                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-24-2006

Valdes v. Union City Bd Ed
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2554




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http://digitalcommons.law.villanova.edu/thirdcircuit_2006/711


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                                                             NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     NO. 05-2554


                                  SABINO VALDES,

                                            Appellant

                                           v.

                       UNION CITY BOARD OF EDUCATION
                      ____________________________________

                    On Appeal From the United States District Court
                             For the District of New Jersey
                              (D.C. Civ. No. 01-cv-05660)
                       District Judge: Honorable John C. Lifland
                    _______________________________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   July 21, 2006

     Before: SLOVITER, SMITH AND VAN ANTWERPEN, CIRCUIT JUDGES

                                 (Filed: July 24, 2006)


                              _______________________

                                     OPINION
                              _______________________

PER CURIAM

      Sabino Valdes appeals pro se from the order of the United States District Court for

the District of New Jersey granting the defendant’s motion for summary judgment in this
action brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (“Title

VII”) and the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq.

(“NJLAD”).

                                               I.

       Sabino Valdes was hired as a plumber by the Union City Board of Education (the

“Board”) in 1994. In 1995, he became Coordinator of Plumbing Activities responsible

for purchasing materials and tools. From 1994 through 1998, Valdes was considered a

stellar employee who received outstanding performance evaluations from his supervisor,

William Hogan. But 1999 witnessed a downward spiral in relations between Valdes and

the Board precipitated by the Board’s decision not to hire Valdes as Director of Building

and Grounds and by its decision to discipline him for abuse of sick leave in April and

May 1999.

       After he applied for the job of Director of Buildings and Grounds, Valdes took

twenty-eight sick days from April 5 to June 16, 1999. Valdes spent some of the sick days

assisting Neftali Cruz in his campaign for election to local office, by picking Cruz up and

driving him around Union City. The Board investigated the matter and in September

1999, it charged Valdes with abuse of sick leave. On November 16, 1999, after

unsuccessful attempts to reach a settlement, the Board notified Valdes that his pay would

be docked five days for abuse of sick leave.

       Meanwhile, in June 1999, the Board hired John Knudsen for the Building and

Grounds position. Initially, Valdes appeared to work well under Mr. Knudsen. But once

                                               2
he was disciplined for abuse of sick leave, Valdes started having problems with his new

supervisor. Valdes alleged that from November 1999 until his temporary suspension on

April 3, 2000, Knudsen singled him out for discipline for improper dress at work, took his

computer, stripped him of some of the administrative responsibilities he had performed

for four years, followed Valdes to his work assignments, required him to report his

whereabouts by phone, verbally harassed him in front of other employees, assigned him a

vehicle that had no heat in the middle of winter, made him work during his lunch break,

and allowed at least two other employees to verbally harass him on account of his race

and ethnic origin.

       Valdes received his first negative performance evaluation in March 2000. On

April 3, 2000, the Board suspended Valdes with pay for abuse of sick leave. In August

2000, the Board filed tenure charges against Valdes for unbecoming conduct,

insubordination, and excessive absenteeism, arising out of incidents beginning in 1999

and continuing through August 2000. The Board proposed a settlement agreement that all

tenure charges be dropped and that Valdes be allowed to return to work.1 In October

2000, the Commissioner of Education rejected the Board’s proposal, but allowed Valdes

to continue working pending the tenure hearing. In November 2000, during the pendency

of the tenure charges, Valdes applied unsuccessfully for the position of Director of

Custodial Services. The Board hired a Caucasian male, Louis Fusco, to fill the position.


       1
           Valdes could only return to light duty work for medical reasons unrelated to this
matter.

                                               3
       Valdes filed a complaint with the EEOC and the New Jersey Department of Law

and Public Safety, Division of Civil Rights in October 2000. The EEOC issued a right-

to-sue letter on September 13, 2001, a copy of which was sent to the Board. On

December 5, 2001, Valdes filed a counseled employment discrimination complaint in

District Court. On December 18, 2001, the Board amended its tenure charges, adding

numerous incidents of insubordination and unbecoming conduct that occurred in 2001.

On January 10, 2002, Valdes was suspended with pay. A twenty-five day hearing on the

tenure charges occurred from May through August 2002. In May 2003, the

Administrative Law Judge recommended Valdes’s removal from his tenured position. On

June 23, 2003, Valdes was terminated. The State Board of Education affirmed the

Commissioner’s decision in August 2004.

