[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-13779

____________________

STEVE ROBERT, 

Plaintiff-Appellant,

versus

CITY OF BOCA RATON, FLORIDA, 

JEREMY CODLING, 

CHIEF DANIEL ALEXANDER, 

DEPUTY CHIEF, MICHELLE MIUCCIO, 

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Southern District of Florida

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D.C. Docket No. 9:18-cv-81227-AHS

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Before JILL PRYOR, BRANCH, and HULL, Circuit Judges.

HULL, Circuit Judge:

Plaintiff-Appellant Steve Robert worked as a probationary 

police officer for the City of Boca Raton Police Department (the 

“City”). Throughout his probationary term, Robert struggled with 

timely and correctly completing his police paperwork with no signs 

of improvement. As a result, Chief of Police Daniel Alexander and 

Deputy Chief of Police Michelle Miuccio gave Robert a choice: 

resign or they would ask the City Manager to terminate Robert.1 

Robert resigned.

Robert then sued the City, Chief Alexander, Deputy Chief 

Miuccio, and Jeremy Codling—Robert’s supervisor. Robert, who 

is Black, brought these claims against each defendant: (1) race 

discrimination under Title VII and the Florida Civil Rights Act 

(“FCRA”), and (2) race discrimination under 42 U.S.C. § 1983.2

1 Boca Raton’s City Charter gives the City Manager the power to “suspend or 

remove all city employees.” Charter of the City of Boca Raton art. IV, 

§ 4.04(a), https://perma.cc/B84F-DLDB.

2 In previous versions of his complaint, Robert also brought (1) a hostile work 

environment claim, which he later dropped; and (2) a claim under 42 U.S.C. 

§ 1981, which the district court determined was merged within his § 1983 

claim. These claims are not relevant to this appeal.

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The defendants moved for summary judgment, which the 

district court granted. First, the district court (1) determined 

Robert sued the individual defendants in their official capacities 

only, (2) concluded those claims were duplicative of Robert’s 

claims against the City, and (3) entered summary judgment on 

Robert’s claims against the individual defendants.

Second, the district court granted summary judgment to the 

City on Robert’s remaining claims. Turning to Robert’s Title VII 

and FCRA claims against the City, the district court determined

Robert failed to present sufficiently similar comparators and thus 

did not establish a prima facie case of race discrimination under the 

McDonnell Douglas3 burden-shifting framework.

As to Robert’s § 1983 claim against the City, the district court 

found (1) the City Manager was the final policymaker as to the 

termination of City employees and therefore was the only official 

whose decision could subject the City to § 1983 liability, and 

(2) because Robert resigned, and the City Manager never made the 

decision to fire Robert, the City could not be liable.

Robert appeals the district court’s grant of summary 

judgment, raising the following issues: (1) whether he presented 

sufficiently similar comparators; (2) whether his circumstantial 

evidence created a convincing mosaic of intentional race 

discrimination; (3) whether he presented sufficient evidence of a 

“cat’s paw” theory of liability; (4) whether Chief Alexander and 

3 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

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Deputy Chief Miuccio were “final policymakers” whose acts could 

subject the City to liability under § 1983; (5) whether he sued the 

individual defendants in their individual capacities; and (6) whether 

the individual defendants were “decisionmakers” subject to § 1983

liability.

After review, and with the benefit of oral argument, we 

discern no reversible error in the district court’s ruling. Only three 

issues—Robert’s comparators, “cat’s paw” theory, and convincing 

mosaic—warrant further discussion.4 

Because we write for the parties, who are already familiar 

with the facts, we set out only so much of the facts as is necessary 

to understand our opinion.

I. COMPARATORS

A Title VII claimant who, like Robert, proceeds without 

direct evidence may survive summary judgment by relying on 

4 We review de novo the grant of summary judgment, viewing the facts in the 

light most favorable to the non-moving party. Christmas v. Harris Cnty., 

51 F.4th 1348, 1353 (11th Cir. 2022). To survive summary judgment, Robert 

must present “enough evidence for a reasonable jury to infer intentional 

discrimination.” Ossmann v. Meredith Corp., 82 F.4th 1007, 1020 (11th Cir. 

