[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 12-12090

________________________

D.C. Docket No. 3:10-cv-00871-WHA-WC

LEANNE RENEE KIDD,

Plaintiff-Appellant, 

versus

MANDO AMERICAN CORPORATION, 

Defendant-Appellee.

________________________

Appeal from the United States District Court

for the Middle District of Alabama

________________________

(September 27, 2013)

Before CARNES, Chief Judge, and WILSON, Circuit Judge, and HUCK,* District 

Judge.

 * Honorable Paul C. Huck, Senior United States District Judge for the Southern District of 

Florida, sitting by designation.

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HUCK, District Judge:

Appellant Leanne Renee Kidd, a white female, had her eyes on the assistant 

accounting manager position at Appellee Mando America Corporation, a Koreanowned auto-parts manufacturer. When the time came for Mando’s management, 

composed entirely of Korean males, to select someone to fill the position, 

management gave the job to a Korean male named Byong Woo “B.W.” Seo. 

Mando claims the relevant decisionmakers selected Seo over a number of other 

pre-screened candidates — not including Kidd — because he had superior 

qualifications, not because he was a Korean male.1

 

Kidd is not convinced. She contends that Mando’s justification for hiring 

Seo is a pretext for its preference to fill managerial positions with Korean males. 

To support this assertion, Kidd relies on a remark made by one of Mando’s human 

resource managers, Jerry Rolison. Kidd claims Rolison told her that Mando’s 

management refused to consider American candidates for the assistant accounting 

manager position. From this statement — and other circumstantial evidence —

Kidd contends a jury could reasonably find that Mando’s hiring process was 

unlawfully discriminatory. 

 1

 Kidd, unaware that the position was open, did not apply for the assistant accounting manager 

position. Moreover, Kidd has pointed to nothing in the record, apart from the fact that she 

assumed some of Anderson’s former duties, to suggest that anyone in Mando’s management 

might have considered her a viable candidate for the job. 

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Kidd’s ability to establish pretext hinges on the admissibility of Rolison’s 

statement — an evidentiary question that neither the parties nor the district court

has addressed. Out of deference to the well-established rule that we shouldn’t pass 

judgment on issues the parties do not raise, we vacate the district court’s grant of 

summary judgment, and allow it the opportunity to consider the admissibility of 

Rolison’s statement. In our view, the resolution of this evidentiary question is in 

turn critical for the resolution of this case. 

I. Background

This case arises out of a rocky employment relationship between Kidd and 

Mando. Kidd joined Mando’s accounting department in January 2008 as the 

accountant in charge of accounts payable and the general ledger. Only a few 

months later, the assistant accounting manager (who was also Kidd’s immediate 

supervisor), Tim Anderson, was terminated for performance reasons. When that 

happened, Kidd assumed added responsibilities; she became responsible for 

“anything that had to do with accounts payable,” and, in her view, “absorbed Mr. 

Anderson’s position.” Despite Kidd’s increased role, Mando did not appoint her 

— or anyone else — interim assistant accounting manager. Indeed, Mando left the 

position vacant for some time.2

 

 2

 Mando asserts that it didn’t move quickly to find another assistant accounting manager 

because of the economic downturn and Mando’s other pressing needs. 

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While Kidd’s responsibilities increased, her pay did not. Nor did Kidd 

receive a more senior title. Disappointed, Kidd attempted to tender her resignation 

after only six months on the job. When B.J. Cheong, Mando’s accounting 

manager, became aware of Kidd’s disappointment, he tried to persuade her to stay. 

Cheong expressed his appreciation to Kidd that she had taken on added 

responsibility, but informed her that Mando did not promote employees until they 

had been at the company for at least a year. Cheong did, however, promise Kidd 

that if she gave him “six more months [ ] we will get you promoted.” Apparently, 

Cheong and Kidd did not discuss a specific promotion. 

Around the spring of 2009, Tae Kwak, Mando’s president, asked Rolison, 

Mando’s human resource manager, to gather resumes of prospective candidates for 

the assistant accounting manager job. Rolison did just that, utilizing the services of 

professional recruiters. Rolison forwarded the resumes submitted by the recruiters

to Kwak. Kwak then selected a number of candidates he thought merited a closer 

review, and directed Scott Wren, another member of Mando’s human resources

department (“HR”), to telephonically interview those individuals. No one at 

Mando encouraged Kidd to apply nor did anyone identify her as a potential 

candidate.

Without interviewing any other candidates, Mando hired a Korean male, 

B.W. Seo. Seo was not among the candidates pre-screened by Wren. Seo instead 

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came highly recommended by one of Mando’s outside auditors. At the time, Seo 

was working for Sun Microsystems in Australia as an auditor.3

 

When word of Seo’s hire spread, Kidd was none too pleased, having not 

been aware that Mando was actively seeking Anderson’s replacement. Searching 

for answers, Kidd paid a visit to Rolison. Kidd claims that Rolison told her that he 

had shown Cheong and Kwak four separate resumes from qualified American 

candidates, but that “they refused to look at them for the position,” and that “they 

refused to even consider an American candidate,” Kidd Dep. 145:19-22; see id. at 

346:7-12 (“Jerry Rolison told me himself that he had tried to get four Americans to 

be considered in the position [sic] and he was denied, they were not even allowed 

to interview”).4

 

Seo and Kidd’s relationship was troubled from the start. At an initial 

meeting between the two, Kidd suggested that the accounting department change 

the way it allocated costs. This prompted Seo to ask Kidd for her resume — a 

request Kidd found disparaging. Upset, Kidd complained to HR. While Kidd

claims her visit was met with a verbal reprimand from Seo — during which he told 

 

3

 Kwak claimed that in screening candidates for assistant accounting manager, Mando’s 

management sought an individual with “a broad base of accounting experience, including 

Accounts Payable, Accounts Receivable, Treasury, and extensive auditing experience.”

