[P U B L IS H ]

IN THE UNITED STATES COURT OF APPEALS

F O R THE ELEVENTH CIRCUIT FILED

U .S . COURT OF APPEALS

E L E V E N T H CIRCUIT

A p r il 18, 2006

N o . 05-15201 T H O M A S K. KAHN

N o n - A r g u m e n t Calendar CLERK

D . C. Docket No. 03-02296-CV-P-S

D E L O R E S M. BROOKS,

Plaintiff-Appellant,

versus

COUNTY COMMISSION OF JEFFERSON COUNTY, ALABAMA, THE,

Defendant-Appellee.

A p p e al from the United States District Court

fo r the Northern District of Alabama

(A p ril 18, 2006)

B efo re DUBINA, HULL and MARCUS, Circuit Judges.

M A R C U S , Circuit Judge:

D elo res M. Brooks, a white female, appeals the district court's grant of

su m m ary judgment to her employer, the County Commission of Jefferson County,

A lab am a, ("the County") on her claim of race discrimination in violation of Title V II of the Civil Rights Act of 1964 (Title VII), 42U.S.C. § 2000e-2. On appeal, B ro o k s argues the district court erred by finding she did not establish that the C o u n ty's proffered reason for not promoting her was a pretext for discrimination.

After careful review, we affirm.

W e review a district court's grant of summary judgment de novo, viewing th e evidence in the light most favorable to the party opposing the motion. Patrick v . Floyd Med. Ctr., 201 F.3d 1313, 1315 (11th Cir. 2000). Rule 56(c) states that su m m ary judgment is appropriate "if the pleadings, depositions, answers to in terro g ato ries, and admissions on file, together with the affidavits, if any, show th at there is no genuine issue as to any material fact and that the moving party is en titled to judgment as a matter of law." Fed. R. Civ. P 56(c). To warrant the en try of summary judgment, the moving party must demonstrate that "there is no g en u in e issue as to any material fact." HCA Health Servs. of Ga., Inc. v. E m p lo y e rs Health Ins. Co., 240 F.3d 982, 991 (11th Cir. 2001). "A mere `scintilla' o f evidence supporting the opposing party's position will not suffice; there must be en o u g h of a showing that the jury could reasonably find for that party." Walker v. D arb y, 911 F.2d 1573, 1577 (11th Cir. 1990). T itle VII makes it unlawful for an employer "to discharge any individual, or o th erw ise to discriminate against any individual with respect to his compensation, te rm s , conditions, or privileges of employment, because of such individual's race, co lo r, religion, sex, or national origin." 42U.S.C. § 2000e-2(a). Because Brooks relies on circumstantial evidence to establish her disparate treatment claim, we test th e sufficiency of that claim by applying the burden-shifting framework e sta b lis h e d in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas D e p a rtm e n t of Community Affairs v. Burdine, 450 U.S. 248 (1981). See Chapman v . AI Transp., 229 F.3d 1012, 1024 (11th Cir. 2000) (en banc).

Under the McDonnell Douglas framework, a plaintiff first must show an in feren ce of discriminatory intent, and thus carries the initial burden of establishing a prima facie case of discrimination. See McDonnell Douglas, 411 U.S. at 802.

The plaintiff's successful assertion of a prima facie case "creates a rebuttable p resu m p tio n that the employer unlawfully discriminated against her." EEOC v. J o e 's Stone Crabs, Inc., 296 F.3d 1265, 1272 (11th Cir. 2002) (citing U.S. Postal S erv . Bd. of Governors v. Aikens, 460 U.S. 711, 714 (1983)). Second, if the p lain tiff successfully demonstrates a prima facie case, the burden then shifts to the em p lo yer to produce evidence that its action was taken for a legitimate, nond iscrim in ato ry reason. See Joe's Stone Crabs, 296 F.3d at 1272. We proceed to th e third step of the analysis once the employer meets its burden of production by p ro fferin g a legitimate, non-discriminatory reason, thereby rebutting the p resu m p tio n of discrimination, and "[our] inquiry `proceeds to a new level of sp ecificity,' in which the plaintiff must show that the proffered reason really is a p r e te x t for unlawful discrimination." Id. at 1272-73 (citing Burdine, 450 U.S. at 2 5 5 -5 6 ). "Although the intermediate burdens of production shift back and forth, th e ultimate burden of persuading the trier of fact that the employer intentionally d is cr im in a te d against the employee remains at all times with the plaintiff." Id. at 1273.

