Filed: Apr. 11, 1997
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 1997 Decisions States Court of Appeals for the Third Circuit 4-11-1997 Bray v. Marriot Hotels Precedential or Non-Precedential: Docket 95-5662 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1997 Recommended Citation "Bray v. Marriot Hotels" (1997). 1997 Decisions. Paper 83. http://digitalcommons.law.villanova.edu/thirdcircuit_1997/83 This decision is brought to you for free and open access by the Opinions of the United States Cour
Summary: Opinions of the United 1997 Decisions States Court of Appeals for the Third Circuit 4-11-1997 Bray v. Marriot Hotels Precedential or Non-Precedential: Docket 95-5662 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1997 Recommended Citation "Bray v. Marriot Hotels" (1997). 1997 Decisions. Paper 83. http://digitalcommons.law.villanova.edu/thirdcircuit_1997/83 This decision is brought to you for free and open access by the Opinions of the United States Court..
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Opinions of the United
1997 Decisions States Court of Appeals
for the Third Circuit
4-11-1997
Bray v. Marriot Hotels
Precedential or Non-Precedential:
Docket 95-5662
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Recommended Citation
"Bray v. Marriot Hotels" (1997). 1997 Decisions. Paper 83.
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 95-5662
BERYL BRAY,
Appellant
v.
MARRIOTT HOTELS a/k/a MARRIOTT
CORP. a/k/a/ MARRIOTT HOTEL CORP.,
MARRIOTT HOTELS and RESORTS, INC., JOHN DOE # 1-5 and
XYZ CORP. # 1-5
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civil Action No. 94-979
Argued: October 1, 1996
Before: ALITO, MCKEE, Circuit Judges,
and GREEN, District Judge.*
(Filed April 11, 1997)
Joseph H. Neiman, Esq. (Argued)
25 E. Salem Street
Hackensack, NJ 07601
Attorney for Appellant
Francis X. Crahay, Esq. (Argued)
Whitney W. Bremer, Esq.
Gina G. Milestone, Esq.
William J. Prout, Jr., Esq.
Tompkins, McGuire & Wachenfeld
Four Gateway Center
100 Mulberry Street
Newark, NJ 07102-4070
*
The Honorable Clifford Scott Green, Senior Judge, United
States District Court for the Eastern District of Pennsylvania,
sitting by designation.
Attorneys for Appellees
OPINION OF THE COURT
MCKEE, Circuit Judge.
Beryl Bray appeals from the district court's grant of
summary judgment in favor of the Marriott Hotel Corporation.
Bray filed suit in the district court for the District of New
Jersey alleging race discrimination under 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) and the New Jersey Law
Against Discrimination ("NJLAD"), N.J.S.A. § 10:5-12(d). For the
reasons that follow, we will reverse and remand for further
proceedings consistent with this opinion.
I.
Bray, an African-American female, was hired as a room
attendant at the New York Marquis Marriott in 1985. App. at 99a.
Within eight months, she was promoted to Assistant Housekeeping
Manager, and, two years later, she was promoted to Housekeeping
Manager at the Park Ridge Marriott in New Jersey. App. at 100a-
02a. In early 1993, Park Ridge initiated a "posting" for the
position of Director of Services. "Posting" is the process by
which employees within Marriott who are qualified for an
available position within the company make known their desire to
be considered for that position. Any associate who satisfies the
minimum requirements for the job has the opportunity to have his
2
or her name submitted or "posted" for the available position. An
associate cannot post for a job if he or she is not qualified for
that position.
Bray posted for the position of Director of Services which
had been vacated by her former supervisor, Richard Lesser. App.
at 109a-10a. Between seven and nine other candidates also posted
for that position. App. at 225a. In his deposition, Leo Nemetz,
the General Manager at the Park Ridge Marriott Hotel, explained
that he conferred with George Joosten, the Director of
Operations, and Robert Steussy, the Director of Human Resources,
as to the qualifications of the various candidates.1 App. at
227a-28a.
Nemetz testified that he initially ranked the candidates by
their PAF scores,2 but all of the criteria set forth in
Marriott's Center Management System Career Planning Guidelines
Policy for the Career Planning Process ("MCMS") were considered
in deciding which one candidate would be interviewed. The MCMS
sets forth the following considerations to be employed in ranking
candidates for a position:
EXPERIENCE
*Compare each candidates relevant work experience both pre-
1
Although several different spellings of "Joosten" and
"Steussy" appear throughout the record, we rely on those used in
the district court's opinion except when quoting text where a
different spelling is used.
2
Marriott formally evaluates its employees and assigns
them a "PAF" score on a sliding scale of "1" to "4" with "1"
being the highest. See app. at 137a, 224a.
3
and post-Marriott.
*What experience level does the position require?
PAF RATING
*Does one candidate have a higher PAF rating than another?
*Evaluate the candidate's MDA [Management Development
Assessment] or SDA [Supervisor Development
Assessment] (if available) along with the
skill requirements of the position.
TRAINING AND EDUCATION
*Does the position require extensive or specialized training
(e.g., culinary, revenue management,
information systems)?
*Does the candidate have the necessary training and
education?
RELOCATION
*Cost of Relocation for each candidate in relation to budget
*Input of Regional Team or senior management, i.e., Regional
or Senior Vice President if house move is
involved.
SALARY
*Comparison of candidate's salary in relation to the
hotel's, staff department or support
operation's budget.
*Importance of position salary budget vs. candidate's
salary.
App. at 43a. Nemetz further stated in his deposition that all
three individuals who participated in the meeting unanimously
agreed that Therese Riehle, who is White and had been working at
a different Marriott hotel, would be interviewed as the top
candidate. App. at 231a-32a. Riehle was hired effective April
10, 1993. App. at 50a. According to Nemetz, the principal
reason for promoting Riehle was that she had the highest PAF
rating, app. at 230a, 235a, but he insisted that all of the
factors in the MCMS were considered.
Riehle had begun working for Marriott in May 1988 as a co-op
4
student. App. at 69a. In 1989, she accepted a position as an
Assistant Housekeeping Manager at the New York Marquis Marriott
and, in 1991, she became the Assistant Director of Services
there. App. at 74a. Riehle's Associate Profile3 reflects that
she possessed an occupational grade level of 45 (indicating she
supervised managers), had a degree in Restaurant and Hotel
Management, app. at 68a, and had received two "Manager of the
Month" awards while at the Marquis, app. at 76a-77a. Riehle was
interviewed for the promotion, and, during that interview, Nemetz
learned that she had experience overseeing renovations (called
"re-dos") which the Park Ridge was soon scheduled to undergo.
App. at 236a. Riehle had also attended over forty training
sessions.4 App. at 52a-53a.
Bray had PAF ratings of "2" in each of the three years
reported in her Associate Profile (1990, 1991, and 1992). App.
at 54a. Since Bray was at a smaller hotel than Riehle, Bray only
supervised associates and accordingly she was assigned a lower
occupational grade level than Riehle, "43." App. at 55a. Bray
had attended thirteen training sessions over her eight-year
period with Marriott, and her college degree was in English and
3
Personnel evaluations and other information relating to
an employee's job performance and background are maintained in
the employee's Associate Profile.