4

 On some other day, Kidd claims she was told by one of Mando’s company trainers (who also 

had some involvement with HR), Deborah Stone, that no American would ever be involved in 

management, and that “it would always be Korean management.” 

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her that she had “no right to go to HR” and that she “did not need to contact 

anyone other than him if [she] had problems with him,” — a review of the record 

makes clear that Seo may not even have been aware of Kidd’s complaint.5

After Seo’s arrival, Kidd began losing the supervisory responsibilities she 

had assumed after Anderson’s departure, though she suffered neither a decrease in 

pay nor a loss of title. Nevertheless, Kidd tendered her resignation on September 

2, 2010. She credits her resignation to work conditions she viewed as unbearable. 

Upset at the way she was being treated at Mando, Kidd filed two EEOC 

charges — one before she resigned, and one after. In her first EEOC charge, Kidd 

complained that she had not received the promotion she was promised because she 

was told that she “was not doing a good job because [she] could not work 80 to 

100 hours per week like everyone else in the department.” She also complained 

that Seo was “very demeaning and insulting to all of the women in [her] 

department.” In light of this, and the absence of any female managers in Mando’s 

450-person company, Kidd alleged that Mando discriminated against her.

In Kidd’s second EEOC charge, filed after her resignation, Kidd alleged that 

after filing her first EEOC charge, Seo removed all her responsibilities and that 

Seo verbally harassed and disparaged Kidd in meetings and other correspondence. 

 5

 Kidd conceded in her deposition that the conversation in which Seo purportedly told her that 

she had no right to go to HR came in the form of an email, not during an in-person conversation. 

But a review of this email makes clear that Seo never criticized Kidd for complaining to HR; he 

simply reviewed their initial meeting.

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Seo’s reprisals allegedly became increasingly aggressive and hurtful with each of 

Kidd’s successive complaints to HR. Because of all this, Kidd alleged that she was 

constructively discharged and forced from her job, and thus the subject of unlawful 

retaliation. 

Kidd filed a complaint in the United States District Court for the Middle 

District of Alabama, alleging gender discrimination, racial discrimination, and 

national origin discrimination under Title VII of the Civil Rights Act of 1964, 42 

U.S.C. § 2000, et seq. She also advanced hostile work environment and unlawful 

retaliation claims, in addition to a number of state law claims. The basis of Kidd’s 

employment discrimination claim was that Mando discriminated against her on 

account of her gender and national origin in failing to promote her to assistant 

accounting manager. The district court granted Mando’s Motion for Summary 

Judgment as to Kidd’s discrimination and retaliation claims, and declined to 

exercise supplemental jurisdiction over her state law claims.6

 Kidd abandoned her 

hostile work environment claim before the lower court addressed Mando’s motion.

II. Discussion

Before us, Kidd challenges the district court’s grant of summary judgment in 

Mando’s favor. She contends principally that the district court erred in: (1) failing 

to consider her unlawful demotion claim on the merits; (2) finding that she had not 

 6

 The state law claims Kidd advanced included: negligent hiring, training, supervision, and 

retention and intentional infliction of emotional distress. 

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made out a prima facie case on either her discrimination or retaliation claims; and 

(3) holding in the alternative that Kidd did not create a material factual dispute as 

to whether the reason Mando offered for choosing Seo over her was pretextual. 

We review the district court’s grant of summary judgment de novo viewing the 

facts and drawing all reasonable inferences in favor of Kidd.

A. The Discrimination Claim

Title VII prohibits employers from discriminating against their employees 

on the basis of their gender or national origin. 42 U.S.C. § 2000e-2(a). Kidd 

contends that Mando violated this prohibition in selecting Seo over her solely 

because he was a Korean male. McDonnell Douglas Corp. v. Green provides the 

familiar three-part framework under which we review a claim for employment 

discrimination that, as here, is based on circumstantial evidence, as opposed to 

direct evidence. 411 U.S. 792 (1973). 

The Title VII plaintiff bears “the ultimate burden of proving discriminatory 

treatment by a preponderance of the evidence.” Earley v. Champion Int’l Corp., 

907 F.2d 1077, 1081 (11th Cir. 1990). Thus, under the first part of McDonnell 

Douglas, the plaintiff must establish by a preponderance of the evidence a prima 

facie case of discrimination. If she does, the burden of production shifts to the

employer, which requires the employer to introduce evidence of “some legitimate, 

nondiscriminatory reason” for its employment decision. McDonnell Douglas, 411 

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U.S. at 802. If the employer satisfies its burden, “the presumption raised by the 

prima facie case is rebutted.” Collado v. United Parcel Serv. Co., 419 F.3d 1143, 

1151 (11th Cir. 2005) (internal quotation marks omitted). Because the burden of 

persuasion remains with the employee, she must then show that the seemingly 

legitimate reason the employer gave was pretextual — i.e., the “proffered reason 

was not the true reason for the employment decision.” St. Mary’s Honor Ctr. v. 

Hicks, 509 U.S. 502, 508 (1993) (internal quotation marks omitted); see also

Collado, 419 F.3d at 1150 (noting that once the employer satisfies its burden “the 

presumption of discrimination that arose when the plaintiff made [her] prima facie 

showing ‘drops from the case,’ and ‘the case is placed back into the traditional 

framework — in other words, the plaintiff still bears the burden of proving, more 

probably than not, that the employer took an adverse employment action against 

[her] on the basis of a protected personal characteristic’” (internal citations 

omitted)). 

