LUIS A. FUENTES, Appellant v. STEVEN P. PERSKIE, CHAIRMAN OF THE NEW JERSEY CASINO CONTROL COMMISSION; THE NEW JERSEY CASINO CONTROL COMMISSION
NO. 93-5561
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
August 1, 1994
Argued: June 23, 1994
LYNN M. HANDLER
JACOBS, BRUSO & BARBONE, P.A.
1125 Pacific Avenue
Atlantic City, NJ 08401
Attorneys for Appellant
JOHN R. ZIMMERMAN (Argued)
CATHERINE A. WALKER
Casino Control Commission
Tennessee Avenue and the Boardwalk
Arcade Building, 2nd Floor
Atlantic City, NJ 08401-0208
Attorneys for Appellee
OPINION OF THE COURT
BECKER, Circuit Judge.
Plaintiff Luis A. Fuentes appeals from the district court‘s grant of summary judgment for the defendants, the New Jersey Casino Control Commission (the “Commission“) and Commission Chairman Steven Perskie, in this national origin employment discrimination suit brought by Fuentes in the district court for the District of New Jersey pursuant to
I. FACTS AND PROCEDURAL HISTORY1
The Commission, an agency of the State of New Jersey, see
On August 20, 1990, newly elected Governor James Florio appointed defendant Perskie as Chairman of the Commission. In the ensuing two months, Perskie undertook an informal review of the entire Commission, including its structure. Faced with a declining budget and state-issued directives to reduce staffing, Perskie requested his Executive Assistant Joseph Papp to develop a reorganization plan (the “Plan“). The resulting Plan incorporated most of the recommendations made by a private consulting firm hired by the Commission to audit its utilization of resources. On November 7, 1990, Perskie announced an ambitious Plan to the Commission staff, and the Commission adopted it two weeks later.
The Plan called for the elimination of two divisions, including AA&P,2 the creation of a new Compliance Division, and the considerable reorganization of two others. The Plan transferred the primary functions of AA&P to a subdivision, entitled the Affirmative Action/Equal Employment Opportunity Unit (“AA/EEO“), within the new Compliance Division. The reorganization reduced the Commission‘s staff from 542 to 446 employees.
The Commission resolved to post and advertise all new management positions. Fuentes, along with all other personnel whose positions would be eliminated under the Plan, was advised to apply for the new positions that interested him, and he, along with twenty-five other candidates, applied for the position of Chief of AA/EEO. Fuentes and four others were eventually interviewed for that position. The Committee, meeting in an executive session, agreed that several of the other interviewees were better qualified than Fuentes for that position. Acting on the Committee‘s behalf, Perskie met with Fuentes to inform him that he would probably
The district court concluded that Fuentes had made out a prima facie case of employment discrimination under the McDonnell Douglas/Burdine/Hicks line of cases, see McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Texas Dep‘t of Community Affairs v. Burdine, 450 U.S. 248 (1981); St. Mary‘s Honor Ctr. v. Hicks, 113 S. Ct. 2742 (1993), a conclusion which the defendants have never challenged. The court concluded, however, that the plaintiff had not adduced sufficient evidence to enable a rational jury to conclude that defendants’ numerous proffered reasons for failing to hire Fuentes were pretextual and that the real reason was discriminatory, and hence it granted summary judgment for the Commission.
It is from this judgment that Fuentes appeals. We exercise plenary review.
II. LEGAL ANALYSIS
In a case of failure to hire or promote under Title VII, the plaintiff first
must carry the initial burden under the statute of establishing a prima facie case of [unlawful] discrimination. This may be done by showing (i) that he belongs to a [protected category]; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant‘s qualifications.
McDonnell Douglas, 411 U.S. at 802. If the plaintiff succeeds, the burden of production shifts to the defendant to “articulate some legitimate, nondiscriminatory reason for the employee‘s rejection.” Id.
The employer satisfies its burden of production by introducing evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the unfavorable employment decision. See Hicks, 113 S. Ct. at 2748. The employer need not prove that the tendered reason actually motivated its behavior, as throughout this burden-shifting paradigm the ultimate burden of proving intentional discrimination always rests with the plaintiff. See Burdine, 450 U.S. at 253, 254, 256. Once the employer answers its relatively light burden by articulating a legitimate reason for the unfavorable employment decision, the burden of production rebounds to the plaintiff, who must now show by a preponderance of the evidence that the employer‘s explanation is pretextual (thus meeting the plaintiff‘s burden of persuasion).
At trial, the plaintiff must convince the factfinder “both that the reason was false, and that discrimination was the real reason.” Hicks, 113 S. Ct. at 2752; see id. at 2754 (“It is not enough . . . to disbelieve the employer; the factfinder must believe the plaintiff‘s explanation of intentional discrimination.” (emphasis in original)). The factfinder‘s rejection of the employer‘s proffered, legitimate reason permits, but does not compel, a verdict for the plaintiff. See Hicks, 113 S. Ct. at 2749. The test is whether the plaintiff ultimately persuades the factfinder that the employment decision was caused by bias, and for that purpose both the plaintiff‘s prima facie case and the factfinder‘s rejection of the employer‘s proffered evidence are circumstantial evidence of unlawful discrimination. See Hicks, 113 S. Ct. at 2749.
