                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-24-2008

Fuentes v. Watchung
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2812




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                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                     No. 07-2812


                                GEORGE FUENTES,
                                            Appellant

                                          v.

                            BOROUGH OF WATCHUNG


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF NEW JERSEY
                            (D.C. Civil No. 04-cv-02811)
                 District Judge: The Honorable Anne E. Thompson


                      Submitted Under Third Circuit LAR 34.1(a)
                                   June 25, 2008


               Before: SLOVITER, BARRY and ROTH, Circuit Judges

                            (Opinion Filed: July 24, 2008)


                                      OPINION




BARRY, Circuit Judge

      George Fuentes, an employee of the Public Works Department of the Borough of

Watchung, brought suit against Watchung, alleging hostile work environment and failure
to promote claims under Title VII of the Civil Rights Act of 1964. After discovery,

Watchung moved for summary judgment as to both claims and the District Court granted

the motion. We will affirm.

                           I. Factual and Procedural History

       Fuentes, who is of Puerto Rican descent, began working for Watchung’s Public

Works Department as a laborer in 1988. In New Jersey, a public works employee can

apply to become a certified public works manager after meeting certain educational pre-

requisites and passing a state-administered examination. See N.J.S.A. 40A:9-154.6b. In

1999, Fuentes began attending public works educational classes in order to qualify to

become a certified public works manager. He chose to attend classes during the work

day, something Watchung permitted him to do.1 He was reimbursed for these classes

under Watchung’s “Personnel Policy and Procedures,” which allows municipal

employees to be reimbursed for certain pre-approved education and training. He was also

paid his normal salary for any time spent in class.

       Another Public Works Department employee, Charles Gunther, attended similar

classes during roughly the same time frame as Fuentes. Gunther, however, attended

classes in the evenings, after his workday was completed. Fuentes and Gunther both sat

for the public works exam in October 2000. Gunther passed the exam and Fuentes failed.

On October 17, 2000, Gunther was certified as a public works manager. Fuentes again

   1
     Fuentes conceded in his deposition that he learned at some point that these classes
were also offered after work hours.

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sat for the exam on the next available date, and passed. He was certified as a public

works manager effective April 17, 2001.

       Donald Scotti was Watchung’s Director of Public Works between 1988, the year

Fuentes began working for Watchung, and 2003, when Scotti retired. In 2002,

Watchung’s Borough Administrator asked Scotti to recommend someone to become the

Supervisor of Public Works. It was understood that the next Supervisor, who would work

directly below Scotti, would replace Scotti when he retired. Scotti recommended Gunther

and not Fuentes because he believed Gunther to be a better employee; Gunther had prior

experience in the landscaping and property maintenance field; and Gunther was licensed

as a commercial pesticide applicator. Scotti found Gunther to be “more reliable, [to have]

showed more initiative, [to have] performed tasks within the Borough even separate and

apart from his job with the Public Works Department, [and] seemed to have better

understood the issues that went into the CPWM examination and was simply the better

candidate.” (J.A. 79-80.) Gunther also lived locally, unlike Fuentes, who lived more than

70 miles away, a fact that would make it easier for Gunther to respond timely to any work

emergencies. Gunther became Watchung’s Supervisor of Public Works on May 1, 2002.

       Fuentes claims, and Watchung does not deny, that in his presence in March of

1998, Scotti told a joke derogatory to Puerto Ricans2 “at least two times.” Fuentes did not

   2
     Fuentes testified that Scotti said, “Anybody know what a Puerto Rican and a cue ball
have in common[?] [T]he harder you hit them the more English you get out of them.”
(J.A. 58.)


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complain to Scotti about the joke; indeed, he admits that he, too, told jokes with “ethnic

references” in the workplace. When asked who the jokes were about, he answered: “It

could be Chinese. African American[;] it could be an Irish joke. It could be anybody

who is Irish.” (J.A. 60.) Fuentes does not believe he offended anyone “because everyone

was involved in telling jokes there. So if one person tells a joke and the other guy tells a

joke and there [are] four guys and four guys tell jokes, then nobody can feel offended

because they are telling the joke and we are in closed quarters.” (Id.) Fuentes also claims

that Scotti made a pejorative comment about Puerto Ricans and several pejorative

comments about African-Americans. As for the failure to promote claim, it is Fuentes’

position that this case is all about Scotti being “a racist bigot” who favored Gunther over

Fuentes “because of his race/ethnicity.” Appellant’s Br. at 17.

