Diana Vega v. Invsco Group, Ltd.

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 24, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 10-11722
Non-Argument Calendar
________________________
D.C. Docket No. 6:08-cv-01915-ACC-DAB
DIANA VEGA,
Plaintiff-Appellant,
versus
INVSCO GROUP, LTD.,
Defendant-Appellee.
__________________________
Appeal from the United States District Court for the
Middle District of Florida
_________________________
(June 24, 2011)
Before TJOFLAT, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:

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In 2004, Invsco Group Ltd., a real estate developer headquartered in
Chicago, Illinois, acquired an apartment complex in Orlando, Florida, Bella Vita,
for the purpose of converting its apartments into condominiums to be known as
the Sand Lake Private Residences. In October of that year, Invsco hired Diana
Vega as Sand Lake’s Property Manager. Around the same time, Invsco hired
Michael Galvin as Sand Lake’s Assistant Project Manager. In June 2005, Invsco
acquired another property, Plantation Park Private Residences. Galvin became its
Assistant Project Manager, and Vega replaced him as Sand Lake’s Assistant
Project Manager. In late 2005, Vega became Project Manager at still another
Invsco development, Bermuda Dunes Private Residences. Galvin, in the
meantime, became Plantation’s Project Manager.
By mid-2006, the bottom had fallen out of the condominium market in
Orlando, and Invsco had to cut its staff. By November 2006, as the situation
worsened, Galvin and Vega faced demotion. Galvin accepted a position in
Invsco’s Contract Administration department. Vega was offered the position of
Property Manager at Bermuda Dunes, a position Marlin Canario then occupied.
Vega declined the offer, explaining her decision in this email:
I have been very happy with my position and Invsco, and very
grateful for all the opportunities that Invsco has given me. . . . My
preference, however, is to continue working with Invsco in the area of
development, not CRS or Condo, and my first preference would be to
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find employment with another developer before going back to
property management.
Vega soon had a change of mind, however, and accepted Invsco’s offer; she
replaced Canario as Bermuda Dunes Property Manager. Vega held this position
for several months. But the economy continued to decline, so Invsco had to make
further cuts in its staff. Invsco had three Property Managers; Vega was the highest
paid. Invsco consolidated the Property Manager positions at Bermuda Dunes and
Sand Lake, and offered the consolidated position to one of the Property Managers,
Carlos Gregory. Vega’s last day of work was March 30, 2007. That day she sent
an email to her superiors at Invsco, which said: “Thank you for the opportunity to
work with American Invsco. I will walk away with more knowledge, experience,
great memories and new friends.”
On February 11, 2008, Vega brought this action against Invsco, claiming, in
Count I, that Invsco had violated Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000 et seq., and 42 U.S.C. § 1981, by discriminating against her on
account of her race (she is black), and, in Count II, by discriminating against her
on account of her sex. She alleged that Invsco treated a white male, Galvin, better
than it treated her in terms of compensation, promotions, and positions, even
though he had “no prior property management experience . . . and very little
construction experience.” Invsco denied the alleged discriminatory treatment and
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asserted that Vega was terminated due to a reduction in force in response to the
economic downturn.
After discovery closed, the district court granted Invsco summary judgment.
Vega appeals, arguing that she established a prima facie case of discrimination,
that she rebutted the legitimate nondiscriminatory reason proffered by Invsco for
her demotion and subsequent termination as pretextual, and that her case should be
submitted to a jury.
I.
We review a district court order granting summary judgment de novo, and
view all of the facts in the record in the light most favorable to the non-moving
party, drawing inferences in her favor. Houston v. Williams, 547 F.3d 1357, 1361
(11th Cir. 2008). We can affirm a grant of summary judgment on any basis
supported by the record. Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1256 (11th
Cir. 2001).
