*1 charging goes beyond officials sexual harassment' re- far what the framers of the taliatory discharge exercising right of First Amendment It will envisioned. add to speech, complications already free the district court held that the existing manifold plaintiffs complaints administering types government, about sexual harass- all public especially government ment large did address matters con- sectors of with a appeal, Appeals cern. On of employees Allegheny the Court of as has dis- number Coun- tinguished speech pertaining ty, enlarge needlessly between by its cost public agency’s discharge governmental litigation. of its threat of mischievous We should speech responsibilities relating to entangled every employment inter- not become personnel working nal disputes merely allegations condi- dispute because there are It suppression speech. Callaway, tions. also considered the of the motive of free speaker speech produced ascertain whether the was F.2d at 416. has not Azzaro suffi- personal grievances, calculated to redress cient reasonably evidence from which one can employee, that, form, spoken content, context, and therefore or conclude or concern, public speech any public address broader and there- was a matter of con- David, spoken Therefore, fore as a citizen. respectfully F.Bd at cern.1 I dissent on plaintiffs 1355. The court concluded that the First Amendment issue. complaints supervisors to her and her letter “on
focused the conditions of her own em-
ployment” and in neither her EEOC com-
plaints City nor Attorney her letter to the allege employees had been
subjected to harassment or that harassment
or depart- retaliation had interfered with the performance of governmental
ment’s re- Beryl BRAY, Appellant, sponsibilities. Id. at 1356. v. Likewise, Ford, Morgan (11th MARRIOTT HOTELS Cir.1993), left her a/k/a Corp. Corp., Marriott Hotel Georgia Department with Mar- a/k/a/ of Corrections Inc., Resorts, riott Hotels and John Doe supervisor subjected because her her to sex- Corp. # and XYZ # 1-5 1-5. ual workplace. in the The Court harassment of Appeals in this case also affirmed the 95-5662. No. grant district court’s judgment supervisors. Plaintiff United Court of Appeals, did not States relate complaints public attempt Third Circuit. public. “speech involve Her was driven Argued Oct. by entirely her own rational self-interest in April improving Decided employment. conditions of her complaints behavior, Her about Ford’s were,
serious as centered around her
private employee griev- matters.... As an
ance, Morgan’s speech was not matter of
public concern.”
III. majority’s fear that the today extension protection speech constitutional of free 1. Because Azzaro speaking has shown that her conver- public terest when about a matter of sations Fox and Sirabella were matters of against government’s concern as interest in concern, public necessary I do not deem it operations the efficient conduct of its and the balancing required conduct interests as performs. effective services it Connick, Pickering weighing Azzaro's in- *2 Hackensack,
Joseph (argued), H. Neiman NJ, Appellant. Whitney Crahay W. (argued), X.
Francis Prout, Milestone, Bremer, William J. Gina G. Wachenfeld, Jr., New- Tompkins, McGuire & ark, NJ, for Appellees. MeKEE, Circuit
Before: ALITO GREEN, Judge.* District Judges, and * designa- Green, Pennsylvania, sitting by Senior em District Honorable Clifford Scott Judge, Court for the East- tion. United States District tions, Steussy, THE OF COURT and Robert the Director of
OPINION Resources, as Human McKEE, Judge. Circuit the various candidates.1 227a-28a. Beryl appeals from district initially Nemetz testified that he ranked summary judgment in grant court’s favor scores,2 by their PAF the candidates but all Corporation. Bray of the Marriott Hotel *3 forth in criteria set Marriott’s Center filed suit the district court for District Management System Planning Career Guide- Jersey alleging New race discrimination Policy Planning lines for the Career Process Rights under Title VII of the Civil Act of (“MCMS”) deciding were considered in which (“Title VII”), amended, 42 U.S.C.A. one candidate would be interviewed. The (1981 §§ Supp.1994) to 2000e-17 & 2000e following MCMS sets forth the consider- Jersey Against the New Discrimination Law employed ranking to be ations candidates 10:5-12(d). (“NJLAD”), § For the N.J.S.A. position: for follow, reasons that will and re- we reverse EXPERIENCE proceedings mand for further with consistent * opinion. this Compare each candidates relevant work
experience
pre-
post-Marriott.
both
*
I.
experience
position
What
level
does
require?
female,
Bray, an African-American
a room
hired as
attendant at the
York
New
PAF RATING
Marquis
*
App.
Marriott
in 1985.
99a.
higher
Does one candidate have a
PAF
eight months,
Within
she was
rating than another?
and,
Manager,
Housekeeping
Assistant
two
*
[Manage-
Evaluate the candidate’s MDA
later,
years
promoted Housekeep-
she was
Development
ment
or
Assessment]
SDA
ing Manager
Ridge
at the Park
Marriott in
[Supervisor Development Assessment]
Jersey. App.
early
New
at 100a-02a.
(if available) along
skill require-
with the
Ridge
“posting”
Park
initiated a
position.
ments of the
position
“Posting”
of Director of Services.
TRAINING AND EDUCATION
process by
employees
Mar-
within
*
position require
Does the
extensive or
posi-
riott
are
for
who
an available
specialized training (e.g., culinary, reve-
company
tion within the
make
their
known
management,
systems)?
nue
information
position.
desire to
considered for that
*
Any associate who satisfies the minimum re-
Does the
necessary
candidate have the
quirements
job
opportunity
has the
training and education?
have his or her
“posted”
name submitted or
RELOCATION
position.
for the available
An
can-
associate
* Cost of Relocation for each candidate in
post
for a
he or she is not
budget.
relation to
position.
for that
* Input
Regional
Team senior
or
man-
Bray posted for
of Director of
agement, i.e., Regional or Senior Vice
Services which had
vacated
her for-
been
President if house move is involved.
supervisor,
App.
mer
Richard Lesser.
at"
SALARY
109a-10a. Between
seven
nine
* Comparison
salary
of candidate’s
in rela-
posted
position.
candidates
hotel’s,
department
tion to the
staff
App.
Nemetz,
at 225a. In
deposition,
his
Leo
support operation’s budget.
