Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit
4-6-2009
Tony Hood v. Pfizer Inc Precedential or Non-Precedential: Non-Precedential
Docket No. 08-1434
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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
_______________
No. 08-1434 _______________
TONY HOOD,
Appellant
v.
PFIZER, INC.;
On Appeal From the United States District Court for the District of New Jersey (No. 04-03836) District Judge: Honorable Stanley R. Chesler
Submitted Under Third Circuit LAR 34.1(a) November 21, 2008
Before: BARRY and CHAGARES, Circuit Judges, and RESTANI,* Judge
(Filed April 06, 2009)
_____________
OPINION OF THE COURT _____________
* Honorable Jane A. Restani, Chief Judge, United States Court of International Trade, sitting by designation. CHAGARES, Circuit Judge.
Tony Hood appeals from a grant of summary judgment in favor of Pfizer, his
former employer, on his state-law discrimination and retaliation action. We will affirm.
I.
Because we write solely for the parties, we will only briefly summarize the
essential facts. And because we are reviewing the grant of a motion for summary
judgment, we will mention only those facts that are not in dispute.
In August 2001, Pfizer hired Hood, who is African-American, to work as an
associate product manager in its consumer healthcare division. He was assigned to the
marketing campaign for the heartburn drug Zantac. In February 2002, Marc Kube, who is
Caucasian, became Hood’s immediate supervisor.
In March 2002, Kube began to hear reports of, and in some cases observe directly,
what he perceived to be Hood’s poor job performance. For example, Hood refused to
prepare a monthly report called a “brand commentary” when Kube asked him to do so.
See Appendix (App.) 99-100. And Marion Wood, a marketing reserach manager on the
Zantac team, told Kube that Hood had missed certain project deadlines. See App. 83.
Hood had complaints, too. Kube occasionally took responsibilities away from him
and assigned them to Wood and to Robert Weitzenhofer, who are both Caucasian. App.
292. Weitzenhofer was Hood’s subordinate who himself had past job-performance
issues. App. 182-91. Also, Kube missed scheduled meetings with Hood more often than
2 he did with Weitzenhofer. App. 292.
In July 2002, Kube met with Hood to discuss these and similar issues as part of a
mid-year performance review. Kube also gave Hood several suggestions for
improvement, including to increase his “face-time” with Kube at the office. See App.
102. Hood heeded this recommendation at first, but eventually the amount of his in-
person interaction with Kube dwindled. See App. 98.
Sometime during Fall 2002, Hood, along with about 500 other Pfizer employees,
attended a company-wide meeting. During a “town hall” portion of the meeting, Hood
stood up and asked Pfizer’s president “why Pfizer wasn’t doing more to promote diversity
within the company.” App. 293. The president did not answer the question. Immediately
after the meeting, the company’s highest-ranking African-American executive met with
Hood and suggested that Hood’s question was inappropriate.
Kube met with Hood several more times beginning in December 2002 and Kube
repeated largely the same criticisms and suggestions he raised during their July 2002
meeting. See, e.g., App. 74-77. These meetings culminated in a February 2003
discussion of Hood’s performance review covering his 2002 work. At the meeting, Kube
noted further performance problems. Kube told Hood that Hood’s written review
concluded that Hood needed too much supervision to complete projects. He also told
Hood that representatives of the outside advertising agency working with Pfizer’s Zantac
marketing team complained about Hood to Kube and requested that he remove Hood
3 from the team. App. 201. Kube told Hood that his work was still below par, and that he
would be placed on a performance improvement plan (PIP) – a 60-day program involving
expressly delineated objectives and consistent monitoring to determine whether those
objectives were being met. The PIP began in mid-April 2003.