Kidd grounds her employment discrimination claim on two related, but 

distinct, theories: first, that she was unlawfully demoted; and second, that Mando 

unlawfully failed to promote her. 

1. Kidd’s Unlawful Demotion Claim

Kidd contends the district court erred in rejecting Kidd’s unlawful demotion 

claim because she raised it for the first time in her Response to Mando’s Motion 

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for Summary Judgment. We need not consider Kidd’s argument, however, 

because we find that her claim fails on the merits. 

To establish a prima facie case of discrimination under Title VII the plaintiff 

must show that she was “subjected to an adverse employment action.” Ferrill v. 

Parker Group, Inc., 168 F.3d 468, 472 (11th Cir. 1999). An adverse employment 

action is “a serious and material change in the terms, conditions, or privileges of 

employment.” Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1239 (11th Cir. 

2001) (emphasis omitted). In the context of an unlawful demotion claim, the 

plaintiff must show she was assigned “significantly different responsibilities” or 

her employer made a decision that “caus[ed] a significant change in benefits.” 

Webb-Edwards v. Orange Cnty. Sheriff’s Office, 525 F.3d 1013, 1031 (11th Cir. 

2008) (internal quotation marks omitted).

Because Kidd suffered neither a decrease in pay nor a loss of title — but 

only a loss of supervisory responsibilities — she needs to show that her case is one

of those “unusual instances” where the change in responsibilities was “so 

substantial and material that it [] indeed alter[ed] the ‘terms, conditions, or 

privileges’ of [her] employment.” Davis, 245 F.3d at 1245.

This Kidd has not done. When Anderson was terminated, Cheong appointed 

Kidd to temporarily manage the accounts payable department, but not the accounts 

receivable department (which went to another employee). Practically speaking, 

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this meant Kidd supervised the two accounts payable clerks and approved invoices 

and handled wire payments. At no point, however, did Kidd hold herself out as the 

assistant accounting manager, express interest in the position, or assume 

supervisory responsibilities over the accounts receivable clerks. Nor did anyone in 

the accounting department ever refer to her as the assistant accounting manager.

7

 

Still, Kidd was of the view that she “absorbed Mr. Anderson’s position.”8 

When Seo became the assistant accounting manager Kidd slowly began to 

lose the supervisory responsibilities she assumed when Tim Anderson was 

terminated. Those responsibilities went to Seo, and Kidd’s responsibilities 

reverted to those she had before Tim Anderson’s departure.9 

Because Kidd’s demotion claim is grounded on a loss of supervisory 

responsibility, it is one our circuit does not favor. “Work assignment claims strike 

at the very heart of an employer’s business judgment and expertise because they 

challenge an employer’s ability to allocate its assets in response to shifting and 

competing market priorities.” Davis, 245 F.3d at 1244. And it is by now 

 7 Kidd represents that “[o]ther employees in the Accounting and Purchasing Department at 

Mando assumed that Kidd assisted in managing the Accounting Department.” A review of the 

record shows that Kidd may have been overreaching here. As she testified, it was only one of 

Mando’s engineers who thought that she was the accounting manager. 

8

 Kidd was not unique in this respect. After Anderson’s termination several accounting 

department employees assumed greater responsibility than they had before his termination. 

9 See Kidd Dep. 314:21-315:1

Q: Okay. So instead of having you do a certain job that you used to do, BW [Seo] started 

doing the job?

A: Yes.

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axiomatic that “Title VII is not designed to make federal courts sit as a superpersonnel department that reexamines an entity’s business decisions,” id. at 1245 

(internal quotation marks omitted) (citing Elrod v. Sears, Roebuck & Co., 939 F.2d 

1466, 1470 (11th Cir. 1991)). Yet this is precisely the role Kidd asks us to assume. 

Regardless of whether in Kidd’s view her reduced load had “a tangible 

adverse effect on [her] employment,” an “employee’s subjective view of the 

significance and adversity of the employer’s action is not controlling.” Id. at 1239. 

The touchstone is instead whether the allegedly adverse employment action was 

“materially adverse as viewed by a reasonable person in the circumstances.” Id.

Kidd’s demotion claim — grounded on a loss of supervisory responsibility of the 

accounts payable department, not a loss of salary or benefits — does not rise to 

that level. Nor is it “unusual.” See id. at 1244 (holding that “some blow to [a 

plaintiff’s] professional image . . . is simply not enough to prevail”).10 

Thus, regardless whether the district court erred in failing to consider Kidd’s 

unlawful demotion theory on the merits, her claim still fails because the evidence 

she offers in support of her contention that she suffered an adverse employment 

action is insufficient to make out a prima facie case.11 

 10 It appears that Kidd was bothered less by the loss of supervisory responsibilities than the way

in which the responsibilities were taken away. Kidd testified: “I don’t think the frustration came 

in not having those job duties, it’s the way it [was] handled and how [Seo] took them away from 

me.” Cf. Davis, 245 F.3d at 1242 (“the protections of Title VII simply do not extend to 

everything makes an employee unhappy”).

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2. Kidd’s Failure to Promote Claim

To make out a prima facie case in a failure to promote case, the plaintiff 

needs to show, among other things, that she “applied for and was qualified for a 

promotion.” Brown v. Ala. Dep’t of Transp., 597 F.3d 1160, 1174 (11th Cir. 

2010). The district court found that Kidd met the first part of this requirement, but 

failed to offer evidence that she was objectively qualified. The district court relied 

on Mando’s representation that it sought someone with auditing experience —

experience Kidd indisputably didn’t have. But in doing so the district court 

apparently did not consider that Mando had not objectively defined or publicized

its required qualifications.

Our circuit precedent considers an employee qualified for a promotion if the 

employee offers evidence that “she satisfied an employer’s objective 

qualifications.” Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 769 (11th Cir. 