Manager
the General
the Park
*
Hotel, explained
Importance
Marriott
position salary
he conferred
budget
vs.
Joosten,
George
Opera-
salary.
Director of
candidate’s
Although
spellings
1.
formally
employees
several different
''Joos-
evaluates its
"Steussy” appear throughout
ten'’ and
the rec-
assigns
sliding
them a "PAF" score on a
scale of
ord,
rely
those used
the district court's
being
highest.
app.
to "4”
"1”
with "1”
See
opinion except
quoting
when
text where a differ-
137a,
spelling
ent
is used.
of Services
in his motion Director
because
Nemetz farther stated
at 43a.
App.
against
filed
par-
Black and then
this suit
who
all three individuals
deposition that
Following
VII.
unanimously agreed Marriott under Title
discov-
meeting
ticipated
Riehle,
granted summary
court
ery,
the district
who is White and
that Therese
hotel,
against Bray
judgment
and in favor of Mar-
working at a different
been
riott,
top
appeal
and this
followed.
candidate.
as the
be interviewed
would
was hired effective
App. at 231a-32a. Riehle
Discussion
According to
at 50a.
April
Nemetz,
promoting
principal reason
II.
highest PAF
she had the
Riehle was that
jurisdiction pursuant to 28
We have
U.S.C.
230a, 235a,
he insisted
rating, app. at
§
final
1291 to review the
order
the dis-
in the
all of the factors
MCMS
court,
jurisdiction under
trict
which exercised
*4
considered.
seq.
supplemental
§
42
et
and
U.S.C.
2000e
working for
begun
Riehle had
1367(a).
jurisdiction
§
pursuant to 28 U.S.C.
co-op
App. at 69a
May 1988
a
student.
grant
a
On review of
district court’s
1989,
a
as Assis-
accepted position
an
In
she
summary judgment,
apply
the
test
same
at
New
Housekeeping Manager
the
tant
applied
district court should have
initial
the
and,
1991,
she
Marquis
York
ly. Sempier
Higgins,
&
45
v. Johnson
F.3d
Director of
Assistant
Services
became the
—
(3d
denied,
U.S.-,
724,
Cir.),
727
cert.
Pro-
74a.
Associate
App.
there.
at
Riehle’s
(1995).
2611,
115
stead,
under Title
position.
In a case of failure
Riehle
offered
VII,
carry
bur-
plaintiff
must
the initial
denied the
claimed that she
been
following subjects:
seminars included the
4. The
3. Personnel evaluations and
information
skills, drugs
management
in the work-
stress
relating
employee’s joh performance and
to an
counseling
responding
emergencies,
place,
background
employee's
are maintained in the
skills,
skills,
leadership
planning,
and dis-
career
Associate Profile.
cipline skills.
establishing
prima
employer
facie
infer “that the
did not act for
den of
case of
Thus,
plaintiff
nondiscriminatory
[the asserted]
unlawful discrimination.
reasons.”
that he
must
or she
establish
(citation omitted).
Fuentes,
(1)
protected category;
to a
belongs
Otherwise,
employer
judg-
entitled to
(2)
applied
for and
for a
ment as a matter of law.
(cid:127)
position;
in an available
pretext may
An
inference
arise
(3)
rejected;
plaintiff
suspicions
can
respect
raise
with
(4) and,
rejection,
after the
credibility
employ
or the
the defendant’s
open
employer
con-
remained
employee.
Josey
er’s
v.
treatment
applications
per-
seek
tinued to
from
Hollingsworth Corp.,
R.
John
plaintiffs qualifications
sons of
Cir.1993).
inference, along
638-39
position.
components
plaintiff’s prima
Green,
Douglas Corp.
McDonnell
U.S.
ease,
jury
allow a
facie
to conclude that
792, 802,
1817, 1824, 36
93 S.Ct.
L.Ed.2d 668
illegal
actually
motivated
(1973).5
bias,
compel
but it does not
that result. See
elements,
If
plaintiff
fulfills these
the Sheridan,
Moreover,
demonstrate such asserted applicant that Riehle was the best ities, inconsistencies, incohereneies, position pointed to a host of contradictions in support factors to its contention. Riehle had legitimate score, and, reasons for action higher its that a although Bray PAF had rationally reasonable factfinder longer, could find been at it contended that “unworthy them of credence” and experience hence superior Riehle’s was as reflected Here, position cases, open did specification prima not remain after VII and the ... of the Rather, Biay rejected. required proof necessarily appli- facie ... is not Bray. filled when Riehle was chosen over How- every respect cable in to different factual situa- ever, this variance from the letter the McDon- Douglas Corp., tions." McDonnell 411 U.S. at Douglas Corp. nell formula is not relevant to our 802 n. S.Ct. at 1824 n. analysis. necessarily vary "The facts will in Title (45 argument grade legal judgment.. on occupational level Giv- higher 43) concession, supervision district and her en court assumed compared to Joosten, George Opera- the Director of managers. Marriott also noted of five tions, experience Bray did afford a luncheon with renovations interview prior Riehle’s preferring promotion. dispute her to for over that reason added is, however, begin significant were due to interview to our anal- Bray renovations because ysis worthy Ridge. experience, That howev- of discussion. the Park er, analysis our of limited assistance to procedure MCMS forth the sets expe- testified that Riehle’s because Nemetz promotions within and criteria Marriott. did factor into rience with re-dos outlining In addition criteria Moreover, rankings. Dist.Ct.Op. at 19. screened, promotions applicants for are suggests that is evidence that there initially states one candidate should experience until not learn of this Riehle’s interviewed. interview, Bray dis- contends Upon screening conclusion the candi- occurred when Marriott decided crimination dates, only be chosen to interview deny promotion interview hiring person manager. with the This is Appellant Br. 19-20. Mar- Riehle. See by using all available determined informa- fact pointed that Riehle riott augmented by screening tion training ses- far more seminars attended cess re-rank the candidates. After the support contention that sions interview, in-person hiring manager Riehle was the better candidate. must decide whether to hire that candidate conducting subsequent before interviews.