Summary judgment requires the movant to show 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). “An issue of fact is ‘material’ if, under the applicable
substantive law, it might affect the outcome of the case. An issue of fact is
‘genuine’ if the record taken as a whole could lead a rational trier of fact to find
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for the nonmoving party.” Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256,
1260 (11th Cir. 2004) (citations omitted). If the movant satisfies the burden of
production, showing that there is no genuine issue of fact, then “the nonmoving
party must present evidence beyond the pleadings showing that a reasonable jury
could find in its favor.” Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008)
(citation and quotation omitted). Although we, like the district court, assess the
evidence in the light most favorable to the nonmoving party, the nonmoving party
cannot create a genuine issue of material fact through speculation, conjecture, or
evidence that is “merely colorable” or “not significantly probative.” See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2511, 91 L.Ed.2d
202 (1986); see also Fed.R.Civ.P. 56(e)(2) (“When a motion for summary
judgment is properly made and supported, an opposing party may not rely merely
on allegations or denials in its own pleading; rather, its response must . . . set out
specific facts showing a genuine issue for trial.”).
Both § 1981 and Title VII “are subject to the same standards of proof and
employ the same analytical framework.” Bryant v. Jones, 575 F.3d 1281, 1307
(11th Cir. 2009). Intentional discrimination claims under the disparate treatment
theory can be proven using either direct or circumstantial evidence. Burke-Fowler
v. Orange County, Fla., 447 F.3d 1319, 1322-23 (11th Cir. 2006). Where, as here,
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a claim involves circumstantial evidence of discrimination, the district court
analyzes the case using the burden-shifting framework set out in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
Burke-Fowler, 447 F.3d at 1323. Under McDonnell Douglas, the plaintiff bears
the initial burden of presenting sufficient evidence to allow a reasonable jury to
determine that she has satisfied the elements of her prima facie case. McDonnell
Douglas, 411 U.S. at 802, 93 S.Ct. at 1824.
To make out a prima facie case for disparate treatment on account of race
under § 1981 and Title VII, or gender under Title VII, the plaintiff can show that,
among other things, her employer treated similarly situated employees outside of
her protected class more favorably than she was treated. See Burke-Fowler, 447
F.3d at 1323; Nix v. WLCY Radio/Rahall Comm., 738 F.2d 1181, 1185 (11th Cir.
1984) (noting that prima facie formulations are not rigid). We have explained
that, particularly in cases involving employee discipline or misconduct, the
individual that the plaintiff identifies as her comparator must be similarly situated
“in all relevant respects” and that the comparator’s misconduct must be “nearly
identical to the plaintiff.” See Holifield v. Reno, 115 F.3d 1555, 1562 (11th
Cir.1997) (“all relevant respects”); Maniccia v. Brown, 171 F.3d 1364, 1368 (11th
Cir.1999) (“nearly identical”). However, a failure to identify a comparator does
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not end the analysis of a termination claim because “[i]f a plaintiff fails to show
the existence of a similarly situated employee, summary judgment is appropriate
where no other evidence of discrimination is present.” Wilson v. B/E Aerospace,
Inc., 376 F.3d 1079, 1092 (11th Cir. 2004) (citation, quotation, and emphasis
omitted).
To establish a prima facie case in a demotion context—assuming the
demotion to be sufficiently adverse—the plaintiff could show that she was
replaced by someone outside her protected class. See Hinson v. Clinch County,
Georgia Bd. of Educ., 231 F.3d 821, 828 (11th Cir. 2000). Moreover, as noted by
the district court, in cases where a position was eliminated as part of a reduction in
force, a modified prima facie formulation may apply, which allows a case of
discrimination to be established by presenting evidence showing, not dissimilar
treatment, but that the employer intended to discriminate against the plaintiff on
the basis of a protected characteristic, such as race. See, e.g., Smith v. J. Smith
Lanier & Co., 352 F.3d 1342, 1344 (11th Cir. 2003).
We find no error in the district court’s grant of summary judgment here.