2005) (per curiam). But where the qualifications for the job are neither 

“objectively verifiable” nor “easily obtainable or within the plaintiff’s possession,” 

 

11 The same is not true of Kidd’s failure to promote claim. We’ve made clear that while it’s a 

rare case where a change in employment responsibilities qualifies as an adverse employment 

action, the same is not true of a Title VII claim grounded on an employer’s failure to promote the 

Title VII plaintiff. See Webb-Edwards, 525 F.3d at 1031 (“The Supreme Court has defined an 

adverse employment action as follows: ‘A tangible employment action constitutes significant 

change in employment status such as hiring, firing, failing to promote, reassignment with 

significantly different responsibilities or a decision causing a significant change in benefits.’”) 

(emphasis added; citation omitted). 

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id. (emphasis omitted), the plaintiff need not satisfy this portion of the prima facie 

case. 

That was true here. As Kwak’s testimony makes clear, Mando never 

formally posted or publicized its desire to hire an assistant accounting manager 

with auditing experience. Only during internal discussions did management 

express the need to hire an “individual with . . . extensive auditing experience.” 

See Kwak Dep. 146:15-23-147:1-5 (“I thought since – since we’ve had a lot of . . . 

financial audit issues, I think that was good that somebody from our auditing firm 

was recommending [Seo].”). In light of this, Mando’s hiring criteria was neither 

objectively verifiable nor easily within Kidd’s possession. Thus, to make out a 

prima facie case Kidd did not need to present evidence that she possessed auditing 

experience.

12 

Once the employee makes out a prima facie case the burden shifts to the 

employer to articulate a non-discriminatory reason for the adverse employment 

decision. Because the employer’s burden is one of production — not persuasion 

 12 Mando seems to suggest that Kidd needed to have applied for the assistant accounting 

manager position in order to make out a prima facie case. Not so on these facts. In Jones v. 

Firestone Tire & Rubber Co., 977 F.2d 527, 533 (11th Cir. 1992), we reiterated that when an 

employer does not formally announce that it is seeking to hire for a vacant position within the 

company, the plaintiff need not advance evidence that she applied for the vacant position to state 

a prima facie case. Under these circumstances, an employer “has a duty to consider all those 

who might reasonably be interested, as well as those who have learned of the job opening and 

expressed an interest.” Id. (quoting Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 

1133-34 (11th Cir. 1984)). Because Kidd had expressed interest in a promotion, Mando could 

have reasonably expected that Kidd had an interest in the assistant accounting manager position 

— the position immediately above the one she occupied. 

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— the employer “need not persuade the court that it was actually motivated by the 

proffered reason[].” Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir. 2009)

(en banc) (emphasis added) (citation & internal quotation marks omitted). Rather, 

the employer’s reason need only be specific enough so that the “plaintiff [is]

afforded a full and fair opportunity to demonstrate pretext.” Id. at 1034 (internal 

quotation marks omitted). If the employer carries its burden, the burden shifts 

back to the plaintiff to introduce evidence “sufficient to permit a reasonable 

factfinder to conclude that the reasons given by the employer were not the real 

reasons for the adverse employment decision.” Id. at 1024 (internal quotation 

marks omitted).

Mando contends that it hired Seo because he had auditing experience —

experience Mando’s accounting department needed and experience the prescreened candidates and Kidd did not have.

13 Because Mando’s reason for hiring 

Seo is objectively reasonable on its face — and specific enough for Kidd to rebut 

— the burden shifts back to Kidd “to come forward with sufficient evidence to 

permit a reasonable factfinder to find” that Mando’s reason for choosing Seo over 

 13 This case does not perfectly fit the traditional framework of Title VII failure to promote cases 

because here Kidd neither applied for the assistant accounting manager position nor did any 

recruiter suggest Kidd for the position. Indeed, as it seems readily apparent that aside from Kidd 

herself, no one within Mando or the recruiters even considered Kidd as a viable candidate. 

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her — i.e., he was more qualified, including having auditing experience — was 

pretextual. Chapman, 229 F.3d at 1028.

14

To show pretext, the employee must confront the employer’s seemingly 

legitimate reason for not promoting her “head on and rebut it.” Chapman, 229 

F.3d at 1030 (citing Alexander v. Fulton County, Ga., 207 F.3d 1303, 1341 (11th 

Cir. 2000)). The plaintiff “cannot succeed by simply quarreling with the wisdom 

of that reason.” Id. Indeed, “a plaintiff cannot prove pretext by simply arguing or 

even by showing that [s]he was better qualified than the person who received the 

position [s]he coveted.” Springer v. Convergys Customer Mgmt. Grp., 509 F.3d 

1344, 1349 (11th Cir. 2007) (per curiam) (internal brackets & quotation marks 

omitted). The plaintiff “must show that the disparities between the successful 

 

14 Kidd contends that the district court erred in crediting Mando’s proffered reason for hiring 

Seo over other candidates. Specifically, Kidd contends that the district court violated the 

teachings of Reeves v. Sanderson Plumbing Products, Inc., which said that, for purposes of 

summary judgment, the district court can’t credit evidence favoring the moving party unless that 

evidence is “uncontradicted and unimpeached, at least to the extent that that evidence comes 

from disinterested witnesses.” 530 U.S. 133, 151 (2000) (internal quotation marks omitted). 

This is incorrect. Kidd’s argument ignores the fact that the employer’s burden is not one of 

persuasion but a burden of production, which itself “can involve no credibility assessment,” id. at 

142 ( internal quotation marks omitted). Indeed, if we were to accept Kidd’s argument that a 

district court can never credit an employer’s witnesses for purposes of the second stage of the 

McDonnell Douglas analysis, then we’d be categorically barred from considering an employer’s 

legitimate, non-discriminatory reason for hiring one individual over another. See, e.g., Everett v. 