2023). Because Robert bases his Title VII, FCRA, and § 1983 claims on the 

same allegedly unlawful employment discrimination, the elements of those 

claims are identical, and the same methods of proof are used. See Johnson v. 

Mia.-Dade Cnty., 948 F.3d 1318, 1325 (11th Cir. 2020); see also Harris v. Pub. 

Health Tr. of Mia.-Dade Cnty., 82 F.4th 1296, 1300 n.2 (11th Cir. 2023) (“Claims 

under Title VII and the FCRA are analyzed under the same framework.”).

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circumstantial evidence that satisfies the McDonnell Douglas 

burden-shifting framework. See Anthony v. Georgia, 69 F.4th 796, 805 

(11th Cir. 2023). Under that framework, Robert bears the initial 

burden of establishing a prima face case of race discrimination by 

showing, among other things, the City treated similarly situated 

white employees—called “comparators”—more favorably. See id.

To meet his burden, Robert must show that he and his proffered 

comparators were “similarly situated in all material respects.” 

Lewis v. City of Union City, 918 F.3d 1213, 1224 (11th Cir. 2019) (en 

banc) (Lewis I). Generally, a plaintiff and his comparators are 

similarly situated if they (1) engaged in the same basic conduct, 

(2) were subject to the same policies, (3) had the same supervisor, 

and (4) had the same employment or disciplinary history. Id. at 

1227-28. 

Robert proffered two white probationary officers that were 

disciplined but not terminated or asked to resign: Derek 

McQuiston and Travis Rafalko. However, McQuiston and Rafalko 

were not “similarly situated in all material respects” to Robert. See 

id. at 1224. Crucially, Robert had what McQuiston and Rafalko 

lacked—a history of repeated paperwork errors.

Throughout his probationary period, Robert established a 

pattern of struggling to complete timely and correctly his 

paperwork. We highlight just a few of these instances. Three daily 

observation reports from September and October 2016 indicated 

Robert’s “least satisfactory” performance was that his reports were 

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missing relevant details, contained grammatical errors, and were 

not written in a timely manner.

Sergeant Yvette Vasquez-Bello, Robert’s supervisor before 

Codling, testified that he had issues with report writing, grammar, 

and turning in reports on time, and that his “paperwork was most 

of the time incorrect.” In February and March 2017, Vasquez-Bello 

spoke with Robert about having overdue cases and the need to turn 

in his reports on time, but she felt Robert was not improving.

Additionally, in March and April 2017, a records clerk 

contacted Robert several times due to his failure to attach to a 

report a written victim statement and a defendant’s sworn 

statement. And in April and May 2017, Robert was contacted by a 

records clerk three more times for his failure to submit traffic stop 

and accident reports.

Finally, supervisor Codling issued Robert a memorandum 

of counseling for two paperwork errors Robert made in April 2017: 

(1) Robert was assigned to write an accident report on April 15, 

2017, but he did not submit the report until April 19, 2017, and the 

report contained multiple errors that he did not correct until April 

28, 2017; and (2) Robert responded to a domestic battery call and 

developed probable cause to arrest a suspect, but he failed to sign a 

probable cause affidavit before leaving at the end of his shift.

There is no evidence McQuiston or Rafalko had similar 

histories of repeated paperwork errors or a pattern of mistakes of 

any kind. Instead, McQuiston was disciplined for two incidents:

(1) causing a car crash by running a red light; and (2) lying in a 

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probable cause affidavit. Rafalko was disciplined for losing a 

suspect’s car keys after taking the suspect into custody.

As this Court has explained, the requirement for 

comparators to be sufficiently similar in all material respects seeks 

to “balance[] the need to protect employees from invidious 

discrimination with the deference owed to employers’ rational business 

judgments.” Lewis I, 918 F.3d at 1224-25 (emphasis added). Mindful 

of these interests, we require comparators to be so similar “that 

they ‘cannot reasonably be distinguished.’” Id. at 1228 (quoting 

Young v. United Parcel Serv., Inc., 575 U.S. 206, 231 (2015)). Given 

Robert’s pattern of poor performance with paperwork during his 

probationary period—and McQuiston’s and Rafalko’s lack of a 

similar pattern—they are reasonably distinguished from Robert.