4
The seminars included the following subjects: stress
management skills, drugs in the workplace, responding to
emergencies, counseling skills, career planning, leadership
skills, and discipline skills.
5
History. App. at 54a, 56a.
Bray did not receive the promotion. Instead, Riehle was
offered the position. Bray claimed that she had been denied the
promotion to Director of Services because she was Black and then
filed this suit against Marriott under Title VII. Following
discovery, the district court granted summary judgment against
Bray and in favor of Marriott, and this appeal followed.
Discussion
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291 to review
the final order of the district court, which exercised
jurisdiction under 42 U.S.C. § 2000e et seq. and supplemental
jurisdiction pursuant to 28 U.S.C. § 1367(a).
On review of a district court's grant of summary judgment,
we apply the same test the district court should have applied
initially. Sempier v. Johnson & Higgins, 45 F.3d 724, 727 (3d
Cir.), cert. denied,
115 S. Ct. 2611 (1995). Summary judgment is
appropriate only when the admissible evidence fails to
demonstrate a genuine issue of material fact and the moving party
is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c). When the nonmoving party bears the burden of persuasion
at trial, the moving party may meet its burden on summary
judgment by showing that the nonmoving party's evidence is
insufficient to carry that burden. Celotex Corp. v. Catrett,
477
U.S. 317, 322-23 (1986). The nonmoving party creates a genuine
6
issue of material fact if he or she provides sufficient evidence
to allow a reasonable jury to find for him or her at trial.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In
reviewing the record, the court must give the nonmoving party the
benefit of all reasonable inferences.
Sempier, 45 F.3d at 727;
Colgan v. Fisher Scientific Co.,
935 F.2d 1407, 1413 (3d Cir.
1991).
III.
In a case of failure to promote under Title VII, the
plaintiff must carry the initial burden of establishing a prima
facie case of unlawful discrimination. Thus, the plaintiff must
establish that he or she
(1)belongs to a protected category;
(2)applied for and was qualified for a job in an available
position;
(3)was rejected;
(4)and, after the rejection, the position remained open and the
employer continued to seek applications from
persons of plaintiff's qualifications for the
position.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).5
If the plaintiff fulfills these elements, the burden of
production then shifts to the defendant to "'articulate some
legitimate, nondiscriminatory reason for the employee's
5
Here, the position did not remain open after Bray was
rejected. Rather, the position was filled when Riehle was chosen
over Bray. However, this variance from the letter of the
McDonnell Douglas Corp. formula is not relevant to our analysis.
"The facts necessarily will vary in Title VII cases, and the
specification . . . of the prima facie proof required . . . is
not necessarily applicable in every respect to different factual
situations." McDonnell Douglas Corp., 411 U.S. at 802 n.13.
7
rejection.'" Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994)
(quoting McDonnell Douglas
Corp., 411 U.S. at 802); see also
Sheridan v. E.I. DuPont de Nemours & Co.,
100 F.3d 1061 (3d Cir.
1996)(en banc).
The employer must then come forth with evidence, which, if
taken as true, demonstrates that there was a nondiscriminatory
reason for the decision not to promote the plaintiff. See id. at
1066. This reason need not be proven to be the reason the
plaintiff failed to receive the promotion because the burden of
proving the actual discrimination lies at all times with the
plaintiff. If the employer satisfies its burden of production,
then the plaintiff must produce evidence from which a reasonable
factfinder could conclude either that the defendant's proffered
justifications are not worthy of credence or that the true reason
for the employer's act was discrimination. The 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."
Fuentes, 32 F.3d at 765 (citation omitted). Otherwise, the
employer is entitled to judgment as a matter of law.
An inference of pretext may arise if the plaintiff can raise
suspicions with respect to the defendant's credibility or the
employer's treatment of the employee. Josey v. John R.
Hollingsworth Corp., 996 F.2d 632, 638-39 (3d Cir. 1993). The
8
inference, along with the components of the plaintiff's prima
facie case, allow a jury to conclude that the employer was
actually motivated by illegal bias, but it does not compel that
result. See Sheridan, 100 F.3d at 1066-67. Moreover, the
plaintiff cannot prevail under Title VII merely by establishing
that the employer made a decision that was wrong or mistaken.
Fuentes, 32 F.3d at 765.
"Summary judgment is precluded if a disputed fact exists
which might affect the outcome of the suit under the controlling
substantive law. A dispute regarding a material fact is genuine
'if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.'" Josey, 996 F.2d at 637
(quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248
(1986))(emphasis added).
A.
The district court ruled that Bray had established a prima
facie case of discrimination, and Marriott does not appeal that
ruling. Marriott offered evidence of a nondiscriminatory reason
for its selection of Riehle to rebut the presumption of
discrimination created by Bray's prima facie case. Marriott
asserted that Riehle was the best applicant for the position and
pointed to a host of factors to support its contention. Riehle
had a higher PAF score, and, although Bray had been at Marriott
longer, it contended that Riehle’s experience was superior as
reflected by her higher occupational grade level (45 as compared
9
to Bray's 43) and her supervision of five managers. Marriott
also noted that Riehle's prior experience with renovations was an
added reason for preferring her to Bray because renovations were
due to begin at the Park Ridge. That experience, however, is of
limited assistance to our analysis because Nemetz testified that
Riehle's experience with re-dos did not factor into the rankings.
Dist. Ct. Op. at 19. Moreover, there is evidence that suggests
that Marriott did not learn of this experience until Riehle's
interview, and Bray contends that the discrimination occurred
when Marriott decided to deny her the promotion and interview
Riehle. See Appellant Br. at 19-20. Marriott also pointed to
the fact that Riehle had attended far more seminars and training
sessions than Bray to support its contention that Riehle was the
better candidate.
B.
We begin by focusing on the dispute over whether Bray was
ever interviewed for the promotion and Nemetz's testimony
regarding her qualifications for that promotion. In doing so,
however, we stress that it is the totality of the evidence that
must guide our analysis rather than the strength of each
individual argument. The dissent carefully explains each of the
discrepancies in this record in isolation and concludes that none
of them creates a material issue of fact. See Dissenting Op. at
8-11. We have previously noted that such an analysis is improper
in a discrimination case:
A play cannot be understood on the basis of
10
some of its scenes but only on its entire
performance, and similarly, a discrimination
analysis must concentrate not on individual
incidents, but on the overall scenario.
Andrews v. City of Philadelphia, 895 F.2d 1469, 1484 (3d Cir.
1990). Thus, we must determine whether the totality of the
evidence would allow a reasonable factfinder to conclude that
Bray has established the alleged bias.
The issue of Bray's interview was hotly contested before the
district court, but Marriott conceded this issue for purposes of
its legal argument on summary judgment. Given that concession,
the district court assumed that George Joosten, the Director of
Operations, did afford Bray a luncheon interview for the
promotion. The dispute over that interview is, however,
significant to our analysis and worthy of discussion.
Marriott's MCMS sets forth the procedure and criteria for
promotions within Marriott. In addition to outlining the
criteria by which applicants for promotions are screened, it
states that initially only one candidate should be interviewed.
