                                                    NOT PRECEDENTIAL


             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT
                      ______________

                          No. 15-2026
                         ______________

                         RENE FLORES,

                                       Appellant

                                 v.

CARL C. DANBERG; MIKE DELOY; G. R. JOHNSON, Warden; LINDA
  VALENTINO; DELAWARE DEPARTMENT OF CORRECTIONS

                       ______________

            Appeal from the United States District Court
                    for the District of Delaware
                      (D.C. No. 1-13-cv-0075)
            District Judge: Honorable Sue L. Robinson
                          ______________

                      Argued Sept. 15, 2016

Before: CHAGARES, GREENAWAY, JR. and RESTREPO, Circuit Judges

                     (Filed: August 24, 2017)
Stephen A. Hampton, Esquire [ARGUED]
Grady & Hampton
6 North Bradford Street
Dover, DE 19904

                   Counsel for Appellant

Ryan P. Connell, Esquire [ARGUED]
Delaware Department of Justice
820 North French Street
Carvel Office Building, 6th Floor
Wilmington, DE 19801

Devera B. Scott, Esquire
Office of Attorney General of Delaware
102 West Water Street
Dover, DE 19904

                     Counsel for Appellees

                                     ______________

                                        OPINION*
                                     ______________

RESTREPO, Circuit Judge

       Appellant, Rene Flores, alleges employment discrimination and retaliation on the

bases that he was denied a promotion to captain by the Delaware Department of

Correction (“DOC”) based on his race and national origin and that appellees thereafter

fired him in retaliation for his complaints about the alleged discrimination.1 Flores


*
 This disposition is not an Opinion of the full Court and, pursuant to I.O.P. 5.7, does not
constitute binding precedent.
1
 Flores’ Amended Complaint alleges claims of discrimination and retaliation pursuant to
Title VII of the Civil Rights Act of 1964, as well as 42 U.S.C. §§ 1981 and 1983. Having
                                              2
appeals from the Memorandum Opinion and Order of the District Court granting

appellees’ motions for summary judgment, see Flores v. Danberg, 84 F. Supp.3d 340 (D.

Del. 2015). For the reasons which follow, we affirm.

                                             I.2

       Flores testified that in 1996, while he was a correctional officer for the DOC, he

interviewed for and was promoted to corporal. In 2001, he applied for and received a

promotion to sergeant, and shortly thereafter, Flores interviewed for and was promoted to

lieutenant.3 Flores subsequently applied for a promotion to staff lieutenant, but another

candidate was selected.

       Sometime prior to 2009, Flores again interviewed for a vacant staff lieutenant

position. Although he was not selected for this position, he filed a grievance challenging

the selection process, and appellee former DOC Bureau Chief Mike DeLoy granted relief.

Flores was therefore promoted to an open staff lieutenant position with back pay.

       In 2010, about a year after he was promoted to staff lieutenant, Flores applied for a

vacant captain position. He was not selected, and he filed a grievance challenging the

concluded that summary judgment on these federal claims was appropriate, the District
Court declined to exercise supplemental jurisdiction over Flores’ ancillary state causes of
action related to the Delaware Whistleblowers’ Protection Act, see 19 Del. C. § 1703, and
tortious interference with his employment contract, and Flores did not appeal the District
Court’s decision with regard to his state claims.
2
 We write exclusively for the parties and therefore set forth only those facts that are
necessary to our disposition.
3
  When Flores was promoted during his career, he often was transferred to different
facilities within the DOC.
                                          3
selection process, which grievance was denied by former Deputy Commissioner Thomas

Carroll.

       In late 2010 or early 2011, another captain position became vacant, and Flores

submitted an application and interviewed with a selection panel. The selection panel was

made up of three members: Jeanette Christian, a Human Resources representative; Ernest

McBroom, a lieutenant who served as a corrections emergency response team (CERT)

training coordinator; and, appellee former Deputy Warden Linda Valentino.

       Following the interviewing process, the panel unanimously agreed on the top two

candidates, and Flores was not one of them. Further, the panel felt that the chosen

candidate was clearly the best choice, that his answers during the interview were

thoughtful and well presented, and in fact, among the best interviews in the panel’s

experience.

       In April 2011, Valentino, the Panel Chairperson, informed Flores that he was not

selected for the position. She suggested to Flores that he had stumbled on interview

questions, and Flores responded that he disagreed with that characterization. Shortly

thereafter, Flores filed a grievance, and that grievance was denied by DeLoy, who noted,

among other things, the high quality of the selection panel. Flores then filed a Charge of

Discrimination with the Equal Employment Opportunity Commission (“EEOC”) based

on this last promotion denial.

