                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-31-2007

Horne v. MVM Inc
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5454




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                                                               NOT PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                               _______________

                                    No: 05-5454
                                  _______________

             MARK HORNE; DONALD RHODES; and TIA THOMAS, as
                Proposed Executrix of the Estate of Kerry Thomas,

                                      Appellants

                                           v.

                                     MVM, INC.
                                a Virginia corporation
                                  _______________

                    On Appeal from the United States District Court
                             for the District of New Jersey
                                 (D.C. No. 04-cv-00911)
                       District Judge: Honorable Joel A. Pisano
                                   _______________

                                Argued June 27, 2007

              Before BARRY, FUENTES and JORDAN, Circuit Judges.

                                 (Filed: July 31, 2007)
                                  _______________

David Zutchni [ARGUED]
Zatuchni & Associates, LLC
2 Research Way, 3rd Fl. East
Princeton, NJ 08540
   Counsel for Appellants
Jason M. Branciforte
Katherine A. Goetzl [ARGUED]
Littler Mendelson, P.C.
1150 17th Street, NW - #900
Washington, DC 20036
   Counsel for Appellee
                                     _______________

                                OPINION OF THE COURT
                                    _______________

JORDAN, Circuit Judge.

       Plaintiffs Mark Horne, Tia Thomas,1 and Donald Rhodes (collectively,

“Plaintiffs”) appeal from the order of the United States District Court for the District of

New Jersey granting summary judgment in favor of Defendant MVM, Inc. (“MVM”).

Plaintiffs argue that the District Court erred because it failed to consider evidence upon

which a reasonable factfinder could conclude that race was a motivating factor in MVM’s

decision not to hire them. For the following reasons, we will vacate the order of the

District Court and remand for further proceedings.

                                              I.

       The General Services Administration (the “GSA”) periodically awards a contract

(the “GSA Contract”) to private companies that, by the contract, agree to provide security

services at certain federal government buildings in New Jersey. Prior to October 1, 2002,


       1
         Originally, Kerry Thomas was a plaintiff. Although he is now deceased, the
litigation of his claim continues through the efforts of his daughter Tia Thomas, who is
the proposed executrix of his estate and has been substituted for him as a plaintiff in this
case. References herein to “Plaintiffs” in discussion of the case background include
Kerry Thomas, not Tia Thomas.

                                              2
a company known as “Executive Security” had the GSA Contract. Plaintiffs, all of whom

are African-American, worked as security guards for Executive Security pursuant to that

contract. On October 1, 2002, GSA replaced Executive Security with MVM on the GSA

Contract. However, though it was taking over the GSA Contract and would need to hire

security guards, MVM chose not to hire all of the employees who were working for

Executive Security. Plaintiffs were among those not hired by MVM.

       On December 11, 2003, Plaintiffs filed a one-count complaint in the Superior

Court of New Jersey, which was subsequently removed to the United States District Court

for the District of New Jersey. The complaint alleged that MVM had discharged

Plaintiffs on account of their race, in violation of the New Jersey Law Against

Discrimination, N.J. Stat. Ann. § 10:5-1 et seq. To substantiate their allegations of racial

discrimination, Plaintiffs focused on the hiring decisions of a particular MVM employee,

Jesus Vergel. Since 1997, Vergel had been employed in several capacities by Executive

Security and, when MVM was awarded the GSA Contract in 2002, it hired Vergel to be

the Project Manager. According to Plaintiffs, MVM initially asked Vergel to decide

which other Executive Security employees it should hire, and then, in February 2003,

MVM also put Vergel in charge of hiring any new security guards that were needed.

Plaintiffs contend that Vergel used that hiring authority to reduce the number of African-

Americans working as security guards under the GSA Contract.

                                             II.



                                              3
       MVM filed a motion for summary judgment and a motion to strike allegedly

inadmissible evidence that had been submitted by Plaintiffs. The District Court granted

MVM’s motion for summary judgment. In doing so, the Court first noted that Plaintiffs

alleged in their complaint that they had been discharged by MVM on account of their

race. Since it was undisputed that MVM had never hired Plaintiffs, the District Court

construed the complaint as pleading a claim for discriminatory failure to hire. The Court

then proceeded to analyze that claim under the burden-shifting framework of McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973).2 In its motion for summary judgment,

MVM assumed that Plaintiffs could establish a prima facie case of discrimination.