Upon conclusion of screening the candidates,
only one may be chosen to interview in person
with the hiring manager. This is determined
by using all available information as
augmented by the screening process to re-rank
the candidates. After the in-person
interview, the hiring manager must decide
whether to hire that candidate before
conducting subsequent interviews.
App. at 44a.
Bray insists that, during her interview, Joosten told her
she was the leading candidate and that her first decision after
11
she was officially promoted would be hiring a new housekeeping
manager to fill the vacancy that her promotion would create. See
app. at 328a. Leo Nemetz, the General Manager of the Park Ridge
Hotel, testified in his deposition that Joosten told him there
had been no interview and that Bray's lunch with Joosten was
nothing more than an opportunity for Joosten to become acquainted
with Bray. App. at 233a-34a. Richard Lesser, Bray's supervisor,
stated in his affidavit: "I have been advised that there is a
question as to whether or not George Jooston set up an interview
with Beryl Bray for the position of director of services. This
interview was set up in my presence." App. at 325a. We must
take as fact that Bray was interviewed for the promotion. Under
Marriott's policy, this would mean that she was then considered
the number one candidate for the position. Therefore, before
Marriott could conduct subsequent interviews of other candidates,
it had to decide whether to promote Bray. But Bray did not learn
that she had been denied the position until after Joosten told
her that Therese Riehle had been interviewed and offered the
position of Director of Services. App. at 131a. Yet, Nemetz
testified that no candidates were interviewed until after they
had been ranked, that they were ranked first by their PAF scores,
and that only Riehle was interviewed because she was the top
candidate for the position under that ranking. App. at 228a-31a.
It is possible that Joosten interviewed Bray outside the
formal decision-making process and that the result of that
12
interview (or even the fact of it) was never shared with Nemetz
or others responsible for selecting Lesser's successor. It is
also possible that Bray's interview was not favorable and that
Riehle was then interviewed based upon her PAF scores and
experience. However, there is no testimony to support either
conjecture, and, even if there were, it would be up to a jury to
reconcile the conflicting testimony surrounding Bray's interview
and the ranking of candidates.
The dispute over Bray's ranking is particularly relevant to
our Title VII analysis because of Nemetz's discredited belief
that Bray was not even qualified for the promotion. The
following exchange occurred during Nemetz's deposition:
Q: Did you think that Beryl Bray was
qualified to be the director of services at
the Park Ridge Marriott?
A: I can't answer that question because I
just didn't go into anything other than use
the - - - the ranking.
Q: I’m not asking if you thought --- Therese
Riehle was the best. . . . I'm asking you if
you thought Beryl Bray was qualified to be
the director of services . . . .
A: No, I didn't.
Q: Can you tell me why not?
A: I thought she was an excellent employee
who was a maintainer. If I thought she was
capable of doing the job, I may have given it
to her. But I was looking for the best
qualified candidate.
App. at 262a-63a (emphasis added). A factfinder should determine
why Nemetz felt that Bray was not qualified or "capable of doing
13
the job." Since she established a prima facie case under Title
VII, the factfinder could conclude that Nemetz's erroneous view
of her ability was the result of illegal bias. See Sheridan v.
E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1067-68 (3d Cir.
1996)(en banc)(the factfinder can conclude from a rejection of an
employer's proffered explanation and a plaintiff's prima facie
case that bias was the actual reason a Title VII plaintiff was
not promoted).
Nemetz then retreated from his position that Bray was not
"capable of doing the job," and his attorney reminded him that
Bray could not have posted for the position had she not been
qualified.
Q: So it was your opinion that Beryl Bray was
not qualified to be director of services . .
. ?
A: No, it was not my ---
. . . .
A: I should --- she was not --- let me think.
I used the ranking. I used the ranking of -
--
[Interruption by Counsel for Marriott]: I'll
just object to the question because of
Marriott’s policy that you can’t even post
unless you’re qualified for the position.
App. at 263a. The dissent chooses to interpret this as merely
Nemetz's inarticulate statement that he was seeking the "best"
candidate, and that Bray, though qualified, was not the "best
qualified" candidate. See Dissenting Op. at 10. A factfinder
may well agree with that interpretation, but that is not for us
14
to decide.
Further doubt is cast upon the selection process by Nemetz's
testimony that Riehle was unanimously selected the number one
candidate. App. at 232a. He later explained that Joosten had
not given any input.
[Joosten] sat in the room with us. When we said --- I
did ask. No one said anything. No one had
any disapprovals so I said to Bob Stucey,
let's go ahead and set her up and George said
I prefer staying out of this.
App. at 259a (emphasis added). After Riehle was hired, Joosten
told Bray:
You are both equally qualified. You had the
experience. She had the rating of a one.
And since you were -- since you had been
there for a while we thought it wouldn't be
an incentive for you.
App. at 130a-31a.
"An employer can act only through individual supervisors and
employees; discrimination is rarely carried out pursuant to a
formal vote of a corporation's board of directors." Meritor Sav.
Bank, FSB v. Vinson, 477 U.S. 57, 75 (1986).
The distinct method of proof in employment
discrimination cases, relying on presumptions
and shifting burdens of articulation and
production, arose out of the Supreme Court’s
recognition that direct evidence of an
employer’s motivation will often be
unavailable or difficult to acquire.
Sheridan, 100 F.3d at 1071. Therefore, "[a] plaintiff is not
required to produce evidence which necessarily leads to the
conclusion 'that the employer did not act for nondiscriminatory
15
reasons.'" Sempier v. Johnson & Higgins, 45 F.3d 724, 728 (3d
Cir.), cert. denied,
115 S. Ct. 2611 (1995).
A reasonable jury could conclude from Nemetz's concededly
inaccurate assessment of Bray that the decision to reject her and
interview Riehle was driven by racial bias and not by the
explanations offered by Marriott. See Sheridan, 100 F.3d at
1067-68 ("[T]he elements of the prima facie case and disbelief of
the defendant's proffered reasons are the threshold findings,
beyond which the jury is permitted, but not required, to draw an
inference leading it to conclude that there was intentional
discrimination."). A reasonable jury could also conclude that
Nemetz’s apparent belief that Bray was "more of a maintainer" was
based upon racial bias. See id.
If Nemetz's assessment of Bray was racially biased, his
interpretation of the purportedly objective criteria he relied
upon to hire Riehle would not insulate Marriott's employment
decision from that taint. See, e.g., Hampton v. Borough of
Tinton Falls Police Dep't,
98 F.3d 107, 113 (3d Cir.
1996)(reversing summary judgment in favor of employer where
"district court either ignored several discrepancies in the
evaluation process, or failed to give all reasonable inferences
arising therefrom [to the plaintiff]"). Although Steussy and
Joosten were also involved in the hiring process, it is apparent
on this record that Nemetz was the key decisionmaker. He was in
charge of the Park Ridge Marriott, and both Joosten and Steussy
16
reported to him. See app. at 200a, 258a. Furthermore, although
there is conflicting testimony as to the role Joosten played, it
appears that he refrained from direct participation in the
decision to promote Riehle because he had a prior connection to
the hotel where she previously worked. Appellee Br. at 24; app.
at 258a-59a. Therefore, it is particularly relevant to our
decision whether there are discrepancies in how Nemetz evaluated
the criteria he purportedly relied upon to rank the applicants
and select Riehle. And we conclude that there were.
