                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 15-3505
                                       ___________

                                FELIX A. RODRIGUEZ,
                                                Appellant

                                             v.

                                   FORTHRIGHT
                       ____________________________________

                     On Appeal from the United States District Court
                              for the District of New Jersey
                         (D.C. Civil Action No. 3-12-cv-04642)
                      District Judge: Honorable Peter G. Sheridan
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  September 8, 2016

             Before: VANASKIE, SCIRICA and FUENTES, Circuit Judges

                           (Opinion filed: December 19, 2016)
                                      ___________

                                        OPINION*
                                       ___________

PER CURIAM

       Felix A. Rodriguez appeals from the District Court’s order entering summary

judgment against him and in favor of his former employer, Forthright. We will affirm.


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
                                            I.

       Forthright is the doing-business name of a company that administers an

arbitration program in New Jersey (among other things). Forthright employed Rodriguez

as a case coordinator, and he also performed certain Information Technology (“IT”)

functions. In that capacity, he had access to Forthright’s computer system as an

administrator and had access to other employees’ e-mail accounts.

      In August 2011, approximately four years into his employment, Rodriguez came

forward with 14 e-mails purportedly sent by two Forthright supervisors between

themselves and to other employees containing what he claimed were derogatory

references to his Hispanic race and origin. Rodriguez acknowledged that he had accessed

these employees’ e-mail accounts in order to search for e-mails containing his name

because he was tired of his co-workers “gossiping” about him.

      Roberta Mueller, Forthright’s Vice President of Human Resources, commenced an

investigation into the e-mails. Mueller’s investigation lasted approximately two months

and included several interviews of Rodriguez, the authors and recipients of the e-mails,

and other Forthright employees. Mueller also reviewed the available electronic data.

Mueller ultimately concluded that Rodriguez himself had altered the e-mails by adding

the derogatory references about which he complained. Forthright then terminated

Rodriguez’s employment in October 2011 on the ground that his alteration of the e-mails

violated company policy.


                                            2
       Rodriguez later filed suit pro se against Forthright in state court. Rodriguez

invoked Title VII of the Civil Rights Act of 1964 and claimed that Forthright terminated

him (1) because he is Hispanic and (2) in retaliation for reporting the e-mails and for

filing an earlier complaint with the Equal Employment Opportunity Commission during

Mueller’s investigation. Forthright removed the suit to federal court, and the parties

engaged in discovery. During discovery, Forthright retained an IT expert to conduct

another electronic investigation some three years after the events in question.

Forthright’s expert concluded that Rodriguez had indeed altered the e-mails.

       The parties ultimately filed cross motions for summary judgment. The District

Court heard argument and then denied Rodriguez’s motion but granted Forthright’s

motion and entered summary judgment in its favor. The District Court set forth its

reasons for doing so on the record. Rodriguez appeals. 1

                                             II.

       We will affirm, though our reasons for doing so differ somewhat from the District




1
  Forthright asserted counterclaims against Rodriguez, but it has since withdrawn them
with prejudice and cannot pursue them in the future. Thus, we have jurisdiction under 28
U.S.C. § 1291. See Melo v. Hafer, 912 F.2d 628, 633 n.2 (3d Cir. 1990). On appeal,
Rodriguez challenges only the entry of summary judgment against him and not the denial
of his own motion for summary judgment. Our review of the District Court’s entry of
summary judgment is plenary. See Munroe v. Cent. Bucks Sch. Dist., 805 F.3d 454, 465
n.4 (3d Cir. 2015). In conducting that review, we view the evidence in the light most
favorable to Rodriguez as the non-moving party and will affirm only if “there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Id. (quoting Fed. R. Civ. P. 56(a)).
                                              3
Court’s. As the District Court recognized, Rodriguez’s claims of discrimination and

retaliation proceed under the familiar burden-shifting framework set forth in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). See Jones v. S.E. Pa. Transp. Auth., 796

F.3d 323, 325-26 (3d Cir. 2015) (Title VII retaliation); Fuentes v. Perskie, 32 F.3d 759,

763 (3d Cir. 1994) (Title VII discrimination).

       Under that framework, Rodriquez bore the initial burden of making out a prima

facie case by producing evidence sufficient to raise an inference that his termination was

the product of discrimination or retaliation. See Fuentes, 32 F.3d at 763. The burden of

production then shifted to Forthright to articulate a legitimate reason for his termination.

