United States District Court, D. New Jersey
August 15, 2005.
DENNIS SILVER, Plaintiff,
AMERICAN INSTITUTE OF CERTIFIED PUBLIC ACCOUNTANTS, Defendant.
The opinion of the court was delivered by: JOHN BISSELL, Chief Judge, District
This matter comes before the Court on Defendant American Institute of Certified Public Accountants' motion for summary
judgment pursuant to Fed.R.Civ.P. 56.
This case was brought by Plaintiff Dennis Silver ("Plaintiff"
or "Mr. Silver") against his former employer American Institute
of Certified Public Accountants ("Defendant" or "AICPA"). The
case was transferred to this Court from the Eastern District of
New York on October 22, 2001.
In the Complaint, Plaintiff alleges employment discrimination
under Title VII of the Civil Rights Act of 1964. Mr. Silver
alleges that AICPA discriminated against him based on race, age
and gender. Mr. Silver cites "harassment, disparities of
treatment with respect to race, increase[d] scrutiny of my work
and hostile work environment." Compl. at ¶ 9. Furthermore, Mr.
Silver cites to "retaliation" as a cause of action. See id.
at ¶ 10.
On March 25, 2005, Defendant filed a motion for summary
judgment pursuant to Fed.R.Civ.P. 56.
I. Standard for Summary Judgment Motion Pursuant to Rule 56
Fed.R.Civ.P. 56(c) provides that summary judgment should be
granted "if pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law." Fed.R.Civ.P. 56(c); see also
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Kreschollek v. Southern Stevedoring Co., 223 F.3d 202, 204 (3d
Cir. 2000). In deciding a motion for summary judgment, a court
must construe all facts and inferences in the light most
favorable to the nonmoving party. See Boyle v. Allegheny
Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998). The moving party
bears the burden of establishing that no genuine issue of
material fact remains. See Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986).
The Supreme Court has stated that in evaluating a defendant's
motion for summary judgment:
[t]he judge must ask . . . not whether . . . the
evidence unmistakably favors one side or the other
but whether a fair-minded jury could return a verdict
for the plaintiff on the evidence presented. The mere
existence of a scintilla of evidence in support of
the plaintiff's position will be insufficient; there
must be evidence on which the jury could reasonably
find for the plaintiff. The judge's inquiry,
therefore, unavoidably asks whether reasonable jurors
could find by a preponderance of evidence that the
plaintiff is entitled to a verdict. . . .
Anderson, 477 U.S. at 252. A fact is "material" only if it will
affect the outcome of a lawsuit under the applicable law, and a
dispute over a material fact is "genuine" if the evidence is such
that a reasonable fact finder could return a verdict for the
nonmoving party. See id. Only evidence that would be admissible at trial may be used to
test a summary judgment motion; evidence with a deficient
foundation must be excluded from consideration. See Blackburn
v. United Parcel Service, Inc., 1999 WL 360546 (3d Cir. 1999).
In order to survive a motion for summary judgment, the non-moving
party must present more than a mere scintilla of evidence in his
favor. Id. The non-moving party "cannot simply reallege
factually unsupported allegations contained in his pleadings."
Anderson, 477 U.S. at 249; see also Clark v. Clabaugh,
20 F.3d 1290
, 1294 (3d Cir. 1994).
II. The Elements of a Prima Facie Case Under Title VII
Title VII provides, in relevant part, that it "shall be an
unlawful employment practice for an employer (1) to fail or
refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual's race, color, religion, sex, or
national origin. . . ." 42 U.S.C. § 2000e-2(a).
It is well established that Title VII claims are to be
evaluated according to the burden-shifting framework established
by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) and then elaborated in Texas Dep't of Community
Affairs v. Burdine, 450 U.S. 248, 253 n. 6 (1981). As described
by the Court in Burdine: First, the plaintiff has the burden of proving by a
preponderance of the evidence a prima facie case of
discrimination. Second, if the plaintiff succeeds in
proving a prima facie case, the burden [of
production] shifts to the defendant to articulate
some legitimate, non-discriminatory reason for the
[adverse employment decision]. Third, should the
defendant carry this burden, the plaintiff must then
have an opportunity to prove by a preponderance of
the evidence that legitimate reasons offered by the
defendant were not his true reasons, but were a
pretext for discrimination.
Burdine, 450 U.S. at 252-53. It is worth noting that although
the burden of production may shift under the McDonnell Douglas
analysis, the Title VII plaintiff always bears the ultimate
burden of persuasion of establishing intentional discrimination.
See United States Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 716 (1983); Burdine, 450 U.S. at 256.
The precise elements of a prima facie case under Title VII may
vary according to the particular facts of the case. See
McDonnell Douglas, 411 U.S. at 802 ("The facts necessarily will
vary in Title VII cases, and the specification above of the prima
facie case required from [plaintiff] is not necessarily
applicable in every respect to differing factual situations.").