The dissent argues, however, that none of the evidentiary
discrepancies would allow a reasonable jury to doubt Marriott's
proffered explanation that it was looking for "the best"
candidate and that, therefore, Bray cannot prevail under Fuentes
or Sheridan. Dissenting Op. at 10. We do not believe that Title
VII analysis is so tightly constricted. This statute must not be
applied in a manner that ignores the sad reality that racial
animus can all too easily warp an individual's perspective to the
point that he or she never considers the member of a protected
class the "best" candidate regardless of that person's
credentials. The dissent's position would immunize an employer
from the reach of Title VII if the employer's belief that it had
selected the "best" candidate, was the result of conscious racial
bias. Thus, the issue here, is not merely whether Marriott was
seeking the "best" candidate but whether a reasonable factfinder
could conclude that Bray was not deemed the best because she is
17
Black. Indeed, Title VII would be eviscerated if our analysis
were to halt where the dissent suggests.
With this as our starting point, we examine the reasons that
Marriott proffered to justify its promotion of Riehle over Bray.
1. PAF ratings
Nemetz testified that each applicant's PAF scores played a
major role in determining who was the top candidate. Similarly,
the district court concluded that the decision to promote Riehle
was based in large part upon the PAF scores in each applicant's
job profile and that these objective scores were a
nondiscriminatory explanation for why Riehle was picked over
Bray. Riehle had PAF scores of "1", "1", and "2" for each of her
prior evaluations. All three of Bray's most recent scores, on
the other hand, were "2s." Nemetz was aware that Riehle's most
recent PAF was "1", but he was unable to recall at deposition the
two earlier evaluations. App. at 231a. However, the record
raises an issue of fact as to the timing of Riehle's most recent
rating.
Although Riehle's first two evaluations were a year apart
(11/16/91 and 11/14/92), her most recent evaluation -- the one
that Nemetz recalled -- was only six months after the previous
evaluation.6 On the other hand, all of Bray's evaluations were
6
The district court emphasized the fact that "Ms. Riehle
had received the top performance evaluation for her work with
Marriott during the previous two years, receiving a '1' for her
PAF rating." Dist. Ct. Op. at 13 (emphasis added). However,
when this Court reviewed the record, as we must in reviewing a
grant of summary judgment, it became clear that one of the "1s"
18
approximately one year apart (9/22/90, 9/18/91, and 9/21/92). At
oral argument, Marriott's counsel was asked why Riehle received a
"semi-annual" evaluation in what appeared to be an annual review
process when all of her prior evaluations and Bray's evaluations
had been annual. He could offer no explanation. A factfinder
should determine if Riehle was given an evaluation out of the
normal sequence and, if so, why.
This record suggests that Riehle officially began as
Director of Services on April 10, 1993,7 the same date that she
was given an evaluation of "1" for that position. Since Riehle's
PAF was updated in June 1993, it is conceivable that the rating
of "1" was given at that time to reflect her performance in her
new position. However, that is not consistent with Nemetz's
testimony. Nemetz was deposed in November of 1994 and testified
that Riehle was then due for an evaluation but that she had not
yet been evaluated.8 Absent further explanation, a reasonable
jury could conclude that Riehle was evaluated out of normal
had been awarded during a semi-annual review. At oral argument,
we asked counsel to explain why Riehle had been given a semi-
annual review but he could not.
7
The record does not establish when Bray or Riehle was
interviewed. However, Riehle's Associate Profile, as updated on
June 15, 1993, states that her position is Director of Services,
and her "Date in Pos:" is 4/10/93. The form also notes her
weekly salary and states that the effective date of that rate is
"4/10/93."
8
This is consistent with an annual evaluation occurring in
November as Riehle's two other evaluations (excluding the April
evaluation) also occurred during the month of November.
19
sequence in order to bolster her selection after Bray had been
interviewed. See, e.g., Hampton v. Borough of Tinton Falls
Police Dep't, 98 F.3d 107, 114 (3d Cir. 1996) (where Board's
policy of considering the past three years' evaluations allowed
it to consider three evaluations of the White candidate who had
received annual evaluations but six evaluations of the Black
candidate who was evaluated semiannually, a factfinder must
determine whether application of that policy was due to racial
bias).
The district court noted that
Ms. Riehle had received the top performance
evaluation for her work with Marriott during
the previous two years, receiving a "1" for
her PAF rating. Plaintiff, on the other
hand, had never received a rating above "2"
during the previous three years. Thus, the
most objective criteria clearly pointed to
Ms. Riehle as the superior candidate.
Dist. Ct. Op. at 13-14. However, this record only reveals two
scores prior to the time Riehle was interviewed. One was a "1,"
but the other was a "2."9 Therefore, on half of the two most
recent evaluations prior to her promotion, Riehle did not do as
well as she could have. On the other hand, there is evidence
that Bray's former supervisor, Richard Lesser, never gave
anything higher than a "2" so that Bray received the highest
9
Nemetz testified that the profile that was updated in
June of 1993 (the one referred to by the district court) was not
the one he relied upon in ranking Riehle, and the one that he
said he relied upon was not produced at his deposition. App. at
238a. This record does not establish what Riehle's three prior
PAF ratings before her promotion were.
20
possible grade for each of the three evaluations in her
employment profile. Lesser stated in his affidavit: "During my
tenure as director of services, I had never given a PAF rating
higher than a two to any manager that I was responsible to
review." App. at 325a. The district court correctly noted that
Lesser did not state that Bray would have received a "1" but for
this policy and that Marriott was entitled to rely upon Riehle’s
higher score even if Bray's lower score resulted only from
Lesser’s individual grading practice. See Dist. Ct. Op. at 13-14
n.13. However, that does not answer whether Nemetz's failure to
recognize that Bray had received the highest grade available was
the result of a biased belief that she was not qualified rather
than an objective evaluation of the PAF scores of both
candidates. The district court also noted that Bray produced no
evidence that anyone involved in the promotion knew that Lesser
never awarded "1s." Dist. Ct. Op. at 13-14 n.13. Furthermore,
Nemetz disputed whether Lesser ever gave a "1" and testified that
he thought he recalled Lesser telling him that he had given a "1"
to an employee on an evaluation. Dist. Ct. Op. at 13-14 n.13.
Although there is a dispute about whether Lesser ever gave a "1,"
there is no dispute that he thought Bray should have been
promoted. Lesser testified that he told Joosten that Bray was
qualified for the promotion: "In my opinion, which I let known
to Mr. Jooston and which Mr. Jooston was aware of, Beryl was more
than qualified to take over my position as director of services
21
at the Park Ridge Marriott. To this day, I cannot understand why
she was not offered the position." App. at 325a-26a. We
realize, of course, that Lesser never saw Riehle's application
and may have thought her better qualified than Bray had he done
so. However, that is not the point. There are enough disputed
facts on this record concerning Bray’s qualifications, the
accuracy of Riehle's PAF scores, and Nemetz's view of Bray's
ability to allow Bray to survive summary judgment.