B. begin by focusing dispute We App. at 44a. ever whether interviewed interview, that, during her insists testimony re and Nemetz’s *6 leading told her was candi- Joosten she promotion. for that garding her her decision after was date that first so, however, it doing that is the stress officially promoted hiring be would new guide totality that must our of the evidence vacancy to fill the housekeeping manager analysis strength of each rather than app. her that would create. See carefully argument. The dissent individual Nemetz, Manager the General of 328a. Leo of in this explains discrepancies each Hotel, deposi- the Park testified his that none of record isolation and concludes him had no tion that Joosten told there been of fact. them creates material issue See interview and that lunch Joosten Dissenting Op. previ at 1000-02. haveWe nothing opportunity more an was ously analysis improper such an is noted that Bray. acquainted with Joosten to become case: a discrimination Lesser, Bray’s App. at Richard. 233a-34a. playA cannot be understood on the basis “I supervisor, his stated in affidavit: only its on its entire of some of scenes question been that there is advised similarly, performance, and a discrimina- George up Jooston set whether or not analysis tion must concentrate on indi- Beryl Bray position for the of interview with incidents, but on the overall scenar- vidual set of This interview was director services. io. my up presence.” App. at 325a. We must City Philadelphia,
Andrews v. Bray of was interviewed for take as fact that Cir.1990). (3d Thus, we must policy, promotion. this Under totality evi- determine whether the of then considered the would mean that she was allow a factfinder to dence would reasonable position. candidate number one Bray has the al- conclude that established Therefore, could conduct before Marriott leged bias. candidates, subsequent interviews of Bray. But hotly was had to decide whether of interview issue court, been Bray did learn that she had denied the district but Mar- contested before told her that position until after Joosten purposes this issue for riott conceded Therese Riehle had interviewed and been could conclude that Nemetz’s erroneous view position ability offered the of Director Services. illegal was the result of bias. Yet, App. at 131a. that no Nemetz testified v. E.I. See Sheridan DuPont de Nemours & Cir.1996) (en they Co., candidates were interviewed until after 1067-68 ranked, banc) (the been had that ranked first factfinder can from a conclude scores, their PAF and that Riehle rejection explana- of an top interviewed was because she plaintiffs prima tion that facie case position candidate for the that rank- under plain- bias the actual reason a Title VII ing. App. at 228a-31a. promoted). tiff was not possible is
It that Joosten interviewed position Nemetz then retreated from his Bray decision-making pro- outside the formal Bray job,” “capable doing that was not (or and that cess the result of that interview attorney and his reminded him that it) even fact of shared with was never posted could not have for the responsible selecting Nemetz or others she not been possible Lesser’s successor. It is Q: your it was opinion Beryl Bray So Bray’s interview was not favorable qualified was not to be director of services Riehle then interviewed based ... ? PAF scores and experience. there No, my— A: it was not testimony no support conjecture, either and, were, even if up there would to a ' A: I should —she was think. not —let me jury to conflicting testimony reconcile the ranking. ranking used I used the surrounding Bray’s interview and the rank- of— ing of candidates. [Interruption by Marriott]: Counsel for I’ll dispute Bray’s ranking particu- just object question because Mar-
larly analysis relevant to our Title VII be- policy you riott’s post can’t un- even cause of Nemetz’s belief discredited you’re qualified position. less for the was not even exchange motion. The following occurred App. at 263a. The dissent to inter- chooses during deposition: Nemetz’s pret merely this as Nemetz’s inarticulate Q: you statement he was Beryl seeking Did think the “best” candidate, Bray, and that though qualified, to be the director services at qualified” was not the “best Park Ridge candidate. See Marriott? *7 Dissenting Op. at may 1001. A factfinder IA: can’t question answer that because I agree well with that interpretation, that but just go didn’t anything into other than use is not for us to decide. ranking. the —the Q: I’m upon Further doubt is asking you thought— if cast the selection best____ process by testimony Therese Riehle Nemetz’s was the I’m that Riehle ask- ing you unanimously you if was thought Beryl Bray selected the number one services____ App. qualified explained at to be the 232a. He director of candidate.. later given any Joosten had not input. No, A: I didn’t. sat in [Joosten] the room with us. When Q: you Can why tell me not? anything. said —I ask. No one said thought IA: she was an excellent em- any disapprovals No one had I said so to ployee who was a thought I maintainer. If Stucey, go Bob let’s up ahead and set capable job, doing the George prefer and said I staying out given it looking to her. But I was this. best candidate. added). App. (emphasis at 259a Riehle After at 262a-63a A fact- hired, Bray: Joosten told finder should why determine Nemetz felt “capable was not or equally qualified. You both are You had doing job.” Since a pri- she established experience. rating She had the of a VII, ma facie case under you Title factfinder one. And since you had were —since
993 process, give thought or failed all reasonable infer- a while we there for been you. plaintiff]”). arising be an incentive for therefrom [to ences wouldn’t Although Steussy and in- Joosten App. at 130a-31a. hiring process, apparent volved in the it is through act indi- employer can “An key on this record that Nemetz was de- supervisors employees; discrimi- vidual charge cisionmaker. He was in of the Park pursuant to a rarely carried out nation is Marriott, and both Joosten and Steus- corporation’s board of di- vote of a formal 200a, sy reported Bank, app. to him. See at FSB Vin- rectors.” Mentor Sav. 2399, 2409, Furthermore, son, 57, 75, although conflicting 106 91 there is 477 U.S. S.Ct. (1986). testimony played, L.Ed.2d to the role Joosten appears employ- partic- that he refrained from direct proof distinct method cases, relying pre- ipation ment discrimination in the decision to Riehle shifting sumptions and burdens articu- prior because had a connection he out of the production, lation arose previously Appel- hotel where she worked. recognition Supreme that direct Court’s 24; Therefore, app. Br. lee 258a-59a. employer’s of an motivation will evidence particularly it is to our relevant decision to ac- often be unavailable difficult discrepancies whether are there how quire. purported- Nemetz evaluated criteria he Sheridan, Therefore, at 1071. “[a] ly applicants relied rank