       Around the same time that Flores had been informed by Valentino that he was not

selected for the vacant captain position, on April 8, 2011 appellee G.R. Johnson, Warden
                                             4
of Sussex Correctional Institution (“Sussex”), received an external complaint from Ryan

Hobbs. Hobbs complained that Flores had illegally accessed Hobbs’ criminal history

record through the Delaware Criminal Justice Information System (“DELJIS”) and had

used this information to threaten him because Hobbs had been dating Flores’ daughter.

Consequently, investigations by DOC internal affairs (“IA”), as well as DELJIS security,

were commenced.

       An investigating officer reported that Flores allegedly violated DELJIS Directive

One: Dissemination of criminal record history and motor vehicle information. The

investigation, which included review of the DELJIS summary log, revealed that Flores

accessed Hobbs’ criminal history record through DELJIS on 16 occasions, and Flores

accessed the criminal records of a total of at least 28 persons, most of these individuals

searched on multiple occasions. In June 2011, following the DELJIS security

investigation, the DELJIS Executive Committee directed Flores to undergo retraining and

to re-sign the DELJIS policy. Meanwhile, the DOC continued to conduct its IA

investigation.

       At a meeting with Warden Johnson in 2012, also attended by a union

representative, Flores was specifically asked why he searched each of the names he had

searched on DELJIS. Following the meeting, Warden Johnson concluded that Flores

grossly abused his DELJIS privileges and that it was evident that he attempted to deceive

both the DELJIS and IA investigators. Moreover, the Warden pointed out that Hobbs had

lodged an official external complaint alleging that Flores had improperly accessed
                                             5
DELJIS and used that information to threaten him, and the DELJIS summary log

revealed that Flores did access Hobbs’s records at least 16 times.

       In February 2012, Janet Durkee, DOC Director of Human Resources and

Development, informed Flores that the DOC was considering dismissing him from

employment based on the results of the investigation into his inappropriate and

unauthorized use of DELJIS for non-work related purposes. He was informed of the

conclusions that he accessed criminal history record information in DELJIS without

business-related reasons, that he was dishonest with the DELJIS and IA investigators by

misrepresenting his unauthorized searches as work-related, and that he performed non-

work-related, unauthorized DELJIS searches while on State time.

       Flores met with Commissioner Danberg on March 6, 2012, which meeting was

also attended by Warden Johnson, Durkee, and union officials. In reaching his ultimate

decision, the Commissioner considered three factors: (1) on numerous occasions Flores

accessed the criminal history of Hobbs and his acquaintances; (2) the investigation

revealed that Flores accessed the criminal histories of children of DOC employees; and

(3) Flores accessed the file of Dr. Earl Bradley and claimed that State Representative

John Atkins contacted Flores and asked if Bradley was incarcerated at Sussex.

       At the meeting, Flores argued that the DELJIS rules were not well understood, and

were frequently violated. He also noted that concern for his daughter influenced him to

run some of the searches. While the Commissioner found these arguments persuasive, he

concluded that Flores was not being forthright during the investigation or during the
                                             6
meeting. For example, the Commissioner found that although Flores denied running the

names of any of Hobbs’ associates, when Flores was confronted with the facts revealed

by the summary log that he had searched the names of at least two people associated with

Hobbs, Flores indicated that they must have had business with the DOC, which the

investigation revealed untrue.

       Flores also claimed to have searched the children of senior DOC employees at

those employees’ requests, but those employees had direct access to DELJIS, and they

denied ever asking Flores to do such a search. Finally, the Commissioner personally

spoke with Representative Atkins, and he denied calling and asking Flores for

information regarding Mr. Bradley. Since Commissioner Danberg felt that Flores was

not being candid, and he believed that the hallmark of a law enforcement officer was

honesty, he determined that dismissal was the appropriate penalty.

       Following the termination decision, Flores filed a grievance through the union, but

the union ultimately voted not to take any further action. Flores amended his EEOC

charge by also alleging a claim of retaliation. On October 15, 2012, Flores’ EEOC

complaint was denied. He thereafter initiated this lawsuit in the District Court.




                                             7
                                             II.4

       Flores first claims that appellees discriminated against him based on his race and

national origin when he was not promoted to the most recent captain position for which

he applied (“discrimination claim”) and that the District Court erred in finding the

evidence insufficient to support Flores’ claim that appellees’ articulated reason for not

selecting him for the captain position was a pretext for discrimination. The parties do not

dispute that the familiar 3-step burden-shifting inquiry under McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 802-04 (1973), applies to Flores’ discrimination claim.

