscriminatory
reasons for hiring Bivins instead of Jolivette. The City submitted an affidavit from
its final decisionmaker, Steve Kennedy, who stated that he hired Bivins based on
his “combination of education, training, and experience,” his “overall experience
and qualifications,” his “intimate knowledge of the [Americus] Fire Department
and its personnel,” his “enthusiasm for the job,” his “performance during his
interviews and receipt of higher interview scores” and his “efficiency, positivity,
and ambitiousness.” Bivins served the Department for 15 years as a firefighter,
engineer, and captain, followed by 10 years as its Battalion Chief. His resume also
listed numerous certifications that he had acquired as a fire officer, a fire control
instructor, and a safety officer and for emergency training and planning.
As Kennedy averred, the interviewers overwhelmingly preferred Bivins.
Interviewers consisted of local officials, the outgoing Fire Chief, firefighters, and
fire chiefs from other locales. Of the 28 interviewers who submitted opinions by
email, 20 ranked Bivins as their choice for Fire Chief, two ranked Bivins as tied for
the position, and none ranked Jolivette as their first choice. The interviewers
favored Bivins because he was “rooted in Americus,” “his work history was more
stable than any other candidate,” “[h]e already ha[d] a pulse on the department”
3 Case: 19-10138 Date Filed: 10/04/2019 Page: 4 of 7
and an “aware[ness] of the current status and . . . needs . . . to move the department
forward,” he collaborated with other city agencies, and he had strategic long-term
plans for the Department and its employees. The interviewers also commended
Bivins for “always striving to better the dept. and the city,” “work[ing] his way up
through the Americus Fire Department,” “work[ing] hard to maintain respect and
trust,” “tak[ing] the initiative to seek further education,” and being “passionate
about his job . . . .”
The City was entitled to rely on subjective hiring criteria in making its hiring
decision. “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.” Chapman v. AI Transp., 229 F.3d
1012, 1034 (11th Cir. 2000). Kennedy and the interviewers favored Bivins based
on his stable employment history with the City, his enthusiasm, and his strategic
plans for and intention to remain with the Department. See id. at 1033–34. And the
interviewers relied on similar subjective factors to give Jolivette a low ranking.
Interviewers disfavored Jolivette because of his evasive responses, his shortsighted
one-year plan for the City, and his intent to retire in five years. Even the two
interviewers who expressed a preference for hiring an African-American candidate
ranked Jolivette last due to his demeanor and his responses.
4 Case: 19-10138 Date Filed: 10/04/2019 Page: 5 of 7
The evidence provided by the City required Jolivette to prove that the
reasons given for the hiring decision were pretextual. See Alvarez, 610 F.3d at
1264. Jolivette could not “recast [any] reason but [had to] meet it head on and
rebut it.” See Holland v. Gee, 677 F.3d 1047, 1055 (11th Cir. 2012) (quoting
Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1088 (11th Cir. 2004)). He had to
identify “weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer’s rationale.” Id. at 1055–56 (internal quotation
marks and citation omitted).
Jolivette argues that the disparity in qualifications creates a material dispute
about whether the criteria used by the City was pretextual. See Ash v. Tyson Foods,
Inc., 546 U.S. 454, 457 (2006) (“[Q]ualifications evidence may suffice . . . to show
pretext.”). Jolivette cannot just “assert[] baldly that [he] was better qualified . . . .”
Wilson, 376 F.3d at 1090. He must “show that the disparities between [Bivins’s]
and [his] own qualifications were of such weight and significance that no
reasonable person, in the exercise of impartial judgment, could have chosen
[Bivins] over [him].” See Brooks v. Cty. Comm’n of Jefferson Cty., Ala., 446 F.3d
1160, 1163 (11th Cir. 2006) (internal quotation marks and citation omitted).