2. Experience
Bray argues that experience is the most important factor in
promoting within Marriott and points to the fact that it is first
among the criteria on the MCMS.10 Marriott argues that
experience is one of many factors to be considered and that there
is no particular order to the criteria that are evaluated. The
parties also argue about which applicant had the superior
experience and how different types of experience should be
valued. The district court agreed with Marriott that Riehle's
experience was superior to Bray's. The court noted
although Mr. Nemetz did not testify as to
these subjects . . . this court notes that
Ms. Riehle's educational background included
a degree in Restaurant Hotel Management, . .
. while plaintiff’s college degree
encompassed the fields of English and
History. . . . Further, . . . Ms. Riehle was
twice awarded a "Manager of the Month" award
. . . while plaintiff has pointed to no
analogous awards.
10
The MCMS requires managers to "[c]ompare each candidates
(sic) relevant work experience both pre- and post-Marriott."
App. at 43a.
22
Dist. Ct. Op. at 6 n.8. However, if management did not consider
these factors in evaluating the experience of the two candidates,
the factors should not have been considered by the district
court. The issue is not whether the court can find a legitimate
reason why Marriott could have promoted Riehle but whether
Marriott had a legitimate reason that was not the result of
racial animus. "[T]he judge's function is not to weigh the
evidence and determine the truth of the matter, but rather to
determine if there is a genuine issue for trial. The district
court cannot decide issues of fact at the summary judgment
stage." Josey v. John R. Hollingsworth Corp., 996 F.2d 632, 637
(3d Cir. 1993)(citation omitted).
Nemetz testified that, in ranking candidates, the first
thing he looks at "is the latest rating that they received at
their hotel." App. at 215a. When asked whether placing primacy
on the PAF rating is a policy of Marriott, Nemetz acknowledged
that it was "[n]ot a policy of anybody's. It's just if you're
going to go for the best candidate, generally you do that by
looking at a rating." App. at 215a. Bray, on the other hand,
contends that "[i]t was common knowledge at the Marriott that
experience was the number one criteria in deciding promotions."
App. at 329a. While her belief alone is insufficient to raise an
issue of material fact, see Fuentes v. Perskie, 32 F.3d 759, 766
(3d Cir. 1994)(the "not so" approach "does not create a material
issue of fact"), it takes on added significance when combined
23
with that fact that "[experience] is the first criteria listed in
the pamphlet provided for by the defendant, MCMS." App. at 329a-
30a. The MCMS lists in the following order factors that should
be considered in ranking candidates for a promotion: experience,
PAF rating, training and education, relocation, and salary.
Marriott suggests that this list is not in order of importance
because it is preceded by the statement "The following are
additional considerations to help rank the order of candidates."
See Appellee Br. at 30; app. at 43a. Marriott may be correct.
However, the order does suggest a certain priority. For example,
it is implausible that Marriott intended relocation and salary
considerations to outweigh or be given equal consideration with
such factors as experience and the PAF rating. Thus, "Salary"
and "Relocation" are listed last. Moreover, in the MCMS, this
list of additional considerations is immediately preceded by the
requirements of posting, the primary of which appears to be
experience:
Any associate who meets or exceeds the following
minimum requirements for a job showing on the
Job Availability Report will have the
opportunity to have their name submitted
(posted) should they wish to apply for the
job:
a.Associate has spent at least
18 months in current
position (Operations
Supervisors and Managers
only),
OR
b.Promotion eligibility date
in MCMS indicates the
24
associate is ready for
promotion prior to 18
months in position,
AND
c.Associate has a 1 or 2 on
last PAF rating. . . .
AND
d.Associate satisfies the
minimum objective
requirements for the
position applied for as
noted on the job profile
in the Career Planning
Profile Guide, and the
applied for position is
listed as one of the
"possible next qualified
positions" in the
associate's MCMS profile.
App. at 42a. A jury should determine whether there is any
significance to the order of the factors in the MCMS, and, if so,
whether Nemetz's failure to use that order was racially
motivated. According to Joosten, Bray was more experienced than
Riehle: "You are both equally qualified. You had the experience.
She had the rating of a one." App. at 130a. In fact, Joosten
suggested that Bray's experience might have hurt her: "And since
you were -- since you had been there for a while we thought it
wouldn't be an incentive for you." App. at 130a-31a. A jury
certainly could conclude that improper racial animus caused
Marriott to look unfavorably upon Bray's experience.
Bray also argues that Marriott violated its own policy in
failing to give priority to her prior experience at the Park
25
Ridge in order to justify going outside that hotel to promote
Riehle. Marriott counters by stating that Bray incorrectly
states that its policy is to give priority in promotion decisions
to applicants at the subject hotel. Marriott points to a letter
from the Vice President of Human Resources for Marriott dated May
31, 1991. That letter states: "Keep in mind that there may be a
number of qualified candidates for any one position and that,
before searching outside of their region, hiring managers will
try to fill open positions first from within their own hotel or
region." App. at 296a (emphasis added).
Nevertheless, Richard Lesser stated unequivocally in his
affidavit that "[i]t was common knowledge that one of the
policies at Marriott was to promote from within the subject hotel
if at all possible." App. at 326a. Marriott's contention is
corroborated by Nemetz who testified that no preference was given
to an applicant in the same hotel and that this distinction is
not even a factor in promotional decisions.
Q: Is it a factor in making the decision as to who to
promote, the fact that one individual is in
the same hotel and one is not?
A: No.
Q: It's not even a factor?
A: No.
App. at 222a.
If Lesser is telling the truth, applicants from within were
given priority in promotions at the Park Ridge despite Marriott's
26
policy to the contrary. Given Nemetz's view of Bray, a
reasonable factfinder could conclude that managers at the Park
Ridge stopped giving preference to candidates already at that
hotel only when she was competing with a candidate from another
Marriott in the same region. Of course, a factfinder could
certainly conclude that Lesser was simply mistaken about the
hiring policy at the Park Ridge Marriott, but that is not for us
to decide. If a factfinder were to conclude that the policy
prior to Bray's application was consistent with what Lesser
thought was "common knowledge," Bray's interview takes on
increased significance. It would further establish that her
experience had been evaluated in a manner that made her the top-
ranked candidate for the promotion. It would also be consistent
with Bray’s testimony that she was led to believe during the
interview that Marriott considered her the top candidate, and she
was advised that her first decision would be to hire a
housekeeping manager. App. at 328a.
3. Occupational Grade Levels
The district court noted that the occupational grade levels
of 45 and 43 for Riehle and Bray respectively meant that "Ms.
Riehle had attained the position of Assistant Director of
Services at the New York Marquis Marriott while plaintiff had
only risen to the level of Housekeeping Manager at the Park Ridge
Marriott." Dist. Ct. Op. at 6 (emphasis added). The court
repeatedly notes that Bray had "only" attained the level of
27
Housekeeping Manager at the Park Ridge while Riehle had earned
the title of Assistant Director of Services at the New York
Marquis Marriott. See Dist. Ct. Op. at 14, 15, 18. However,
Nemetz testified in his deposition that there was no difference
in these job classifications. "It is based on the size of the
hotel" with bigger hotels calling the position "Assistant
Director of Services" and smaller hotels calling it "Housekeeping
Manager." App. at 239a. Nemetz even conceded that Bray could
not have held a higher position than the one she had without the
promotion she was seeking as that was the only position above
Housekeeping Manager at her hotel.
