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Fuentes v. Perskie

argued: June 23, 1994.


On Appeal from the United States District Court for the District of New Jersey. (D.C. Civil No. 92-cv-00190).

Before: Becker and Hutchinson, Circuit Judges, and Padova, District Judge*fn*

Author: Becker


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, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (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 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.


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.

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,*fn2 the creation of a new Compliance Division, and the considerable reorganization of two others. The Plan transferred the primary functions of AA&P to a subdivision, entitled the Affirmative Action/Equal Employment Opportunity Unit ("AA/EEO"), within the new Compliance Division. The reorganization reduced the Commission's staff from 542 to 446 employees.

The Commission resolved to post and advertise all new management positions. Fuentes, along with all other personnel whose positions would be eliminated under the Plan, was advised to apply for the new positions that interested him, and he, along with twenty-five other candidates, applied for the position of Chief of AA/EEO. Fuentes and four others were eventually interviewed for that position. The Committee, meeting in an executive session, agreed that several of the other interviewees were better qualified than Fuentes for that position. Acting on the Committee's behalf, Perskie met with Fuentes to inform him that he would probably not be hired to fill it.*fn3 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.*fn4 Fuentes, who is Latino (Puerto Rican), brought the proceedings which led to this action.*fn5

The district court concluded that Fuentes had made out a prima facie case of employment discrimination under the McDonnell Douglas /Burdine /Hicks line of cases, see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981); St. Mary's Honor Ctr. v. Hicks, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (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 discriminatory, and hence it granted summary judgment for the Commission. It is from this judgment that Fuentes appeals. We exercise plenary review.


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 ...

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