Jolivette argues that the reasons proffered for hiring Bivins are unworthy of
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Case: 19-10138 Date Filed: 10/04/2019 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-10138 Non-Argument Calendar ________________________
D.C. Docket No. 4:17-cv-00200-CDL
RODERICK JOLIVETTE,
Plaintiff-Appellant,
versus
CITY OF AMERICUS, GA,
Defendant-Appellee.
________________________
Appeal from the United States District Court for the Middle District of Georgia ________________________
(October 4, 2019)
Before WILLIAM PRYOR, MARTIN and BRANCH, Circuit Judges.
PER CURIAM: Case: 19-10138 Date Filed: 10/04/2019 Page: 2 of 7
Roderick Jolivette appeals the summary judgment against his complaint that
the City of Americus, Georgia, refused to hire him as Fire Chief because he was
African-American and in retaliation for suing his former employer for unlawful
employment practices, in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e-2(a), and of his right to the free and equal benefit of all laws, id.
§ 1981. Jolivette also complained about being subject to different terms and
conditions of employment, id. §§ 2000e-2(a), 2000e-3(a), 1981, but he has
abandoned any challenge to the dismissal of that claim. Hamilton v. Southland
Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir. 2012). The district court ruled
that the legitimate, nondiscriminatory reasons the City proffered for hiring Roger
Bivins, a Caucasian man, were not pretexts for discrimination and retaliation. We
affirm.
We review de novo a summary judgment. Alvarez v. Royal Atl. Developers,
Inc., 610 F.3d 1253, 1263 (11th Cir. 2010). Summary judgment is appropriate
when “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).
An employer is prohibited from discriminating against an applicant because
of his race or because he has opposed an unlawful employment practice. 42 U.S.C.
§ 2000e-2(a)(1), 3(a); id. § 1981. Jolivette relies on circumstantial evidence to
2 Case: 19-10138 Date Filed: 10/04/2019 Page: 3 of 7
prove his claims of discrimination and retaliation under the burden-shifting
approach provided in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
The City presented evidence that it had legitimate, nondiscriminatory
reasons for hiring Bivins instead of Jolivette. The City submitted an affidavit from
its final decisionmaker, Steve Kennedy, who stated that he hired Bivins based on
his “combination of education, training, and experience,” his “overall experience
and qualifications,” his “intimate knowledge of the [Americus] Fire Department
and its personnel,” his “enthusiasm for the job,” his “performance during his
interviews and receipt of higher interview scores” and his “efficiency, positivity,
and ambitiousness.” Bivins served the Department for 15 years as a firefighter,
engineer, and captain, followed by 10 years as its Battalion Chief. His resume also
listed numerous certifications that he had acquired as a fire officer, a fire control
instructor, and a safety officer and for emergency training and planning.
As Kennedy averred, the interviewers overwhelmingly preferred Bivins.
Interviewers consisted of local officials, the outgoing Fire Chief, firefighters, and
fire chiefs from other locales. Of the 28 interviewers who submitted opinions by
email, 20 ranked Bivins as their choice for Fire Chief, two ranked Bivins as tied for
the position, and none ranked Jolivette as their first choice. The interviewers
favored Bivins because he was “rooted in Americus,” “his work history was more
stable than any other candidate,” “[h]e already ha[d] a pulse on the department”
3 Case: 19-10138 Date Filed: 10/04/2019 Page: 4 of 7
and an “aware[ness] of the current status and . . . needs . . . to move the department
forward,” he collaborated with other city agencies, and he had strategic long-term
plans for the Department and its employees. The interviewers also commended
Bivins for “always striving to better the dept. and the city,” “work[ing] his way up
through the Americus Fire Department,” “work[ing] hard to maintain respect and
trust,” “tak[ing] the initiative to seek further education,” and being “passionate
about his job . . . .”
The City was entitled to rely on subjective hiring criteria in making its hiring
decision. “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.” Chapman v. AI Transp., 229 F.3d
1012, 1034 (11th Cir. 2000). Kennedy and the interviewers favored Bivins based
on his stable employment history with the City, his enthusiasm, and his strategic
plans for and intention to remain with the Department. See id. at 1033–34. And the
interviewers relied on similar subjective factors to give Jolivette a low ranking.