the required produce plaintiff is not And select Riehle. we conclude that there necessarily leads to the conclusion were. nondiscrim- did not act for ‘that however, argues, The dissent none of Sempier inatory v. Johnson & reasons.’” evidentiary Cir.), discrepancies would allow a cert. Higgins, F.3d — denied, -, proffered jury to 132 reasonable doubt Marriott’s U.S. S.Ct. (1995). explanation looking L.Ed.2d 854 it was “the best” that, therefore, Bray cannot candidate jury conclude from A reasonable could prevail Fuentes or Dissent- under Sheridan. concededly inaccurate assessment Nemetz’s ing Op. We do not believe that Title at 10. reject her Bray that the decision to tightly by analysis racial is so constricted. This Riehle was driven bias VII interview explanations offered Mar- applied and not the' not be in a manner that statute must Sheridan, 100 See 1067-68 reality riott. racial animus can ignores the sad (“[T]he prima facie case and elements easily warp perspective an all too individual’s of the defendant’s reasons disbelief point he never or she considers findings, beyond which the threshold are protected of a class the “best” the member permitted, required, jury is draw person’s regardless of that creden- candidate leading it to conclude that there an inference position would immunize tials. dissent’s discrimination.”). A reason- intentional from the reach of Title VII jury that Nemetz’s able could also conclude belief that it selected was “more of a *8 apparent belief candidate, of was the result conscious “best” upon racial bias. maintainer” was based See here, Thus, not racial the issue bias. id. merely seeking was whether Bray was ra- If Nemetz’s assessment of but a reasonable “best” candidate whether biased, pur- cially interpretation of the his conclude that was factfinder could objective upon criteria he relied portedly In- because she is Black. deemed the best insulate Marriott’s hire Riehle would deed, if would eviscerated our Title VII See, from taint. employment decision sug- analysis to halt the dissent were where Hampton Borough e.g., v. Tinton Falls of gests. (3d Cir.1996) 107, Dep’t, Police we starting point, our examine With this as judgment (reversing summary in favor of justify proffered to that Marriott reasons ig- either employer where “district court Bray. of Riehle over discrepancies several in the evaluation nored “1” ratings position. 1. PAF evaluation of for that Since updated PAF was it is Riehle’s June applicant’s PAF Nemetz testified each given rating that the of “1” conceivable played,a major determining scores role performance to reflect in her that time her top Similarly, who was the candidate. However, position. new consis- is not court the decision to district concluded that testimony. tent with Nemetz’s Nemetz large part Riehle was based deposed in November of 1994 testified applicant’s profile scores in the PAF each was then due for Riehle an evaluation objective that these were a non- scores yet she had not but that been evaluated.8 discriminatory explanation why Riehle explanation, jury Absent further a reasonable picked Bray. had PAF Riehle could conclude that Riehle was evaluated out “1”, “1”, of and “2” for each of her scores sequence of her normal order to bolster prior All evaluations. three of most scores, hand, selection after had on the were “2s.” been interviewed. recent other See, Hampton e.g., Borough was aware that most recent Tinton Nemetz Riehle’s of “1”, Dep’t, PAF was but he to recall at was unable Falls Police Cir. 1996) (where deposition the two policy considering earlier evaluations. Board’s of However, the record raises an issue past years’ three evaluations it to allowed fact timing as to the of Riehle’s most three evaluations of can consider the White rating. recent had didate who received annual evaluations but six evaluations the Black candidate Although Riehle’s evaluations first two semiannually, who was evaluated a factfinder (11/16/91 11/14/92), year apart her application must determine whether recent most evaluation —the one Nemetz bias). policy due to racial pre- six after recalled —was months hand, all vious evaluation.6 On the other court The district noted that approximately evaluations were perfor- had top Ms. Riehle received the 9/21/92). (9/22/90,9/18/91, year apart At mance evaluation for her Mar- work with argument, oral was asked counsel during previous years, riott two receiv- why Riehle received a evalua- “semi-annual” Plaintiff, ing PAF rating. a “1” on appeared in what tion annual be an review hand, the other never received rat- process prior when all of her evaluations and ing during “2” previous above three Bray’s evaluations annual. had been He Thus, years. objective the most criteria explanation. could offer no A factfinder clearly pointed superi- to Ms. Riehle as the given if should determine Riehle was an eval- or candidate. and, so, uation out the normal sequence why. Dist.Ct.Op. However, at 13-14. record this suggests officially only
This record prior that Riehle reveals two scores to the time began “1,” April Director of on Services Riehle was interviewed. One was a 1993,7 given the same date that Therefore, she was was a “2.”9 other half of emphasized 6. The district court the fact that “Date in Pos:" also The form 4/10/93. top performance weekly salary "Ms. Riehle had received the notes her and states that effec- during evaluation her work with tive date of that rate is "4/10/93.” previous years, receiving two a T for her PAF rating." Op. Dist. Ct. at 13 8. This is consistent with an annual evaluation record, when this Court reviewed occurring in November as Riehle’s two reviewing grant summary, as we must in evaluation) (excluding April evaluations judgment, it became clear that one of the "Is” during occurred the month of November. during had been awarded a semi-annual review. argument, explain oral At why asked counsel to profile up- 9. Nemetz testified that the that was *9 given Riehle had been a semiannual review (the dated of in June one referred to the but he could not. court) upon district was not the one he relied in Riehle, ranking and the one that he said relied he Bray 7. The record does not produced App. when deposition. establish not was at his However, Riehle was interviewed. Riehle’s As- at This record 238a. does not what establish Profile, 15, 1993, updated prior sociate ratings pro- as June on three PAF Riehle’s before her Services, states that her is Director of motion were. Bray’s qualifications, accuracy of prior to the Riehle’s evaluations her two most recent scores, Bray’s not do as well she PAF and view of did Nemetz’s promotion, Riehle hand, Bray there is ability summary have. On to allow to survive could supervisor, former Rich- judgment. that evidence Lesser, anything higher than gave