Cook Cnty., 655 F.3d 723, 729 n.2 (7th Cir. 2011) (“Even if testimony comes from interested 

employees, [w]e do not interpret [Reeves] so broadly as to require a court to ignore the 

uncontroverted testimony of company employees or to conclude, where a proffered reason is 

established through such testimony, that it is necessarily pretextual.” (first alteration in original) 

(internal quotation marks omitted)). This is certainly not what the Court intended by the passage 

in Reeves that Kidd relies on.

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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.” Id. (internal quotation marks omitted).

Because Kidd’s primary argument is that she was more qualified than Seo 

she encounters these well-established principles. To support her claim that she was 

indisputably more qualified than Seo, Kidd offers a number of reasons why this 

was the case. The reasons Kidd relies on are: (1) Kidd had more managerial 

experience than Seo; (2) while Seo has auditing experience, he does not have as 

broad a background in accounting as Kidd, since, in her view, she served as the de 

facto assistant accounting manager for a year-and-a-half; (3) both had similar job 

histories; (4) Rolison allegedly believed that Seo wasn’t qualified for the job; (5) 

Kidd was an internal candidate and known quantity, unlike Seo; (6) Seo allegedly 

misrepresented some facts on his resume, which, in Kidd’s view, made him 

ineligible for employment at Mando; (7) Kidd’s educational background was 

stronger since she had a bachelor’s degree in accounting and management, while 

Seo merely had a degree in accounting; and (8) Seo started, but did not finish, an

MBA degree, while Kidd was working on a Masters in Public Accounting degree 

in 2009, and completed the program in 2010.

Kidd’s argument about her qualifications relative to Seo’s is one we cannot 

accept. Our well-established circuit precedent prohibits us from deciding whom as 

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between two candidates an employer should have hired. Our task is simply to 

review the qualifications of the selected candidate and plaintiff, and determine 

whether the difference between the two is of “such weight and significance that no 

reasonable person, in the exercise of impartial judgment, could have chosen the 

candidate selected over the plaintiff.” Springer, 509 F.3d at 1349 (internal 

quotation marks omitted). 

Despite Kidd’s laundry list of reasons of why, in her mind, she would have 

been a more qualified assistant accounting manager, we do not find that Kidd’s 

educational experience, job history, or supervisory experience, made her

exceptionally more qualified than Seo, much less his equal. As we’ve repeatedly 

stressed, in enacting Title VII Congress did not intend to transform federal courts 

into a “super-personnel department that reexamines an entity’s business decisions.” 

Chapman, 229 F.3d at 1030 (citation & internal quotation marks omitted). Our job 

is instead to determine “whether the employer gave an honest explanation” to 

justify its hiring decisions. Id. If the employer gives one, we’re not in a position 

to “second-guess [its] business judgment,” id. Because Kidd’s argument regarding

why she was more qualified than Seo calls into question Mando’s business 

judgment — not its honesty — it is one we must reject. 

Kidd’s secondary argument is that putting aside the disparity between her 

and Seo’s relative qualifications, there is sufficient circumstantial evidence to show 

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that the reason Mando gave for choosing Seo over her was pretext for

discriminatory animus. Smith v. Lockheed-Martin Corp. makes clear that “the 

plaintiff will always survive summary judgment if [s]he presents circumstantial 

evidence that creates a triable issue concerning the employer’s discriminatory 

intent.” 644 F.3d 1321, 1328 (11th Cir. 2011).

The potentially strongest circumstantial evidence for Kidd is her testimony

that Rolison informed her that Kwak and Cheong “refused to even consider an 

American candidate” for the assistant accounting manager job. See Kidd Dep. 

346:7-12 (“Jerry Rolison told me himself that he had tried to get four Americans to 

be considered in the position [sic] and he was denied, they were not even allowed 

to interview”). Kidd also testified that another member of HR (Deborah Stone) 

told her that “no matter what . . . there would never be any American management 

in the company, it would always be Korean management . . . .” Kidd contends that 

from these statements a jury can reasonably infer that the reason Mando gave for 

hiring Seo (he was more qualified) was pretextual, and that the relevant 

decisionmakers harbored a “discriminatory attitude.” 

The problem with Kidd’s argument, as we view it, lies not in her analysis of 

the contents of these alleged statements — Rolison’s, in particular — but in her

failure to identify an evidentiary basis under which they are admissible in light of 

the well-established rule that at the summary judgment stage, we “may consider 

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only that evidence which can be reduced to an admissible form.” Rowell v. 

BellSouth Corp., 433 F.3d 794, 800 (11th Cir. 2005). 

 As a starting point, we note that Rolison’s statement regarding Mando’s 

hiring process — i.e., that the decisionmakers “refused to even consider an 

American candidate”— is subject to two, distinct interpretations. One 

interpretation is that Rolison’s statement is one of opinion which concerned a 

matter within the scope of his employment, as contemplated by Federal Rule of 

Evidence 801(d)(2)(D). Rule 801(d)(2)(D) provides that a statement is not hearsay 

if the “statement is offered against a party and is . . . a statement by the party’s 

agent or servant concerning a matter within the scope of the agency or 

employment, made during the existence of the relationship.” Thus, if Kidd were 

able to show by “a preponderance of the evidence that [Rolison] was speaking as 

an agent of [Mando] at the time he made [this] statement[],” it would be 

admissible. Rowell, 433 F.3d at 800. A second interpretation of Rolison’s alleged 

remark is that Rolison was simply repeating what the Mando decisionmakers told 

him or what he heard them say. If that was the case, then Rolison’s remark might 

be admissible as an admission by a party opponent absent a valid hearsay 

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objection.

