                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-18-2005

Ramos v. Equiserve
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3979




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                                                           NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                    NO. 04-3979
                                 ________________

                                 RICHARD RAMOS,

                                                   Appellant

                                            v.

                EQUISERVE & ADECCO NORTH AMERICA, LLC
                   ____________________________________

                   On Appeal From the United States District Court
                             For the District of New Jersey
                              (D.C. Civ. No. 02-cv-01407)
                     District Judge: Honorable William J. Martini
                   _______________________________________


                     Submitted Under Third Circuit LAR 34.1(a)
                                  April 1, 2005

            Before: ROTH, MCKEE AND ALDISERT, CIRCUIT JUDGES

                               (Filed August 18, 1005 )


                             _______________________

                                    OPINION
                             _______________________

PER CURIAM

      Richard Ramos appeals from the order of the United States District Court for the

District of New Jersey granting the Appellees’ motion for summary judgment and
dismissing this action brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e (“Title VII”). The District Court also denied Ramos’s motions to reopen

discovery and to impose sanctions.

       In 2002, Ramos brought this action under Title VII alleging that Adecco North

America (“Adecco”), a temporary employment agency for whom Ramos had worked in

Paramus and in Jersey City, New Jersey, and EquiServe, one of Adecco’s clients for

whom Ramos performed temporary services in their data collection department,

unlawfully discriminated against Ramos on account of his race and national origin by

discharging him from his temporary placement at EquiServe based on an FBI record of

arrests.1 He claims that after his discharge from EquiServe, Adecco further prevented

him from seeking gainful employment through a memorandum it circulated to at least one

potential employer stating that Ramos’s employment with EquiServe ended due to a

“tarnished” background investigation report.

       The facts in this case tell a tale of poor communication. Ramos alleged that on or

about February 14, 2001, EquiServe gave Adecco misleading information about an

incomplete FBI record regarding Ramos’s prior arrests that EquiServe received pursuant

to a routine criminal background check.2 The FBI record detailed arrests in 1991-1992



   1
     Because neither Adecco nor EquiServe claim otherwise on appeal, we will assume
that Adecco and EquiServe are “joint employers” under Title VII.
   2
     Ramos had consented to the background check and had authorized the exchange of
information about the background check between EquiServe and Adecco.

                                               2
but did not include the fact that all of the charges were dismissed in 1992. Based on

Ramos’s arrest record, EquiServe determined that Ramos did not meet EquiServe’s

standards, and requested that Adecco remove Ramos from temporary assignment. In a

meeting with Ramos, EquiServe’s corporate security manager, Victor D’Amico,

explained that Ramos would be permitted to return to EquiServe if he provided

documentation indicating that the charges against him had been dismissed. D’Amico did

not disclose the substance of his conversation with Ramos to Adecco. And Ramos did

not tell Adecco either. Sometime after D’Amico’s meeting with Ramos, Vanessa Turner,

Adecco’s site representative at EquiServe, escorted Ramos out of the building and told

him to contact the Jersey City office the following day for help in obtaining another

placement.

       Ramos immediately applied for unemployment benefits and started to search for

other jobs, including making daily contacts with Adecco. On February 26, 2001, Turner

wrote a memorandum “to whom it may concern,” indicating that Ramos was released

from temporary service at EquiServe “due to a background investigation report that came

back tarnished...” See Appellees’ App., AA-45, ¶ 14. In late February or early March,

Adecco contacted Ramos for a temporary assignment at AT&T, for whom Ramos had

worked in October 2000 without incident. The AT&T job, however, was cancelled at the

last minute.

       Meanwhile, in Spring 2001, Ramos successfully procured documentation from the



                                             3
Virginia courts demonstrating that all of the criminal charges for which he had been

arrested were dismissed after a bench trial. He promptly communicated this information

directly to D’Amico at EquiServe, but did not share the information with Adecco. A

representative of EquiServe told Adecco Vice-President Acker that Ramos could return to

work there. Acker then spoke with D’Amico, who declined to provide Acker with the

reason EquiServe initially released Ramos or why they were now ready to take him back.

