Opinions of the United 1994 Decisions States Court of Appeals for the Third Circuit
8-1-1994
Fuentes v. Perskie, NJ Casino Control Comm. Precedential or Non-Precedential:
Docket 93-5561
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Recommended Citation "Fuentes v. Perskie, NJ Casino Control Comm." (1994). 1994 Decisions. Paper 100. http://digitalcommons.law.villanova.edu/thirdcircuit_1994/100
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_____________________________
NO. 93-5561 _____________________________
LUIS A. FUENTES,
Appellant
v.
STEVEN P. PERSKIE, CHAIRMAN OF THE NEW JERSEY CASINO CONTROL COMMISSION; THE NEW JERSEY CASINO CONTROL COMMISSION
__________________________________________________________
On Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 92-cv-00190) __________________________________________________________
Argued: June 23, 1994
Before: BECKER and HUTCHINSON, Circuit Judges, and PADOVA, District Judge0
(Filed August 1, 1994)
LOUIS M. BARONE (Argued) 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
0 The Honorable John R. Padova, United States District Judge for the Eastern District of Pennsylvania, sitting by designation.
2 Atlantic City, NJ 08401-0208 Attorneys for Appellee
3 _______________________________________________
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 Title VII of the
Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C.A.
§§ 2000e to 2000e-17 (1981 & Supp. 1994). The question before us
is the proper standard for granting summary judgment in a claim
arising under Title VII in the wake of the Supreme Court's
decision in St. Mary's Honor Center v. Hicks, 113 S. Ct. 2742
(1993). In particular, we consider the evidence that a plaintiff,
who has made out a prima facie case, must adduce to survive a motion for summary judgment when the defendant offers a
legitimate reason for its employment action in a "pretext"
employment discrimination case. We hold that, to do so, the
plaintiff generally must submit evidence which: 1) casts
sufficient doubt upon each of the legitimate reasons proffered by
the defendant so that a factfinder could reasonably conclude that
each reason was a fabrication; or 2) allows the factfinder to
infer that discrimination was more likely then not a motivating
4 or determinative cause of the adverse employment action. Because
Fuentes failed to throw sufficient doubt on any of the
Commission's proffered reasons, we will affirm the district
court's grant of summary judgment.
I. FACTS AND PROCEDURAL HISTORY0
The Commission, an agency of the State of New Jersey,
see N.J. STAT. ANN. § 5:12-1 et seq. (1988 & Supp. 1994), employed
Fuentes on May 18, 1987 as Director of Affirmative Action and
Planning. At that time the Commission was comprised of five
divisions. Fuentes' position placed him in charge of the
Division of Affirmative Action and Planning ("AA&P"). Fuentes
reported directly to the Chairman of the Commission, Walter Read,
from his initial hiring until Read's retirement in January 1990.
Read was at all times satisfied with Fuentes' performance.
Fuentes also developed a close working relationship with
Commissioner David Waters, who had a special interest in
affirmative action. Waters was fond of Fuentes, and credited him
with the turnaround of the Division.
0 In reviewing the grant of a motion for summary judgment, we (i) resolve conflicting evidence in favor of the nonmovant, (ii) do not engage in credibility determinations, and (iii) draw all reasonable inferences in favor of the nonmovant. The movant has the burden of pointing out that evidence cognizable in a motion for summary judgment which the movant believes entitles it to summary judgment; the nonmovant must then respond by pointing to sufficient cognizable evidence to create material issues of fact concerning every element as to which the nonmoving party will bear the burden of proof at trial. See Davis v. Portline Transportes Maritime Internacional, 16 F.3d 532, 536 & n.3 (3d Cir. 1994).
5 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,0 the creation of a new Compliance Division, and
the considerable reorganization of two others. The Plan trans-
ferred 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
0 Fuentes does not contend that illegal discrimination caused the elimination of his old position as Director of AA&P.
6 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 not be hired to fill it.0 Approximately
one month later, on January 2, 1991, the Committee reached its
decision to hire Gustave Thomas for that position by a vote of
four to one.0 Fuentes, who is Latino (Puerto Rican), brought the
proceedings which led to this action.0
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, 93 S. Ct. 1817 (1973);
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S.
Ct. 1089 (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 discrimina-
tory, and hence it granted summary judgment for the Commission.
0 Two other directors, who were similarly approached, tendered their resignations. Neither was a member of plaintiff's protected class. 0 The Commission voted on all the proposed personnel actions as a package. 0 Fuentes is also an African-American, but he does not claim racial discrimination, perhaps because Thomas -- the person who was hired for the job he sought -- is also an African-American.
7 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, 93 S. Ct. at 1824. 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 discrimina-
tion always rests with the plaintiff. See Burdine, 450 U.S. at
253, 254, 256, 101 S. Ct. at 1093, 1094, 1095. Once the employer
answers its relatively light burden by articulating a legitimate
reason for the unfavorable employment decision, the burden of
8 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.