Because Vega offered only circumstantial evidence of disparate treatment, the
McDonnell Douglas framework applied. She failed, however, to establish a prima
facie case of discrimination. First, to the extent she was required to identify a
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comparator or someone similarly situated, she failed to do so. Galvin was not a
valid comparator because: (i) he had a college and master’s degree, while Vega
had neither; (ii) he had significant construction experience, while Vega did not;
and (iii) during their respective times at Invsco, Galvin and Vega often were on
different tracks, with Vega operating in the property management area, and Galvin
operating almost exclusively in the project management area, up until his
demotion to contract administration. Moreover, when Vega was terminated, she
was working in property management and Galvin was working in contract
administration, with duties that also involved construction, tax research, and
special projects. Galvin and Vega had different experience, credentials, job titles,
and qualifications, and contrary to Vega’s assertion, this analysis is properly
considered in the prima facie stage. Therefore, Galvin did not qualify as a valid
comparator, to the extent Vega was required to show this.
Second, to the extent Vega was required to show “other evidence of
discrimination” or that Invsco “intended to discriminate against [her] on the basis
of” her race or gender, she failed to do so. Vega submitted little, if any, evidence
showing race or gender animus generally. She pointed to no such evidence
involving herself personally. We must consider these shortcomings in Vega’s
presentation in the face of undisputed evidence of an economic downturn affecting
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Invsco’s business, active consideration by company officials of Vega’s and
Galvin’s respective strengths, weaknesses, and work experiences, and a desire to
reduce expenses. Thus, Vega failed to demonstrate a prima facie case of unlawful
employment discrimination.
II.
Under McDonnell Douglas, if a plaintiff-employee establishes a prima facie
case, and the defendant articulates a legitimate reason for its employment action,
the burden shifts to the plaintiff to offer evidence that the reason is pretextual.
Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir. 2004). An
employer’s stated reason is not a pretext unless it is shown that both: (1) the
reason was false; and (2) the real reason was unlawful. St. Mary’s Honor Ctr. v.
Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). A plaintiff
may show a pretext either “directly by persuading the court that a discriminatory
reason more likely motivated the employer or indirectly by showing that the
employer’s proffered explanation is unworthy of credence.” Jackson v. Ala. State
Tenure Comm’n, 405 F.3d 1276, 1289 (11th Cir. 2005). In both instances, a
plaintiff must show pretext with “concrete evidence in the form of specific facts.”
Bryant, 575 F.3d at 1308. Mere “conclusory allegations and assertions” will not
suffice. Id. Moreover, a plaintiff cannot recast the employer’s articulated reason
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but rather, “must meet it head on and rebut it.” Wilson, 376 F.3d at 1088
(quotation omitted).
Assuming arguendo that Vega established a prima facie case of
employment discrimination, the district court still did not err by granting Invsco
summary judgment. Vega failed to rebut Invsco’s proffered legitimate and
nondiscriminatory reasons for its decisions. Invsco stated that it demoted Vega
and ultimately terminated her in response to economic pressures caused by the
decline in the Florida real estate market, beginning in 2006. It stated that it placed
her into property management, rather than Galvin’s position in contracts
administration with special projects and construction duties, because her skills,
knowledge, and experience, were best suited to the property management position.
To rebut these reasons, Vega would have had to present evidence to back her
assertions. However, Vega merely presented argument, not evidence.
As she did before the district court, Vega contends that she was a better fit
for the position Galvin received, Galvin was ill-equipped to handle the position he
received, Invsco’s inconsistent statements demonstrated pretext, and that her
demotion was a ruse to provide cover for her subsequent termination on the basis
of her race or gender. However, she did not provide evidence to back these
assertions. The fact that various individuals swore that Galvin assumed project
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manager duties, does not mean that Invsco’s stated reasons for its actions were
untrue or demonstrated racial or gender animus. To show pretext based on relative
qualifications, Vega would have to present evidence of truly similar qualifications,
which she did not do. Further, she presented no evidence to contradict Invsco’s
economic justification for its decisions, and, indeed, noted the lowered sales at
Bermuda Dunes in two emails while still employed with Invsco. Consequently,
Vega failed to rebut Invsco’s proffered nondiscriminatory reasons for demoting
her in 2006 and terminating her in 2007.
AFFIRMED.
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