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[DO NOT PUBLISH]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

____________________

No. 23-10448

Non-Argument Calendar

____________________

NICOLE GUERRIERO,

Plaintiff-Appellant,

versus

CITY OF DELRAY BEACH,

JAVARO A. SIMS,

individually,

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Southern District of Florida

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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.

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23-10448 Opinion of the Court 3

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.

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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

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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

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6 Opinion of the Court 23-10448

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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23-10448 Opinion of the Court 7

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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8 Opinion of the Court 23-10448

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.