Marriott is certainly entitled to give Riehle's job title
greater weight than Bray's even if the only difference in titles
is the size of the hotels where they were working. However,
Marriott may not do so if racial bias colored how her grade level
would be valued. We do not say that this is what happened here
only that sufficient issues of fact exist to preclude the entry
of summary judgment. We do not doubt that a reasonable
factfinder could accept all of Marriott’s explanations and
conclude that Riehle was promoted over Bray simply because Riehle
was the superior candidate based upon all of the criteria
Marriott says it used to make the decision. However, this record
does not compel that result as a matter of law.
The significance of such evidence is for a jury's
determination, not a court's. Had these
discrepancies been presented to a jury, it
may have found defendants' explanations quite
credible, and returned a verdict in their
28
favor. However, that is not the test that we
employ, nor is it the test the district court
should have employed. Drawing all reasonable
inferences in favor of plaintiffs, as we
must, it is clear that they were entitled to
have a jury decide whether or not the reasons
proffered . . . were real or pretextual.
Hampton v. Borough of Tinton Falls Police Dep't, 98 F.3d at, 115.
Thus, we will reverse the district court's grant of summary
judgment.
IV.
The allocation of the burden of proof and the role of
plaintiff’s prima facie case as first set forth in Fuentes and
more recently reaffirmed in Sheridan is equally applicable to a
NJLAD claim. Romano v. Brown & Williamson Tobacco Corp., 665
A.2d 1139 (N.J. Super. App. Div. 1995). Romano applies the
Fuentes standard of review at summary judgment for Title VII
cases to NJLAD claims.
Id. at 1143-44. Thus, our discussion of
Bray's Title VII claim also applies to her NJLAD claim, and, for
the reasons provided above, we find that Bray's NJLAD claim
should have survived summary judgment as well.
V.
For the above reasons, we will reverse the grant of summary
judgment to Marriott on Bray's Title VII and NJLAD claims and
remand to the district court for further proceedings consistent
with this opinion. In granting summary judgment for defendant,
the district court also dismissed Bray's related state law
claims. Upon remand, the court will once again consider these
29
claims.
ALITO, Circuit Judge, dissenting:
In Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994), we laid
out the evidentiary requirements a plaintiff has to satisfy in
order to survive a motion for summary judgment in a “pretext”
employment discrimination case under Title VII. We held that
where the employer has proffered a legitimate reason for its
employment action, the plaintiff must submit evidence that
either:
(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.
Id. at 762 (emphasis added). In Sheridan v. E.I. DuPont de
Nemours & Co.,
100 F.3d 1061, 1067 (3d Cir. 1996), petition for
cert. filed,
65 U.S.L.W. 3571 (Feb 03, 1997) (No. 96-1231), the
en banc court reaffirmed Fuentes. I dissent here because I do
not see the plaintiff, Beryl Bray, as having met the Fuentes
evidentiary burden for showing pretext.
In the district court, Bray argued that she was entitled to
30
survive Marriott’s summary judgment motion because she had
satisfied both prongs of the two-prong Fuentes test. On prong
one, which involves discrediting the employer’s proffered
legitimate reasons for the employment decision, Bray’s argument
was that she “exceeded Ms. Riehle [her competitor, who was
promoted instead] in every objective test that could be employed
to evaluate the two candidates and that the only criteria under
which Ms. Riehle exceeded plaintiff involved subjective inquiries
which are simply not credible.” (Dist. Ct. Op. at 17-18). On
prong two, which requires plaintiff to show that racial
discrimination was more likely than not a motivating or
determinative cause of the adverse employment decision, Bray
pointed to a document setting forth the minority hiring goals of
the Park Ridge Marriott, and alleged that the failure to meet
these goals made it “more probable than not that racial
discrimination was a motivating or determinative factor in her
rejection for the position of Director of Services.” (Dist. Ct.
Op. at 21). The district court found Bray’s arguments
insufficient on both prongs and granted the Marriott’s motion for
summary judgment.
As I read Bray’s brief on appeal, she is challenging the
district court’s determination on prong one. She says she has
“pointed to enough weaknesses, implausibilities, inconsistencies,
incoherences or contradictions in the employer[’]s proffered
legitimate reasons to overcome summary judgment regarding
plaintiff’s Title VII claim.” (Appellant’s Br. at 2).
31
Marriott’s proffered legitimate reason for why it promoted
Therese Riehle over Bray was that Riehle was better qualified.
Bray counters with the assertion that the evidence shows that her
qualifications were so much better than those of Riehle that
“there is no reasonable explanation as to why Riehle was given
the position over Beryl Bray other than using race as a
consideration.”11 (Appellant’s Br. at 6).
What kind of evidence does prong one require? The prong one
requirement is that plaintiff has to point to “evidence, either
direct or circumstantial, from which a factfinder could
reasonably . . . disbelieve the employer’s articulated reasons.”
Fuentes, 32 F.3d at 764. Fuentes explains that:
To discredit the employer’s proffered reason, however, the
plaintiff cannot simply show that the employer’s reason
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. Rather, the non-moving
plaintiff must demonstrate such weaknesses,
implausibilities, inconsistencies, or contradictions in
the employer’s proffered legitimate reasons for its
11
Bray’s ultimate burden at trial will be to demonstrate
that intentional racial animus was the reason for her non-
promotion -- in effect, a requirement that she demonstrate prong
two of the Fuentes test. See Henry L. Chambers, Getting it
Right: Uncertainty and Error in the New Disparate Treatment
Paradigm, 60 Alb. L. Rev. 1, 31 (1996). However, at the summary
judgment stage Bray needs only to demonstrate her prima facie
case and prong one. See Fuentes, 32 F.3d at 764.
32
action that a reasonable factfinder could rationally
find them unworthy of credence.
Id. at 765 (internal citations and quotations omitted).
Fuentes tells us that the burden on a plaintiff who chooses
to proceed under prong one is a “difficult” one. Id. at 765.
That the burden under prong one is “difficult” makes sense
because plaintiff is attempting to indirectly produce an
inference of intentional discrimination out of the fact that the
employer’s proffered reason was untrue. Hence, where, as is the
case here, the defendant asserts that it made the choice among
candidates that it did because it wanted the “best qualified”
candidate, plaintiff would have to point to evidence that showed
either (1) that the defendant’s selection process and criteria
were filled with such inconsistencies that the employer’s claim
that it was seeking the “best qualified” candidate was a sham or
(2) that the qualifications of the person actually promoted were
so much lower than those of her competitors that a reasonable
factfinder could disbelieve the claim that the employer was
honestly seeking the best qualified candidate.
It is crucial to understand that prong one is not satisfied
if plaintiff merely points to evidence that shows that her
qualifications were roughly comparable to those of her
competitors. Nor is prong one satisfied by evidence that the
employer is not “fair” or “kind” as a general matter. Prong one
requires that plaintiff point to evidence from which a reasonable
33
factfinder can “disbelieve the employer’s articulated reasons.”
