[ DO NOT PUBLISH] 

## In the 

# United States Court of Appeals For the Eleventh Circuit

____________________
No. 23

- 12439

Non

- Argument Calendar

____________________
SUSAN DENHAM, Dr.,
Plaintiff

- Appellant,

versus ALABAMA STATE UNIVERSITY,

Defendant

- Appellee.

____________________ Appeal from the United States District Court for the Middle District of Alabama D.C. Docket No. 2:22

- cv

- 00185

- SMD USCA11 Case: 23-12439 Document: 23-1 Date Filed: 05/16/2024 Page: 1 of 142 Opinion of the Court 23

- 12439

____________________
Before B RASHER , A BUDU , and T JOFLAT , Circuit Judges.

PER CURIAM : In this failure

- to

- promote discrimination case under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq

. , Dr. Susan Denham , a white female, claims that her former employer, Alabama State University (ASU)
, disc riminated against her on account of her race and sex i n denying her a promotion to the Associate Dean position in ASU’s College of Health Sciences ( COHS)

. A Magistrate Judge (MJ) granted ASU summary judgment, and Denham appealed. 1 Our task, consequently, is to determine whether the MJ correctly applie d the summary judgment standard to the evidence presented. Holding that he did, we affirm. I. Background

A. The Associate Dea n Position On November 19, 2019, ASU posted a job listing advertising
a vacancy for the Associate Dean in ASU’s COHS . The position required that applicant s have the “[e] xperience and credentials to qualify for the rank of associate professor

. . . in one of the College’s academic departments. ” Under ASU’s Facu lty Hand book
,

1 Both parties consented to a Magistrate Judge conducting all proceedings. See 28 U.S.C. § 636(c)(1) (“ Upon the consent of the parties, a full

- time United States magistrate

. . . may conduct any or all proceedings in a jury or nonjury civil matter and orde r the entry of judgment in the case

. . . .”). USCA11 Case: 23-12439 Document: 23-1 Date Filed: 05/16/2024 Page: 2 of 1423

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this meant “ fi ve academic years of successful teaching experience at an accredited college/university
, ” including three years as an “ assistant professor.” T he Handbook also provided exceptions to these requirements :
B. Upon recommendation of the Provost and Vice President for Academic Affairs, the president mayrecommend to the Board of Trustees the assignment of academic rank for a new member of the faculty who serves in a combination of teaching and administrative roles.
C. Up on recommendation of the dean of the college involved and the Provost and Vice President for Academic Affairs, the president may recommendto the Board of Trustees the assignment of academic rank for a new member of the faculty solely on the basis of extra ordinary and distinguished national service to the teaching field.

Dr. Susan Denham , a white female, and Dr. Dartrell Treadwell , an African

– American male, both applied for the A ssociate D ean position. At the time of her interview, Denham was a tenured pro fessor within the COHS , with over two decades of experience in various roles. Denham holds a Bachelor of Science in Occupational Therapy, a Master of Science in Human Resources Management, and a Doctorate in Educational Leadership, Policy, and Law

. She has been a licensed occupational therapist since 1990.
At the time of Treadwell ’s interview , he had one year of experience as an assistant professor in Arkansas State University’s USCA11 Case: 23-12439 Document: 23-1 Date Filed: 05/16/2024 Page: 3 of 144 Opinion of the Court 23

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physical therapy department. H e managed acute inpatient hospital, geri

- psych , and outpatient departments; supervised a team of eighty therapists across nine nursing facilities ; and established a home health service business offering physical and occupational therapy

. Treadwell holds a Master’s in Public Service Management

an d a Doctorate in Physical Therapy

. Dr. Carl Pettis
, an African

– American male, conducted interviews for the position and interviewed Denham and Treadwell

. Pettis serves as ASU’s Provost and Vice President for Academic Affairs

. Following the interviews, Pettis recommended Treadwell for the position, resulting in Treadwell’s appointment

. On April 20, 2022, Denham sued ASU, arguing that she was passed over for Associate Dean due to her race and gender. The complaint was framed in one count unde r Title VII. 2 ASU answered, denied liability, and, after discover y , moved the District Court for summary judgment.