Unbeknownst to Ramos, Acker told D’Amico that she would authorize Ramos’s return to

EquiServe only upon receipt of a written release from EquiServe. EquiServe never

provided the written release to Adecco and Ramos was not re-assigned there.

      Ramos claimed employment discrimination on account of his race and national

origin, alleging that EquiServe used the higher incidence of arrests among men of color as

a bar to employment and that Adecco prevented him from obtaining further employment.

The Appellees moved for summary judgment, contending that Ramos failed to make out a

prima facie case of employment discrimination, and even assuming that he had, Ramos

failed to rebut the Appellees’ contention that Ramos’s positive criminal background

check was a legitimate, non-discriminatory reason for his removal.

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

summary judgment for Adecco and EquiServe. First, the District Court ruled that Ramos

failed to demonstrate through statistical or other competent evidence that EquiServe’s

reliance on FBI criminal history records to determine suitability for employment had a



                                            4
disparate impact on minorities. Specifically, the District Court found that Ramos only

alleged his own single instance of adverse impact, which was insufficient, without more,

to show disparate impact under Title VII.

       As for Ramos’s claim of disparate treatment, the District Court found that although

Ramos satisfied the first three prongs of the prima facie case for employment

discrimination under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), there was

no evidence from which the District Court could infer that Ramos was treated by Adecco

or EquiServe less favorably than other similarly situated non-minority persons. There

was no evidence, for instance, that in Ramos’s case, Adecco or EquiServe applied their

respective policies of conducting routine criminal background checks on temporary

employees differently because of Ramos’s race or national origin. Thus, based on the

undisputed facts, the District Court held that Ramos failed to make out a prima facie

adverse treatment claim based on race or national origin as a matter of law.

       The District Court also found that, even assuming that Ramos made out a prima

facie case of employment discrimination, the defendants proffered a legitimate, non-

discriminatory reason for his removal which Ramos failed to rebut. The District Court

noted Ramos’s acknowledgment that he consented to the background check by

EquiServe, he knew that EquiServe was required by law to conduct a criminal

background search because of the type of work he did for them, and he had authorized

EquiServe and Adecco’s exchange of information with each other regarding his criminal



                                             5
background. As for Ramos’s state law claim under N.J.A.C. § 13:59-1.6, the District

Court determined that no violation occurred because D’Amico gave Ramos an

opportunity to correct the record when he told Ramos that he would be accepted back into

the job if Ramos provided documentation that the criminal charges were dismissed.

Moreover, EquiServe was willing to accept Ramos and Adecco was willing to send

Ramos back to EquiServe so long as EquiServe signed a release. The District Court

concluded that it was EquiServe’s failure to comply with Adecco’s request for a release

that prevented Ramos’s re-assignment to EquiServe. Based on the foregoing, the District

Court granted summary judgment in the defendants’ favor. Ramos filed a timely notice

of appeal.

       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). As is well

understood, summary judgment is granted when “no genuine issue [exists] as to any

material fact and [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 for substantially the same reasons set forth

in the District Court’s opinion.

       Ramos argues that the reasons Adecco and EquiServe gave for terminating his



                                             6
temporary assignment at EquiServe are pretextual, because EquiServe does not apply its

Equal Employment Policies to qualified, productive, minority new hires like Ramos. He

claims that the Appellees’ actions were discriminatory because they contravened company

policies in dealing with prior records of convictions as opposed to arrests. He challenges

Adecco’s position that they had no knowledge of the contents of the FBI record, pointing

to the Adecco Employee Notes of Amy Michel indicating that as early as February 16,

2001, Turner had recommended that the Paramus office “not use Ramos,” because Ramos

had been charged with theft and grand larceny. See Plaintiff’s Motion for Reargument, at

