665 Fed.Appx. 204 (3rd Cir. 2016), 15-3505, Rodriguez v. Forthright

Docket Nº:15-3505
Citation:665 Fed.Appx. 204
Opinion Judge:PER CURIAM
Party Name:FELIX A. RODRIGUEZ, Appellant v. FORTHRIGHT
Attorney:Felix A. Rodriguez, Plaintiff - Appellant, Pro se, Fords, NJ. For Forthright, Defendant - Appellee: Jeffrey A. Kopco, Esq., Elizabeth F. Lorell, Esq., Gordon Rees Scully Mansukhani, Florham Park, NJ.
Judge Panel:Before: VANASKIE, SCIRICA and FUENTES, Circuit Judges.
Case Date:December 19, 2016
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 204

665 Fed.Appx. 204 (3rd Cir. 2016)

FELIX A. RODRIGUEZ, Appellant

v.

FORTHRIGHT

No. 15-3505

United States Court of Appeals, Third Circuit

December 19, 2016

Submitted September 8, 2016 Pursuant to Third Circuit LAR 34.1(a)

NOT PRECEDENTIAL

Editorial Note:

This opinion is not regarded as Precedents which bind the court under Third Circuit Internal Operating Procedure Rule 5.7. (See Federal Rule of Appellate Procedure Rule 32.1)

On Appeal from the United States District Court for the District of New Jersey. (D.C. Civil Action No. 3-12-cv-04642). District Judge: Honorable Peter G. Sheridan.

Felix A. Rodriguez, Plaintiff - Appellant, Pro se, Fords, NJ.

For Forthright, Defendant - Appellee: Jeffrey A. Kopco, Esq., Elizabeth F. Lorell, Esq., Gordon Rees Scully Mansukhani, Florham Park, NJ.

Before: VANASKIE, SCIRICA and FUENTES, Circuit Judges.

Page 205

OPINION [*]

PER CURIAM

Felix A. Rodriguez appeals from the District Court's order entering summary judgment against him and in favor of his former employer, Forthright. We will affirm.

I.

Forthright is the doing-business name of a company that administers an arbitration program in New Jersey (among other things). Forthright employed Rodriguez as a case coordinator, and he also performed certain Information Technology (" IT" ) functions. In that capacity, he had access to Forthright's computer system as an administrator and had access to other employees' e-mail accounts.

In August 2011, approximately four years into his employment, Rodriguez came forward with 14 e-mails purportedly sent by two Forthright supervisors between themselves and to other employees containing what he claimed were derogatory references to his Hispanic race and origin. Rodriguez acknowledged that he had accessed these employees' e-mail accounts in order to search for e-mails containing his name because he was tired of his co-workers " gossiping" about him.

Roberta Mueller, Forthright's Vice President of Human Resources, commenced an investigation into the e-mails.

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Mueller's investigation lasted approximately two months and included several interviews of Rodriguez, the authors and recipients of the e-mails, and other Forthright employees. Mueller also reviewed the available electronic data. Mueller ultimately concluded that Rodriguez himself had altered the e-mails by adding the derogatory references about which he complained. Forthright then terminated Rodriguez's employment in October 2011 on the ground that his alteration of the e-mails violated company policy.

Rodriguez later filed suit pro se against Forthright in state court. Rodriguez invoked Title VII of the Civil Rights Act of 1964 and claimed that Forthright terminated him (1) because he is Hispanic and (2) in retaliation for reporting the e-mails and for filing an earlier complaint with the Equal Employment Opportunity Commission during Mueller's investigation. Forthright removed the suit to federal court, and the parties engaged in discovery. During discovery, Forthright retained an IT expert to conduct another electronic investigation some three years after the events in question. Forthright's expert concluded that Rodriguez had indeed altered the e-mails.

The parties ultimately filed cross motions for summary judgment. The District Court heard argument and then denied Rodriguez's motion but granted Forthright's motion and entered summary judgment in its favor. The District Court set forth its reasons for doing so on the record. Rodriguez appeals.1

II.

We will affirm, though our reasons for doing so differ somewhat from the District Court's. As the District Court recognized, Rodriguez's claims of discrimination and retaliation proceed under the familiar burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Jones v. S.E. Pa. Transp. Auth., 796 F.3d 323, 325-26 (3d Cir. 2015) (Title VII retaliation); Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994) (Title VII discrimination).