Hood felt that his negative review was unjustified and lodged an internal
complaint with Deborah Conliffe in the company’s human resources department. Hood
did not, however, identify his race as a factor motivating Kube. Conliffe agreed to
investigate. She interviewed, among others, Wood and Weitzenhofer, each of whom
reported positive experiences working under Kube. She also interviewed Joanna
Reddick, who was not part of the Zantac team but who had previously worked with Kube
on one of Pfizer’s employee recruitment efforts. Reddick, who is African-American, said
Kube had in the past made race-related comments that made her feel uncomfortable. See
App. 153-54. Conliffe concluded her investigation by recommending that Kube receive
coaching to improve his management techniques. App. 157-58.
Meanwhile, Hood was failing to meet the objectives set forth in the PIP. For
example, he turned in one project late and in a condition that required significant
revisions. See App. 86, 119-20. He also submitted a report containing inaccurate data
and told Kube about the inaccuracy only after the report was submitted. See App. 120-22.
And he missed a rehearsal for a presentation he was slated to give. See App. 122-24.
The PIP ended in mid-June 2003, and Pfizer fired Hood in July 2003. Hood filed a
4 lawsuit in New Jersey state court claiming that Pfizer terminated him because of his race
and gave him an unfavorable performance review and put him on a PIP (both pre-
termination) for speaking out at the company meeting. Pfizer removed the case to federal
court and moved for summary judgment. The District Court granted the motion, and
Hood moved for reconsideration. The District Court denied that motion, and Hood then
filed this appeal.
II.
The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1332(a)(1) and 1442,
and we have jurisdiction pursuant to 28 U.S.C. § 1291.
We review the District Court’s grant of summary judgment de novo, applying the
same standard that it used. Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3d Cir.
2008). That is, we will view the evidence in the light most favorable to Hood and draw
all justifiable, reasonable inferences in his favor. Id. We will affirm if “the pleadings, the
discovery and disclosure materials on file, and any affidavits show that there is no
genuine issue as to any material fact and that [Pfizer] is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(c).
III.
The New Jersey Law Against Discrimination (NJLAD), N.J. Stat. § 10:5-12(a),
makes it unlawful “[f]or an employer, because of the race . . . of any individual . . . . to
discriminate against such individual in compensation or in terms, conditions, or privileges
5 of employment . . . .” In the absence of direct evidence of discrimination (as in the
present case), a NJLAD plaintiff may prove discrimination according to the burden-
shifting framework set forth in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973).
Under McDonnell-Douglas, the plaintiff bears the initial burden of establishing a prima
facie case of unlawful discrimination. 411 U.S. at 802. If the plaintiff succeeds, the
burden of production shifts to the employer to articulate a legitimate, nondiscriminatory
reason for the employee’s termination. Id. Once the employer meets its relatively light
burden, the burden of production returns to the plaintiff, who must show by a
preponderance of the evidence that the employer’s proffered reason is pretextual. See id.
at 804-05. Accordingly, once an employer has proferred a legitimate, nondiscriminatory
reason, the plaintiff “generally must submit evidence which: (1) casts sufficient doubt
upon each of the legitimate reasons proffered by the defendant so that a factinfder could
reasonably conclude that each reason was a fabrication 1 ; or (2) allows the factfinder to
infer that discrimination was more likely than not a motivating or determinative cause of
the adverse employment action.” Fuentes v. Perskie, 32 F.3d 759, 762 (3d Cir. 1994).
Because the ultimate issue is whether “discriminatory animus” motivated the employer, it
1 Where the employer proffers a “bagful” of legitimate reasons, however, the employee may need only to “cast substantial doubt on a fair number of them.” Id. This is because discrediting a “fair number” of the employer’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.” Fuentes v. Perskie, 32 F.3d 759, 764 n.7 (3d Cir. 1994).
6 is not enough to show that the employer made a wrong or mistaken decision. Rather, the
plaintiff must uncover “weaknesses, implausibilities, inconsistencies, or contradictions”
in the employer’s explanation that would allow a reasonable factfinder to believe that the
employer did not truly act for the asserted reason. Id. at 765.
A.