ard never Experience 2. possi- Bray highest “2” that received the a so Bray argues experience that is the most of the three evaluations grade for each ble important promoting within factor Mar- employment profile. Lesser stated his to that my points director of riott and the fact is first “During tenure as affidavit: services, among given rating a PAF the criteria the MCMS.10 Mar- I had never any argues experience many I manager a that was riott that higher than two to App. at 325a. The factors and that there is no responsible to review.” to be considered correctly Lesser particular court noted that that district order criteria are eval- Bray a “1” parties argue that would have received about not state uated. The also which Marriott was policy experience for this that applicant superior had the higher rely upon to Riehle’s score types experience entitled how different should be score resulted from if lower agreed even with Mar- valued. The district court grading practice. See experience Lesser’s individual superior riott that Riehle’s However, 13. Dist.Ct.Op. n. that at 13-14 Bray’s. court noted failure to not answer whether Nemetz’s does testify not although Mr. Nemetz did as to highest recognize Bray had received the subjects ... these this court notes that a result of biased grade available background in- Ms. Riehle’s educational qualified rather than that she was belief degree in cluded a Restaurant Hotel Man- objective PAF scores evaluation agement, plaintiffs college ... while de- The district court not- both candidates. gree encompassed English fields of any- no produced evidence ed Further, ... History____ Ms. Riehle knew that one involved “Manager awarded a of the twice Dist.Ct.Op. “Is.” at Lesser never awarded Month” ... while has award Furthermore, disputed n. 13. Nemetz 13-14 analogous pointed no awards. gave “1” ever and testified whether Lesser However, manage- n. if Op. Dist. Ct. at 6 thought telling he Lesser that he recalled consider factors in evalu- ment did not these employee a “1” given him that he had to an candidates, ating experience two n. Dist.Ct.Op. at 13-14 on an evaluation. the factors should have been considered Although dispute whether there is about by the court. The issue not wheth- district “1,” dispute no gave ever there is Lesser why legitimate er the can find a reason court thought Bray should have been that he have Riehle but Marriott could told moted. Lesser testified that he Joosten legitimate reason whether Marriott had promotion: racial animus. that was not the result of my opinion, which let known Mr. “In weigh judge’s function is not to “[T]he of, Mr. was aware Jooston Jooston of mat- and determine the truth take Beryl was more than ter, is a but rather to determine there my position director services court genuine issue for trial. district day, I To this cannot Park Marriott. at the cannot decide issues of fact posi- why she was not offered understand Hollings judgment stage.” Josey R. v. John realize, App. 325a-26a. We tion.” (3d Cir.1993) Corp., 996 F.2d worth course, appli- never Riehle’s Lesser saw omitted). (citation qual- thought better cation and that, ranking candi- Nemetz testified he ified than done so. dates, “is thing looks at the latest enough he point. is not There are first their hotel.” rating received at disputed concerning on this facts record pre- post-Marriott.” requires managers “[c]ompare both 10. The MCMS (sic) experience work each candidates relevant *10 App. placing promotion posi- asked to prior at 215a. whether 18 months When tion, primacy rating policy on the PAF is a Marriott, acknowledged that it was Nemetz AND anybody’s. just policy if “[n]ot It’s c. has a on last PAF Associate candidate, you’re going go to best rating.... generally you by looking rating.” do that at a AND hand, App. Bray, on at 215a. the other d. ob- Associate satisfies the minimum knowledge common contends “[i]t jective requirements position for the experience the Marriott that was the number job applied profile noted on the for as deciding promotions.” App. one criteria in Guide, Planning in the Career alone is insufficient to Profile While her belief position applied is listed fact, raise an see issue material Fuentes qualified po- “possible one of the next Cir.1994)(the Perskie, 32- F.3d sitions” in the associate’s MCMS' approach “not not create a so” “does material file. fact”), significance issue of it on added takes “[experi when that fact that combined with App. jury at 42a. A determine should pam listed ence] is the first criteria in the any significance whether there is to the order defendant, provided phlet by the MCMS.” MCMS, and, so, of the factors in the App. at 329a-30a. The MCMS lists in the failure whether Nemetz’s to use that order following that should order factors be consid racially According motivated. to Joos- in ranking promotion: ered for a candidates ten, Bray experienced was more than Riehle: experience, rating, training PAF and edu ‘You are both equally You had cation, relocation, salary. sug Marriott experience. rating had the of a She one.” gests not in impor that this list is order of fact, App. suggested at 130a. Joosten tance preceded because the statement experience might hurt her: following “The are additional considerations you you “And since were —since had been help to rank the order candidates.” See thought there for a while we wouldn’t 30; Appellee app. Br. at at 43a. Marriott you.” App. A incentive for at 130a-31a. may be correct. the order does jury certainly improper could conclude that suggest a priority. example, certain it is For racial animus Marriott to caused look unfa- implausible that Marriott intended relocation vorably upon experience. salary outweigh considerations to or be argues Marriott its violated given equal with such consideration factors policy failing give priority own to to her experience rating. Thus, and the PAF prior experience at the Park in order “Salary” and “Relocation” are listed last. justify going promote outside that hotel to MCMS, Moreover, in the this list of addition Riehle. stating counters al immediately preceded by considerations is Bray incorrectly policy states that requirements posting, primary of give priority appli- decisions to appears experience: to be subject cants points at the hotel. a letter
Any
from the
President of
associate
meets or
Vice
Human
who
exceeds the
May
Resources for Marriott dated
following
requirements
minimum
for a
“Keep
That
showing
letter states:
in mind that
Availability Report
on the
there
Job
will
be a
opportunity
have the
number of
candidates for
have their name
any
that,
searching
(posted)
submitted
before
ap-
wish to
should
hiring
ply
job:
region,
managers
outside
their
will
try
open positions
within
fill
first from
a.
spent at
Associate has
least 18
region.”
their own
hotel or
at 296a
position (Opera-
months in current
Supervisors
Managers
tions
only),
Nevertheless, Richard Lesser stated un-
OR
equivocally in his affidavit that “[i]t was com-
eligibility
b. Promotion
date in
mon knowledge
policies
MCMS
that one of
ready
indicates the associate is
for Marriott was to
from within the
*11
“only”
App. at
had
attained the level of
possible.”
