[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 12

- 16145 Non

- Argument Calendar

________________________ D.C. Docket No. 0:11

- cv - 61749

- MGC

JAMES WOOLSEY, Plaintiff

- Appellant,

versus TOWN OF HILLSBORO BEACH, Defendant

- Appellee.

________________________ Appeal from the United States District Court for the Southern District of Florida

________________________ (September 6, 2013) Before TJOFLAT , PRYOR and BLACK , Circuit Judges. PER CURIAM:

Case: 12-16145 Date Filed: 09/06/2013 Page: 1 of 72 James Woolsey appeals the district court’s grant of summary judgment in favor of the Town of Hillsboro Beach (Town ) in his suit brought under the Age Dis crimination in Employment Act (ADEA ), 29 U.S.C. § 623(a) , and the Florida Civil Rights Act (FCRA ), Fla. Stat. § 760.10(1)(a). 1 On appeal, Woolsey argues the Town ’s proffered reasons for his demotion were generalized, conclusory, and purely subjective. Even assuming the Town met its burden of articulating legitimate, non

- discriminatory reasons for his demotion , Woolsey claims these reasons were pretextual because the Town’s explanati ons were untrue, and a jury could have reasonably inferred that the reason for his demotion was his age. For the following reasons, we affirm.
I. Background I n 2008, the Town’s Chief of Police promoted Woolsey, almost 50 years

- old at the time, to Captain, or second

- in

- command

. According to Woolse y , by 2010, his relationship with the Chief was “becoming difficult” because he “had implemented certain practices that [ the Chief ] did not agree with.” Woolsey claimed the Chief twice demanded that he retire and was silent when he a sked why. The Chief also provided him with materials for the Florida Retirement System’s Deferred Ret irement Option Program (DROP ) around the same time they

1 Age discrimination claims brought under FCRA “ have been considered within the same framework used to decide actions brought pursuant to the ADEA.” Zaben v. Air Prods. & Chems. , 129 F.3d 1453, 1455 n.2 (11th Cir. 1997).

Case: 12-16145 Date Filed: 09/06/2013 Page: 2 of 73 w ere having a disagreement about disciplini ng an officer. Woolsey further testified that the Chief told him that if he did not retire , he “ was going to take [him] down in an embarrassing ball of flames. ” That same year , t he Chief, on behalf of the Town, demoted Woolsey from Captain to Patrol Officer, citing the following reasons for his decision: lack of loyalty , lack of supervisory skills, failure to perform at the level expected of Captain, failure to support the Police Department’s accreditation process, and disagreements about how the Depa rtment should have be en run. In support of these reasons, the Town submitted multiple letters of counseling / reprimand and performance evaluations issued to Woolsey explaining his specific deficiencies and what needed to be done for him to improve, includi ng a warning of possible demotion or termination if he did not. Throughout his testimony, Woolsey conceded he did not know why the Chief wanted him to retire, but he believed it was because of his age.
II. Standard of Review We review a district court’s grant of summary judgment de novo , viewing all evidence in the light most fav orable to the non

- moving party. Owen v. I.C. Sys

. , Inc. , 629 F. 3d 1263, 1270 (11th Cir. 2011). However, a party opposing a properly submitted motion for summary judgment may not rest upon mere allegations or denials of his pleadings, but must set forth specific facts showing that there is a

Case: 12-16145 Date Filed: 09/06/2013 Page: 3 of 74 genuine issue for trial. F ED
. R. C IV
. P. 56 . “ The mere exi stence of a scintilla of evidence in support of the [nonmoving party’s] position will be insufficient.” Anderson v. Liberty Lobby , Inc. , 106 S. Ct. 2505, 2512 (1986).
III. Discussion Where, as here, a plaintiff seeks to establish age discrimi nation through circumstantial evidence, a court may use the burden

- shifting framework established in McDonnell Douglas

. 2 Chapman v. AI Transp. , 229 F.3d 1012, 1024 (11th Cir. 2000) ( en banc ). Under this framework, if a plaintiff establishes a prima facie case of discrimination, the defendant may articulate a legitimate, non

discriminatory reason for the challenged employment action. Chapman , 229 F.3d
at 1024. The Supreme Court has held that the defendant’s explanation of its legitimate reason s must be clear and reasonably specif ic for it to satisfy its burden