Therefore, the initial burden was on MVM to show a legitimate, nondiscriminatory reason

for its decision not to hire Plaintiffs.

       The District Court held that MVM had satisfied its burden by presenting evidence

showing that the reason it did not hire Plaintiffs was because they had performed poorly

while working for Executive Security. Specifically, MVM pointed to evidence that

Horne had been repeatedly late for work, had been observed away from his post, and had

been disciplined on multiple occasions. There was also evidence that Thomas had been

habitually late or absent from work and that he had been involved in several incidents of

insubordination. Lastly, MVM had evidence that Rhodes was caught sleeping at his post



       2
        The New Jersey Supreme Court has applied the McDonnell Douglas framework
to claims brought under the New Jersey Law Against Discrimination. See Erickson v.
Marsh & McLennan Co., 569 A.2d 793, 798-99 (N.J. 1990).

                                            4
and was often rude to others. The District Court determined that MVM had knowledge of

Plaintiffs’ work-related problems and that therefore “it acted on legitimate, non-

discriminatory bases in rejecting all of the Plaintiffs as employees.” (Dist. Ct. Op. at 5.)

       As a result, the District Court shifted the burden to Plaintiffs to demonstrate that

the reason given by MVM was actually a pretext for discrimination. The Court found that

Plaintiffs had failed to meet that burden, reasoning that:

       Even assuming arguendo Plaintiffs have observed some flaw in MVM’s
       position, the Court finds, at a minimum, that the record simply does not
       allow a juror to reasonably conclude that MVM fabricated its basis for
       declining to hire Plaintiffs as a pretext for racial discrimination. Moreover,
       the undisputed statistics do not support Plaintiffs’ argument. Since October
       1, 2002, MVM has hired 189 employees on the GSA New Jersey Contract.
       Of those employees, the majority of them (56% or 106) are African-
       American. Within the first three days after MVM assumed the Contract,
       MVM hired 79 (66%) African-Americans. When these motions were filed,
       MVM employed 118 employees on that Contract, and the majority of them
       (61 or 52%) are African-American.

(Id.) Therefore, the District Court concluded that Plaintiffs had not raised a genuine issue

of material fact and granted summary judgment in favor of MVM. The Court noted that,

because summary judgment was warranted, it did not need to reach the merits of MVM’s

motion to strike.

       The District Court had jurisdiction pursuant to 28 U.S.C. § 1332. We have

jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the District

Court’s grant of summary judgment, and we apply the same well-known test for the

propriety of summary judgment, Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir. 2007),

namely, whether “the pleadings, depositions, answers to interrogatories, and admissions

                                              5
on file, together with the affidavits, if any, show that there is no genuine issue as to any

material fact” and whether “the moving party is entitled to a judgment as a matter of law.”

Fed. R. Civ. P. 56(c). We “must view the facts in the light most favorable to the

nonmoving party and draw all inferences in that party’s favor.” Andreoli, 482 F.3d at

647.

                                             III.

       Plaintiffs argue that the District Court failed to consider evidence that they claim

was sufficient to defeat MVM’s motion for summary judgment. Under the McDonnell

Douglas framework, “to defeat summary judgment when the defendant answers the

plaintiff’s prima facie case with legitimate, non-discriminatory reasons for its action, the

plaintiff must point to some evidence, direct or circumstantial, from which a factfinder

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). Because Plaintiffs have proffered evidence that, if admissible, raises a

genuine issue of material fact under that test, we find that the District Court erred by

granting MVM’s motion for summary judgment without considering MVM’s motion to

strike, which challenged so much of that evidence as inadmissible.

       Plaintiffs claim that they have submitted evidence that is sufficient to create a

factual dispute as to whether racial animus was a motivating factor in MVM’s decision

not to hire them. First, there is evidence in the record showing that Vergel was

                                              6
responsible for deciding which Executive Security employees would be hired by MVM.

Vergel admitted that, in early August 2002, he began working part-time for MVM with

the expectation that he would become Project Manager when MVM officially took over

the GSA Contract. During that time, Charles Alvarez, MVM’s Director of Government

Services, emailed Vergel and asked him to prepare a list of those security guards with

Executive Security that Vergel wanted to “keep.” (Appx. at 310.) The email also

directed Vergel to “[d]elete those officers that you need to but ensure that you will be able

to document those you delete.” (Appx. at 310.) In a later email, Vergel informed Alvarez

that he had made some progress on the list. (Appx. at 311-12.)