See id. Finally, the burden shifted back to Rodriguez to produce evidence from which a

reasonable jury could conclude either that (1) Forthright’s proffered reason for his

termination was pretextual or (2) discrimination or retaliation likely was a motivating

cause for the termination. See id. at 763-64. We briefly address evidence regarding

discrimination at the close of this section, but only pretext is properly at issue here.

       The District Court concluded that Rodriguez made out a prima facie case, which

we will assume for present purposes, and that Forthright proffered a legitimate reason for

his termination—i.e., his alteration of employee e-mails in violation of company policy.

The District Court further concluded that Rodriguez failed to adduce evidence permitting

the reasonable conclusion that Forthright’s proffered reason was pretextual. The District

Court did so for two reasons. First, the District Court relied on the opinion of

Forthright’s litigation expert that Rodriguez had altered the e-mails, and it noted that
                                               4
Rodriguez did not obtain an expert of his own or otherwise adduce evidence calling the

expert’s conclusion into question. Second, the District Court relied on the investigation

leading to Rodriguez’s termination.

       The parties devote much of their briefing on appeal to issues regarding

Forthright’s expert. Their focus on the expert, and the District Court’s reliance on the

expert, are largely misplaced. The question in assessing Forthright’s proffered legitimate

reason for terminating Rodriguez is whether a reasonable jury could believe that the

reason was pretextual at the time it was made. The opinion of a litigation expert who

conducted an independent investigation some three years after the fact seems to us

largely irrelevant for that purpose. See Keller v. ORIX Credit Alliance, Inc., 130 F.3d

1101, 1109 (3d Cir. 1997) (en banc); see also McKennon v. Nashville Banner Publ’g Co.,

513 U.S. 352, 360 (1995) (“The employer could not have been motivated by knowledge

it did not have[.]”); Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 309 (3d

Cir. 2012) (“A post hoc ground for termination . . . is irrelevant to the question of

causation.”) (quotation marks omitted). 2

       Thus, we turn to the second ground on which Forthright and the District Court

relied—Mueller’s investigation and conclusion that Rodriguez altered the e-mails. The

District Court did not address the investigation or Rodriguez’s arguments concerning the


2
  We do not suggest that Forthright’s expert was irrelevant to any issue in the case.
Forthright argues, for example, that Rodriguez cannot make out a prima facie case of
either discrimination or retaliation if he in fact altered the e-mails and that its expert
supports the conclusion that he did so. In light of our disposition, we need not address
                                                5
investigation in detail. Having exercised our plenary review, however, we agree that

Rodriguez has not adduced any evidence on that point suggesting that Forthright’s

decision to terminate him for altering the e-mails was pretextual.

       Rodriguez raises numerous arguments challenging the legitimacy of Mueller’s

investigation and its result. Rodriguez’s opening brief, however, is completely devoid of

the references to the record required by Fed. R. App. P. 28(a)(8)(A). We recognize that

Rodriguez has filed his brief pro se, but he is a relatively sophisticated litigant by pro se

standards and, “[a]t the end of the day,” pro se litigants “must abide by the same rules

that apply to all other litigants.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d

Cir. 2013). Thus, we could deem these arguments waived.

       Nevertheless, we have reviewed Rodriquez’s arguments and conclude that they

lack merit. “To discredit the employer’s proffered reason . . . the plaintiff cannot simply

show that the employer’s decision was wrong or mistaken[.]” Fuentes, 32 F.3d at 765.

“Rather, the non-moving plaintiff must demonstrate such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the employer’s legitimate reasons for

its action that a reasonable factfinder could rationally find them unworthy of credence[.]”

Id. (quotation marks omitted). Such weaknesses can be shown when an employer does

not conduct a fair investigation or bases its decision on facially inaccurate or unreliable

evidence. See Estate of Bassatt v. Sch. Dist. No. 1, 775 F.3d 1233, 1240 (10th Cir.

2014); Kowalski v. L & F Prods., 82 F.3d 1283, 1289-90 (3d Cir. 1996).


those issues or Rodriguez’s arguments regarding
                                           6 the expert on appeal.
       In this case, Mueller conducted a two-month investigation and compiled a

comprehensive 20-page report, which Forthright made part of the summary judgment

record. (ECF No. 63-8 at 2-21.) This report details the steps that led Mueller to conclude

that Rodriguez had altered the e-mails. Those steps included conducting numerous

interviews of Rodriguez himself, the authors and recipients of the e-mails, and other

Forthright employees. Those steps also included consultations with Forthright’s IT staff

and an outside IT consultant.