To prevail at trial, the plaintiff must prove not
that the illegitimate factor was the sole reason for the
decision, but that the illegitimate factor was a determinative factor in the adverse employment decision, that is, that but for
the protected characteristic, the plaintiff would have been hired
(or promoted). See Hazen Paper Co. v. Biggins, 113 S. Ct. 1701
(1993) (holding under the Age Discrimination in Employment Act
("ADEA") that "a disparate treatment claim cannot succeed unless
the employee's protected trait actually played a role in [the
9 decisionmaking] process and had a determinative influence on the
outcome").0
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 discrimi-
natory 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, 101 S. Ct. at 1095), 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 circum-
stantially or directly, or (ii) adducing evidence, whether
0 Hazen is an ADEA case but, where appropriate, the analysis used in describing the evidentiary burdens in an ADEA case are also used in a Title VII case. See e.g., Duffy v. Wheeling Pittsburgh Steel Corp., 738 F.2d 1393, 1396 (3d Cir.), cert. denied, 469 U.S. 1087 (1984).
10 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
11 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).0
To discredit the employer's proffered reason, however,
the plaintiff cannot simply show that the employer's decision was
wrong or mistaken, since the factual dispute at issue is whether
discriminatory animus motivated the employer, not whether the
employer is wise, shrewd, prudent, or competent. See Ezold, 983
F.2d at 531, 533; Villanueva v. Wellesley College, 930 F.2d 124,
131 (1st Cir.), cert. denied, 112 S. Ct. 181 (1991). Rather, the
non-moving plaintiff must demonstrate such weaknesses,
implausibilities, inconsistencies, incoherencies, or
contradictions in the employer's proffered legitimate reasons for
its action that a reasonable factfinder could rationally find
them "unworthy of credence," Ezold, 983 F.2d at 531, and hence
infer "that the employer did not act for [the asserted] non-
discriminatory reasons."0 Josey v. John R. Hollingsworth Corp.,
0 We do not hold that, to avoid summary judgment, the plaintiff must cast doubt on each proffered reason in a vacuum. If the defendant proffers a bagful of legitimate reasons, and the plaintiff manages to cast substantial doubt on a fair number of them, the plaintiff may not need to discredit the remainder. That is because the factfinder's rejection of some of the defen- dant's proffered reasons may impede the employer's credibility seriously enough so that a factfinder may rationally disbelieve the remaining proffered reasons, even if no evidence undermining those remaining rationales in particular is available. 0 Of course, a decision foolish, imprudent, or incompetent by comparison to the employer's usual mode of operation can render it implausible, inconsistent, contradictory, or weak.
12 996 F.2d 632, 638 (3d Cir. 1993) (internal quotation omitted);
see id. at 638 (holding that the proper inquiry is whether the
plaintiff has proffered sufficient evidence of "inconsistencies
and implausibilities in the employer's proffered reasons");
Ezold, 983 F.2d at 527 ("[A] plaintiff has the burden of casting
doubt on an employer's articulated reasons for an employment
decision." (internal quotations omitted)). While this standard
places a difficult burden on the plaintiff, "[i]t arises from an
inherent tension between the goal of all discrimination law and
our society's commitment to free decisionmaking by the private
sector in economic affairs." Ezold, 983 F.2d at 531.
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 incoher-
ent), 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
13 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;0 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 declining and the staff was unproductive; and
despite repeated requests Fuentes declined to participate in
committees including casino representatives to discuss major
issues facing the casino industry, including labor and minority
0 Although the parties dispute whether Perskie explicitly instructed the Directors to arrange a meeting with him or whether Perskie was to arrange the meetings, Fuentes' failure to contact Perskie for ten weeks is pertinent to his initiative and leader- ship (we note that every Director besides Fuentes arranged such a meeting).
14 business set-asides); (iii) lacking developed interpersonal
skills (Fuentes had a poor working relationship with some of the
Commissioners; and he lacked a good rapport with casino industry
affirmative action officers because they felt he considered
himself too important to meet with them); and (iv) unprofessional
conduct (Fuentes was observed inside a car in a casino parking
lot engaging in sexual activities; he got into a brawl at a
casino, then misrepresented himself to be a police officer and
used his influence as a Commission employee to receive special
treatment; and on one occasion he shared confidential casino
information with the public). The defendants contrast those
incidents with Thomas' superior qualifications, corroborated by
his remarkable accomplishments since being hired. Without going
into each justification in detail, we simply note that Fuentes
has not succeeded in throwing enough doubt on any of those
explanations so that a rational factfinder could reject it.
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
15 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
16 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 decisionma-
ker, the question is whether Papp believed those criticisms to be
accurate and actually relied upon them, since only if Fuentes can
prove that Papp in fact did not rely upon them can Fuentes show
"pretext." We conclude that a factfinder could not reasonably
find that Fuentes' cross-examination impeached Papp's statements
to the point of rendering them weak, implausible, or incredible.
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
17 Waters, who took a special interest in affirmative action, also
approved of Fuentes' job performance.0 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
0 While he also cites his positive yearly Commission evaluations, Fuentes admits that he himself filled them out without any super- vision or review.
18 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 Commis-
sioner 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.0
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
0 The defendants concede that Dodd referred to other Directors by their first names. The record does not give any indication how often Dodd and Fuentes had contact or, in particular, how often Dodd referred to Fuentes as "Director."
19 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.