9. Amy Michael’s entry also reported that Turner was given a written list of all of

Ramos’s convictions and that Turner was waiting for the hard copy. Id. Ramos disputes

Turner’s sworn statement that the February 26, 2001 memorandum was written at

Ramos’s request to help him obtain unemployment benefits. He testified in his deposition

that in June 2001, Ramos successfully found employment at Chase Mellon Bank, only to

be let go on his first day. He was told by Chase Mellon that his release was because of

the memorandum from Adecco and comments made in a follow-up phone call. See

Appellees’ App., Ramos Dep, AA-85-86.

       We recognize that the inquiry into whether an employee’s race or national origin

caused the conduct at issue often requires an assessment of the individual’s motivations

and state of mind, matters that are not as readily amenable to disposition at summary

judgment. Faced with a properly supported summary judgment motion, however, a



                                             7
plaintiff must come forth with some evidence sufficient to create a genuine issue of

material fact. In Ramos’s case, he has not met his burden of showing that his removal

because of his arrest record was a pretext for ending his temporary assignment to

Equiserve on account of his race or national origin. Viewing the evidence in the light

most favorable to Ramos, we agree with the District Court that Ramos’s removal from

temporary employment at EquiServe was caused by the discovery of his arrest record

alone. A violation of company policy can constitute a pretext for unlawful discrimination

if others similarly situated were treated differently under the policy. See Delli Santi v.

CNA Ins. Companies, 88 F.3d 192, 203-04 (3d Cir. 1996). Here, however, as the District

Court correctly found, there is no evidence that Adecco or EquiServe used their

respective hiring policies regarding prior arrests and convictions in such a way as to favor

similarly situated non-minorities. Finally, even assuming that Turner knew about

Ramos’s arrest record as early as February 2001, and that Ramos was denied employment

opportunities at AT&T and Chase Mellon because of Turner’s communication that

Ramos had a “tarnished record,” this evidence supports rather than rebuts the conclusion

that the arrest record (which Adecco treated as a record of convictions), not Ramos’s race

or national origin, was the motivating factor for Adecco’s actions. The facts that

EquiServe was willing to re-employ Ramos and that Adecco was willing to re-assign

Ramos to EquiServe if EquiServe submitted a release, also support the inference that their

main concern was Ramos’s record of criminal charges.



                                              8
       Ramos’s claims suggest that Adecco, especially, may have acted unfairly in

rushing to judgment when it construed Ramos’s arrest record as a record of convictions,

but Title VII does not prohibit unfairness or wrongheaded decisions in the workplace.

See Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994); Giannopoulos v. Brach & Brock

Confections, Inc., 109 F.3d 406, 410 (7 th Cir. 1997) (“when an employer articulates a

reason for discharging the plaintiff not forbidden by law, it is not our province to decide

whether that reason was wise, fair, or even correct, ultimately, so long as it truly was the

reason for the plaintiff’s termination”). Thus, we conclude that the District Court

properly granted summary judgment in favor of Adecco and EquiServe.

       Finally, Ramos also appeals the District Court’s denial of his motions to impose

sanctions and to re-open discovery, as well as a Magistrate Judge’s order entered July 24,

2002, denying appointment of counsel. The District Court did not abuse its discretion in

denying Ramos’s motions for sanctions and to re-open discovery. As for the Magistrate

Judge’s denial of appointment of counsel, Ramos failed to object to the Magistrate

Judge’s order in District Court, and thus, the issue is waived for purposes of appeal. See

United Steelworkers of Am. v. New Jersey Zinc Co., 828 F.2d 1001, 1006 (3d Cir. 1987).

But even if the issue were not waived, we discern no circumstances warranting

appointment of counsel in this case. See Tabron v. Grace, 6 F.3d 147 n.2 (3d Cir. 1993).

       Accordingly, we will affirm the judgment of the District Court.




                                              9