II. CAT’S PAW THEORY

To show a non-decisionmaker’s animus caused the 

decisionmaker’s termination action, “the plaintiff must prove that 

the discriminatory animus behind the recommendation, and not 

the underlying employee misconduct identified in the 

recommendation, was an actual cause of the other party’s decision 

to terminate the employee.” Stimpson v. City of Tuscaloosa, 186 F.3d 

1328, 1331 (11th Cir. 1999). One way to do this is through a “cat’s 

paw” theory. Id. at 1332 (stating, under such a theory, that the 

decisionmaker acts “as a mere conduit” or rubberstamp for the 

recommender’s discriminatory animus). To proceed under a “cat’s 

paw” theory, a plaintiff must put forth evidence that the biased 

non-decisionmaker manipulated the decisionmakers into 

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terminating him. Wright v. Southland Corp., 187 F.3d 1287, 1304 n.20 

(11th Cir. 1999). 

The plaintiff’s evidence must show a “truly direct” causal 

link tying the biased non-decisionmaker’s animus to the 

decisionmaker’s termination action. Stimpson, 186 F.3d at 1331. It 

is insufficient for a plaintiff to simply show the decisionmaker 

considered accurate information from a purportedly biased 

non-decisionmaker about the plaintiff’s work misconduct. See 

Wright, 187 F.3d at 1304 n.20.

For example, we held in Wright that the plaintiff’s evidence 

did not support a “cat’s paw” theory because (1) the 

non-decisionmaker’s “only input into the termination decision was 

three letters he wrote . . . in which he documented certain 

problems involving [plaintiff’s] accounting procedures,” and

(2) there was no evidence these letters contained any 

misinformation. Id. Even though the decisionmakers considered

the letters in their decision to terminate the plaintiff, we 

emphasized that the plaintiff “presented no evidence that the 

accounting problems documented in the letters did not actually 

exist.” Id. Consequently, there was “no evidence that [the 

non-decisionmaker] manipulated the decisionmakers, and thus any 

discriminatory intent on [the non-decisionmaker’s] part could not 

be said to be the cause of [plaintiff’s] termination.” Id.; see also 

Lindsey v. Walgreen Co., 615 F.3d 873, 876 (7th Cir. 2010) (holding 

that plaintiff could not proceed under a “cat’s paw” theory because 

she failed to show the biased non-decisionmaker concealed 

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information or provided false information to the decisionmaker, 

and evidence that the non-decisionmaker “uttered offensive slurs 

. . . d[id] not establish that she manipulated [the decisionmaker’s] 

decision”).

On appeal, Robert argues that his supervisor Codling had 

racial animus, and that this animus can be imputed to Chief 

Alexander and Deputy Chief Miuccio because they “merely rubber 

stamped Codling’s recommendation to terminate Mr. Robert, as it 

made its way up the chain of command.” Robert contends there 

was no independent investigation of his performance because 

Chief Alexander and Deputy Chief Miuccio testified they did not 

review Robert’s employment file or disciplinary history.

A. Facts

Here are the relevant facts in this issue in the light most 

favorable to Robert. Codling began supervising Robert at some 

point after April 19, 2017. By May 5, 2017, Codling believed the 

City should consider terminating Robert for his paperwork 

problems. Around that time, Codling contacted Robert’s three past 

supervisors, and they confirmed that Robert had performance 

issues. Codling then had several meetings with Codling’s

supervisors, Captain Steven Meyer and Lieutenant Nelson Guillot, 

to discuss Robert’s performance.