There is no debate that Hood has established a prima facie case of race
discrimination. Pfizer then proffered a “bagful,” Fuentes, 32 F.3d at 764 n.7, of
legitimate, performance-based, non-discriminatory reasons for the firing. Hood has
attempted to challenge most of those reasons. As we will explain, Hood is unable to
“impede [Pfizer’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.” Id.
Pfizer claims that Hood shirked his job responsibilities in declining to write a
brand commentary when Kube asked him to do so. Hood admitted that he declined to
write the commentary but that he did so because he believed it was not in his job
description. At most, this shows that Pfizer misjudged the scope of Hood’s job
responsibilities. That Pfizer was “wrong or mistaken” about that scope, however, is
insufficient to defeat summary judgment. Fuentes, 32 F.3d at 764. It does not
demonstrate any “inconsistenc[y]” between Pfizer’s proffered reason and Pfizer’s
perception of Hood’s behavior. Id.; see Billet v. CIGNA Corp., 940 F.2d 812, 825 (3d
7 Cir. 1991) (holding that employee’s “view of his performance is not at issue; what matters
is the perception of the decision maker”).
Pfizer claims that Hood did not follow Kube’s directions to put in more time at the
office where Kube could visibly observe Hood’s performance. Hood admitted that he
failed to increase the frequency of in-person meetings with Kube but argued that Kube
was to blame. The deposition testimony Hood cites in support, however, states merely
that, after a period where he and Kube met quite often, the face-to-face aspect of their
relationship just “faded away.” App. 98. It gives no indication that Kube is at all
responsible, much less completely responsible, for this breakdown. The rest of Hood’s
deposition testimony contains no shortage of buck-passing and blame-deflecting, so it
would be unreasonable (and therefore inappropriate on summary judgment) to infer
Kube’s total or even substantial responsibility where Hood did not allege it. Hood’s own
testimony, then, establishes not only that Pfizer perceived Hood did not accomplish the
face-time goal — which would suffice to meet its burden, see Billet, 940 F.2d at 825 —
but that Hood in fact did not accomplish the goal.
Pfizer claims that Wood told Kube that Hood missed a deadline on a particular
project. Hood testified that he did not miss any deadlines and that he told Kube as much.
See App. 82-83. That, however, is beside the point. It may not have been “wise, shrewd,
prudent, or [even] competent” for Pfizer to credit a co-worker’s word over Kube’s, but
this merely demonstrates that Pfizer may have been a bad judge of credibility, not that it
8 violated the NJLAD. Fuentes, 32 F.3d at 764.
Pfizer claims that Hood received a negative performance review and, as a
consequence, was put on a PIP. Hood does not dispute this. He testified, however, that
he was given no prior warning of his sub-par performance. See App. 101. But this
cannot defeat summary judgment, because Pfizer had no duty to warn in the first place.
See Healy v. New York Life Ins. Co., 860 F.2d 1209, 1216 (3d Cir. 1988) (“Although we
can sympathize with Healy’s situation and observe that employees will perform better if
they receive feedback, we note that from a legal perspective managers are not compelled
to convey their dissatisfaction to employees.”).
Pfizer claims that Hood failed to prepare properly for a presentation to senior
management. Hood does not dispute this, but testified that he warned Kube in advance
that he might have to miss a rehearsal because he was planning to take some time off to
spend with his family. See App. 122-24. We commend Hood’s attempt to balance his
family life and his job responsibilities, but at bottom, scheduling the vacation was Hood’s
choice to make. Holding that against him may have been insensitive, but Pfizer was
entitled to do it.