However, a Title VII plaintiff may establish generally a prima
facie case of employment discrimination by showing that: (1) he
is a member of a protected class, (2) he was qualified for a
position, and (3) he suffered an adverse employment decision
(termination, constructive discharge, failure to receive promotion, etc.) "under circumstances that give rise to an
inference of unlawful discrimination." Burdine,
450 U.S. at 253.*fn1
Should the employee establish a prima facie case, the burden of
production shifts to the employer to articulate a legitimate,
non-discriminatory reason for the adverse employment decision.
"An employer need not prove, however, that the proffered reasons
actually motivated the [adverse employment] decision."
Stanziale, 200 F.3d at 105; see Fuentes v. Perskie,
32 F.3d 759, 763 (3d Cir. 1994). Finally, if the defendant successfully
articulates a non-discriminatory reason, the burden of production
returns to the plaintiff to prove that the proffered reasons were
merely pretexts to discriminate. Moreover, the heavier burden of
persuasion stays with the Plaintiff who must show by a
preponderance of the evidence "both that the [employer's
proffered] reason [for termination] was false, and that
discrimination was the real reason." St. Mary's Honor Center v. Hicks, 509 U.S. 502, 515 (1993); see also Clowes v.
Terminix Intern., Inc., 109 N.J. 575, 595 (1988).
According to AICPA, Mr. Silver's age, race and gender
discrimination claims must fail because Mr. Silver "cannot
establish a prima facie case of race, age or gender
discrimination" and because AICPA "has articulated a legitimate,
non-discriminatory reason for his discharge, namely, his
well-documented history of poor performance." Def.'s Br. at 2.
AICPA also argues, assuming that Mr. Silver was able to establish
a prima facie case, he did not meet his burden of rebutting
AICPA's legitimate non-discriminatory reason for its actions.
See id. at 18. Furthermore, AICPA argues that Mr. Silver's
retaliation claim must fail because "his complaint regarding
Laurie Henkle is not protected activity" and "there is no
evidence of a causal connection between Plaintiff's letter
complaint and his receipt of a poor evaluation or his termination
over one year later." Id.
A. Plaintiff has Established a Prima Facie Case Under Title
The Court disagrees with the Defendant that Plaintiff has
failed to make a prima facie case. There is no debate that Mr.
Silver belongs to a racial minority. AICPA argues that Mr.
Silver's job performance was not satisfactory and therefore he
was not performing his job at a level that met his employer's expectations. See id. at 14.
It is true that Plaintiff's performance evaluations were less
than satisfactory which indicates that he may not have been
performing his duties to the satisfaction of his employer;
however, the task of establishing a prima facie case under the
McDonnell Douglas framework is not intended to be onerous.
Burdine, 450 U.S. at 253. Thus, in determining whether a
plaintiff has established a prima facie case that he is qualified
for the position at issue, courts have consistently held that
"while objective job qualifications should be considered . . .
the question of whether an employee possesses a subjective
quality, such as leadership or management skill, is better left
to" consideration of whether the employer's non-discriminatory
reason for discharge is a pretext. Sempier v. Johnson &
Higgins, 45 F.3d 724, 729 (3d Cir. 1995) (quoting Weldon v.
Kraft, Inc., 896 F.2d 793, 798 (3d Cir. 1990); Jalil v. Avdel
Corp., 873 F.2d 701, 707 (3d Cir. 1989), cert. denied
493 U.S. 1023 (1990); Kennedy v. Chubb Group of Ins. Cos.,
60 F. Supp. 2d 384 (D.N.J. 1999) ("The qualification element is part of
the plaintiff's prima facie case in order to dispel any question
as to the plaintiff's objective qualifications to perform the job
he or she sought. In other words, in determining whether
plaintiff has demonstrated that she was `qualified' for the
position, the district court must consider whether the plaintiff
has the objective experience and education necessary to qualify as a
viable candidate for employment.").
It seems, therefore, that the "qualified" prong of the prima
facie case is more of a screening mechanism, i.e. to weed out
clear cut cases such as jobs requiring certain levels of
educational degrees, licenses, etc. Any on the job
performance-based evaluations are more appropriately considered
in the pretext phase of the analysis.
In this case, Mr. Silver meets the basic requirements for his
position at AICPA. He holds an associate's degree in applied
science from the New York City Technical College. See Pl.'s
Opp. at 2. Furthermore, Mr. Silver also completed a
phototypesetting course at the Printing Trades School. See
id. These references support the contention that Mr. Silver had
the basic requirements to perform his job as a typesetting
trainee. Therefore, AICPA's contention that Mr. Silver's poor
performance prevents him from establishing a prima facie case of
discrimination must fail. The Defendant's argument that Mr.
Silver's performance was unsatisfactory is more appropriately
applied in reference to AICPA's proffered legitimate
non-discriminatory reason for his termination.
B. Defendant has Presented a Legitimate, Non-Discriminatory
Reason for Its Actions
As stated previously, AICPA argues that Mr. Silver's job
performance was unsatisfactory. AICPA asserts that Mr. Silver's "history of chronic performance problems is well-documented."