On May 8, 2017, Captain Meyer met with Deputy Chief 

Miuccio to discuss “Robert’s poor performance, and repeated 

errors, and failure to follow departmental procedures.” Captain 

Meyer stated Lieutenant Guillot approached him with concerns 

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about Robert. Deputy Chief Miuccio and Captain Meyer did not 

discuss Codling at this meeting, and Miuccio stated she did not hear 

“Sergeant Codling’s name until well after this” when, on May 31, 

2017, she signed Robert’s memorandum of counseling. Captain 

Meyer and Deputy Chief Miuccio spoke again on May 15, 19, and 

30, 2017 about “Robert’s performance deficiencies and lack of 

improvement.” Captain Meyer stated “he did not feel that Mr. 

Robert was going to successfully complete his probation,” so 

Deputy Chief Miuccio decided to meet with Chief Alexander.

Deputy Chief Miuccio spoke with Chief Alexander in May 

2017. While they did not review Robert’s personnel file, they 

discussed Robert’s “performance deficiencies, that they occurred 

over time, and that they were repeated.” Chief Alexander and 

Deputy Chief Miuccio decided to offer Robert the chance to resign, 

and if he did not, Chief Alexander would recommend Robert’s 

termination to the City Manager. Codling did not come up during 

this meeting, and Chief Alexander was unaware Codling 

supervised Robert until after Robert resigned.

Chief Alexander and Deputy Chief Miuccio then instructed 

Captain Meyer to meet with Robert and offer him the chance to 

resign in lieu of Chief Alexander recommending Robert’s 

termination to the City Manager. Unbeknownst to Alexander and 

Miuccio, Captain Meyer had Codling meet with Robert. During 

that May 31, 2017 meeting, in which Codling was joined by three 

other supervisors, Codling presented Robert with the 

memorandum of counseling and told Robert he could resign in 

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lieu of termination. Because Robert resigned, Chief Alexander 

never recommended Robert’s termination to the City Manager.

After Robert resigned, another officer submitted a letter to 

Chief Alexander asserting Codling made racist comments. The 

City launched an investigation, which revealed Codling made 

several racist jokes in text messages with other officers, used the 

n-word, and referred to himself as “a racist asshole.” None of these 

comments were directed at Robert or made in his presence.5

B. Discussion

Based on the multi-tiered decisionmaking process outlined 

above, a reasonable jury could not conclude that Deputy Chief 

Miuccio and Chief Alexander merely rubber-stamped Codling’s 

recommendation that Robert be terminated. That process 

included four meetings between Deputy Chief Miuccio and 

Captain Meyer, and a separate meeting between Deputy Chief 

Miuccio and Chief Alexander, all of which centered on Robert’s 

undisputed repeated poor performance. Codling was not present 

at any of these meetings, and Deputy Chief Miuccio and Chief 

Alexander testified that they were unaware of Codling’s role when 

they offered Robert the chance to resign in lieu of recommending 

his termination to the City Manager.

Notably too, the record indicates that Robert actually 

struggled with timely and correctly completing his paperwork, as 

5 The City terminated Codling, but later rehired him at a demoted rank 

pursuant to a disciplinary settlement and last-chance agreement.

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described above. At his deposition, Robert admitted that his 

reports sometimes contained errors or were missing information, 

and that Vasquez-Bello spoke with him about his report writing

and timely submitting his reports. As to Codling’s memorandum 

of counseling, Robert does not argue on appeal that it contained 

misinformation. Indeed, Robert acknowledges that this 

memorandum of counseling “document[ed] two minor 

paperwork errors” that violated City policy.

Given these facts, a reasonable jury could not conclude 

Codling manipulated Chief Alexander and Deputy Chief Miuccio 

to request Robert’s resignation. See Wright, 187 F.3d at 1304 n.20.

III. CONVINCING MOSAIC

A plaintiff who fails to establish a prima facie case under the 

McDonnell Douglas framework nonetheless may survive summary 

judgment if he presents a convincing mosaic of circumstantial

evidence raising a reasonable inference that the employer 

intentionally discriminated against him. Lewis v. City of Union City, 

934 F.3d 1169, 1185 (11th Cir. 2019) (Lewis II). A convincing mosaic 

may be made up of evidence demonstrating, among other things,

“(1) suspicious timing, ambiguous statements . . . , and other bits 

and pieces from which an inference of discriminatory intent might 

be drawn, (2) systematically better treatment of similarly situated 

employees, and (3) that the employer’s justification is pretextual.” 