       In the Complaint he filed in District Court, Valdes claimed job discrimination on

account of his status as an African-American of Cuban descent and retaliation for filing

an EEOC complaint, in violation of Title VII and the NJLAD. He sought backpay,

damages, and injunctive relief. The Board filed a motion for summary judgment claiming

that Valdes failed to establish a prima facie case of race/ethnicity discrimination and that,

in any event, the Board terminated Valdes for legitimate, nondiscriminatory reasons. The

Board also claimed that issue preclusion applied based on the findings of the

Administrative Law Judge in the tenure proceedings. Valdes countered that his

termination on the tenure charges was pretextual and that issue preclusion did not apply.

       Upon consideration of the parties’ written submissions, the District Court granted

                                              4
summary judgment for the Board. On the merits, the District Court held that (1) although

Valdes established a prima facie case with respect to the Board’s failure to promote him

to the Director of Building and Grounds position in 1999, he failed to show that the

Board’s reason for not to promoting him, namely his abuse of sick leave, was pretextual;

(2) Valdes failed to establish a prima facie case that the Board discriminated against him

on account of his race/ethnicity with respect to the position of Director of Custodial

Services because Valdes could not demonstrate that he was qualified for the job in light

of his excessive absences from work, negative performance evaluations, and the existence

of tenure charges against him; (3) there was no causal link between Valdes’s protected

EEOC activity and the alleged retaliatory actions because (a) the Board was not served

with a copy of the EEOC complaint until January 2002, well after it had amended the

tenure charges, and (b) the other adverse actions alleged by Valdes had occurred before

he filed an EEOC complaint; and (4) Valdes failed to make out a hostile work

environment claim. The District Court also held that issue preclusion did not apply in

Valdes’s case. On April 29, 2005, the District Court granted summary judgment in the

Board’s favor as to all claims. Valdes timely appealed.

                                             II.

       We have appellate jurisdiction pursuant to 28 U.S.C. § 1291 and exercise plenary

review over an order granting summary judgment. See Pub. Interest Research Group of

N.J., Inc. v. Powell Duffryn Terminals, Inc., 913 F.2d 64 (3d Cir. 1990). Summary

judgment shall be granted when “no genuine issue [exists] as to any material fact and

                                             5
[when] the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c). We view the facts in the light most favorable to the nonmoving party and we draw

all inferences in that party’s favor. See Reitz v. County of Bucks, 125 F.3d 139, 143 (3d

Cir. 1997). We will affirm substantially for the reasons set forth by the District Court in

its opinion.

       We agree with the District Court that summary judgment in the Board’s favor was

warranted with respect to Valdes’s Title VII claims concerning the Board’s failure to

promote him to the positions of Director of Building and Grounds and Director of

Custodial Services. Assuming in Valdes’s favor that he made out a prima facie case of

employment discrimination in each instance, we turn to whether he could successfully

rebut the Board’s proffer of a legitimate non-discriminatory reason for each alleged

adverse employment action. Proceeding under a “pretext” framework, a plaintiff who

establishes a prima facie case of discrimination must then demonstrate by a

preponderance of the evidence that the employer’s legitimate, nondiscriminatory reason

for taking an adverse employment action is merely pretextual, and that the true reason for

the adverse employment decision was discrimination. See Iadimarco v. Runyon, 190

F.3d 151, 166 (3d Cir. 1999). Here, the Board explained that it did not promote Valdes to

Director of Buildings and Grounds because of his abuse of sick leave in 1999 and that

Valdes did not get the Custodial Services job because of his misconduct and poor

performance evaluations in 2000.

       Valdes was required to “point to some evidence, direct or circumstantial, from

                                             6
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). This burden is met through a demonstration

that “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the

employer’s proffered legitimate reason are such that a reasonable factfinder could

rationally find them ‘unworthy of credence.’” See id. at 765.

       Valdes has not made this showing. He attempts to demonstrate that the Board’s

reasons for deciding not to promote him were a pretext for race/ethnicity discrimination

by emphasizing that his negative performance evaluations and the decision not to promote

him, even though he was qualified, were wrong. This Court has held that “it is not

enough for a plaintiff to show that the employer’s decision was wrong or mistaken,

because the issue is whether the employer acted with discriminatory animus.” Abramson

v. William Paterson College of N.J., 260 F.3d 265, 283 (3d Cir. 2001). Without some

other evidence that would call into question the credibility of his supervisors’ evaluation

of his work or the Board’s decision not to promote him, Valdes’s assertions do not

amount to a showing of pretext. See Fuentes v. Parker, 32 F.3d 759, 766 (3d Cir. 1994).