A f te r assuming that Brooks met her initial prima facie burden, the district c o u r t proceeded to the second step of the McDonnell Douglas inquiry and held that th e County articulated legitimate, non-retaliatory reasons for failing to promote B ro o k s to the Budget Management Officer position -- namely, that the person who receiv ed the promotion, Tracie Hodge, a black female, was more qualified based, in part, on her experience serving as the interim Budget Management Officer. At th e third step of the inquiry, to establish pretext, Brooks had to d em o n strate that the proffered reason was not the true reason for the e m p lo y m e n t decision . . . [The plaintiff] may succeed in this either d ir ec tly by persuading the court that a discriminatory reason more lik ely motivated the employer or indirectly by showing that the e m p lo y e r's proferred explanation is unworthy of credence. Jack so n v. Ala. State Tenure Comm'n, 405 F.3d 1276, 1289 (11th Cir. 2005) (alteratio n in original) (quotations and citation omitted). Thus, Brooks had to p ro d u ce sufficient evidence to allow a reasonable finder of fact to conclude that the C o u n ty's articulated reasons were not believable. Id. She could do this by p o in tin g to "weaknesses, implausibilities, inconsistencies, incoherencies, or co n trad ictio n s" in the proferred explanation. Id.

"[T]o avoid summary judgment [the plaintiff] must introduce significantly p ro b ativ e evidence showing that the asserted reason is merely a pretext for d is cr im in a tio n ." Clark v. Coats & Clark, Inc., 990 F.2d 1217, 1228 (11th Cir. 1 9 9 3 ) (citation omitted). A reason is not pretext for discrimination "unless it is s h o w n both that the reason was false, and that discrimination was the real reason." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993). In the context of a p r o m o tio n : a plaintiff cannot prove pretext by simply arguing or even b y showing that he was better qualified than the officer w h o received the position he coveted. A plaintiff must sh o w not merely that the defendant's employment d e c is io n s were mistaken but that they were in fact m o tiv a te d by race. We have explained, a plaintiff may n o t establish that an employer's proffered reason is p retex tu al merely by questioning the wisdom of the em p lo yer's reasons, at least not where . . . the reason is o n e that might motivate a reasonable employer. A le x a n d e r v. Fulton County, 207 F.3d 1303, 1339 (11th Cir. 2000) (internal q u o tatio n s omitted).

Here, we readily conclude that the County's proffered reasons -- Hodge's s u p e r io r qualifications and the firsthand experience she attained during her tenure as the interim Budget Management Officer -- were legitimate and nond iscrim in ato ry in nature. Thus, the burden shifted to Brooks to "meet [the p ro ffered ] reason head on and rebut it, and the employee cannot succeed by simply q u a rr elin g with the wisdom of that reason." Chapman v. AI Transp., 229 F.3d at 1 0 3 0 (discussing ADEA claim). A plaintiff must show that the disparities between th e successful applicant's and her own qualifications were "of such weight and sig n ifican ce that no reasonable person, in the exercise of impartial judgment, could h av e chosen the candidate selected over the plaintiff." Cooper v. S. Co., 390 F.3d 6 9 5 , 732 (11th Cir. 2004), cert. denied, 126 S. Ct. 478 (2005) (citation omitted); see also Ash v. Tyson Foods, Inc., 126 S. Ct. 1195, 1197 (2005) (per curiam) ( ap p r o v in g of this language from Cooper).

O n this record, Brooks did not meet her burden under Cooper to show that th e disparities between her qualifications and Hodge's qualifications were so sev ere that no reasonable person could have chosen Hodge over her. Indeed, B r o o k s offered no evidence to challenge the County's evidence that Hodge was h ired based on her experience and firsthand knowledge related to the position.

And our inquiry at the third stage of the McDonnell Douglas analysis of a p r o m o tio n discrimination claim is not concerned with Brooks's belief that she was m o r e qualified or whether we could conclude that she was better qualified than H o d g e . See Cooper, 390 F.3d at 744 (noting plaintiff's reliance on her own belief th at she was better qualified than promotee and observing that "whether we could co n clu d e [the plaintiff] was better qualified than [the promotee] is not the issue h ere").

It was undisputed that Hodge had several years' experience in the Budget M a n a g e m e n t Office (BMO), and had temporarily served as the Budget M an ag em en t Officer. Brooks, on the other hand, had never served in the BMO an d lacked experience in performing many of the Budget Management Officer's d u ties. Under the standard announced in Cooper, Brooks did not put forth ev id en ce that discrimination was the real reason for the County's decision. On this reco rd , Brooks did not establish that the County's proffered reason was pretextual, n o r did she indirectly show that the proffered reason was "unworthy of credence." Jackson, 405 F.3d at 1289. Accordingly, the County was entitled to summary ju d g m en t in its favor.

AFFIRMED.