326a.
subject hotel if at all
by Housekeeping Manager
Ridge
is corroborated
at the Park
contention
preference
that no
testified
Nemetz who
of Assistant
while Riehle had earned the title
applicant in the same hotel
given to an
Director of Services at the New York Mar-
a factor in
is not even
that this distinction
14, 15,
quis
Dist.Ct.Op.
Marriott.
See
promotional decisions.
However,
deposition
in
Nemetz
his
testified
Q:
making
in
the decision
Is it a factor
job
there was no difference
these
fact that
indi-
promote, the
to who to
“It is based on the size of
classifications.
hotel and one is not?
vidual is
the same
bigger
calling
position
with
hotel”
hotels
A: No.
“Assistant Director of Services” and smaller
Q:
a factor?
It’s not even
calling
“Housekeeping Manager.”
hotels
No.
A:
at 239a. Nemetz even conceded that
higher position
could not have held
App. at 222a.
than the one she had without the
truth, applicants
telling
If Lesser
seeking
only position
as that was the
given priority
from within were
Housekeeping Manager at her hotel.
above
Ridge despite Mar-
Park
motions
contrary. Given Nem-
policy
riott’s
certainly
give
Marriott
entitled to
Bray, a reasonable factfinder
etz’s view of
greater weight
Riehle’s
title
managers
at the Park
could conclude
only
if
is the size
even the
difference
titles
preference
candi-
Ridge stopped giving
they
working.
of the hotels where
were
only
already at that hotel
when she
dates
However,
not do so
racial
anoth-
competing with a candidate from
grade
colored
level would be
bias
how
course,
region.
Marriott in the same
Of
er
say
do not
this is what
valued. We
certainly
could
conclude
a factfinder
happened
only that sufficient issues of
here
simply
about the hir-
Lesser was
mistaken
entry
preclude
fact
exist
Marriott,
ing policy
Ridge
at the Park
judgment.
that a reason-
We do
doubt
If
factfinder
is not for us to decide.
accept
factfinder could
all of Marriott’s
able
policy prior to
to conclude that
conclude that Riehle was
explanations and
with what
Bray’s application was consistent
simply
because Riehle
knowledge,”
thought was “common
Lesser
upon all of
superior
was the
candidate based
signifi-
on increased
interview takes
says
it used to make the
the criteria
It would further establish
cance.
However,
does not
decision.
this record
in a
experience had been evaluated
manner
compel that result as a matter of law.
top-ranked
that made her the
candidate
promotion.
It would also be consistent
significance
evidence is
of such
.for
Bray’s testimony that she was led to
determination,
jury’s
not a court’s. Had
during the interview that Marriott
believe
discrepancies
presented to a
these
been
candidate,
top
and she
considered her the
expla-
jury, may
have found defendants’
that her first decision would be
was advised
credible,
quite
returned a ver-
nations
manager. App. at
housekeeping
to hire
that is not
dict
their favor.
employ,
that we
nor is it the test
the test
employed.
district court should have
Occupational
Levels
Grade
in favor
Drawing all reasonable inferences
occupa-
court noted that the
The district
must,
clear that
plaintiffs, as we
it is
for Riehle
grade
tional
levels of 45
jury
to have a
decide
were entitled
Bray respectively meant
that “Ms.
...
whether or not the reasons
attained the
of Assistant
Riehle had
pretextual.
were real or
York Mar-
Director of Services at the New
Hampton
Borough
Tinton Falls Police
risen to
quis Marriott while
Thus, we will reverse
Dep’t,
IV.
here because I do not see
Fuentes.
dissent
proof
burden of
The allocation
*12
plaintiff, Beryl Bray,
having met
prima
plaintiffs
role of
facie case as
and the
showing
evidentiary
pre-
burden for
Fuentes
recently
in Fuentes and more
first set forth
text.
equally applicable
reaffirmed
Sheridan
v. Brown &
to a NJLAD claim. Romano
court, Bray argued
In the district
that she
Corp.,
N.J.Super.
284
Williamson Tobacco
summary
Marriott’s
was entitled to survive
(App.Div.1995). Romano
legitimate
proffered
reasons
the defen-
tencies, incoherences or
contradictions
reasonably
dant so that a factfinder could
employer[’]s proffered legitimate reasons to
conclude that each reason was a fabrica-
summary judgment
regarding
overcome
tion; or
plaintiffs
(Appellant’s
Title VII claim.”
Br.
(2)
2).
allows the factfinder to infer that dis-
legitimate
reason
likely
crimination was more
than
why
Therese Riehle over
motivating or determinative cause of the Bray
was that Riehle was better
employment
adverse
action.
Bray counters with the assertion that
qualifications
evidence shows that her
were
Id. at 762
In Sheridan v.
Co.,
much
than
so
better
those
Riehle that
E.I. DuPont de Nemours &
Cir.1996),
explanation
why
petition
1067
“there is no reasonable
as to
cert.
(Feb
1997) (No.
filed,
Beryl
given
U.S.L.W. 3571
Riehle
honestly
ployer
seeking
quali-
the best
using race as a consider-
6).
fied candidate.
(Appellant’s Br.
ation.”
prong
It is crucial to understand that
one
prong one
kind of evidence does
What
merely
plaintiff
points
is not satisfied if
requirement is that
prong
require?
evidence that shows
“evidence, either
point
has to
roughly comparable
to those of her
circumstantial,
factfin-
from which a
direct or
competitors.
prong
Nor is
one satisfied
reasonably ... disbelieve the em-
der could
evidence that the
is not “fair” or
Fuentes,
reasons.”
ployer’s articulated
general
Prong
“kind” as a
matter.
one re-
explains
at 764. Fuentes
that:
*13
quires
plaintiff point
to evidence from
,To
proffered rea-
employer’s
discredit the
which a
can
reasonable factfinder
“disbelieve
son, however,
simply
cannot
plaintiff
the
employer’s
the
articulated
reasons.”
employer’s
show that
the
reason
Fuentes,
(emphasis
at 764
32 F.3d
mistaken,
factual dis-
wrong or
since the
higher
“Disbelieve” is a
standard than “dis-
discriminatory
pute at issue is whether
agree.”