. Texas Dep’t of Cmty. Affairs v. Burdine , 101 S. Ct. 1089, 1094

- 96 (1981). Although Woolsey claims the Town failed to articulate legitimate, specific ,

non - discriminatory reasons for his demotion, the record indicates the Chief demoted Woolsey because of his lack of loyalty, lack of supervisory skills, failure to perform at the level expected of Captain, failure to support the Department’s

2 In Gross v. FBL Fin. Servs., Inc. , 129 S. Ct. 2343 (2009), the Supreme Court held that the language “because of” in the ADEA statute meant that a plaintiff had to prove that age discrimination was the “but

- for” cause of the adverse employment action. Id. at 2350 . Since Gross , we have re affirmed that the evaluation of ADEA claims based on circumstantial evidence under the McDonnell Douglas framework is appropriate. See Sims v. MVM, Inc ., 704 F.3d 1327, 1332 (11th Cir. 2013).

Case: 12-16145 Date Filed: 09/06/2013 Page: 4 of 75 accreditation process, and disagreements with h im about h ow the Department should have been run. In support of these reasons, the Town submitted multiple letters of counseling and reprimand and negative performance evaluations issued to Woolsey. While Woolsey argues t hese are all subjective reasons for his demotion, a subjective reason is a legally sufficient reason where the employer “ articulates a clear and reasonably specific factual basis upon which it based its subjective opinion, ” as the Town did here. See Chapman , 229 F.3d at 1034

- 35

. Therefore, the Town carried its burden of production by offering a clear explanation of its legitimate, non

- discriminatory reason s for the challenged employment action

. See Burdine , 101 S. Ct. at 1094

- 96. Once a defenda nt articulates legitimate, non

- discriminatory reasons for an employment decision, the plaintiff is afforded an opportunity to show t he employer’s stated reason is a pretext for discrimination. Chapman , 229 F.3d at
1024

. T o show pretext, the plaintiff mus t demonstrate that the proffered reasons were not the true reasons for the employment decision. Brooks v. Cnty. Comm’n of Jefferson Cnty. , 446 F.3d 1160, 1162

- 63 (11th Cir. 2006). An employee can show that the employer’s articulated reasons were not beli evable by pointing to “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions” in the proffered explanation. Id. at 1163. However, a reason is not pretext for discrimination “ unless it is shown both that the reason was false , and that

Case: 12-16145 Date Filed: 09/06/2013 Page: 5 of 76 discrimination was the real reason. ” Id. (quotations and emphasis omitted).
“P rovided that the proffered reason is one that might motivate a reasonable employer, ” the plaintiff must meet the reason “head on and rebut it, and the employee cannot succeed by simply quarreling wi th the wisdom of that reason.” Chapman , 229 F.3d at 1030. Woolsey failed to carry his burden to show that the Town’s legitimate, non

discr iminatory reasons were pretextual. In light of the evidence presented, Woolsey did not successfully attack the Town’s reasons, “head on .” Chapman , 229 F.3d at 1030. He did not point to sufficient weaknesses or contradictions in the Town’s explanation, b ut instead, corroborated it by agreeing that he had disagreements with the Chief about how the Department should be run

. Brooks , 446 F.3d at 1163. E ven if Woolsey had show n that the Town ’s reasons were false, he failed to demonstrate that age discrimination was the real reason for his demotion. Id. Woolsey’s testimony , taken against the weight of the evidence presented by the Town, including Woolsey’s strained relationship with the Chief

a nd his negative performance evaluations, constitutes a scintilla of evidence insufficient to support Woolsey’s contention that he was demoted based on his age. Anderson , 106 S. Ct. at 2512. This is particularly true in light of the fact that the Chief ha d previously promoted him to Captain at the age of 49. Moreover, Woolsey failed to show that age was the but

- for cause of his demotion for the same

Case: 12-16145 Date Filed: 09/06/2013 Page: 6 of 77 reasons he failed to show pretext. See Gross v. FBL Fin. Servs., Inc. , 129 S. Ct. 2343 , 2350 (2009)

. B ase d on the above, we affirm. AFFIRMED. Case: 12-16145 Date Filed: 09/06/2013 Page: 7 of 7