Fuentes, 32 F.3d at 764 (emphasis added). “Disbelieve” is a
higher standard than “disagree.” It is not enough for the
evidence to be such that a reasonable factfinder could disagree
with the employer as to which candidate was better qualified.
Instead, the evidence must be such that a reasonable factfinder
can infer that the employer was not truly looking for the best
qualified candidate, i.e., that the employer’s articulated
legitimate reason was pretextual. The burden on a plaintiff
seeking to proceed on prong one is difficult, but as Fuentes
explains, “‘[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.’” 32
F.3d at 765 (quoting Ezold v. Wolf, Block, Schorr & Solis-Cohen,
983 F.2d 509, 531 (3d Cir. 1992), cert. denied,
510 U.S. 826
(1993)).
Moving back to the case at hand, Bray’s burden under prong
one was to show either that there were so many inconsistencies in
the criteria and procedures that Marriott used in its selection
process that a reasonable factfinder could infer that the process
was a sham and was not aimed at finding the best qualified
candidate, or that Bray herself was so much better qualified than
Riehle for the job in question that a reasonable factfinder could
conclude that Marriott did not, in fact, honestly believe that
Riehle was better qualified than Bray. I dissent because the
majority has not come close to holding Bray to her burden under
34
prong one and has thereby impermissibly diluted Fuentes’ prong
one requirements for crossing summary judgment.
The majority here, after articulating the prong one test
from Fuentes, goes on to cite Josey v. John R. Hollingsworth
Corp., 996 F.2d 632, 638-39 (3d Cir. 1993), for the proposition
that “[a]n inference of pretext may arise if the plaintiff can
raise suspicions with respect to the defendant’s credibility or
the employer’s treatment of the employee.” Maj. Op. at 8
(emphasis added). Relying upon this statement derived from
Josey, the majority identifies evidence from which a factfinder
could conclude that Marriott may have treated Bray unfairly in
not following the proper internal firm processes in rejecting
her. I acknowledge that this evidence does literally satisfy the
statement that “[a]n inference of pretext may arise if the
plaintiff can raise suspicions with respect the defendant’s
credibility or the employer’s treatment of the employee.” Maj.
Op. at 8 (citing
Josey, 996 F.3d at 638-39) (emphasis on a term
added by majority). But that statement has to be read in
context. The relevant context is that the evidence of
“suspicion” has to be such that it could allow a reasonable
factfinder to conclude that the employer’s proffered reason for
the non-promotion was a lie. That the plaintiff has been able to
identify evidence showing that the employer did not follow the
proper internal procedures, or that the employer was not
completely truthful in its depositions, should not by itself
enable the plaintiff to cross the summary judgment hurdle if the
35
identified evidence would not enable a reasonable factfinder to
conclude that the employer’s proffered reason for denying the
promotion was false. In other words, so long as Bray is
proceeding on prong one, she is required to point to evidence
from which a reasonable factfinder could infer that Marriott did
not honestly believe that Riehle was better qualified than Bray.
To me, the evidence in this case shows two things -- (1)
that the qualifications of Bray and Riehle for the Director of
Services position they were seeking were roughly equal and (2)
that Marriott may have treated Bray unfairly by not following its
own internal procedures as to giving her proper notice that she
had been rejected and failing to give her a proper explanation
for her rejection. If we had a case where the only evidence was
that the competing employees had qualifications that were roughly
similar and the job in question was a service-sector managerial
position, such as the one here, the case would be easy. In such
service-sector managerial jobs the qualifications of the
candidates are often no more than loosely correlated with the
position to which the candidates are seeking promotion, and the
qualifications being weighed tend to include subjective internal
evaluations of the candidates as important components of the
final determination. In such a case, unless the qualifications
of the candidates are extremely disproportionate, it is hard to
see how a district court could deny summary judgment to an
employer who claims that it, in its business judgment, thought
one candidate was better qualified than the other. Cf. Ezold,
36
983 F.2d at 527 (cautioning against “‘unwarranted invasion or
intrusion’ into matters involving professional judgments about an
employee’s qualifications for promotion”).
The majority’s claim, however, is that there is more than
merely evidence as to the candidates’ qualifications that shows
them to be roughly equal. The claim is that there is evidence of
such inconsistencies and discrepancies in the selection process
that it would allow a reasonable factfinder to disbelieve
Marriott’s claim that it promoted Riehle because it thought her
to be best qualified. I will list that evidence and attempt to
show why it does not bring into question Marriott’s claim that it
promoted Riehle because it thought she was better qualified than
Bray.
First, Marriott had a procedure for in-house promotions
whereby, upon conclusion of a screening of the candidates, only
one person could be chosen for a personal interview with the
hiring manager. Maj. Op. at 11. After this interview, the
hiring manager had to decide whether to hire the candidate before
conducting further interviews. Maj. Op. at 11. Bray claims, and
we take that claim as fact, that she was interviewed for the
Director of Services position first. Maj. Op. at 12. Therefore,
before Marriott could conduct subsequent interviews, its internal
procedures required it to reject Bray first. Maj. Op. at 12.
However, Bray did not learn that she had been turned down for the
position until after Riehle had been interviewed and offered the
job. Maj. Op. at 12.
37
This evidence does not show any more than the fact that
Marriott did not comply with its internal rules by failing to
inform Bray that she had been rejected before interviewing and
hiring another candidate. The majority, however, sees this
evidence as combining with other evidence from depositions to
warrant reversal of the district court’s grant of summary
judgment to Marriott.
The second piece of evidence identified by the majority is
that Leo Nemetz, the General Manager at the Park Ridge Marriott,
testified at his deposition, with respect to Bray, that:
I thought she was an excellent employee who was a
maintainer. If I thought she was capable of doing the
job, I may have given it to her. But I was looking for
the best qualified candidate.
Maj. Op. at 13 (emphasis added by majority). The majority
latches on to the statement of Nemetz that he did not think Bray
“capable of doing the job,” and claims that the statement was so
clearly erroneous that a factfinder could have concluded that
there was illegal bias in the selection process. Maj. Op. at 13.
I utterly fail to see this. As a literal matter Nemetz appears
to have been in error in suggesting that Bray was not “capable of
doing the job.” But in his very next statement, he qualified
what he had said about Bray by explaining: “[b]ut I was looking
for the best qualified candidate.” Maj. Op. at 13 (emphasis
added). This latter statement implies that Nemetz thought that
38
Bray was not the “best” among the candidates, and that that was
what he meant by stating that Bray was not qualified -- as
opposed to Nemetz thinking that Bray did not possess the minimal
qualifications necessary to perform the job. But the majority
ignores Nemetz’s explanation that he was looking for the “best
qualified candidate.” For me, Nemetz’s explanation makes it
clear that the former statement, “[i]f I thought she was capable
of doing the job, I may have given it to her” was no more than
loose language. That this was no more than loose language is
confirmed by the fact that Nemetz, upon being pressed by Bray’s
counsel as to whether he really meant that Bray did not possess
the minimal qualifications for the job, withdrew that statement.
Maj. Op. at 13-14. The majority, however, isolates the “[not]
capable of doing the job” language and concludes that there is
evidence from which it could be inferred that the employer was
not truly looking for the “best qualified candidate.”