enough
It is not
for the evidence to
employer, not
animus motivated the
that a
be such
reasonable factfinder could
shrewd,
wise,
employer
pru-
whether the
disagree
with the
as to which can-
Rather,
dent,
competent.
non-mov-
or
the
Instead,
better
didate was
the evi-
ing plaintiff must demonstrate such weak-
dence must be such that a reasonable factfin-
nesses,
inconsistencies,
implausibilities,
truly
der can infer that the
was not
employer’s proffered
contradictions in the
candidate, i.e.,
looking
for the best
legitimate reasons for its action that
employer’s
legitimate
articulated
rationally
could
find
reasonable factfinder
pretextual.
reason was
The burden on a
unworthy of
them
credence.
seeking
prong
plaintiff
proceed
on
one is
“
(internal
quotations
Id. at 765
citations and
difficult,
explains,
‘[i]t
Fuentes
arises
omitted).
goal of
from an inherent tension between the
society’s
all
law and our
com
discrimination
on a
Fuentes tells us that
the burden
decisionmaking by
pri
mitment to free
plaintiff
proceed
prong
under
who chooses
”
vate sector in economic affairs.’
32 F.3d at
That
one is a “difficult”
Id. at 765.
one.
Block,
Wolf,
(quoting
765
Ezold v.
Schorr &
“difficult” makes
prong
burden under
one is
Solis-Cohen,
509,
Cir.1992),
983
531
F.2d
plaintiff
attempting
to indi-
sense because
denied,
826, 114
cert.
S.Ct.
U.S.
rectly
intentional
produce an inference of
(1993)).
L.Ed.2d 56
out of the fact that the em-
discrimination
hand, Bray’s
ployer’s proffered
Moving
reason was untrue.
back to the case
Hence, where,
here,
prong one was to show either
as is the case
the defen-
burden under
among
many
that it made the choice
there were so
inconsistencies
dant asserts
procedures
the criteria and
that Marriott
candidates that it did because wanted the
candidate, plaintiff
process
selection
that a reasonable
qualified”
would used
“best
process
could infer that the
point
have to
to evidence that showed either
factfinder
(1)
finding
aimed at
the best
process and
sham and was not
that the defendant’s selection
candidate,
or that
herself
criteria
filled with such inconsistencies
qualified than Riehle for the
seeking
claim that it was
so much better
that the
job
question
factfinder
qualified” candidate was a sham or
reasonable
the “best
not,
fact,
(2)
that Marriott did
qualifications
person
of the
actu-
could conclude
quali-
honestly
that Riehle was
ally promoted
much lower than those
believe
better
were so
majori-
Bray. because the
competitors that a reasonable factfin-
fied than
dissent
of her
ty
holding
to her
claim that the em-
has not come close
der could disbelieve the
Paradigm,
Bray's
60 Alb.L.Rev.
ultimate burden at trial will be to dem-
rate Treatment
(1996).
summary judgment
onstrate that intentional
racial animus was
effect,
non-promotion
a re-
prima
reason for her
only
stage Bray
to demonstrate her
needs
—in
prong
quirement
Fuentes,
demonstrate
two of the
that she
prong
one. See
facie case
Chambers,
Henry
Getting
L.
Fuentes test. See
at 764.
Right: Uncertainty
Dispa-
and Error in the New
unfairly by
following
its own internal
thereby
has
prong
under
one and
burden
giving
proper notice
procedures as to
prong
Fuentes’
impermissibly diluted
rejected
failing
give
summary judg-
that she had been
crossing
requirements
rejection.
explanation
proper
her a
for her
ment.
where the
evidence was
If we had case
here,
articulating
majority
after
qualifica-
competing
employees
that the
Fuentes, goes
cite
prong
from
one test
roughly similar and the
tions that were
Hollingsworth Corp., 996
Josey v. John R.
managerial po-
question was a service-sector
(3d Cir.1993),
propo-
638-39
here,
sition,
as the one
the case would
such
may
pretext
inference of
“[a]n
sition that
easy.
managerial
In
such service-sector
suspicions
can raise
with
arise
jobs
candidates are
credibility or
respect to the defendant’s
loosely
often no more than
correlated
employee.”
employer’s treatment
to which the candidates are seek-
added). Relying
Maj. Op.
at 990
ing promotion,
qualifications being
and the
Josey,
derived from
this statement
subjective
weighed tend to include
internal
majority
from which a
identifies evidence
important
evaluations of the candidates
factfinder could conclude that Marriott
components of the final determination.
*14
Bray unfairly
following
in not
have treated
case,
qualifications' of
such a
unless the
the
reject-
processes
firm
proper
the
internal
extremely disproportionate, it
candidates are
acknowledge
ing her.
I
that this evidence
deny
to
how a district court could
is hard
see
satisfy
literally
the statement that “[a]n
does
summary judgment
employer
to an
who
may
plaintiff
if
pretext
inference of
arise
the
it,
judgment,
claims that
in its business
suspicions
respect
can raise
with
the defen-
thought
qualified
one candidate was better
credibility
employer’s
dant’s
or the
treatment
Ezold,
than the other.