       Rodriguez does not contest that Mueller took any of the steps detailed in her

report. Rodriguez nevertheless contends that Mueller’s investigation was so deficient

that a reasonable jury could conclude that Forthright’s decision to terminate him was

pretextual. Rodriguez raises three principal challenges in this regard. None has merit.

       First, Rodriguez appears to argue that the investigation was incomplete.

He relies on Mueller’s deposition testimony (which he purports to quote but does not

cite) that she “did the best she could” but could not investigate everything. Rodriguez,

however, has not specified which additional steps he believes that Mueller should have

taken. And even if her investigation “conceivably could have been more thorough,”

Mueller “did interview the key witnesses,” including the authors of the e-mails and

Rodriguez himself. Estate of Bassatt, 775 F.3d at 1240; cf. Smothers v. Solvay Chems.,

Inc., 740 F.3d 530, 542 (10th Cir. 2014) (finding evidence of pretext where employer

relied solely on “one-sided information” without giving employee “a chance to explain or

deny th[e] allegations”). Rodriguez does not argue otherwise.
                                             7
       Second, Rodriguez argues that the result of the investigation was predetermined

because Forthright placed him on paid leave but allowed the two subjects of the

investigation to remain in active employment and to “assist” in that investigation.

Rodriguez neither raises any specific arguments in this regard nor cites anything of

record suggesting that these circumstances could be viewed as evidence of pretext.

       Our review of the record reveals that they cannot. Forthright did not place

Rodriguez on leave immediately. Instead, it placed him on leave approximately one

month into its investigation. (ECF No. 63-8 at 18.) It did so four days after Rodriguez

had attempted to access Forthright’s system remotely as an administrator on his day off,

three days after discovering that Rodriguez’s hard drive was missing, and the day that it

forced a change of all employees’ passwords for security reasons on the advice of

counsel. (Id. at 17-18.) Thus, according to Forthright, it advised Rodriguez that it was

placing him on leave (and removing his access to its system) because its investigation

involved its computer system and e-mail documentation. (Id. at 18.)

       Rodriguez has not acknowledged any of these circumstances or adduced any

evidence calling Forthright’s reliance on them into question. He also does not allege or

present any evidence that the conduct of the two supervisors whom Forthright allowed to

remain actively employed—neither of whom is alleged to have the administrator access

to the system that Rodriguez had—raised any similar concerns. As for his assertion that

Forthright allowed the supervisors to “assist” in the investigation, Rodriguez does not

specify the nature of that “assistance.” From our review of the record, that assistance
                                             8
appears to have consisted of nothing more than submitting to interviews and a computer

inspection before Forthright placed Rodriguez on leave. (Id. at 4, 10-16.) Rodriguez can

hardly complain that Forthright took those steps as part of its investigation. See Estate of

Bassatt, 775 F.3d at 1240. Mueller’s report states that she also continued to advise the

supervisors of the status of her investigation, but she continued to advise Rodriguez of

the status as well. These circumstances do not suggest that the results of her investigation

were predetermined in any way.

       Finally, Rodriguez argues that he did not really alter the e-mails and that

Forthright did not have sufficient evidence to conclude that he did. In order to suggest

pretext, however, it is not enough to present evidence that the outcome of the

investigation was wrong. See Fuentes, 32 F.3d at 765. Instead, the evidence must

suggest that the outcome was “so plainly wrong that it cannot have been the employer’s

real reason.” Keller, 130 F.3d at 1109. Rodriguez has adduced no such evidence.

       Rodriquez’s primary argument in this regard is that it was “impossible” for

Mueller to conclude that he altered the e-mails. This is so, according to Rodriguez,

because Forthright’s outside IT consultant told her that Forthright’s Exchange server did

not have auditing enabled and would not permit him to determine who altered the e-

mails. 3 Thus, Rodriguez appears to suggest that there is no proof that he altered the e-

mails and that Mueller had no good-faith basis for concluding that he did.