15 If neither is true, however, Rolison’s alleged remark would be 

inadmissible hearsay.

16

So far so good, except we face two hurdles that hinder our review of this 

evidentiary issue. The first is that the issue hasn’t been raised by the parties or the 

district court. And as we have cautioned: “Issues should not sprout like weeds in 

appellate opinions no matter how fertile the minds of the judges deciding the 

appeal.” Norelus v. Denny’s Inc., 628 F.3d 1270, 1297 (11th Cir. 2010); see also,

e.g., Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) 

(“If an argument is not fully briefed (let alone not presented at all) to the Circuit 

Court, evaluating its merits would be improper both because the appellants may 

control the issues they raise on appeal, and because the appellee would have no 

opportunity to respond to it.”). This is especially true where, as here, the 

resolution of the evidentiary question is, in our view, outcome determinative: if 

Rolison’s statement is admissible, Kidd will have successfully created a dispute of 

 15 To be sure, we do not suggest that if Kidd were able to prove that this statement was based on 

an observation Rolison made or something he was told by the Mando decisionmakers that it 

would automatically be admissible as an admission by a party opponent. Kidd would still have 

to identify an additional exception to the rule against hearsay because it is Rolison’s — rather 

than the Mando decisionmakers’ — statement itself that has to be admissible. This may prove 

difficult in light of Rolison’s testimony that “at no time did [he] tell Leanna Kidd that Mr. Kwak 

or any other member of management refused to consider the resumes of American candidates.”

16 Without citing to any particular rule of evidence, the district court dismissed Rolison’s 

statement as “irrelevant” because he was not a decisionmaker and “thus had no hand in the final 

decision as to whom to hire.” As we will explain, however, a statement made by a nondecisionmaker may be both relevant and attributable to the defendant employer if the nondecisionmaker was sufficiently involved in the decisionmaking process leading up to the adverse 

employment action. 

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material fact regarding the legitimacy of Mando’s explanation for hiring Seo over 

her; if it is not admissible, by contrast, Kidd will not have created a dispute of 

material fact. 

The second hurdle is that because the facts surrounding Rolison’s alleged 

remark are unclear we cannot determine its admissibility as a matter of law. If 

Kidd seeks to introduce Rolison’s alleged remark under Rule 801(d)(2)(D), she 

needs to show that Rolison participated — at least to some extent — in Mando’s 

decision to hire Seo and not promote Kidd. See Rowell, 433 F.3d at 800 

(observing that “courts have admitted statements of managers under Rule 

801(d)(2)(D) where there is some evidence that the statements reflected some kind 

of participation in the employment decision or policy of the employer”); see also

Simple v. Walgreen Co., 511 F.3d 668, 672 (7th Cir. 2007) (Posner, J.) (holding 

that statement by non-decisionmaker was admissible under Rule 801(d)(2)(D) 

because “she was involved in the process that led up to [the adverse employment 

action]”). As we explain, however, Rolison’s level of involvement in the 

decisionmaking process is far from clear. 

On the one hand, it appears that Rolison was only tangentially involved in 

Mando’s decision to hire Seo, and that the Mando decisionmakers didn’t consult 

with Rolison regarding Seo’s hire over other eligible candidates. Indeed, as Kidd’s 

counsel readily acknowledged at oral argument, Rolison’s view that the Mando

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23

decisionmakers refused to consider an American candidate was based on “his 

perception, his belief,” Oral Arg. 7:10-7:37, rather than “something that [he] had 

been told by upper management,” Rowell, 433 F.3d at 801 (emphasis in original)

(internal quotation marks omitted). But on the other hand, Rolison was the head of 

Mando’s human resources department, which may suggest “he [was] authorized to 

speak with subordinates about [] [Mando’s] employment practices . . . .” Marra v. 

Philadelphia Hous. Auth., 497 F.3d 286, 298-99 (3d Cir. 2007) (expressing the 

view that a non-decisionmaker’s lack of participation in an adverse employment 

decision does not “render his opinion regarding company policy beyond the 

purview of Rule 801(d)(2)(D)”) (internal quotation marks omitted). 

In Rowell v. BellSouth, we shed some light on the contours of Rule 

801(d)(2)(D), which may be illuminating here. Rowell involved a workforce 

reduction that the plaintiff claimed discriminated against him on the basis of age. 

To support his claim, the plaintiff sought to introduce testimony from one of his 

co-workers who testified that his supervisor — a non-decisionmaker — informed 

him that performance evaluations used to reduce the workforce favored youth, and 

that a lot of the termination decisions were based on the company’s desire “to 

keep the youth.” Id. at 800. We held that this testimony was inadmissible under 

Rule 801(d)(2)(D) because the statements the plaintiff sought to introduce were “in 

reality nothing but the inadmissible opinion of” a non-decisionmaker, Rowell, 433 

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F.3d at 800, rather than something the non-decisionmaker “had been told by upper 

management about the role age was to play” in the workforce reduction, id. at 801.

We take this opportunity to make clear that Rowell did not hold, as the 

district court seemed to suggest, that a non-decisionmaker can never be considered 

an agent under Rule 801(d)(2)(D). Rowell says only that to be considered an agent 

for purposes of Rule 801(d)(2)(D), the record needs to reflect “some kind of 

participation in the employment decision or policy of the employer.” Id. at 800. 

Yates v. Rexton, Inc., 267 F.3d 793 (8th Cir. 2001), and Woodman v. Haemonetics 

Corp., 51 F.3d 1087 (1st Cir. 1995) — two cases we relied on in Rowell — are 

also instructive. 

