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Precedential or Non-Precedential: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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1
                      UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                      _____________________________

                               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, 

(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, 

, 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, 

, 

(1973);

Texas Dep't of Community Affairs v. Burdine, 

, 101 S.

Ct. 1089 (1981); St. Mary's Honor Ctr. v. Hicks, 

(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 

, 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."    

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 

.

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 

, 254, 

, 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."    

; see 

("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 

.    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 

.

            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, 

(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., 

; Ezold v. Wolf, Block, Schorr & Solis-Cohen,

, 523 (3d Cir. 1992) (quoting 

, 101 S. Ct. at 1095), cert. denied, 

(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 

, 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., 

, 1396 (3d Cir.), cert. denied, 

(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., 

, 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., 

, 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, 

(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

; Bodenheimer v. PPG Indus., Inc., 

, 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 

, 533; Villanueva v. Wellesley College, 

,

131 (1st Cir.), cert. denied, 

(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," 

, 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


, 638 (3d Cir. 1993) (internal quotation omitted);

see 

(holding that the proper inquiry is whether the

plaintiff has proffered sufficient evidence of "inconsistencies

and implausibilities in the employer's proffered reasons");

("[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."    

.



                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 

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 

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. 

("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.




                               20