       Fuentes filed a Charge of Discrimination with the Equal Employment Opportunity

Commission (“EEOC”) on July 9, 2002. In a letter dated August 28, 2003, the EEOC

advised Fuentes that it had forwarded his request to the Department of Justice, the agency

responsible for handling complaints against governmental bodies. On March 17, 2004,

the Department of Justice issued a right to sue letter. Fuentes filed his complaint on June

15, 2004.

                                       II. Discussion

       We have jurisdiction under 28 U.S.C. § 1291. Our review of a grant of summary

judgment is de novo. Holender v. Mut. Indus. N. Inc., 527 F.3d 352, 354 n.1 (3d Cir.



                                              4
2008). To establish a hostile work environment claim under Title VII, an employee must

demonstrate that “(1) [he] suffered intentional discrimination because of [his ethnicity],

(2) the discrimination was pervasive and regular, (3) the discrimination detrimentally

affected the [employee], (4) the discrimination would detrimentally affect a reasonable

person of the same [ethnicity] in that position, and (5) the existence of respondeat

superior liability.” Andreoli v. Gates, 482 F.3d 641, 643 (3d Cir. 2007) (internal

quotation marks and citation omitted; second brackets in original). We have held that

“offhanded comments, and isolated incidents (unless extremely serious) are not sufficient

to sustain a hostile work environment claim.” Caver v. City of Trenton, 420 F.3d 243,

262 (3d Cir. 2005) (internal quotation marks and citation omitted). Instead, the “conduct

must be extreme to amount to a change in the terms and conditions of employment.” Id.

(internal quotation marks and citation omitted). We do not review individual incidents in

isolation; rather, we look at the totality of the circumstances, including the frequency of

the discriminatory conduct, its severity, whether it involves physical threats or

humiliation, and whether it interferes with the employee’s work performance. Id. at 262-

63.

       We agree with the District Court’s determination that, when the conduct

complained of by Fuentes is viewed not in isolation but under the totality of the

circumstances, Fuentes has failed to raise a material issue of fact as to whether he

suffered intentional discrimination because he was Puerto Rican. The only relevant, non-



                                              5
hearsay evidence Fuentes has produced is a derogatory joke told more than once and a

pejorative comment about Puerto Ricans. While unfortunate, when viewed in the context

of 15 years of employment, those two complaints surely do not rise to the type of extreme

harassment that changed the terms and conditions of his employment. Caver, 420 F.3d at

262.

       An employee alleging a failure to promote claim under Title VII proceeds under

the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802-03 (1973). The first step requires the employee to establish a prima facie

case of discrimination, that is, he must establish (1) that he was a member of a protected

class, (2) that he was qualified for the job to which he applied, and (3) that another

individual, who was not a member of the protected class, was treated more favorably.

Scheidemantle v. Slippery Rock Univ. State Sys. of Higher Educ., 470 F.3d 535, 539 (3d

Cir. 2006). If the employee makes out a prima facie case, the burden of production shifts

to the employer to establish a legitimate, nondiscriminatory reason for its actions. Id. If

the employer does so, the burden of production shifts back to the employee to show that

the employer’s proffered reason was a pretext for actual discrimination. Id.

       We agree with the District Court that Fuentes made out a prima facie case: (1) he

established that he was of Puerto Rican descent and was thus a member of a protected

class, (2) he passed the qualifying exam, and (3) Gunther, who is white, got the job. We

also agree that Watchung proffered evidence of a legitimate, nondiscriminatory reason for



                                              6
choosing Gunther over Fuentes—namely, that Gunther was a better candidate based on

his job performance, the fact he passed the qualifying exam on his first attempt, his prior

work experience, his various licenses, and his proximity to Watchung. Finally, we agree

with the District Court that Fuentes failed to raise a material issue of fact as to his claim

that Watchung’s proffered legitimate reasons for hiring Gunther over him were

pretextual. Indeed, Fuentes concedes that at the time Scotti recommended Gunther for

the position of Supervisor of Public Works, “Gunther was a Certified Public Works

Manager, [he] held a Commercial Pesticide Applicator’s License, [he] was a licensed

New [J]ersey State Fire Inspector and [he] had various other qualification[s], education

and job performance records which were considered by the Mayor and Council to make

Gunther most suited for the position.” (Appellant’s Br. 17.) Despite these concessions,

Fuentes argues that Gunther was chosen over him because of his ethnicity, but, again,

only identifies in support of that argument the joke and comment which we earlier found

wanting. There simply is not a material issue of fact from which a factfinder could

determine that Watchung failed to promote Fuentes because he was Puerto Rican.

                                      III. Conclusion

       For the foregoing reasons, we will affirm the judgment of the District Court.




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