This basic framework under Title VII illustrates that, to defeat summary judgment when the defendant answers the plaintiff‘s prima facie case with legitimate, non-discriminatory reasons for its action, the plaintiff must point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer‘s articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer‘s action. See, e.g., Hicks, 113 S. Ct. at 2479; Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 523 (3d Cir. 1992) (quoting Burdine, 450 U.S. at 256), cert. denied, 114 S. Ct. 88 (1993).
Because the factfinder may infer from the combination of the plaintiff‘s prima facie case and its own rejection of the employer‘s proffered non-discriminatory reasons that the employer unlawfully discriminated against the plaintiff and was merely trying to conceal its illegal act with the articulated reasons, see Hicks, 113 S. Ct. at 2749, a plaintiff who has made out a prima facie case may defeat a motion for summary judgment by either (i) discrediting the proffered reasons, either circumstantially or directly, or (ii) adducing evidence, whether circumstantial or direct, that discrimination was more likely than not a motivating or determinative cause of the adverse employment action. Thus, if the plaintiff has pointed to some evidence discrediting the defendant‘s proffered reasons, to survive summary judgment the plaintiff need not also come forward with additional evidence of discrimination beyond his or her prima facie case. See Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1122-24 (7th Cir. 1994).
We have stated that a plaintiff may avoid summary judgment by pointing to “some” evidence from which a factfinder could reasonably conclude that the defendant‘s proffered reasons were fabricated (pretext). Next, we consider what quantum of evidence is required. We can reject out of hand the two extreme positions: that the plaintiff can avoid summary judgment simply by arguing that the jury need not believe the defendant‘s proffered legitimate explanations on the one hand, or that the plaintiff must adduce evidence directly contradicting the defendant‘s proffered legitimate explanations on the other. The correct solution lies somewhere in between: to avoid summary judgment, the plaintiff‘s evidence rebutting the employer‘s proffered legitimate reasons must allow a factfinder to reasonably infer that each of the employer‘s proffered non-discriminatory reasons, see Logue v. International Rehab. Assocs., Inc., 837 F.2d 150, 155 (3d Cir. 1988) (holding that “the district court erred in failing to consider all of [the employer‘s] proffered evidence of legitimate business reasons for [the plaintiff‘s] termination” (emphasis supplied)), aff‘d after remand, 866 F.2d 1411 (3d Cir. 1989), was either a post hoc fabrication or otherwise did not actually motivate the employment action (that is, the proffered reason is a pretext). See Anderson, 13 F.3d at 1124; Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 958 (5th Cir. 1993).7
III. APPLICATION TO THIS CASE
As just developed, to survive summary judgment, Fuentes had either (i) to present sufficient evidence to meaningfully throw into question, i.e., to cast substantial doubt upon, the Commission‘s proffered reasons for not hiring him (e.g., by painting them as weak, implausible, contradictory, or incoherent), or (ii) to come forward with sufficient evidence from which a factfinder could reasonably conclude that an illegitimate factor more likely than not was a motivating or determinative cause of the adverse employment decision (e.g., by showing that the employer in the past had subjected him to unlawful discriminatory treatment, that the employer treated other, similarly situated persons not of his protected class more favorably, or that the employer has discriminated against other members of his protected class or other protected categories of persons). Fuentes has failed to raise a material issue of fact on either ground.
The Commission has advanced a multitude of reasons for not hiring Fuentes. Notably, none of the reasons was that Fuentes was unqualified for the job; in the end, the Commission elected to hire Thomas instead of Fuentes because it felt that Thomas was better qualified. In considering Fuentes for the newly created position of Chief of AA/EEO, the Commission faulted Fuentes for (i) lacking leadership qualities (Fuentes, in response to a request by Perskie for proposals for reorganization by each division head, had issued a brief and insubstantial recommendation; he failed to arrange to meet with Perskie about that memorandum although it was clear Perskie wished to discuss it;9 in a report he included issues critical of a casino which he had not first discussed with the casino; and he failed to seek a meeting with Perskie after the press on two separate occasions reported that Perskie publicly criticized Fuentes’ Division of AA&P); (ii) lacking management ability (Fuentes habitually arrived to work late, departed early, and took extended lunches; morale in AA&P was
Fuentes does make a timing argument, predicated on Josey, see id., 996 F.2d at 638-39 (illustrating that, “[o]n different occasions, this court has found that factors such as the defendant‘s credibility, the timing of an employee‘s dismissal, and the employer‘s treatment of the employee could raise an inference of pretext which would make summary judgment for the employer inappropriate“), namely, that things were going well for him until Perskie was appointed to head the Commission. But that is not the type of timing evidence Josey was referring to, namely, the timing of events which can give rise to an inference of improper motivation. The fact that a newly appointed chairman, in a time of shrinking budgets state-wide and a governor‘s directive to eliminate staff positions, reorganizes a state agency and hires new managers for positions newly created by the reorganization who he believes will best perform the tasks at hand does not throw real doubt on the employer‘s proffered legitimate reason.
