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


7-3-2008

Sarmiento v. Montclair State Univ
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2475




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 07-2475
                                       ___________

                              ESTEBAN E. SARMIENTO,
                                                  Appellant

                                             v.

                         MONTCLAIR STATE UNIVERSITY
                       ____________________________________

                     On Appeal from the United States District Court
                               for the District of New Jersey
                          (D.C. Civil Action No. 04-cv-04176)
                      District Judge: Honorable William J. Martini
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 2, 2008

                Before: RENDELL, JORDAN and ROTH, Circuit Judges

                               (Opinion filed July 3, 2008)
                                     ___________

                                        OPINION
                                       ___________

PER CURIAM

       Esteban Sarmiento, a Hispanic male, brought a suit against Montclair State

University (“MSU”) alleging employment discrimination in violation of Title VII of the

Civil Rights Act of 1964 (“Title VII”). He claimed in his pro se complaint that MSU’s

decision not to hire him as an associate professor constituted intentional discrimination on
the basis of race, color or national origin. The United States District Court for the District

of New Jersey granted MSU’s motion for summary judgment on that claim, and

Sarmiento now appeals that decision. For the following reasons, we will affirm the

judgment of the District Court.

I.     Factual and Procedural Background

       Sarmiento received his Ph.D. in biological anthropology in 1985 and since that

time he has been employed as a research associate at the American Museum of Natural

History. He has also taught at various colleges and universities in the United States and

abroad. In 2001, he applied for a position as an associate professor in MSU’s

anthropology department. MSU circulated two job announcements describing the

position. The shorter announcement stated that the opening was for a tenure-track

position in biological anthropology with a focus on teaching introductory physical

anthropology as a laboratory science. The document also indicated that the successful

candidate would teach human variation and medical anthropology. As for qualifications,

the announcement specified that a Ph.D. was required as well as publications and a

demonstrated record of success in teaching, research, and professional activities.

Candidates were also required to be committed to using information technology in

teaching and research and to have the potential or a demonstrated ability to obtain

external funding. The document further indicated that the department expected the

successful candidate to exhibit excellence in teaching, scholarship, and service to the

department, university, community, and profession.

                                              2
       MSU also circulated a second document containing a more detailed description of

the position. This document stated that the successful candidate should be prepared to

teach introductory and upper-division courses for majors and for general education, teach

masters-level seminars in the department’s applied anthropology program, supervise

masters treatises in applied medical anthropology, and develop new courses appropriate

to the needs of the department in the area of specialization. The document also stated that

candidates must be committed to involving students in research and must demonstrate the

potential to write successful grant applications.

       The job postings generated approximately fifty-two applications, which were

reviewed by a hiring committee consisting of six full-time faculty members of MSU’s

anthropology department. During its review of the applications, the committee employed

a screening instrument which called for an evaluation of each candidate on the basis of

three criteria: (1) closeness of fit to job description; (2) academic achievement

(publications, conference presentations, etc.); and (3) evidence of teaching performance

(if submitted). The screening instrument directed each committee member to rank the

applicants from 1 to 10 or as “below 10.” The screening instrument also directed

committee members to discuss all applicants who appeared on more than one top-ten list,

with the goal of narrowing the list to three candidates who would be contacted for in-

person interviews. Following its analysis of the qualifications of the applicants, the

committee decided to interview three candidates: Julie Farnum, a Caucasian female;



                                              3
Teresa Leslie, an African-American female, and Sheila Jeffers, an African-American

female. Farnum was eventually hired for the position.

       Shortly after learning of MSU’s hiring decision, Sarmiento filed a charge of

discrimination in the EEOC. The EEOC issued a right-to-sue letter, which led to the

filing of the Title VII complaint in the District Court.1 The District Court granted MSU’s

motion for summary judgment on the Title VII claim, concluding that Sarmiento had not

met his burden of submitting evidence from which a reasonable factfinder could conclude

that MSU’s nondiscriminatory reasons for denying him employment were pretextual.2

II.    Analysis

       We have jurisdiction over the appeal under 28 U.S.C. § 1291 and exercise plenary

review over the District Court’s decision to grant summary judgment. McGreevey v.

Stoup, 413 F.3d 359, 363 (3d Cir. 2005). Summary judgment is appropriate when the

“pleadings, depositions, answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c). A


  1
    Sarmiento’s complaint also raised claims under 42 U.S.C. § 1981, the Age
Discrimination in Employment Act, and New Jersey’s Law Against Discrimination. The
District Court dismissed those claims in 2005 on the basis of sovereign immunity, and
Sarmiento does not challenge those rulings on appeal.
  2
    Sarmiento moved for reconsideration in the District Court after filing his notice of
appeal of the District Court’s order granting summary judgment. The District Court
noted that the motion was procedurally improper, but proceeded to deny it on the merits.
The issue of whether the District Court erred in denying reconsideration is not before us,
since Sarmiento did not appeal from that order.