In its motion , ASU a rgued that Treadwell ’s selection was based on legitimate, nondiscriminatory reasons. ASU asserted that Treadwell met the minimum qualifications for the position outlined in the job posting and that his interview and experience ma de him the preferable candidate.

2 See 42 U.S.C. § 2000e

– 2(a)(1) (declaring it unlawful for an employer “to fail or refuse to hire .

. . any individual

. . . because of such individual ’ s race [or]

sex

. ”). USCA11 Case: 23-12439 Document: 23-1 Date Filed: 05/16/2024 Page: 4 of 1423

- 12439 Opinion of the Court 5

In response, Denham sought to prove her case through (1) the McDonnell Douglas framework, (2) the “convincing mosaic” standard
, and (3) a mixed

- motive framework. Denham argued that ASU’s proffered reasons for hiring Treadwell were pretext because she was more qualified for the position than Treadwell and Pettis’ssubjective reasons for choosing Treadwell could reasonably be disbelieved. Ultimately, t he MJ granted ASU’s motion. Under the McDonnel l Douglas framework , the MJ found that Denham established a prima facie case and that ASU pro vided a legitimate, nondiscriminatory reason for its decision . Still, Denham failed to create a genuine issue of material fact about whether AS U’s proffered

reasons were a pretext for discrimination. Denham timely appealed.

II. Legal Standard

We review de novo a grant of summary judgment, drawingall reasonable inferences in the light most favorable to the nonmoving party. Bowen v. Manheim Remarketing, Inc ., 882 F.3d 1358, 1362 (11th Cir. 2018). Summary judgment is proper where “there is no genuine dispute as to any mat erial fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A genuine issue of material fact exists when ‘ the evidence is such that a reasonable jury could return a verdict for the nonmoving party. ’ ”
Bowen , 882 F.3d at 1362 ( quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 24 8 (1986) ). USCA11 Case: 23-12439 Document: 23-1 Date Filed: 05/16/2024 Page: 5 of 146 Opinion of the Court 23

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III

. Discussion
Denham advanced three theories for her Title VII claim: McDonnell Douglas , convincing mosaic, and mixed

- motive . On appeal, Denham argues that the MJ failed to view the evidence in the light most favorable to her . D enham asserts that the evidence shows that (1) Treadwell did not meet the minimum qualifications for the Associate Dean position and (2) Pettis’s proff ered reasons for hiring Treadwell are a pretex t for discrimination

. A. McDonnell Douglas
Under McDonnell Douglas , the plaintiff ’s first task is establishing a prima facie case of discrimination. Vessels v. Atlanta Indep. Sch. Sys ., 408 F.3d 763, 767 (11th Cir. 2005) . Once established , the burden shifts to the employer to provide a nondiscriminatory basis for
its decision

. Id. at 767

– 68. “If the employer meets this burden, the inference of discrimination drops out of the case entirely, and the plaintiff has the opportunity to show by a preponderance of the evidence that the proffered reasons were pretextual.” Id. at 768.

1. Denham’s Prima Facie Case

T

o establish a prima facie case , the p laintiff must show (1 ) she “belonged to a protected class,” (2) she “ was qualified for and applied for a position t he employer was seeking to fill, ” (3) she was reje cted despite her qualificat ions, and (4) “the position was filled with an individual outside the protected class.” Id. ASU doesnot dispute that Denham established a prima facie case of discrimination. Th us , for purposes of summary judgment , we assume that Denham is in a protecte d class, applied and was qualified for USCA11 Case: 23-12439 Document: 23-1 Date Filed: 05/16/2024 Page: 6 of 1423

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Associate Dean
, w as rejected for the position despite those qualifications
, and Trewadwell was outside her protected class

.
2. ASU ’s Burden of Production An employer’s burden to proffer a nondiscriminatory reason for failing to promote an employee is “exceedingly light.” Perryman v. Johnson Prod s . Co. , 698 F.2d 1138, 1141 (11th Cir. 1983). Once a n employer provides a clear and reasonably specific nondiscriminatory reason for its actions, it has met its burden of pro duction