3
 The consultant actually advised Forthright that “there wasn’t much data that can be of
value on the Exchange server” and that, if Forthright retained him, “there was a very real
                                            9
       Mueller’s investigation, however, revealed other information at least plausibly

suggesting that Rodriguez had altered the e-mails. Among other things, the e-mails

themselves bore obvious signs of alteration, and Rodriguez admitted to Mueller both that

he had accessed the e-mails and that he knew how to alter them. (ECF No. 63-8 at 3, 16.)

Mueller also found multiple versions of the e-mails and determined that Rodriguez,

before coming forward with them, forwarded versions without the derogatory content to

his personal e-mail account. (Id. at 20.) Mueller also interviewed the authors of the e-

mails, who admitted they sent versions of them but denied having written the specific

derogatory comments about which Rodriguez complained. (ECF No. 63-8 at 11-16.) 4

       Rodriguez has neither meaningfully contested any of the foregoing nor adduced

any evidence suggesting that he did not alter the e-mails as Mueller concluded. Thus,

Rodriguez has adduced no evidence suggesting that Mueller’s conclusion was even

wrong, let alone that it was “so plainly wrong that it cannot have been the employer’s real

reason” for terminating him. Keller, 130 F.3d at 1109; see also Estate of Bassatt, 775


possibility we would pay for their services and get no helpful data in return.” (ECF No.
63-8 at 19.) Rodriguez does not argue that Forthright should have retained the consultant
anyway. Instead, he argues that the consultant’s statement shows that it was impossible
to determine who altered the e-mails. That is not what the consultant said, but we will
assume for Rodriguez’s benefit that it was impossible for Forthright to conclusively
determine who altered the e-mails through the use of electronic data at that time.
4
  Rodriguez relies on the two supervisor’s admissions that they sent the original e-mails,
but he has not adduced any evidence suggesting, as he claims, that they also admitted
including the derogatory comments specifically at issue. To the contrary, they denied
having done so. (ECF No. 63-8 at 11-16.)

                                            10
F.3d at 1240 (holding that an employer’s “decision to believe [one employee over

another], when there was no direct evidence either way, is not evidence of pretext”).

Thus, we agree with the District Court that Rodriguez did not adduce sufficient evidence

on the issue of pretext to survive summary judgment.

       The issue of pretext aside, Rodriguez does not argue that he presented sufficient

other evidence that discrimination or retaliation likely was a motivating cause of his

termination. See Fuentes, 32 F.3d at 764. In the District Court, Rodriguez argued that

Forthright treated him differently than non-Hispanics because (1) it disciplined non-

Hispanics less harshly than him despite their own violations of Forthright’s policies and

(2) it paid certain non-Hispanics more than him. The District Court concluded that these

allegations were sufficient to make out a prima facie case. 5

       In his opening brief, Rodriguez refers briefly to that conclusion and argues that it

was inconsistent for the District Court to then conclude at step three of the McDonnell

Douglas inquiry that he did not present evidence suggesting that his termination was the

result of discrimination. (Appellant’s Br. at 33.) That argument misapprehends the

McDonnell Douglas burden-shifting framework, which the District Court properly

employed. Rodriguez has not otherwise raised any argument based on this alleged


5
  Forthright disputes both points and argues that (1) it disciplined non-Hispanics less
harshly because their violations of company policy were different and less serious than
Rodriguez’s, and (2) the employees who earned more than Rodriguez were not similarly
situated. We need not resolve these issues in light of our disposition, but we note that the
record tends to support Forthright’s arguments.

                                             11
disparate treatment, let alone argued that he presented evidence on that point sufficient to

survive summary judgment at step three of the McDonnell Douglas analysis. 6

                                            III.

       We will briefly address three other issues that Rodriguez raises on appeal. First,

Rodriguez argues that Forthright spoliated evidence and that the District Court should

have drawn an adverse inference against it at the summary judgment stage. By way of

background, Forthright filed a motion to amend its answer to assert counterclaims based

on a document that it discovered in Rodriguez’s cubicle following his termination. On

Rodriguez’s motion, a Magistrate Judge granted Rodriguez permission to have the

original document fingerprinted to determine whether there was any evidence that it had

been in his possession. Shortly thereafter, however, Forthright asserted that it could not

locate the original document (though both parties retained a copy).

       Rodriguez then requested leave to file a “motion for spoliation of evidence.”

(ECF No. 51.) The Magistrate Judge apparently addressed that issue at a telephonic

conference (ECF No. 52), and then denied the request without prejudice (ECF No. 53).

