Fuentes v. Perskie

• Decision Date: 01 August 1994
• Docket Number: No. 93-5561,93-5561
• Citation: 32 F.3d 759
• Parties: 65 Fair Empl.Prac.Cas. (BNA) 890 Luis A. FUENTES, Appellant, v. Steven P. PERSKIE, Chairman of the New Jersey Casino Control Commission; the New Jersey Casino Control Commission.
• Court: U.S. Court of Appeals — Third Circuit

Page 759

32 F.3d 759

65 Fair Empl.Prac.Cas. (BNA) 890

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 Third Circuit.

Argued June 23, 1994.

Decided Aug. 1, 1994.

Louis M. Barbone (argued) and Lynn M. Handler, Jacobs, Bruso & Barbone, P.A., Atlantic City, NJ, for appellant.

John R. Zimmerman (argued) and Catherine A. Walker, Casino Control Com'n, Atlantic City, NJ, for appellees.

Before: BECKER and HUTCHINSON, Circuit Judges, and PADOVA, District Judge ^*.

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. Secs. 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, --- U.S. ----, 113 S.Ct. 2742, 125 L.Ed.2d 407 (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 than not a motivating 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 HISTORY ¹

The Commission, an agency of the State of New Jersey, see N.J.STAT.ANN. Secs. 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.

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 not be hired to fill it. ³ 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. ⁴ Fuentes, who is Latino (Puerto Rican), brought the proceedings which led to this action. ⁵

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, 36 L.Ed.2d 668 (1973); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); St. Mary's Honor Ctr. v. Hicks, --- U.S. ----, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993), a conclusion which the defendants have never challenged. The court concluded, however, that the plaintiff had not adduced sufficient evidence to enable a factfinder reasonably 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, 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, --- U.S. at ----, 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, 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 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, --- U.S. at ----, 113 S.Ct. at 2752; see id. at ----, 113 S.Ct. at 2754 ("It is not enough ... to dis believe 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, --- U.S. at ----, 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, --- U.S. at ----, 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, --- U.S. ----, 113 S.Ct. 1701, 123 L.Ed.2d 338 (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 decisionmaking] process and had a determinative influence on the outcome"). ⁶

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, --- U.S. at ----, 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, --- U.S. ----, 114 S.Ct. 88, 126 L.Ed.2d 56 (1993). In other...