       Beyond his own opinion that the Board treated him wrongfully, unprofessionally,

and unfairly, Valdes offers no evidence to rebut the explanations the Board provided to

support its decisions with respect to Valdes’s promotion claims. Valdes may disagree

with the wisdom, fairness, or correctness of the Board’s actions, but disagreement,

                                             7
without more, does not rebut the Board’s legitimate non-discriminatory reasons for its

actions. Absent any evidence that would undermine the Board’s articulated reasons for

its decisions, Valdes cannot show discriminatory animus, and cannot avert summary

judgment on his Title VII claims. As for Valdes’s race-based hostile work environment

claim, the District Court properly determined that Valdes failed to show that his work

environment was permeated with discriminatory intimidation, ridicule, and insult that was

severe or pervasive enough to alter the conditions of his employment. See Faragher v.

City of Boca Raton, 524 U.S. 775, 788 (1998).

       Valdes argues that the District Court did not afford him the opportunity to show

that the Board’s proffered non-discriminatory reasons for not promoting him were

pretextual. There is nothing in this record that leads us to the conclusion that the District

Court decided summary judgment prematurely, without giving Valdes adequate time for

discovery or for responding to the Board’s summary judgment motion.

       Valdes also claimed that the Board retaliated against him for filing EEOC charges

by amending the tenure charges in 2001, which led to his termination in 2003. To make

out a retaliation claim under Title VII, a plaintiff must show that: (1) he engaged in a

protected employee activity; (2) the employer took an adverse employment action after or

contemporaneously with the protected activity; and (3) a causal link exists between the

protected activity and the employer’s adverse action. See McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973). If a plaintiff successfully establishes a prima facie case, the

burden then shifts to the defendant to articulate a legitimate, non-discriminatory reason

                                              8
for the adverse action. Id. Here, Valdes was engaged in protected activity when he

pursued EEOC charges in 2000. See 42 U.S.C. § 2003-3a; see also Abramson v. William

Paterson College, 260 F.3d 265, 288 (3d Cir. 2001). Valdes’s termination constitutes an

adverse action. Therefore, the primary issue before us is whether Valdes can demonstrate

a causal link between his protected activity and the Board’s actions that eventually led to

his termination.

       The causal link may be established by the “temporal proximity between the

protected activity and the termination” or by proof that the employer “engaged in a

pattern of antagonism in the intervening period.” Woodson v. Scott Paper Co., 109 F.3d

913, 920-21 (3d Cir. 1997). It may also be established from “other evidence gleaned

from the record as a whole from which causation can be inferred.” Farrell v. Planters

Lifesavers Co., 206 F.3d 271, 281 (3d Cir. 2000). Viewing the evidence in the light most

favorable to Valdes, we find nothing in the record to support a finding of a causal

connection between the filing of the EEOC charges and his subsequent termination. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Stewart v. Rutgers, The

State Univ., 120 F.3d 426, 431 (3d Cir. 1997).

       Valdes alleged in his Complaint, that after he filed EEOC charges in 2000, his

supervisors subjected him to more stringent review and sought to induce his termination

by eliminating his job responsibilities and by treating routine daily interactions as

incidents of unprofessional conduct and insubordination. However, it is undisputed that

Valdes was terminated based on continuing misconduct occurring before and after the

                                              9
EEOC complaint was filed. The Board amended the tenure charges in December 2001,

more than a year after the filing of the EEOC Complaint. See Cert. of Thomas Kobin,

Exhs. 23 & 24. We agree with the District Court that the evidence failed to establish a

causal link between the protected activity and the alleged adverse employment action.

See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1085 (3d Cir. 1996).

       We have thoroughly reviewed Valdes’s remaining arguments on appeal and find

them to be meritless.

       Accordingly, we will affirm the judgment of the District Court. Valdes’s motion

to supplement the record is denied. To the extent that Valdes seeks to submit documents

and transcripts that are not part of the District Court record, the motion is denied pursuant

to Federal Rule of Appellate Procedure 10(a). As for the documents and transcripts that

are part of the District Court record, the Board’s motion to file a supplemental appendix

containing the District Court record, which Valdes did not oppose, was granted in March

2006, and thus, the documents and transcripts are already properly before this Court.




                                             10