       To satisfy the first step of the inquiry, Flores must establish a prima facie case of

discrimination in the decision to not promote him to the captain position. To do so, he

must show that: (a) he was a member of a protected class; (b) he was qualified for the

position to which he applied; (c) he suffered some form of adverse employment action;

and (d) the adverse employment action occurred under circumstances that give rise to an

4
  The District Court had jurisdiction under 28 U.S.C. §§ 1331, 1343, and 1367. We have
jurisdiction under 28 U.S.C. § 1291. Our review of the District Court’s grant of summary
judgment is plenary. Seamans v. Temple Univ., 744 F.3d 853, 859 (3d Cir. 2014). A
moving party is entitled to summary judgment if “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A dispute about a material fact is “genuine” only “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable inferences must be drawn in favor
of the nonmoving party. Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 286 (3d Cir.
2009).

                                              8
inference of unlawful discrimination. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,

506 (1993). If he is able to show a prima facie case of discrimination at step one, the

burden of production shifts to appellees at step two to “articulate one or more legitimate,

non-discriminatory reasons for [their] employment decision.” Waldron v. SL Indus., Inc.,

56 F.3d 491, 494 (3d Cir. 1995). If appellees are able to articulate such a reason, the

burden shifts back to Flores at step three, who must demonstrate that appellees’ proffered

reasons were merely a pretext for intentional discrimination. McDonnell Douglas, 411

U.S. at 804. While the burden of production shifts, the employee always has the ultimate

burden of persuasion to prove intentional discrimination. Jones v. Sch. Dist. of Phila.,

198 F.3d 403, 410 (3d Cir. 1999).

       Applying the McDonnell Douglas framework, we agree with the District Court

that Flores failed to provide sufficient evidence from which a reasonable juror could

conclude that appellees’ legitimate, nondiscriminatory reason was a pretext for

intentional discrimination on the part of appellees.5 Assuming, without deciding, that

Flores is able to make out a prima facie case, the burden shifts to appellees, who have

proffered a legitimate, nondiscriminatory reason for denying Flores the promotion.

Specifically, appellees presented evidence that the panel unanimously ranked him after

the top two candidates for the captain position based on Flores’ performance in the


5
 Although appellees argued in the District Court that Flores had failed to satisfy the first
step of the McDonnell Douglas framework by making a prima facie case, the Court did
not address this argument, and assumed, without deciding, that the first step had been
satisfied.
                                            9
interview. For example, not only did Valentino indicate to Flores that he stumbled with

responses at his interview, but the interview notes of the panel members reveal that the

panel was very impressed with the chosen candidate’s answers to the questions, and that

Flores rambled in attempting to answer the interview questions. However, at the third

step in the inquiry Flores has failed to show sufficient evidence from which a reasonable

juror could conclude that appellees’ legitimate, nondiscriminatory reason was a pretext

for intentional discrimination against Flores based on his race and national origin.

Accordingly, the District Court properly granted summary judgment in favor of appellees

on Flores’ claim of discrimination in violation of Title VII and § 1981.

                                             III.

       Flores also claims that appellees terminated his employment in retaliation for his

complaints of discrimination in violation of Title VII (“retaliation claim”). As with his

discrimination claim, claims alleging retaliation are analyzed under the McDonnell

Douglas burden-shifting framework.

       To establish a prima facie case of retaliation, Flores is required to show that: (1) he

engaged in protected activity; (2) he suffered an adverse employment action; and (3)

there was a causal connection between his protected activity and the adverse action.

Moore v. City of Phila., 461 F.3d 331, 340-41 (3d Cir. 2006). To satisfy the causation

component of a prima facie case, Flores must present evidence that could support the

inference of a causal connection between his complaints of discrimination and the


                                             10
termination of his employment. See Farrell v. Planters Lifesavers Co., 206 F.3d 271,

279 (3d Cir. 2000).

       If Flores makes out this prima facie claim, the burden shifts to appellees, who

must articulate a legitimate, nondiscriminatory reason for terminating his employment,

and if they do so, the burden shifts back to Flores to demonstrate that the proffered

reasons were merely a pretext and that retaliation was the real reason for the adverse

employment action. See Moore, 461 F.3d at 342. Thus, Flores must ultimately prove

that appellees’ retaliatory animus was the “real reason” for the termination of his

employment. See Farrell, 206 F.3d at 286 (using the term “real reason” to describe the

plaintiff’s ultimate burden at the pretext stage). To prove causation at the pretext stage,

Flores must show that he would not have been fired “but for” his protected activity. See

Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013); cf. Farrell, 206 F.3d

at 286 (distinguishing “the test for causation under the prima facie case with that for

pretext”).6


6
  Some appellate courts have concluded that the but-for causation standard, see Nassar,
133 S. Ct. at 2534, applies only at the pretext stage and does not alter the causation prong
of the prima facie stage of the retaliation analysis. See Foster v. Univ. of Maryland-
Eastern Shore, 787 F.3d 243, 252 (4th Cir. 2015) (“[T]he McDonnell Douglas framework
has long demanded proof at the pretext stage that retaliation was a but-for cause of a
challenged adverse employment action. Nassar does not alter the legal standard for
adjudicating a McDonnell Douglas retaliation claim.”); Feist v. La. Dep’t of Justice,
Office of Atty. Gen., 730 F.3d 450, 454 (5th Cir. 2013) (citing Nassar, 133 S. Ct. at 2533)
(“‘After the employer states its reason, the burden shifts back to the employee to
demonstrate that the employer’s reason is actually a pretext for retaliation,’ which the
employee accomplishes by showing that the adverse action would not have occurred ‘but
for’ the employer’s retaliatory motive . . . .”) (internal citations omitted). The Fourth
                                               11
       Even assuming, without deciding, that Flores has demonstrated a prima facie case

at the first stage of the McDonnell Douglas framework, appellees have provided

sufficient evidence supporting the conclusion that Flores was fired based on the beliefs

that Flores had committed extensive DELJIS violations, and ultimately, that Flores was

not being honest about his DELJIS misuse. As the District Court notes, although Flores

was afforded opportunities to explain his conduct, and Danberg maintained that he had

been prepared not to terminate Flores, following his meeting with Flores, Danberg

ultimately concluded that Flores was not telling the truth and that termination of

employment was warranted. Flores has failed to provide sufficient evidence to show that




Circuit noted, “the burden for establishing causation at the prima facie stage is less
onerous” than satisfying the causation standard at the pretext stage. Foster, 787 F.3d at
251 (internal quotation marks and citation omitted). Indeed, applying the but-for
causation test at the prima facie stage would arguably “be tantamount to eliminating the
McDonnell Douglas framework in retaliation cases,” and “[h]ad the Nassar Court
intended to retire McDonnell Douglas and set aside 40 years of precedent, it would have
spoken plainly and clearly to that effect.” Id. In this case, the District Court explicitly
applied the but-for causation test at the prima facie stage and found that, although Flores
“has established the first and second prongs of a prima facie case, . . . he has not
demonstrated that the filing of the EEOC charge was the ‘but for’ reason for the
termination.” Flores, 84 F. Supp.3d at 350; see id. (citing Nassar) (“The protected
activity must be the ‘but-for’ cause of the defendants’ alleged retaliatory action under the
causation prong of the prima facie case.”). We need not address the causation element of
the first stage of the McDonnell Douglas framework, however, since even assuming,
arguendo, that Flores can show a prima facie case of retaliation, he is unable to satisfy
the third step of the applicable inquiry.

                                             12
“but for” his complaint of discrimination he would not have been fired. See Nassar, 133

S. Ct. at 2533.7

                                            IV.

       Accordingly, for the foregoing reasons, we affirm the Order of the District Court

granting appellees’ summary judgment motions.




7
 The District Court also denied Flores’ claim of a denial of his 14th Amendment equal
protection rights under 42 U.S.C. § 1983. See Flores, 84 F. Supp.3d at 351. However, as
appellees point out in their brief, Flores fails to specifically pursue this argument in his
brief. Therefore, any argument regarding Flores’ claim of the denial of equal protection
pursuant to § 1983 has been waived. See United States v. Menendez, 831 F.3d 155, 175
(3d Cir. 2016) (quoting Travitz v. Ne. Dep’t ILGWU Health & Welfare Fund, 13 F.3d
704, 711 (3d Cir. 1994)) (“When an issue is not pursued in the argument section of the
brief, the appellant has abandoned and waived that issue on appeal.”); see also Fed. R.
App. P. 28(a)(8) (stating that a party’s brief must contain “the argument” including
“contentions and the reasons for them, with citations to the authorities and parts of the
record on which the appellant relies”); John Wyeth & Brother Ltd. v. CIGNA Int’l Corp.,
119 F.3d 1070, 1076 n.6 (3d Cir. 1997) (“[A]rguments raised in passing . . ., but not
squarely argued, are considered waived.”). Even if the issue were not waived, we would
affirm the District Court’s grant of appellees’ summary judgment motions on this claim.
We have treated § 1983 claims similarly to Title VII and § 1981 claims, see Stewart v.
Rutgers, The State Univ., 120 F.3d 426, 432 (3d Cir. 1997), and to succeed on his equal
protection claim under § 1983, Flores was required to show “[p]roof of racially
discriminatory intent or purpose.” See Doe v. Lower Merion Sch. Dist., 665 F.3d 524,
543 (3d Cir. 2011) (quoting Antonelli v. New Jersey, 419 F.3d 267, 274 (3d Cir. 2005)).
As explained above, Flores is unable to show that discriminatory animus motivated
appellees.
                                               13