In Yates, the plaintiff alleged that the workforce reduction under which he 

was terminated discriminated against him on the basis of his age. To support his 

claim, the plaintiff sought to introduce statements by a managing director and 

manager of the parent company of his employer, “expressing their . . . view that 

workers should retire after age 60.” Yates, 267 F.3d at 801. In addressing whether 

these executives’ statements were admissible the Eighth Circuit maintained that 

although the individuals who made the seemingly discriminatory remarks did not 

directly call for the plaintiff’s termination, “they were intimately involved in the 

process of shaping [the] [ ] workforce,” id. at 802 (emphasis added), and thus, 

could be considered “agents” under Rule 801(d)(2)(D). See also id. (observing 

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that “[s]ignificant involvement, either as advisor or other participant in a process 

leading to a challenged decision, may be sufficient to establish agency under Rule

801(d)(2)(D)”) (internal quotation marks omitted). 

The plaintiff in Woodman similarly alleged that his employer had 

discriminated against him on the basis of age in terminating him in connection with 

a workforce reduction. To rebut the employer’s performance-based reason for 

terminating him, the plaintiff offered evidence that his supervisor had relayed to 

him conversations she had with management regarding future terminations. 

Woodman, 51 F.3d at 1090. During one of those conversations the plaintiff 

testified that his supervisor said of management: “These damn people—they want 

younger people here. They will be the ones that will be successful here.” Id. The 

supervisor’s remark came on the heels of a meeting she attended with management 

and immediately before the workforce reduction plan was put into place by 

management. Id. at 1094. As in Yates, the First Circuit considered whether the 

supervisor’s remark was admissible under Rule 801(d)(2)(D). And as in Yates, the 

panel found that the supervisor’s remark was admissible despite her lack of 

decisionmaking authority because she was directly involved in “assessing the 

performance of . . . employees under her supervision (including [the plaintiff])” 

and even “recommend[ed] that [the plaintiff] be relieved from his duties.” Id.

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In this case, it remains unclear whether Rolison’s role in the decisionmaking

process was a narrow one — involving only the gathering of resumes submitted by 

professional recruiting services for management to review — or whether it 

amounted to something more. If the former is true — and Rolison’s role was 

largely ministerial — Rowell suggests that Rolison was not acting as Mando’s 

agent when he made the remarks Kidd attributes to him regarding his personal 

opinion of Mando’s selection process. If, however, Rolison was consulted by 

Mando’s management (or otherwise included in the decisionmaking process) that 

may be enough to make his statement an admission by Mando. See, e.g., Simple, 

511 F.3d at 672 (noting that when a non-decisionmaker is consulted about an 

employment decision, a later statement by that non-decisionmaker expressing his 

view of the employment decision is admissible under Rule 801(d)(2)(D)).

17 

The same record deficiencies exist with respect to the second basis under

which Rolison’s alleged statement may be admissible. It is entirely unclear 

whether Rolison’s alleged statement that the Mando decisionmakers “refused to 

even consider an American candidate,” was based on something he observed or 

heard, or whether it was his own personal opinion. As mentioned above, Kidd’s 

 17 We do not suggest that the statement Kidd attributes to Deborah Stone regarding the 

possibility of an American occupying a managerial position is admissible under Rule 

801(d)(2)(D). Because Kidd has not put forth any evidence regarding Stone’s involvement in the 

hiring process, her testimony appears to be, as in Rowell, based on personal opinion, and is not 

admissible under Rule 801(d)(2)(D). 

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counsel indicated it was the latter — that Rolison’s alleged statement was based on 

“his perception, his belief.” Nevertheless, because the nature of Rolison’s vague 

statement presents a factual — rather than legal — question, its meaning creates a 

factual dispute that should have — but was not — fully explored below. 

In sum, we find that while Kidd has made out a prima facie case of 

employment discrimination, it remains unclear whether she created a dispute of 

material fact regarding whether the reason Mando offered for hiring Seo was a 

pretext for discriminatory animus. The answer to this question hinges on the 

admissibility of Rolison’s alleged remark regarding the nature of Mando’s hiring 

process. If the district court determines that Rolison’s statement is admissible, 

then there is sufficient evidence to raise a factual dispute about the legitimacy of 

Mando’s proffered reason for hiring Seo. But if, on the other hand, the district 

court determines that Rolison’s statement is not admissible, then there is no factual 

dispute and summary judgment is appropriate. Because the meaning of Rolison’s 

statement is subject to different interpretations and the scope of Rolison’s 

involvement in the decisionmaking process leading up Seo’s hire is unclear, we 

think the prudent course is to remand this case to the district court so that it may 

determine whether Rolison’s alleged statement is admissible.

18 

 18 Kidd brings to our attention other circumstantial evidence from which she contends that a 

reasonable jury can infer that Mando’s hiring decision was motivated by discriminatory animus. 

But none of this evidence takes Kidd the distance she needs to travel — when viewed in isolation 

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B. The Retaliation Claim

Title VII prohibits not only discrimination, but retaliation against an 

employee because she “has opposed any practice made an unlawful employment

practice by Title VII,” Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008) 

(internal brackets omitted) (quoting 42 U.S.C. § 2000e-3(a)). To make out a prima 

facie case of retaliation, a plaintiff must show: (1) that she engaged in an activity 

protected under Title VII; (2) she suffered a materially adverse action; and (3) 

there was a causal connection between the protected activity and the adverse 

action. Chapter 7 Tr. v. Gate Gourmet, Inc., 683 F.3d 1249, 1258 (11th Cir. 2012) 

(citations omitted). The district court found that Kidd didn’t make out a prima 

facie case because she didn’t produce sufficient evidence to show that there was a 

causal connection between Kidd’s protected activity (i.e., complaining about 

workplace discrimination) and the adverse action Kidd alleges she suffered.