                                              4
court reviewing a summary judgment motion must evaluate the evidence in the light most

favorable to the nonmoving party and draw all reasonable inferences in that party’s favor.

Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 330 (3d Cir. 1995). However, a

party opposing summary judgment “must present more than just ‘bare assertions,

conclusory allegations or suspicions’ to show the existence of a genuine issue.” Podobnik

v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005) (quoting Celotex Corp. v. Catrett,

477 U.S. 317, 325 (1986)).

       As Sarmiento did not submit direct evidence of discriminatory behavior, the

District Court appropriately analyzed his Title VII claim under the familiar burden-

shifting framework established by McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). Under that framework, a plaintiff challenging a hiring decision has the initial

burden of establishing a prima facie case of discrimination. See id. at 802. The burden

then shifts to the employer to proffer a legitimate, nondiscriminatory reason for the hiring

decision. See Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir. 1997).

Once that burden is met, the plaintiff must establish by a preponderance of the evidence

that the nondiscriminatory reasons articulated by the employer are pretextual. See Jones

v. Sch. Dist. of Phila., 198 F.3d 403, 410 (3d Cir. 1999). To defeat summary judgment,

“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

                                             5
759, 764 (3d Cir. 1994). More particularly, the plaintiff must demonstrate “such

weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the

employer’s proffered legitimate reasons for its action that a reasonable factfinder could

rationally find them unworthy of credence and hence infer that the employer did not act

for the asserted non-discriminatory reasons.” Id. at 765 (internal quotations and citations

omitted).

       A.     Plaintiff’s Prima Facie Case and Defendant’s Nondiscriminatory
              Rationale

       The District Court determined that Sarmiento satisfied the elements of a prima

facie case by demonstrating that he was qualified for the associate professor position and

that the position was offered to a non-Hispanic candidate. MSU does not contest that

determination on appeal, so we will turn our attention to the other steps of the McDonnell

Douglas analysis.

       Sarmiento claims that the District Court erroneously determined that MSU

satisfied its burden of articulating nondiscriminatory reasons for its hiring decision. He

argues that MSU did not provide any such reasons and that the District Court combed the

record and gave its own explanation as to why he was denied an interview. This

assertion, that MSU did not meet its burden of production under this step of the

McDonnell Douglas analysis, is plainly without merit. MSU argued in its summary

judgment brief that, even if the District Court accepted that Sarmiento could establish a

prima facie case of discrimination, the university articulated a legitimate reason for its


                                              6
actions, in that Sarmiento’s qualifications did not fit within the qualifications sought by

the department. MSU elaborated upon this point in its statement of undisputed material

facts, explaining that Sarmiento was not selected because his application materials

indicated that his research and skills were not well suited to the interests of the

department and the needs of the students, in comparison with the three candidates who

were selected for an interview. MSU supported this statement by citing to the deposition

testimony of Dr. Richard Franke, a professor of anthropology at MSU who chaired the

hiring committee at the time it reviewed Sarmiento’s application. In the cited portions of

the deposition transcript, Franke testified that Sarmiento’s application materials indicated

that his research focused on the study of great apes, in addition to anatomy and surgery,

whereas the department was looking for a candidate whose area of expertise involved the

study of the social and cultural aspects of disease or health patterns. MSU further

explained in its statement of undisputed material facts that Sarmiento’s application was

rejected partly because he provided little evidence of successful teaching performance.

These reasons are consistent with those provided by MSU in the reports to the EEOC that

were submitted as part of the record on summary judgment. The District Court properly

cited these reasons in support of its conclusion that MSU articulated a non-discriminatory

rationale for the hiring decision. Thus, we do not believe that the District Court relieved

MSU from satisfying its burden at this stage. See Woodson v. Scott Paper Co.,109 F.3d

913, 920 n.2 (3d Cir. 1997) (stating that a “defendant’s burden at this stage is relatively



                                               7
light . . . [and is] satisfied if the defendant articulates any legitimate reason” for the hiring

decision).

       B.      Pretext

       Turning to the issue of pretext, we first address Sarmiento’s contention that

summary judgment was inappropriate because a trier of fact could disbelieve MSU’s

rationale for its hiring decision simply because that rationale was advanced by “interested

witnesses.” He reasons that, because MSU’s explanation is entirely based on credibility-

dependent assertions by agents and decision-makers of the university, he need not set

forth any additional evidence in order to create a triable issue of fact. We reject that

argument, as it fails to take into account that a Title VII plaintiff bears the ultimate burden

of persuasion under McDonnell Douglas to cast doubt on the legitimacy of an employer’s

nondiscriminatory justification. See Traylor v. Brown, 295 F.3d 783, 791 (7th Cir. 2002);

Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 898 (5th Cir. 2002); see also Sarmiento

v. Queens College CUNY, 386 F. Supp. 2d 93, 96 n.2 (E.D.N.Y. 2005) (rejecting similar

argument advanced by Appellant), aff’d, 153 Fed. App’x 21 (2d Cir. Oct. 28, 2005). We

therefore proceed to consider whether Sarmiento has made an adequate showing of

pretext.