According to Rodriguez, the Magistrate Judge did so on the ground that spoliation should


6
  In a somewhat related vein, Rodriguez argues that the District Court erred by granting
summary judgment without addressing his purported stand-alone claims of disparate-
treatment and hostile-environment discrimination. As Forthright argues, however,
Rodriguez’s complaint contains no such claims. (ECF No. 1-2.) Rodriguez did file a
motion to amend his complaint, and his proposed amended complaint could be liberally
construed to assert such claims. (ECF No. 36.) The Magistrate Judge denied his motion
as futile for failure to state a claim, but Rodriguez neither challenged that ruling before
the District Court nor even mentions it on appeal.
                                               12
be addressed only after the summary judgment stage. Rodriguez argues that the District

Court should have drawn the spoliation inference in considering summary judgment.

       It is true that spoliation can be considered at the summary judgment stage. See

Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 334 (3d Cir. 1995). But Rodriguez

has not preserved this issue, 7 and it lacks merit in any event. Rodriguez argued below

that Forthright’s alleged spoliation of this evidence prejudiced only his ability to defend

against Forthright’s counterclaims. He did not argue that it prejudiced his ability to

defend against summary judgment on his claims, and he raises nothing on appeal

suggesting that it did. Rodriguez retained a copy of this document, so the only adverse

inference to which he might have been entitled would have been an inference that the

original document did not bear his fingerprints. That inference would not have saved his

claims from summary judgment. 8

       Second, Rodriguez raises various arguments addressed to the District Court’s

consideration of the parties’ evidence at the summary judgment stage. Our plenary


7
  Rodriguez claims that the Magistrate Judge addressed this issue at the telephonic
conference, which the docket indicates was recorded, but we have no way to review this
issue because Rodriguez has not had the conference transcribed as required by Fed. R.
App. P. 10(b)(1). Rodriguez also did not appeal the Magistrate Judge’s ruling to the
District Court. See Tabron v. Grace, 6 F.3d 147, 153 n.2 (3d Cir. 1993).
8
  Rodriguez also refers on appeal to the disappearance of his computer hard drive during
Forthright’s investigation and to the absence of any recordings of Mueller’s interviews.
Rodriguez did not mention the hard drive in his “motion for spoliation,” and he has not
cited any evidence suggesting that Forthright was responsible for its disappearance in any
event. Rodriguez did mention the absence of recordings, but he submitted no evidence
contesting Forthright’s claim that recordings were not made and did not exist.
                                             13
review has cured any potential error in this regard, but we perceive no such error in any

event. Rodriguez argues, for example, that the District Court admitted at the hearing that

it did not review all of his submissions. He refers to the District Court’s statement

regarding the e-mails in question that “I do believe I read some of them, I’m not sure I

read all of them[.]” (ECF No. 80 at 15.) The contents of the e-mails, however, were not

in dispute. The most logical inference from this statement is that the District Court, faced

with the parties’ voluminous submissions, focused on those matters that were in dispute.

       Finally, Rodriguez argues that the mere fact that he and Forthright dispute whether

he altered the e-mails means that there is genuine issue of material fact precluding

summary judgment. That is not the case. As explained above, the question is not

whether Rodriguez actually altered the e-mails. Instead, the question is whether it was

pretextual for Forthright to rely on its conclusion that he did. Rodriguez adduced no

evidence reasonably suggesting that it was. We have reviewed Rodriguez’s remaining

arguments and conclude that they do not require discussion.

                                              IV.

       For these reasons, we will affirm the judgment of the District Court. Forthright’s

motion to strike or seal a portion of Rodriguez’s reply brief is granted as set forth in the

margin. 9


9
  Appellant’s reply brief is to be sealed in light of the statements that appear in the third
and fourth sentences of Section 5(b) of the reply brief, and appellant’s response in
opposition to appellee’s motion to strike or seal is to be sealed in light of the statements
that appear in the first sentence of the second paragraph and the first, second and third
                                               14
sentences of the third paragraph on page two of appellant’s response to the motion t
o strike or seal. The Clerk is directed to designate appellant’s reply brief and response to
the motion to strike or seal as sealed documents on this Court’s docket. The Clerk is
further directed to enter on this Court’s docket redacted versions of the reply brief and
response to the motion to strike or seal removing the portions of those documents
specified above.
                                              15