Pfizer claims that Hood submitted certain monthly reports containing inaccurate
information. Hood testified that he did indeed submit such reports, but that, after he
turned them in, he spoke with Kube, explained that he included inaccurate information
because accurate information was not available at the time the reports were due, and
9 agreed with Kube on how best to handle the matter prospectively. See App. 121. That is,
Hood admitted to turning in a defective report and raising the issue with Kube only after
the fact. Perhaps Pfizer overreacted in blaming Hood for failing to discuss the issue with
Kube before Hood prepared the report, but “‘federal courts are not arbitral boards ruling
on the strength of cause for discharge. The question is not whether the employer made
the best, or even a sound, business decision; it is whether the real reason is
[discrimination].’” Keller v. Orix Credit Alliance, 130 F.3d 1101, 1109 (3d Cir. 1997)
(en banc) (quoting Carson v. Bethlehem Steel Corp, 82 F.3d 157, 159 (7th Cir. 1996))
(alteration in original). There is no inconsistency or incoherency here that would block
summary judgment. Pfizer claimed it fired Hood in part for his inaccurate reports, and
Hood admitted that certain reports he submitted were inaccurate.
Pfizer claims that, while on the PIP, Hood turned in a document late and in a
condition requiring substantial revisions. Hood disputes what generated the need for
those revisions, but not the need itself. Pfizer may have wrongly attributed the need for
revisions to Hood’s incompetence rather than to external factors, but, as discussed
extensively above, well-worn principles of employment discrimination law give Pfizer the
right to make that judgment.
Hood does not even attempt to contest Pfizer’s claim that representatives from the
outside advertising agency working with the company on a marketing campaign
complained to Kube to have Kube remove Hood from the project altogether. Again, it is
10 immaterial whether this negative feedback from the outside agency was justified. Pfizer
chose to credit it, and that choice does not impugn its legitimacy as a proffered non-
discriminatory reason for terminating Hood.2
At bottom, Hood admits the primary conduct (or, in certain instances, reports of
primary conduct) upon which Pfizer focused. He provides explanations for that behavior
that make him seem less culpable than Pfizer may have made him out to be. But that is
not enough to withstand summary judgment. Hood does not contest that Pfizer saw what
it claims it saw (or heard what it claims it heard). Pfizer’s proffered reasons for
2 Hood notes that he never had a negative job evaluation until Kube became his boss. He then cites several cases, all from the Court of Appeals for the Second Circuit, that he claims support the proposition that a lack of negative job evaluations before the period where the discrimination allegedly occurred supports an inference that proffered legitimate reasons are pretextual. See Appellant’s Br. at 11 (citing Zimmermann v. Associates First Capital Corp., 251 F.3d 376, 382-83 (2d Cir. 2001); Carlton v. Mystic Transp., Inc., 202 F.3d 129, 137 (2d Cir. 2000); Heyman v. Queens Village Committee for Mental Health for Jamaica Comunity Adolescent Program, Inc., 198 F.3d 68, 73 (2d Cir. 2000)). Hood is mistaken. In each of those cases, the employer proffered a performance-related reason for firing the employee, and the employee then pointed out that the employer had little (if any) documentation of the alleged misconduct. See 251 F.3d at 379-80; 202 F.3d at 137; 198 F.3d at 71. This, the Court of Appeals for the Second Circuit held, could support an inference that the performance-based reason was a mere fabrication — an afterthought — and that race was the real driving force. So understood, these cases have no application here. Those plaintiffs denied the underlying primary conduct, and those denials were strong in light of the employers’ lack of contemporaneous documentation. Hood, by contrast, admits the primary conduct that irked Pfizer; he just tries to explain why he engaged in it. And at the risk of bringing coals to Newcastle, we note that, to the extent these out-of-circuit cases put any weight on the employer’s failure to contemporaneously notify the employee of its dissatisfaction, they conflict with our precedent and carry no weight. Healy, 860 F.2d at 1216.
11 terminating Hood are not at all inconsistent with those observations. We conclude, then,
that a reasonable factfinder could not conclude, by a preponderance of the evidence, that
Hood was terminated on any grounds unrelated to the numerous, materially
uncontroverted episodes of underperformance recounted above, much less on unlawfully
discriminatory grounds. Therefore, Hood has not cast sufficient doubt on Pfizer’s
proferred legitimate reasons to defeat summary judgment.