We agree. To establish a causal connection, a plaintiff must show that the 

relevant decisionmaker was “aware of the protected conduct, and that the protected 

activity and the adverse actions were not wholly unrelated.” Shannon v. Bellsouth 

 

or even together. First, the fact that Mando did not publicize its hiring process does not suggest 

Mando acted with discriminatory intent. Indeed, “even where preselection violates corporate 

personnel policies, it does not necessarily indicate” that the employer based a promotion decision 

on impermissible characteristics. Springer, 509 F.3d at 1350. Second, the fact that Mando may 

have violated federal immigration laws, see 8 U.S.C. § 1182, when it hired Seo before 

demonstrating that it unsuccessfully tried to fill the assistant accounting manager position with 

an American candidate, is also not evidence from which a jury may infer that Mando harbored 

discriminatory animus.

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Telecomm., Inc., 292 F.3d 712, 716 (11th Cir. 2002) (internal quotation marks 

omitted). While Kidd makes the blanket assertion that after each of her protected 

complaints Seo retaliated against her, she fails to tie any of her complaints to 

retaliatory conduct. The closest she comes to doing so is her assertion that she lost 

supervisory responsibilities after an October 2009 meeting with HR to discuss her 

initial interactions with Seo. But, as we will discuss, even if a loss of supervisory 

responsibilities qualifies as an adverse action — a question we need not explore —

Kidd fails to show that the loss of supervisory responsibilities was causally 

connected to her October 2009 meeting. 

The basis for Kidd’s October 2009 visit with HR was Seo’s request to 

review her resume — a request Kidd found demeaning. When she left the meeting 

during which Seo requested her resume, Kidd went straight to HR to discuss what 

had happened. Kidd testified that after her visit to HR, Seo told her, via email, that 

“he was embarrassed by [Kidd] going to HR because [she] went over his head and 

he was ashamed of how [she] treated him.” However, a review of this email makes 

readily apparent that Seo made no mention of her visit to HR. Nor can one 

reasonably infer from his email that he was even aware of her visit to HR. Quite 

the contrary. It appears that what prompted Seo’s email to Kidd was not her visit 

to HR, but the fact that Seo was CC’d on Kidd’s email to the folks at HR, asking 

them to forward her resume to Seo. 

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Thus, even if we assume that a loss of supervisory responsibilities may 

qualify as an adverse action, Kidd’s retaliation claim still fails on the merits. This 

is because, as the district court correctly observed, Kidd has not offered any 

evidence to show that Seo was aware of any of her protected complaints, making it 

impossible for her to make out a prima facie case. 

___________________

In sum, we vacate the district court’s grant of summary judgment in favor of 

Mando regarding Kidd’s employment discrimination claim, but affirm it in all 

other respects. The district court is instructed to determine whether Kidd’s 

testimony about Rolison’s alleged statements is admissible and, if it is, to 

reconsider Mando’s Motion for Summary Judgment in light of that determination. 

 AFFIRMED IN PART, VACATED AND REMANDED IN PART.

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WILSON, Circuit Judge, concurring in part and dissenting in part:

The majority returns this case to the district court so that it may determine 

whether Kidd’s statement about what Rolison told her is admissible as an 

exception to the hearsay rule. See Majority Op. at 27. Respectfully, I dissent.1

 

The majority instructs the district court to determine whether Rolison’s comment 

was his own personal opinion or something he heard directly from the Mando 

decision makers. See id. But at oral argument, Kidd’s counsel, who deposed 

Rolison, conceded that Rolison’s comment was “his own perception.” It seems 

unnecessary, then, to return this case back to the district court to determine whether 

Rolison’s comment was based on his own opinion or on information received from 

the Mando decision makers. Doing so provides Kidd with a second opportunity to 

survive summary judgment, an opportunity the typical Title VII plaintiff does not 

enjoy. Kidd said it was Rolison’s own perception that Mando was not going to 

hire any Americans for the assistant accounting manager job. We should leave it at 

that, which is what the district court did the first time around. 

Moreover, it was incumbent on Kidd’s counsel to present a hearsay 

exception argument if there was a legitimate basis for it. The reason Rolison’s 

“vague statement” was not “fully explored below” is because Kidd never made a 

hearsay exception argument to the district court. See id. Nor was any such 

 1 I concur in the remainder of the opinion, affirming the decision by the district court.

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argument made in the briefs on this appeal. It is not this court’s job to craft 

arguments for counsel. 

I would affirm the summary judgment entered by the district court. Kidd 

says Rolison told her that no Americans were considered for the job. Rolison 

denies this, but we must accept Kidd’s version of the events. The district court 

then found that Rolison was not a decision maker and that he had “no hand in the 

final decision as to whom to hire” for the assistant accounting manager position. 

Kidd also conceded this fact at oral argument and admitted that Rolison’s only role 

in Mando’s employment decision was to gather resumes and forward them to his 

supervisors. In other words, there is no factual dispute about Rolison’s role. 

Assuming the statement was made and, arguendo, it is admissible, Kidd’s claim 

still fails based on our precedent. Rolison’s “vague statement” is not nearly 

enough to create a material issue of fact on pretext. See Alvarez v. Royal Atl. 

Developers, Inc., 610 F.3d 1253, 1268 (11th Cir. 2010) (Carnes, J.) (holding

comment made by non-decision maker “too weak to raise a genuine fact issue”); 

see also Zaben v. Air Prods. & Chems., Inc., 129 F.3d 1453, 1455–57 (11th Cir. 

1997) (per curiam) (comments by low-level supervisors repeating management’s 

discriminatory comments are inadmissible hearsay). Consequently, I would affirm 

the district court’s grant of summary judgment. 

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