Id. (alteration in original and quotation marks omitted).

Here, Robert relies on the following evidence to make his 

case: (1) Codling’s racist comments; (2) the City’s failure to follow 

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its progressive disciplinary policy; (3) the fact that McQuiston and 

Rafalko were not terminated or asked to resign; and (4) Codling’s 

retroactive documentation of Robert’s paperwork errors, which 

Codling and Robert’s prior supervisors had witnessed. However, 

this circumstantial evidence is insufficient for a reasonable jury to 

infer intentional race discrimination. 

First, Codling’s comments, while troubling, were not 

directed at, or made in the presence of, Robert. Further, Robert 

did not complain of Codling’s racism while employed at the City 

or in a post-resignation letter he wrote to Chief Alexander. 

Regardless, (1) as explained above, Robert’s evidence is not 

sufficient for a reasonable jury to impute Codling’s racial animus 

to Deputy Chief Miuccio and Chief Alexander, and (2) Robert

testified that he had no reason to think Chief Alexander or Deputy 

Chief Miuccio—the individuals who decided to request Robert’s 

resignation—were racist toward him. 

Second, while the City has what can be described as a 

progressive disciplinary policy, that policy provides that “[a] 

situation may arise requiring suspension or termination as the first 

form of discipline.” Due to Robert’s repeated pattern of 

paperwork errors that did not improve over the course of his 

probationary period, we cannot say that Chief Alexander and

Deputy Chief Miuccio’s request for his resignation in lieu of 

seeking his termination from the City Manager violated the City’s 

policy. “We do not sit as a super-personnel department that 

reexamines an entity’s business decisions,” “[n]or may we analyze 

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whether an employer’s proffered reasons are prudent or fair.” 

Owens v. Governor’s Off. of Student Achievement, 52 F.4th 1327, 1338 

(11th Cir. 2022) (quotation marks omitted), cert denied, 143 S. Ct. 

2465 (2023). 

Third, Robert did not present evidence that similarly 

situated employees were treated better than he was. A convincing 

mosaic may include evidence that similarly situated employees

were treated differently, even where those employees were not

strict comparators at the prima facie stage of a McDonnell Douglas

analysis. Jenkins v. Nell, 26 F.4th 1243, 1250-51 (11th Cir. 2022). Still, 

we conclude McQuiston and Rafalko were simply too dissimilar. 

Their one-off performance issues reasonably distinguish them 

from Robert’s repeated paperwork errors.

Finally, Robert asserts that, prior to the City seeking 

Robert’s resignation, Codling gathered past instances of Robert’s 

paperwork errors from Robert’s previous supervisors and entered 

those instances into software used to document employee 

feedback. Robert argues that Codling’s retroactive documentation 

of Robert’s past errors was “pretext to hide the fact that Officer 

Codling targeted Robert based upon his race.”6 But for reasons 

6 For the first time in his reply brief, Robert argues the district court erred in 

considering his past instances of paperwork errors that Codling retroactively 

documented because such errors constituted after-acquired evidence. Robert 

abandoned this issue by failing to raise it in his initial brief on appeal. See Berry 

v. Crestwood Healthcare LP, 84 F.4th 1300, 1313 (11th Cir. 2023). Regardless, 

these instances were known to the City prior to Robert’s resignation and 

cannot be characterized as after-acquired evidence. See McKennon v. Nashville 

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already detailed, Codling’s racial animus cannot be imputed to the 

decisionmakers, Chief Alexander and Deputy Chief Miuccio. 

IV. CONCLUSION

We affirm the district court’s grant of summary judgment 

to the City, Chief Alexander, Deputy Chief Miuccio, and Codling.

AFFIRMED.

Banner Publ’g Co., 513 U.S. 352, 354, 356 (1995) (stating the 

after-acquired-evidence doctrine prevents an employer from escaping liability 

when the employer discovers evidence of wrongdoing after the employee’s 

discharge).

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