. Vessels
, 408 F.3d at 770. ASU ’s proffered reasons for hiring Treadwell

are that Treadwell interviewed better than Denham and possessed the clinical experience ASU sought for the position. We hold that these reasons a re sufficient for ASU to have met its burden of production. Consequently, our focus shifts to determining whether these proffered reasons are pretext

. 3. Evidence of PretextDenham argues that she has raised a genuine issue of material fact about ASU’s proffered reasons for hiring Treadwell. To show pretext
, an d thus survive summary judgment, the plaintiffmust introduce significantly probative evidence allowing a reasonable fact finder to determine that the employer’s proffered reasons are not believable. Brooks v. Cnty

. Comm’n of Jefferson Cnty ., 446 F.3d 1160, 11 63 (11th Cir. 2006) . This can be done by pointing to weaknesses, implausibilities, inconsistencies, i ncoherenci es, or contradictions in the employer’s proffered reasons. Id. USCA11 Case: 23-12439 Document: 23-1 Date Filed: 05/16/2024 Page: 7 of 148 Opinion of the Court 23

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i . Treadwell’s Qualifications for Associate Dean First, Denham asserts that Treadwell did not qualify for Associate Dean . Denham argues Pettis improperly relied on the exceptions outlined in ASU’s Faculty Handbook to recommend Treadwell. S he contends that Pettis unreasonabl y concluded that Treadwell’s clinical experience qualified as “extraordinary and distinguished national service to t he teaching field.”

T

o qualify for Associate Dean
, a candidate must possess the experience and credentials to qualify for the rank of associate professor

. This includes five years of successful teaching at an accredited college or university, with at leas t three of those years at the assistant professor level. Treadwell, with only one year of teaching experience as an assistant professor, did not meet this requirement

. Still, the ASU Faculty Handbook permits the Provost and Vice President , here, Pettis
, t o recommend candidates based on alternative criteria: (1) if the candidate serves in both teaching and administrative roles, or (2) if the candidate has provided “ extraordinary and distinguished national service to the teaching field. ” Pettis relied on these exceptions to recommend Treadwell

. Denham has not provided evidence to challenge Pettis ’s justification for relying on these exceptions

. Pettis testified to Treadwell’s “ extraordinary and distinguished national service to the teaching fiel d, ” emphasizing his clinical experience and its relevance to ASU’s student placements nationwide. Pettis testified that USCA11 Case: 23-12439 Document: 23-1 Date Filed: 05/16/2024 Page: 8 of 1423

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he considered Treadwell ’ s managerial experience in physical therapy a significant contribution to the teaching field because of the cli nical component of several of the COHS ’s programs

.

“ We are not in the business of adjudging whether employment decisions are prudent or fair. ” Damon v. Fleming Supermarkets of Fla

. , Inc. , 196 F.3d 1354, 1361 (11th Cir.1999) . “[O] ur sole concern is whether unlawful discriminatory animus motivates a challenged employment decision.” Id. And Denham has not provided

e

vidence that unlawful discriminatory animus motivate d Pettis’s recommendation

. Denham ’s attempt to compare her case to B ass v. Board of County Comm’rs , 256 F.3d 1095 (11th Cir. 2001 ), is not convincing

. In Bass , t his C ourt found sufficient evidence t o overcome a summary judgment motion where the employer promoted an unqualified candidate over a qualified one

. Id. at 1109. B ut the employer there also had a history of promoting employees based on race, made a statement about race

- conscious efforts, and deviated from established procedures. Id. at 1105

– 09. In contrast , Treadwell was qualified based on Pettis ’s application of the exceptions in the Handbook , and none of the other factors in Bass apply

. Denham also likens her situation to Carter v. Three Springs Residential Treatment , 132 F.3d 635 (11th Cir. 1998) . She argu es that circumventi ng established procedures can indicate pretext