who was If qualified. thought Bray was not issue is The doing may job, I capable was prof- Marriott was not in its whether credible looking But I to her. was given it honestly thought it Riehle to be the fer that qualified candidate. best how qualified” candidate. I fail to see “best majori- (emphasis Maj. Op. at 992 added deposition pointing language to loose in a ty). majority state- latches on to the satisfies this burden. Bray that he not think ment of Nemetz job,” majority proceeds identify an- doing the that then “capable of and claims says it casts clearly piece was so that of evidence that the statement erroneous ... there selection could have concluded that doubt “[flurther factfinder Maj. Op. at process. in the 992. This evidence illegal was bias selection cess.” testimony by that Riehle utterly deposition I to see this. Nemetz Maj. Op. at 992. fail “unanimously” by a three- appears matter to have had been selected As a literal Nemetz number was committee as the suggesting in error that member selection been Later, Maj. doing job.” Op. But in his candidate. at 992. “capable one statement, explain his very qualified he what he Nemetz modified next Joosten, members, George I three explaining: “[b]ut about one of the had said Maj. stay out of looking qualified the best candidate.” had asked to the decision.12 was added). (emphasis Op. This would this evidence show Maj. Op. at 992 at 992. What thought not attack or implies factfinder? It does latter statement that Nemetz reasonable any among qualifica- bring not the into doubt of Riehle’s “best” Nemetz, Instead, it candidates, all shows is that and that that what he meant tions. any- opposed Maj. Op. If at 992-93 12. There is no that Joosten fact, promotion. Riehle was appears explanation after thing, Riehle's from it Joosten's hired, Bray: told he colleagues' his two determination he did not find equally qualified. had the You are both You qualified candidate was the that Riehle better rating And experience. She had the of a one. though thought two problematic, even he you you there for a were —since had been since equally qualified. candidates were thought it incentive wouldn’t be an while you. again, piece once was loose with his characteriza- There is one of evidence that process. majority points directly tion of the facts as to the selection to that I see goes attacking thought unless the evidence to under- Marriott’s claim that it thought it qualified. mine Marriott’s assertion that Riehle was better Nemetz testi- higher performance ratings Riehle was better fied that Riehle’s (“PAFs”) reason, Bray for that should lose were a crucial factor in Marriott’s judgment.13 thinking that Riehle was better Bray. Maj. Op. undisputed at 994. It is patience by I will not test the reader’s higher Riehle’s raw PAF scores were describing comparative evidence as to Bray. than those of Riehle had two scores of qualifications. merely I Riehle’s “2,” “1” and one of all whereas reiterate while the evidence majority scores were “2s.” But has clearly superior show Riehle was found evidence in the record that it views as candidate, thought, as the district court showing suspicious. these scores to be What approximate- shows that the candidates were majority has found is that one of Riehle’s ly equal qualifications. people Reasonable evaluation, evaluations was a “semi-annual” probably thoughts could differ on their as to opposed to the normal “annual” evalua- qualified, candidate was better Maj. Op. This, tion. majority at 994. question. ques- that is not the Instead the suggests, puts suspi- the PAF scores under prong analysis tion this is whether a cion. determine, reasonable factfinder could based evidence, on the agree Marriott could not have that if given indeed Riehle honestly thought additional, qual- that Riehle was better unexplainable unscheduled and re- view, subjective many ified. Given the nature of improper bolstering looks like an qualifications being credentials, considered and the and could make it somewhat amorphous question plausible nature of the of what for a factfinder to conclude that perform was, were needed to the Marriott did not think that Riehle specific job fact, being for which better But I can find no sought, I do review, not see how a factfin- reasonable mention of this “semi-annual” let honestly der could find that Marriott any argument it, did not alone anywhere based on *16 think qualified. Riehle to be better briefs.14 Nor can I find reference to discrepancies inconsistencies and that point this in papers opposing summary identified qualifica- judgment were too minor and the in filed the district court. tions of the candidates too similar for a rea- I problematic believe it impor- to attach sonable factfinder to determine tance to inferences that could be drawn from lying when it stated Riehle was parties evidence that have not had an selected because Marriott believed opportunity adequately she was to consider and ex- more plain. addition,
13. testimony In there was from the Issues not raised are waived. See Laborers' Park Marriott's former Director of Ser- Energy Int’l Union N. Am. v. Foster Wheeler of vices, Lesser, Richard that "it was common 375, (3d Cir.) ("An Corp., 26 F.3d 398 issue is knowledge policies that one of the at Marriott party opening waived unless a raises it in its hotel, subject was to from within the brief, purposes passing and for those 'a reference possible.” Maj. Op. at all at 996. Marriott dis- bring to an ... issue will not suffice to that issue claim, putes this but even if taken as true it " (citation omitted) (ellipsis before this court.' in go qualifications would not to attack Riehle’s denied, 946, original)), cert. 513 U.S. 115 S.Ct. thought Marriott's claim that Riehle better (1994); L.Ed.2d 130 311 see also Common qualified. As with the other evidence identified Dept. wealth Pa. Public v. United majority, piece merely Welfare goes this to show Services, Dept. States Health and Human proper was not afforded the internal 1996). Cir. process rejection. what But anti-discrimination talking are attempt police about here is evidence that law does not was not fairness in em- matter, mentioned, ployment general opposed legal argument as a but rather to a polices the narrow area of intentional discrimi- raised. employment nation in decisions. extension of represents an unwarranted about counsel Marriott’s asked We anti-discrimination laws. argument and oral review “semi-annual” Maj. Op. at explanation. have an did not he probably had But Marriott’s counsel n. 6. explain the “semi- client to asked his
never My with at- him. unease review to
annual” to counsel’s significance much
taching too by the amplified explain is further
failure to trial counsel
fact In Re GENERAL MOTORS between trial and away period in the passed CORPORATION. appeal was new. appeal, and counsel No. 94-1011. (1) sum, here shows the evidence roughly equal applicants two were Appeals, United States Court respect Fourth Circuit. (2) seeking promotion and Feb. unfairly in have acted procedures internal failing proper to follow Under ex-
rejecting one of the candidates. law, evidence of un-
isting anti-discrimination alone, with- process
fairness selection .the linking to race-
out unfairness animus, enough get not be should based long summary judgment, so beyond legitimate reason decision remains intact. employment majority suggest that what the respectfully I on the is to weaken the burden
here has done pretext stage of the McDon-
plaintiff at the all the Douglas framework to one where
nell point
plaintiff needs to do is to to minor discrepancies terms
inconsistencies or inter- employer’s failure to follow its own get to trial. procedures
nal order going that in the future we are
have no doubt many where an get more cases competing candidates of choosing between *17 candi-
roughly equal qualifications and the claims who is not hired
date little doubt that also have
discrimination. plaintiffs able to use the discov-
most will be inconsistencies
ery process to find minor having failed to fol-
terms of letter. procedures its internal
low doing converting up we end then is
What law into a “conditions
anti-discrimination law, allowing we are
employment” because impose the costs of
disgruntled employees to who, although employers
trial on discriminate, may with the intent to
not acted unfairly. This employees their
have treated