Interviewers disfavored Jolivette because of his evasive responses, his shortsighted
one-year plan for the City, and his intent to retire in five years. Even the two
interviewers who expressed a preference for hiring an African-American candidate
ranked Jolivette last due to his demeanor and his responses.
4 Case: 19-10138 Date Filed: 10/04/2019 Page: 5 of 7
The evidence provided by the City required Jolivette to prove that the
reasons given for the hiring decision were pretextual. See Alvarez, 610 F.3d at
1264. Jolivette could not “recast [any] reason but [had to] meet it head on and
rebut it.” See Holland v. Gee, 677 F.3d 1047, 1055 (11th Cir. 2012) (quoting
Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1088 (11th Cir. 2004)). He had to
identify “weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer’s rationale.” Id. at 1055–56 (internal quotation
marks and citation omitted).
Jolivette argues that the disparity in qualifications creates a material dispute
about whether the criteria used by the City was pretextual. See Ash v. Tyson Foods,
Inc., 546 U.S. 454, 457 (2006) (“[Q]ualifications evidence may suffice . . . to show
pretext.”). Jolivette cannot just “assert[] baldly that [he] was better qualified . . . .”
Wilson, 376 F.3d at 1090. He must “show that the disparities between [Bivins’s]
and [his] own qualifications were of such weight and significance that no
reasonable person, in the exercise of impartial judgment, could have chosen
[Bivins] over [him].” See Brooks v. Cty. Comm’n of Jefferson Cty., Ala., 446 F.3d
1160, 1163 (11th Cir. 2006) (internal quotation marks and citation omitted).
Jolivette argues that the reasons proffered for hiring Bivins are unworthy of
credence because he lacked the academic credentials to serve as Fire Chief, but the
policies of the City allowed it to hire Bivins based on his “relative qualifications.”
5 Case: 19-10138 Date Filed: 10/04/2019 Page: 6 of 7
See Springer v. Convergys Customer Mgmt. Grp. Inc., 509 F.3d 1344, 1350 (11th
Cir. 2007). Although Jolivette possessed a bachelor’s degree, as required in the job
posting, the City policies weighed equally candidates who possessed an
“equivalent combination of education, training, and experience.” Dee Jones, the
human resources director for the City, testified that Bivins qualified for the
position of Fire Chief “because of the[] totality” of his skills, experience, and
education, as provided for in the job posting and “our job description.” Jolivette
does not dispute that Bivins possessed skills, experience, and abilities that
“substitute[d] for a lack of a college degree.” See Springer, 509 F.3d at 1349.
Jolivette likens his situation to Bass v. Board of County Commissioners, 256
F.3d 1095 (11th Cir. 2001), and Vessels v. Atlanta Independent School Systems,
408 F.3d 763 (11th Cir. 2005), but his comparison is inapt. The plaintiffs in Bass
and Vessels proved pretext by establishing that the hirees were unqualified. 256
F.3d at 1107; 408 F.3d at 772. In contrast to those hirees, Bivins was qualified to
serve as Fire Chief. Jolivette failed to prove that the reason proffered for hiring
Bivins—his combined education and experience—is false.
Jolivette also argues that the reasons the City gave are unworthy of credence
because it argued on summary judgment that he was unqualified due to lacking
certifications as a “Fire Engineer” and an “Advanced Emergency Medical
Technician,” but the City did not reject Jolivette on the basis he was unqualified.
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To the contrary, Dee Jones testified that “[t]he specialized training, . . .
professional affiliations, education [and] experience” listed on Jolivette’s resume
was impressive. And Jones responded, “no,” when asked if “there [was] any
question whether Mr. Jolivette met the preferred qualifications of the job.”
We AFFIRM the summary judgment in favor of the City.