See Def.'s Br. at 15. AICPA cites the fact that "all of
Plaintiff's supervisors, including Kim Mangal, consistently notes
[sic] the same problems with Plaintiff's performance, his
inability to listen to or follow directions and lack of
communication skills." Id. According to AICPA, Mr. Silver was
afforded numerous opportunities to improve his performance but
failed to do so. See id. at 18. "Therefore, he was terminated
from his employment. Plaintiff's race, gender and age has [sic]
absolutely nothing to do with Defendant's decision." Id.
This Court finds that AICPA has presented a legitimate
non-discriminatory reason pursuant to the McDonnell Douglas
standard.*fn2 Therefore, the burden now shifts back to Mr.
Silver to rebut this proffered legitimate reason for AICPA's
C. Plaintiff has Failed to Rebut Defendant's Legitimate,
To survive the Defendant's summary judgment motion, Mr. Silver
"must point to some evidence, direct or circumstantial, from
which a fact finder could reasonably either (1) disbelieve the
employer's articulated legitimate reasons; or (2) believe that an
invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action."
Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994) (citing
Hicks, 509 U.S. at 510-11). Plaintiff's evidence rebutting
Defendants' asserted legitimate reasons must "allow a fact finder
reasonably to infer that each of the employer's proffered
non-discriminatory reasons . . . was either a post hoc
fabrication or otherwise did not actually motivate the
termination." Fuentes, 32 F.3d at 764.
In response to AICPA's motion for summary judgment, Mr. Silver
submitted an Affidavit to this Court which included some
statements contradicting his previous deposition testimony. See
Silver Aff. This Court will not consider those contradictory
statements because it is well established in this jurisdiction
that a non-movant may not create a material issue of fact by
submitting a post-deposition affidavit in conflict with the
earlier testimony. See Hackman v. Valley Fair, 932 F.2d 239,
241 (3d Cir. 1991) ("When, without a satisfactory explanation, a
nonmovant's affidavit contradicts earlier deposition testimony,
the district court may disregard the affidavit in determining
whether a genuine issue of material fact exists."); see also
Martin v. Merrell Dow Pharmaceuticals, Inc., 851 F.2d 703, 706
(3d Cir. 1988) ("[T]he objectives of summary judgment would be
seriously impaired if the district court were not free to
disregard the conflicting affidavit."). Therefore, this Court will address Mr. Silver's contentions in response to AICPA's
summary judgment motion that are consistent with his previous
Mr. Silver asserts that his "job performance was very good."
Pl.'s Opp. at 1. However, Mr. Silver does not provide anything to
support this allegation. In fact, during his deposition, Mr.
Silver conceded that criticism for his inability to follow
directions and improve his communication skills was "often
repeated throughout my evaluations." Pl.'s Dep. Vol. II at
245:15-16. Mr. Silver also acknowledged that these comments
during evaluations by different supervisors were "repeated."
Id. at 2445:19-22.
Mr. Silver has not presented any evidence to rebut AICPA's
presumption of a legitimate non-discriminatory reason that he was
disciplined and eventually terminated because of his poor job
performance. Mr. Silver has not provided to this Court any
evidence that would allow a fact finder reasonably to infer that
AICPA's proffered non-discriminatory reason was either a post
hoc fabrication or otherwise did not actually motivate the
termination. Therefore, Mr. Silver has failed to meet his burden.
For that reason, the Court concludes that Defendant is entitled
to summary judgment because Plaintiff has not offered more than a
scintilla of evidence that the legitimate nondiscriminatory reason Defendant has articulated for its
actions is actually a pretext for discrimination.
D. Plaintiff's Retaliation Claim Must Also Fail
A plaintiff alleging that an unfavorable job action is based
upon an illegal retaliatory motive in violation of Title VII must
establish that "(1) he was engaged in protected activity; (2) he
was [subject to an adverse job action] subsequent to or
contemporaneously with such activity; and (3) there is a causal
link between the protected activity and the [subsequent adverse
job action]." Sarullo v. U.S. Postal Service, 352 F.3d 789, 800
(3d Cir. 2003) (quoting Woodson v. Scott Paper Co.,
109 F.3d 913, 920 (3d Cir. 1997)). In this case, Mr. Silver has failed to
establish a prima facie case of retaliation under Title VII.
Mr. Silver has not demonstrated a causal connection between his
alleged protected activity and the subsequent adverse employment
action. He claims that he wrote a letter on July 21, 1999
complaining of his treatment by his supervisor, Kim Mangal. See
Pl.'s Opp. at 2. According to Mr. Silver, he received a negative
evaluation and was put on the STAR program in response to this
letter.*fn3 However, as discussed previously, AICPA has
proffered a legitimate non-discriminatory reason for these
actions. Plaintiff, therefore, must overcome this hurdle and prove that AICPA's legitimate non-discriminatory reason is
pretext. See Hicks, 509 U.S. at 515.
Mr. Silver has failed to produce any such evidence. Again, his
bald allegations without factual support do not meet the standard
required to overcome AICPA's legitimate non-discriminatory
reason. Therefore, Mr. Silver's retaliation claim must fail and
AICPA is entitled to summary judgment.
For the foregoing reasons, Defendant's motion for summary
judgment pursuant to Fed.R.Civ.P. 56 is GRANTED and this
action is dismissed in its entirety.