       Plaintiffs point out that Daniel Baez, a former Sergeant for Executive Security and

MVM, confirmed that Vergel made the list that MVM had requested. In his deposition

testimony, Baez said that he met with Vergel about two weeks before MVM took over the

GSA Contract, and Vergel asked him to look over a list of Executive Security employees

that were not going to be hired by MVM. (Appx. at 269-70, pp. 136-38.) That testimony,

together with the email exchange between Vergel and Alvarez, is evidence from which a

reasonable factfinder could infer that MVM made Vergel responsible for deciding which

Executive Security employees would be hired by MVM.

       Plaintiffs then assert there is evidence of racial animus in Vergel’s decision

making, and specifically in his decision not to hire them. They focus on a statement that

Vergel allegedly made in the winter of 1999, while he was working at Executive Security.

According to Baez, Vergel told him that there were “too many blacks” on the contract and

                                             7
that there were not enough Hispanic and white security guards. (Appx. at 293-94, pp.

325-26.) MVM responds that, even assuming Vergel made the statement Plaintiffs

attribute to him, it is of limited relevance because it occurred almost three years before

MVM took over the GSA Contract. The problem with MVM’s argument is that the

evidence of Vergel’s racial animus, if admissible, does not end there. Plaintiffs point to

evidence in the record showing that Vergel used racial epithets on several occasions while

he was working for Executive Security. (See, e.g., Appx. at 265, pp. 102-04 (Baez

testified that, in 2001, Vergel referred to an African-American co-worker as a “black

mother----er” and a “nigger.”); Appx. at 86-87, pp. 72-75 (Kerry Thomas testified that he

heard Vergel use the term “nigger.”); Appx. at 90, pp. 99-100 (Kerry Thomas testified

that he often heard Vergel refer to the African-American security guards as “difficult” or

“hard to handle.”).)

       Plaintiffs also submit that, because nearly all of the Executive Security employees

that MVM chose not to hire were African-American, it is evident that Vergel’s decision

was motivated by race. MVM claims that it decided not to hire thirty-two former

Executive Security employees and that twenty-one of the thirty-two (or about 66%) were

African-American, ten (or about 31%) were Hispanic, and one was Caucasian. (Appx. at

303-04.) Plaintiffs dispute MVM’s statistics on the basis of Baez’s deposition testimony.

More specifically, Baez testified that, of the ten Hispanics that MVM claims it decided

not hire, eight of them had either left their job before MVM took over or had decided not

to apply for a position with MVM, and one of them was actually hired by MVM. (Appx.

                                              8
at 291-93, pp. 315-22.) That would mean that MVM chose not to hire twenty-three

former Executive Security employees and that twenty-one of the twenty-three (or about

91%) were African-American, one was Hispanic, and one was Caucasian. Thus, viewing

the evidence in the light most favorable to Plaintiffs, as we must when reviewing MVM’s

motion for summary judgment, it appears that almost all of the Executive Security

employees who did not receive a position with MVM were African-American.

       Next, Plaintiffs cite to evidence they claim shows that Vergel continued to

discriminate on the basis of race after MVM took over the GSA Contract. After hiring

some of Executive Security’s former employees, MVM began hiring “new” security

guards on October 1, 2002. MVM acknowledges that the authority to choose those new

employees was passed on to Vergel in February 2003. (Appellee’s Br. at 16.) Plaintiffs

argue that Vergel again used his hiring authority to reduce the number of African-

Americans working on the GSA Contract. According to the deposition testimony of

Baez, in late 2002, shortly before Vergel was given the responsibility of hiring new

security guards, someone had complained to Vergel that there were too many African-

Americans on the GSA Contract. (Appx. at 280, pp. 195-96.) Although Vergel did not

tell Baez who had complained, Baez recalled Vergel saying that he would personally

“fix” that problem. (Appx. at 280, p. 197.) Baez also testified that, while he spoke with

Vergel, he saw a list on Vergel’s computer that identified the race of each current MVM

employee. (Appx. at 279, pp. 191-93.)



                                            9
       Plaintiffs assert that MVM’s hiring statistics further demonstrate that Vergel

discriminated against African-Americans in order to “fix” the racial distribution at MVM.