               1.     Departmental Fit

       In addressing MSU’s assertion that the anthropology department was looking for a

candidate whose area of expertise involved the study of the relationship between human

society and disease, Sarmiento claims that this rationale is suspect because neither of the

                                                8
position announcements mentioned such a preference. As the District Court explained,

however, the fact that MSU justified its decision by referring to Sarmiento’s failure to

satisfy a departmental preference that was not precisely articulated in the position

announcements is insufficient to show pretext, given the absence of evidence in the

record indicating that MSU acted irrationally or arbitrarily in invoking that criterion. See

Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 647 (3d Cir. 1998) (stating

that a plaintiff challenging an employer’s reliance on a stated criterion must adduce

“evidence from which a factfinder could reasonably infer that the plaintiff satisfied the

criterion identified by the employer or that the employer did not actually rely upon the

stated criterion”); see also Jackson v. Gonzales, 496 F.3d 703, 709 (D.C. Cir. 2007)

(stating that “[t]he fact that an employer based its ultimate hiring decision on one or more

specific factors encompassed within a broader and more general job description does not

itself raise an inference of discrimination sufficient to overcome summary judgment”).

Franke presented uncontradicted testimony that the hiring committee preferred a

candidate “who showed a clear interest in the relation between human society and culture

and patterns of health and disease” because such a candidate better fit the academic and

pedagogical needs of the anthropology department and the university.3 MSU also


  3
     Sarmiento notes that the screening instrument directed members of the hiring
committee to consider only three criteria when reviewing an application (i.e., closeness of
fit to job description, academic achievement, and teaching performance, if applicable) and
did not call for an evaluation of an applicant’s credentials with reference to the
departmental preferences stated by Franke. We do not believe the contents of the
screening instrument give rise to a reasonable inference of pretext, as there is no

                                             9
explained why the finalists were better suited to the position than Sarmiento, and those

reasons are fully recounted in Section III.A of the District Court’s opinion. Although

Sarmiento challenges, in a conclusory fashion, the correctness of the hiring committee’s

determination that his area of specialization made him less appropriate for the position

than the three finalists, he does not cite to any evidence or any discrepancies in the record

that would cause a reasonable factfinder to question the sincerity of MSU’s explanation.

Sarmiento’s claim that MSU invoked this preference solely for the purpose of excluding

his application is entirely conjectural.

              2.      Teaching Experience

       Sarmiento has also failed to cast doubt on the legitimacy of MSU’s other

nondisciminatory rationale, which addressed his lack of relevant teaching experience.

Although Sarmiento indicated in his cover letter that he had seventeen years of

experience teaching introductory and upper-level courses in biological anthropology at

the university level and had experience supervising masters theses, MSU correctly noted

that he had not taught an undergraduate course in anthropology since 1988 and had not

taught a university course since 1997. In contrast, all three finalists indicated in their

applications that they were teaching at colleges or universities at the time they applied for

the position in 2001. MSU also explained that Sarmiento’s application did not indicate



indication from that document or from anything else in the record that the hiring
committee could not or did not consider those preferences when evaluating whether a
qualified applicant should advance in the hiring process.

                                              10
that he was qualified to teach a course in human variation, medical anthropology, or

related areas. Furthermore, Franke testified that the hiring committee believed that

Sarmiento’s statement in his cover letter citing his experience teaching masters-level

courses in surgery and anatomy and supervising masters theses that addressed solutions to

third-world medical and surgical problems did not closely fit the needs of the department.

Sarmiento suggests that the university’s reasons for discounting his teaching experience

are suspect because the three finalists also lacked experience in teaching all or some of

the courses listed in the position announcements, did not have seventeen years’ teaching

experience, and presented no evidence that they had taught or supervised graduate

students. However, we find nothing inappropriate in MSU’s analysis of the teaching

experience of the candidates. It is undisputed that MSU did not require applicants to

show a specific type of teaching experience in order to qualify for the position; the long

position announcement merely stated that the successful candidate should be prepared to

carry out the listed teaching and supervisory responsibilities. MSU explained that

Sarmiento’s teaching record was not viewed favorably when compared with the more

germane research and teaching experience of the three finalists, and we do not believe the

record contains evidence suggesting that this nondiscriminatory explanation is so plainly

wrong that it cannot have been a factor in MSU’s decision not to interview Sarmiento.

See Keller, 130 F.3d at 1109.