In any event, it does not matter whether Nemetz was in error
in stating that he thought Bray was not qualified. The issue is
whether Marriott was not credible in its proffer that it honestly
thought Riehle to be the “best qualified” candidate. I fail to
see how pointing to loose language in a deposition satisfies this
burden.
The majority then proceeds to identify another piece of
evidence that it says casts “[f]urther doubt . . . upon the
selection process.” Maj. Op. at 14. This evidence is deposition
testimony by Nemetz that Riehle had been “unanimously” selected
39
by a three-member selection committee as the number one
candidate. Maj. Op. at 14. Later, Nemetz modified his position
to explain that one of the three members, George Joosten, had
asked to stay out of the decision.12 Maj. Op. at 14. What would
this evidence show a reasonable factfinder? It does not attack
or bring into doubt any of Riehle’s qualifications. Instead, all
it shows is that Nemetz, once again, was loose with his
characterization of the facts as to the selection process.
However, unless the evidence goes to undermine Marriott’s
assertion that it thought Riehle was better qualified and
promoted her for that reason, Bray should lose at summary
judgment.13
12
There is no evidence that Joosten opposed Riehle’s
promotion. In fact, after Riehle was hired, he told Bray:
You are both equally qualified. You had the experience.
She had the rating of a one. And since you were --
since you had been there for a while we thought it
wouldn’t be an incentive for you.
Maj. Op. at 14-15 (emphasis added). If anything, it appears from
Joosten’s explanation that he did not find his two colleagues’
determination that Riehle was the better qualified candidate
problematic, even though he thought the two candidates were
equally qualified.
13
In addition, there was testimony from the Park Ridge
Marriott’s former Director of Services, Richard Lesser, that “it
was common knowledge that one of the policies at Marriott was to
promote from within the subject hotel, if at all possible.” Maj.
Op. at 25. Marriott disputes this claim, but even if taken as
true it would not go to attack Riehle’s qualifications or
Marriott’s claim that it thought Riehle better qualified. As
with the other evidence identified by the majority, this piece
merely goes to show that Bray was not afforded the proper
internal process in her rejection. But anti-discrimination law
does not attempt to police fairness in employment as a general
matter, but rather only polices the narrow area of intentional
discrimination in employment decisions.
40
I will not test the reader’s patience by describing the
comparative evidence as to Bray’s and Riehle’s qualifications. I
merely reiterate that while the evidence may not show that Riehle
was clearly the superior candidate, as the district court
thought, it shows that the candidates were approximately equal in
qualifications. Reasonable people could probably differ on their
thoughts as to which candidate was better qualified, but that is
not the question. Instead the question in this prong one
analysis is whether a reasonable factfinder could determine,
based on the evidence, that Marriott could not have honestly
thought that Riehle was better qualified. Given the subjective
nature of many of the qualifications being considered and the
amorphous nature of the question of what qualifications were
needed to perform the specific job for which promotion was being
sought, I do not see how a reasonable factfinder could find that
Marriott did not honestly think Riehle to be better qualified.
The inconsistencies and discrepancies that Bray identified were
too minor and the qualifications of the candidates too similar
for a reasonable factfinder to determine that Marriott was lying
when it stated that Riehle was selected because Marriott believed
she was more qualified.
There is only one piece of evidence that the majority points
to that I see as directly attacking Marriott’s claim that it
thought Riehle was better qualified. Nemetz testified that
Riehle’s higher performance ratings (“PAFs”) were a crucial
factor in Marriott’s thinking that Riehle was better qualified
41
than Bray. Maj. Op. at 17. It is undisputed that Riehle’s raw
PAF scores were higher than those of Bray. Riehle had two scores
of “1" and one of “2,” whereas all of Bray’s scores were “2s.”
But the majority has found evidence in the record that it views
as showing these scores to be suspicious. What the majority has
found is that one of Riehle’s evaluations was a “semi-annual”
evaluation, as opposed to the normal “annual” evaluation. Maj.
Op. at 18. This, the majority suggests, puts the PAF scores
under suspicion.
I agree that if indeed Riehle was given an additional,
unscheduled and unexplainable review, it looks like an improper
bolstering of credentials, and could make it somewhat plausible
for a factfinder to conclude that Marriott did not think that
Riehle was, in fact, better qualified. But I can find no mention
of this “semi-annual” review, let alone any argument based on it,
anywhere in Bray’s briefs.14 Nor can I find reference to this
point in the papers opposing summary judgment that Bray filed in
the district court. I believe it is problematic to attach
importance to inferences that could be drawn from evidence that
the parties have not had an opportunity to adequately consider
14
Issues not raised are waived. See Laborers’ Int’l Union
of N. Am. v. Foster Wheeler Energy Corp., 26 F.3d 375, 398 (3d
Cir.) (“An issue is waived unless a party raises it in its
opening brief, and for those purposes `a passing reference to an
issue . . . will not suffice to bring that issue before this
court.’” (citation omitted) (ellipsis in original)), cert.
denied,
115 S. Ct. 356 (1994); see also Commonwealth of Pa. Dept.
of Public Welfare v. United States Dept. of Health and Human
Services,
101 F.3d 939, 945 (3d Cir. 1996). However, what we are
talking about here is evidence that was not mentioned, as opposed
to a legal argument not raised.
42
and explain.
We asked Marriott’s counsel about the “semi-annual” review
at oral argument and he did not have an explanation. Maj. Op. at
18 n.6. But Marriott’s counsel had probably never asked his
client to explain the “semi-annual” review to him. My unease
with attaching too much significance to counsel’s failure to
explain is further amplified by the fact that Marriott’s counsel
at trial had passed away in the period between trial and appeal,
and counsel on appeal was new.
In sum, the evidence here shows (1) that the two applicants
were of roughly equal qualifications with respect to the job for
which they were seeking promotion and (2) that the employer may
have acted unfairly in failing to follow proper internal
procedures in rejecting one of the candidates. Under existing
anti-discrimination law, evidence of unfairness in the selection
process alone, without evidence linking the unfairness to race-
based animus, should not be enough to get a plaintiff beyond
summary judgment, so long as the employer’s proffered legitimate
reason for the employment decision remains intact. I
respectfully suggest that what the majority here has done is to
weaken the burden on the plaintiff at the pretext stage of the
McDonnell Douglas framework to one where all the plaintiff needs
to do is to point to minor inconsistencies or discrepancies in
terms of the employer’s failure to follow its own internal
procedures in order to get to trial. I have no doubt that in the
future we are going to get many more cases where an employer is
43
choosing between competing candidates of roughly equal
qualifications and the candidate who is not hired or promoted
claims discrimination. I also have little doubt that most
plaintiffs will be able to use the discovery process to find
minor inconsistencies in terms of the employer’s having
failed to follow its internal procedures to the letter. What we
end up doing then is converting anti-discrimination law into a
“conditions of employment” law, because we are allowing
disgruntled employees to impose the costs of trial on employers
who, although they have not acted with the intent to
discriminate, may have treated their employees unfairly. This
represents an unwarranted extension of the anti-discrimination
laws.
44