Under that framework, Rodriquez bore the initial burden of making out a prima facie case by producing evidence sufficient to raise an inference that his termination was the product of discrimination or retaliation. See Fuentes, 32 F.3d at 763. The burden of production then shifted to Forthright to articulate a legitimate reason for his termination. See id. Finally, the burden shifted back to Rodriguez to produce evidence from which a reasonable jury could conclude either that (1) Forthright's proffered reason for his termination was pretextual or (2) discrimination or retaliation likely was a motivating cause for the termination. See id. at 763-64. We briefly address evidence regarding discrimination at the close of this section, but only pretext is properly at issue here.

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The District Court concluded that Rodriguez made out a prima facie case, which we will assume for present purposes, and that Forthright proffered a legitimate reason for his termination--i.e., his alteration of employee e-mails in violation of company policy. The District Court further concluded that Rodriguez failed to adduce evidence permitting the reasonable conclusion that Forthright's proffered reason was pretextual. The District Court did so for two reasons. First, the District Court relied on the opinion of Forthright's litigation expert that Rodriguez had altered the e-mails, and it noted that Rodriguez did not obtain an expert of his own or otherwise adduce evidence calling the expert's conclusion into question. Second, the District Court relied on the investigation leading to Rodriguez's termination.

The parties devote much of their briefing on appeal to issues regarding Forthright's expert. Their focus on the expert, and the District Court's reliance on the expert, are largely misplaced. The question in assessing Forthright's proffered legitimate reason for terminating Rodriguez is whether a reasonable jury could believe that the reason was pretextual at the time it was made. The opinion of a litigation expert who conducted an independent investigation some three years after the fact seems to us largely irrelevant for that purpose. See Keller v. ORIX Credit Alliance, Inc., 130 F.3d 1101, 1109 (3d Cir. 1997) (en banc); see also McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352, 360, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995) (" The employer could not have been motivated by knowledge it did not have[.]" ); Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 309 (3d Cir. 2012) (" A post hoc ground for termination . . . is irrelevant to the question of causation." ) (quotation marks omitted).2

Thus, we turn to the second ground on which Forthright and the District Court relied--Mueller's investigation and conclusion that Rodriguez altered the e-mails. The District Court did not address the investigation or Rodriguez's arguments concerning the investigation in detail. Having exercised our plenary review, however, we agree that Rodriguez has not adduced any evidence on that point suggesting that Forthright's decision to terminate him for altering the e-mails was pretextual.

Rodriguez raises numerous arguments challenging the legitimacy of Mueller's investigation and its result. Rodriguez's opening brief, however, is completely devoid of the references to the record required by Fed. R. App. P. 28(a)(8)(A). We recognize that Rodriguez has filed his brief pro se, but he is a relatively sophisticated litigant by pro se standards and, " [a]t the end of the day," pro se litigants " must abide by the same rules that apply to all other litigants." Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245, 58 V.I. 691 (3d Cir. 2013). Thus, we could deem these arguments waived.

Nevertheless, we have reviewed Rodriquez's arguments and conclude that they lack merit. " To discredit the employer's proffered reason . . . the plaintiff cannot simply show that the employer's decision was wrong or mistaken[.]" Fuentes, 32 F.3d at 765. " Rather, the non-moving plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's

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legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence[.]" Id. (quotation marks omitted). Such weaknesses can be shown when an employer does not conduct a fair investigation or bases its decision on facially inaccurate or unreliable evidence. See Estate of Bassatt v. Sch. Dist. No. 1, 775 F.3d 1233, 1240 (10th Cir. 2014); Kowalski v. L & F Prods., 82 F.3d 1283, 1289-90 (3d Cir. 1996).

In this case, Mueller conducted a two-month investigation and compiled a comprehensive 20-page report, which Forthright made part of the summary judgment record. (ECF No. 63-8 at 2-21.) This report details the steps that led Mueller to conclude that Rodriguez had altered the e-mails. Those steps included conducting numerous interviews of Rodriguez himself, the authors and recipients of the e-mails, and other Forthright employees. Those steps also included consultations with Forthright's IT staff and an outside IT consultant.

Rodriguez does not contest that Mueller took any of the steps detailed in her report. Rodriguez nevertheless contends that Mueller's investigation was so deficient that a reasonable jury could conclude that Forthright's decision to terminate him was pretextual. Rodriguez raises three principal challenges in this regard. None has merit.

First, Rodriguez appears to argue that the investigation was incomplete. He relies on Mueller's deposition testimony (which he purports to quote but does not cite) that she " did the best she could" but could not investigate everything. Rodriguez, however, has not specified...

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