       C.     Spoliation



                                             11
       Sarmiento further argues that he is entitled to a spoliation inference based on

MSU’s loss or destruction of documentary evidence pertaining to the hiring process,

including the written notes of the hiring committee and portions of Farnum’s application

materials. MSU claims that it destroyed the hiring committee notes pursuant to

departmental policy shortly after the position was filled. Sarmiento believes that these

notes might have indicated that he was rated higher than the finalists in the categories of

job fit and teaching experience. We agree with the District Court that, even if Sarmiento

could satisfy the elements of a spoliation claim with regard to the hiring committee notes,

MSU would still be entitled to summary judgment. While these missing documents might

have been relevant to his Title VII claim, we are not persuaded that the absence of this

evidence creates a genuine issue as to pretext. The Second Circuit has acknowledged that

“[i]n borderline [Title VII] cases, an inference of spoliation, in combination with ‘some

(not insubstantial) evidence’ for the plaintiff's cause of action, can allow the plaintiff to

survive summary judgment.” Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93,

107 (2d Cir. 2001) (quoting Kronisch v. United States, 150 F.3d 112, 128 (2d Cir. 1998)).

We believe the District Court correctly acknowledged that this is not a borderline case.

Given that Sarmiento has failed to cast meaningful doubt on any of the core facts

underlying the nondiscriminatory rationale proffered by MSU, we believe that any

inference that the university destroyed the committee notes with a view towards

concealing unlawful discrimination would be highly speculative. As for the missing



                                              12
application materials, we agree with the District Court that these documents are of

marginal relevance and their absence does not create a genuine issue of material fact.4

       D.     Exclusion of Expert Report

       Sarmiento also challenges the District Court’s refusal to consider a report prepared

by Dr. Ralph Holloway of the Department of Anthropology at Columbia University. In

the report, Holloway conducted a detailed analysis of the relative credentials of Sarmiento

and the three finalists and opined that “there is no clear objective reason as to why Dr.

Sarmiento was not brought in to interview for the . . . position at [MSU], why the other

three candidates brought in to interview were rated above him, and why he was not

offered the position.” The District Court determined that the report did not comply with

FED. R. CIV. P. 56(e) because it was unsworn, not in the form of an affidavit, and gave no

indication that Holloway was competent to render an opinion on the matters discussed in

the report.5 Sarmiento argues on appeal that the District Court should have given him an


  4
    Sarmiento also cites to what he perceives as other irregularities in the hiring process.
For instance, he alleges that none of the finalists met all the qualifications specified in the
position announcements and that portions of Franke’s deposition testimony are materially
inconsistent with statements made by MSU in its initial report to the EEOC. We believe
the District Court gave due consideration to these allegations and properly concluded that
they lacked an adequate factual basis. To the extent there is record support for any of the
other minor discrepancies cited by Sarmiento, we agree with the District Court that their
combined impact is negligible when viewed in light of the record as a whole.
  5
    Approximately twenty-one days after the District Court issued its order granting
summary judgment, Sarmiento filed a motion under FED. R. CIV. P. 60(b) in which he
requested that the District Court reconsider its exclusion of Holloway’s report. He argued
that his failure to comply with Rule 56(e) was due to excusable neglect, and he attempted
to cure the defect in the submission by attaching a copy of Holloway’s curriculum vitae,

                                              13
opportunity to cure the defect in his submission out of deference to his pro se status. He

also points out that MSU never objected to Holloway’s report on Rule 56(e) grounds.

       We need not address whether the District Court improperly denied Sarmiento an

opportunity to amend his submission to comply with the requirements of Rule 56(e)

because, for substantially the reasons given in the District Court’s letter opinion dated

September 4, 2007, we do not believe that the contents of the report are relevant to the

question of whether summary judgment was properly granted. As the District Court

explained, Holloway merely offered his own subjective assessment as to how MSU

should have evaluated the credentials of the candidates under the screening criteria and

did not even acknowledge, let alone criticize, MSU’s explanation why it viewed

Sarmiento as a weaker candidate than the three finalists. While the report might suggest

that MSU acted imprudently by choosing not to interview Sarmiento, it does not

reasonably support an inference that the rationale articulated by MSU is unworthy of

credence.

III.   Conclusion

       After thoroughly reviewing the record, we conclude that the District Court

properly determined that Sarmiento did not demonstrate the existence of a genuine issue




which was not part of the record on summary judgment. The District Court denied the
motion, concluding that Sarmiento had not presented a valid excuse as to why he did not
initially comply with Rule 56(e), and that, even if the report were properly submitted on
summary judgment, it would not have altered the outcome of the motion.

                                             14
of material fact with regard to his Title VII claim. Accordingly, we will affirm the

judgment of the District Court. Appellant’s motion to supplement the record is denied.




                                            15