Additionally, Fuentes complains of the fact that the Commission documented its reasons for not hiring Fuentes after it had decided not to hire him (he refers to this as a calculated accumulation of all the negative facts and inferences from his past experience at the Commission) and argues that this post-decision undertaking leads to a strong inference of coverup (i.e., fabrication). As the district court pointed out, however, the Commissioners were not unrealistic to anticipate that Fuentes, no stranger to employment discrimination laws, would sue the Commission, and in this case the Commission‘s documentation can only be described as displaying business acumen. Given the frequency of employment discrimination suits, an employer which documents its reasons for taking adverse employment actions can often be more suitably described as sensible than as devious. Absent evidence providing an independent reason to suspect the act, the documentation of the reasons for rejecting an applicant is insufficient, in and of itself, to give rise to a reasonable inference of discriminatory motive.
Fuentes also attacks Papp‘s statement that he received complaints from five to ten members of the Division of Licensing critical of Fuentes because Papp did not remember their names almost three years after the events in question transpired. Additionally, he discounts two of the four complaints Papp received from members of Fuentes’ staff (Papp was able to name all four staff members raising the complaints) because two of those members were allegedly biased against him and hence not credible (we note that Fuentes has not contended that those staff members were biased against him because of his national origin). These criticisms amount to little more than the schoolground retort, “Not so,” an approach which, as discussed supra at 11, does not create a material issue of fact. In the context at hand, the issue is not whether the staff members’ criticisms of Fuentes were substantiated or valid, or whether Papp was remiss to rely upon feedback received from members of Fuentes’ staff who might be (non-discriminatorily) biased against him. Instead, since Papp, not the staff members, was the relevant decisionmaker,
Instead of throwing doubt on defendants’ explanations, Fuentes principally tries to go the alternate route by pointing to evidence from which a factfinder could reasonably conclude that discrimination was the more likely cause of his discharge. First, plaintiff argues that Chairman Read, his direct supervisor, thought that he was doing a fine job. Commissioner Waters, who took a special interest in affirmative action, also approved of Fuentes’ job performance.10 But, as we stated in Ezold, the fact that the relevant decisionmakers disagree about the plaintiff‘s qualifications does not evidence discrimination. See id., 983 F.2d at 533. To avoid summary judgment, the plaintiff must point to some evidence from which a factfinder could reasonably conclude that the plaintiff satisfied the criterion that the decisionmakers disapproving of him relied upon (e.g., by showing that others no more qualified than he under that criterion were not treated adversely), or that the decisionmakers did not actually rely upon that criterion. As noted in the preceding paragraph, Fuentes’ proffered evidence does not reasonably permit either conclusion.
Second, Fuentes argues that during his interview for the Chief of AA/EEO position, he was not questioned but was “interrogated” about Perskie‘s dissatisfaction with his job performance. As the district court noted, however, the facts that Fuentes had been working at the Commission for over three years, and that he was known to the interviewers (if not personally, then at least by reputation, opinion, and report), justified a departure from the normal interviewing process, and hence the “interrogation” does not raise an inference of invidious discrimination. It would defy common sense for an interviewer to put aside all his or her personal and/or acquired knowledge of the interviewee and to proceed as if the interviewee were a stranger, and Title VII does not mandate so much. In any event, at his deposition Fuentes described the nature of the “interrogatories” directed at him as “[g]eneral questions about the industry,” hardly an improper or suspicious subject given the position for which he was applying.
Third, Fuentes complains that, having corrected Commissioner Dodd‘s mispronunciation of his name some 20 months prior to the Commission‘s failure to hire Fuentes as Chief of AA/EEO (Fuentes testified that Dodd had asked to call Fuentes the English “Louis” instead of the Latino “Luis” because Dodd asserted he had “difficulty” pronouncing “Luis” and felt “more comfortable” with “Louis“, and that he had responded that he would prefer Dodd call him by his Latino name), Dodd thereafter referred to him as “Director” instead of by his first name.11 This evidence shows only that Dodd disliked Fuentes’ first name because he had difficulty pronouncing it (not because it was a Latino name), and may reflect on Dodd‘s insensitivity and unprofessionalism. But we do not think that a jury could reasonably construe these incidents, standing alone (as they do), as evidencing Dodd‘s bias against Puerto Ricans or Latinos, or to mean that Dodd invidiously discriminated against Fuentes because of his national origin. Cf. Ezold, 983 F.2d at 545 (“Stray remarks by non-decisionmakers or by decisionmakers unrelated to the decision process are rarely given great weight, particularly if they were made temporally remote from the date of decision.“).
For the foregoing reasons, the district court‘s order granting summary judgment to the defendants will be affirmed.