. See i d.
at 644. T his comparison also falls short. In Carter , the plaintiff provided evidence that the employer failed to adhere to its polic y of USCA11 Case: 23-12439 Document: 23-1 Date Filed: 05/16/2024 Page: 9 of 1410 Opinion of the Court 23

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posting job vacancies and he submitted ten affidavits of former employees recounting instances of disparate treatment while on the job. Id

. at 64 0

– 4 1

. Denham , on the other hand, has not provided evidence suggesting that “established rules were bent or broken to give [Treadwell] an edge in the hi ring process.” See i d. at 644. Further, w e cannot say that the disparity in Denham’s and Treadwell’s qualifications is “ of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen ” Treadwell. See Co oper v. S. Co ., 390 F.3d 695, 732 (11th Cir. 2004) (quoting Lee v. GTE Fla., Inc. , 226 F.3d 1249, 12554 (11th Cir. 2000) )

. M erely showing that the plaintiff was more qualified than the selected candidate is not enough to show pretext. Id. Rather, t he disparity must be “so apparent as virtually to jump off the
page and slap you in the face. ” Id. (quoting Cofield v. Goldkist, Inc.
, 267 F.3d 1264, 1268 (11th Cir.2001)). Denham argues that she had twenty

- nine years of clinical experience, while Treadwell had around fifteen

— t his does not jump off the page

. ii

. ASU’s Proffered Reasons for Selecting Treadwell
Denham also argues that Pettis’s subjective reasons for choosing Treadwell were pretext. These reasons are that (1) Treadwell performed better in his interview, and (2) Pettis valued Treadwell’s clinical and managerial experience.
Under McDonnell Douglas , a s ubjective reason for an employer’s decision , such as a candidate’s poo r interview performance , can be a legitimate, nondiscriminatory reason. Chapman v. AI Transp. , 229 F.3d 1012, 1033 (11th Cir.2000) (en banc). Indeed, USCA11 Case: 23-12439 Document: 23-1 Date Filed: 05/16/2024 Page: 10 of 1423

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“ [a] n interview is frequently necessary to asses the qualities thatare particularly important in supervisory or professional positions.” Bass , 256 F.3d at 1106. That said, the employer must provide a clear and reasonably specific factual basis supporting its subjective opinion for it to be legally su fficient

. Id.
Denham contends that Pettis failed to provide a sufficient factual basis for his subjective opinion s. We disagree. Pettis testified to his impressions of Treadwell ’ s interview, noting Treadwell ’ s considerable “ energy ” and “ passion, ” his fo cus on student engagement, and his eagerness to establish a strong rapport with students

. Pettis believed Treadwell ’ s energy would be positively received by students , and he would be a bonus to the faculty

. Th ese a re clear and reasonably specific factual bas e s. See Chapman
, 229 F.3d at 1034 ( “ [I] t might not be sufficient for a defendant employer to say

. . . ‘ I did not like his appearance ’ with no further explanation . However, i f [it] said, ‘ I did not like his appea rance because his hair was uncombed and he had dandruff all over his shoulders ’

. . . the defendant would have articulated a ‘ clear and reasonably specific ’ basis for its subjective opinion

— the applicant ’ s bad (in the employer ’ s view) appearance. ”).

In Cha pman , the employer’s articulated reason for its employment action was partly based on the employee’s poor interview. 229 F.3d at 1033. We noted that the employer had provided a clear and reasonably specific rationale for considering it a poor interview. Id. at 1035. The applicant, however, failed to show that USCA11 Case: 23-12439 Document: 23-1 Date Filed: 05/16/2024 Page: 11 of 1412 Opinion of the Court 23

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a poor interview was pretext because he did not counter the “objective bas e s for the subjective reason proffered for not hiring him.” Id. at 1036. The employer critiqued the applicant for not asking questions during the interview, not explaining his past employment history, and not providing concise answers to the questions posed. Id. Without disputing these points, the applicant could not demonstrate that the employer ’ s justification was a pretext
, and this Court affirmed