B.
Hood also has failed to identify evidence that would allow a reasonable factfinder
to determine that discrimination was more likely than not a determinative factor in his
termination. Hood argues that several pieces of evidence purportedly demonstrating
Kube’s preferential treatment of two Caucasian employees, disparaging race-related
treatment of another African-American employee, and general inability to deal with non-
Caucasians, would allow a reasonable factfinder to conclude that race was more likely
than not a motivating or determinative cause of his termination. We disagree.
Though we do not “weigh” evidence in considering a summary judgment motion,
we are obligated to consider the totality of the evidence – and not merely the evidence the
employee claims supports his argument. See Keller, 130 F.3d at 1113. Considering the
totality of the evidence – including that identified above concerning Hood’s
insubordination and underperformance, see id. – we hold that a reasonable factfinder
could not find that the proof is sufficient to establish by a preponderance of the evidence
12 that race was a determinative factor in Hood’s termination.
IV.
The NJLAD also makes it unlawful “[f]or any person to take reprisals against any
person because that person has opposed any practices or acts forbidden under this act . . .
.” N.J. Stat. § 10:5-12(d). Hood claims that his poor 2002 performance review and
subsequently placement on an improvement plan constitutes impermissible retaliation for
openly criticizing the company’s track-record for diversity at the “town hall” portion of a
large company meeting.3 We disagree.
To establish a prima facie case of retaliation, Hood must show “(1) that he
engaged in protected conduct; (2) that he was subject to an adverse employment action
subsequent to such activity; and (3) that a causal link exists between the protected activity
and the adverse action.” Barber v. CSX Distrib. Servs., 68 F.3d 694, 701 (3d Cir. 1995).
Hood cannot establish the first element.
A reasonable factfinder could not conclude that Hood accused Pfizer of
discrimination in violation of the NJLAD. Hood asked, at the meeting, “why more wasn’t
being done to promote diversity within [his department].” App. 293. This statement
expresses a generalized concern about the extent of Pfizer’s marketing department’s
3 In his appellate brief, Hood indicates several other grounds for retaliation. See Appellant’s Br. at 31. However, in his brief to the District Court opposing summary judgment, Hood raised only the comment he made at the meeting, see Supplemental Appendix 20-21, so we will consider only that ground.
13 affirmative diversity efforts, and Hood concedes that NJLAD says nothing about such
efforts, see Appellant’s Br. at 33-34. It is worlds apart from the kind of particularized
statement targeting discrete past events that this Court has held allows an employment
discrimination plaintiff’s retaliation claim to survive summary judgment. Compare
Moore v. City of Philadelphia, 461 F.3d 331, 343 (3d Cir. 2006) (holding that plaintiff’s
statement, complaining about fellow employee’s specific comments and made to that
employee’s supervisor in front of that employee, constitutes protected conduct) with
Curay-Cramer v. Ursuline Acad. of Wilmington, Del., Inc., 450 F.3d 130, 134-35 (3d Cir.
2006) (holding that “basic [] advocacy” against a practice does not constitute protected
activity for retaliation claim) and Barber, 68 F.3d at 702 (holding that letter written by
rejected job applicant that “complains about unfair treatment in general” is not protected).
To be sure, Hood’s comment here falls between the conduct we held protected in Moore
and the conduct we held unprotected in Curay-Cramer and Barber. We find, however,
that Hood’s comment is much closer to those latter two cases than to the former. And, in
any event, Hood has pointed us to no case in which we reversed a grant of summary
judgment on a retaliation claim based upon a comment or remark less specific than those
in Moore.
Accordingly, we hold that Hood did not point to evidence demonstrating a genuine
issue of material fact with respect to whether he could satisfy the first element of the
required prima facie case.
14 V.
For the reasons articulated above, we will affirm the District Court’s grant of
summary judgment for Pfizer.