From October 2002 through January 2003, the period immediately before Vergel began

making the hiring decisions, MVM hired sixty-nine new employees to work on the GSA

Contract. (Compare Appx. at 374-75 (List of Executive Security Employees Hired by

MVM), with Appx. at 422-24 (List of All Employees Hired by MVM).) Fifty-three of the

sixty-nine new hires (or about 77%) were African-American, ten (or about 14%) were

Hispanic, five (or about 7%) were Caucasian, and one was Native American. (Appx. at

422-24.) However, after Vergel took over in February 2003, only seventeen of forty-nine

new hires (or about 35%) were African-American, seven (or about 14%) were Hispanic,

twenty-four (or about 49%) were Caucasian, and one was Asian. (Appx. at 424-25.)

Those statistics show that there was a significant decrease in the percentage of African-

Americans hired, and a corresponding increase in the percentage of Caucasians hired,

after MVM put Vergel in charge of hiring new employees.

       Plaintiffs point out that this change did not go unnoticed among MVM employees.

Duane Santos, a Sergeant at MVM, claims that he was present at a supervisors’ meeting

where the issue of race-based hiring was discussed. (Appx. at 35.) Apparently, at least

some MVM employees were upset about how many Caucasian security guards were

being hired. (Appx. at 35.) According to Santos, Vergel responded by explaining that

MVM was “not Executive Security,” and that MVM was going to continue hiring white

security guards. (Appx. at 35.)

                                            10
       Despite the foregoing evidence cited by Plaintiffs, the District Court, in granting

MVM’s motion for summary judgment, stated that “the record simply does not allow a

juror to reasonably conclude that MVM fabricated its basis for declining to hire Plaintiffs

as a pretext for racial discrimination.” (Dist. Ct. Op. at 5.) It appears that the District

Court was persuaded by MVM’s assertion that, since taking over the GSA Contract on

October 1, 2002, the majority of employees it hired were African-American. In light of

the entire record, we cannot agree that that statistic alone, even if accurate, is grounds for

granting summary judgment in favor of MVM. On the contrary, the Plaintiffs’ evidence,

if admissible and viewed in the light most favorable to Plaintiffs, is sufficient to permit a

reasonable factfinder to conclude that race was more likely than not a motivating factor in

MVM’s decision not to hire Plaintiffs.

       MVM argues that the District Court properly ignored much of Plaintiffs’ evidence

because it was either inadmissible or not credible. In its briefing, MVM concentrates

heavily on explaining why the statements allegedly made by Vergel are inadmissible

hearsay. What MVM fails to recognize is that the District Court explicitly stated that it

did not reach the merits of MVM’s motion to strike. Because we must “review the record

as it existed at the time summary judgment was entered,” Union Pacific Railroad Co. v.

Greentree Transportation Trucking Co., 293 F.3d 120, 126 (3d Cir. 2002), and because




                                              11
the District Court did not exclude any of Plaintiffs’ evidence, that evidence is part of the

record that we review.3

       Since Plaintiffs have identified evidence in the record sufficient to defeat MVM’s

motion for summary judgment, we will vacate the decision of the District Court.

However, in doing so, we intend no statement as to the admissibility of any part of

Plaintiffs’ evidence. Such evidentiary questions are for the District Court to address in

the first instance.

                                             IV.

       For the foregoing reasons, we vacate the summary judgment order and remand to

the District Court for further proceedings consistent with this opinion.




       3
         So too is evidence from which Plaintiffs argue that a reasonable factfinder could
disbelieve MVM’s articulated reason for not hiring them. For example, MVM claimed
that it did not hire Plaintiffs because of their poor performance records with Executive
Security. However, Baez testified that a number of Hispanic employees who had poor
performance records with Executive Security were nonetheless hired by MVM. (Appx.
295-97, pp. 331–40.) Plaintiffs contend that, if MVM decided to hire a number of
employees with performance records similar to Plaintiffs, then it is inconsistent for MVM
to claim that their decision to not hire Plaintiffs was based on performance. If admissible
and viewed in the light most favorable to Plaintiffs, such evidence calls into question
whether MVM’s stated hiring reasons were pretextual. Whether the evidence, taken as a
whole, is sufficient for a factfinder to reach that conclusion is not a matter we need to
decide at this point, though the District Court may need to do so at some point.

                                             12