. Id. at 10 37

. Denham has fail ed to offer evidence to rebut Pettis’s testimony. Like the applicant in C hapman
, Denham produced no affidavits or other evidence to dispute Pettis’s preference for Treadwell based on the interview. Her sole contradiction of Pettis ’ s account

— that she responded “ Why not? ” when asked why she applied for the position

— does not adequately address the detailed reasons Pettis provided for his decision Denham could have offered affid avits highlighting her interview strength s , that Pettis did not bring energy or passion, or statements indicating Pettis had biases.
But she failed to present such evidence.
Furthe r , Denham has not successfully demonstrated that
Pettis ’ s preference for Tr eadwell ’ s clinical experience over hers constitutes a pretext

. Pettis ’ s testimony provided a clear and specific rationale for this preference: Pettis viewed Treadwell ’ s clinical andleadership experiences as beneficial for students during their clinical r otations and valuable for the Associate Dean role. Pettis agreed that Denham had solid experience but highlighted Treadwell ’ s leadUSCA11 Case: 23-12439 Document: 23-1 Date Filed: 05/16/2024 Page: 12 of 1423

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ership in supervising a large team of therapists and managing multiple skilled nursing facilities as key factors in his decis ion. Denham did not contest Treadwell ’ s possession of significant clinical experience, nor did she claim that her own experience was valued by Pettis. B. Convincing Mosaic Denham also argues that the MJ erred in finding that she failed to c reate a triable issue of fact under the convincing mosaic theory

. Under this theory, a plaintiff can defeat a summary judgment motion by presenting a “convincing mosaic” of circumstantial evidence that “raises a reasonable inference that the employer disc riminated against [h er ].” See Smith v. Lockheed

- Martin Corp. , 644 F.3d 1321, 1328 (11th Cir. 2011)

. A convincing mosaic can be established by pointing to evidence that demonstrates: (1) suspicious timing, ambiguous statements, or other information from w hich discriminat ory intent may be inferred; (2) systematically better treatment of similarly situated employees; and (3) pretext. Lewis v. City of Union City , 934 F.3d 1169, 1185 (11th Cir. 2019).
Like her McDonnell Douglas argument, she contends that a
p roper application of the evidence would have shown that (1) Treadwell was unqualified for the position, (2) Denham had superior qualifications, and (3) Pettis’s subjective reasons for choosing Treadwell were pretextual. A s discussed
, Denham has not provided evidence to challenge Pettis’s reliance on the Handbook’s exceptions for recommend ing Treadwell
, the di sparity in qualifications USCA11 Case: 23-12439 Document: 23-1 Date Filed: 05/16/2024 Page: 13 of 1414 Opinion of the Court 23

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between Denham and Treadwell is not enough to suggest discrimination
, a nd Denham has not shown that Pet tis’s reasons for hiring Treadwell were pretextual. Therefore, we are not convinced she has presented a convincing mosaic of evidence that would raise a reasonable inference of discrimination.

C. Mixed

‐ M otive

Last , Denham argues that the MJ erred in finding that she did not create a triable issue of fact under a mixed

- motive theory. In mixed

- motive cases, at summary judgment, a plaintiff must produce evidence sufficient to convince a jury that the employer took

an a dverse employment action against the plaintiff and that a protected characteristic was a motivating factor for the adverse employment action. Qui v. Thomas Cnty. Sch. Dist. , 814 F.3d 1227,
1232

– 33 (11th Cir. 2016); see also 42 U.S.C. § 2000e

- 2(m).
Denha m ’s argument
, under a mixed

- motive theory
, reiterates her previous claims that Treadwell was unqualified, Denham had superior qualifications, and Pettit’s subjective reasons for choosing Treadwell were pretextual. W e reject these arguments because , as discussed above, Denham has not pro vided evidence sufficient to show that her race or sex was a motivat ing factor in ASU’s decision to hire Treadwell.
Conclusion For the reasons discussed above, the MJ ’s order granting ASU summary judgment is

AFFIRMED. USCA11 Case: 23-12439 Document: 23-1 Date Filed: 05/16/2024 Page: 14 of 14