                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                 ______________

                                       No. 14-4289
                                     ______________

                                 ANTONIO SANTIAGO,
                                           Appellant

                                             v.

                   BROOKS RANGE CONTRACT SERVICES, INC.
                              ______________

            ON APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                             (D.C. No. 2:11-cv-07269)
                      District Judge: Hon. R. Barclay Surrick
                                  ______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                     July 16, 2015
                                   ______________

           Before: SMITH, GREENAWAY, JR., and SHWARTZ, Circuit Judges.

                              (Opinion Filed: July 20, 2015)

                                     ______________

                                        OPINION*
                                     ______________

SHWARTZ, Circuit Judge.


       *
        This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
       Antonio Santiago appeals the District Court’s order granting summary judgment in

favor of Brooks Range Contract Services, Inc. (“BRCS”) on his age and race

discrimination claims under the Age Discrimination in Employment Act, 29 U.S.C. §§

621 et seq. (“ADEA”), Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et

seq. (“Title VII”), and the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. §§ 951

et seq. (“PHRA”). For the following reasons, we will affirm.

                                               I

       Santiago, a Hispanic male in his seventies, worked for U.S. Facilities, Inc.

(“USF”) as an Environmental Control Center (“ECC”) operator at the Social Security

Administration (“SSA”) building in Philadelphia, Pennsylvania, beginning in 1985.

BRCS won a bid to replace USF as the facilities manager for the SSA building beginning

on February 1, 2010. BRCS hired its employees from USF’s work force. As part of the

hiring process, Howard Anastasi, BRCS’s Director of Human Resources, sought input

about USF employees from Brian Gougler, Santiago’s supervisor, and Francis Casey, an

ECC operating engineer. Gougler and Casey told Anastasi that there had been

“problems” with Santiago, App. 193-95, and Casey specifically told him that Santiago

struggled with the computer systems and on one occasion fell asleep while on duty.

       Anastasi testified that Casey’s input did “[n]ot really” have an impact on his

decision not to hire Santiago, App. 194, though it solidified his decision “[a] little bit,”




                                               2
App. 195.1 Anastasi testified that his decision was based in part on an incident that

occurred at the building in January 2010. Anastasi, who was present but did not actually

see what caused the incident, testified that there was “chaos,” App. 194, and that he

overheard a “number of people” say that Santiago was responsible because he

“overlook[ed] alarms in the ECC,” App. 193. According to Anastasi, the incident

“generated a great deal of concern” and made the SSA very upset. App. 194. Shortly

thereafter, Gougler informed Santiago that BRCS was not going to hire him due to “poor

performance.” App. 172.

       Santiago sued BRCS, alleging that it refused to hire him because of his age and

race, in violation of the ADEA, Title VII, and the PHRA. In response, BRCS stated that

Santiago was not hired because Rich Finocchio, the manager of the SSA building,

informed Anastasi that Santiago had not mastered the fire alarm system, had been

observed sleeping on the job, and had required frequent assistance, and because of the

January 2010 incident.2 The District Court concluded that, although Santiago had


       1
          Zach Jones, Santiago’s immediate supervisor, testified that he heard Casey make
derogatory remarks and jokes about certain ethnicities, and on more than one occasion
refer to “people of a Spanish background” as “spics,” App. 220, but that these comments
were not directed at Santiago. Jones further testified that he occasionally had
disagreements with Casey about the employees Jones hired. In particular, Jones recalled
that Casey was displeased with his decision to hire Orlando Rivera, a Hispanic EEC
operator. Although Casey asked Jones why he hired Rivera, whom Casey referred to as
“the Spanish guy,” Casey’s inquiry focused not on Rivera’s ethnicity but rather on why
one of Casey’s associates was not hired instead. App. 219.
        2
          Santiago testified that he had not fallen asleep on the job or made errors related
to the fire alarm system, and Jones described Santiago as “somewhere between [a] good
and model employee.” App. 210.
                                             3
established a prima facie case for age and race discrimination, he did not show that

BRCS’s legitimate, non-discriminatory reasons for not hiring him were pretext, and

granted BRCS’s motion for summary judgment. Santiago appeals.

                                              II3

                                              A

       Santiago seeks relief under the ADEA, Title VII, and the PHRA. The analytical

framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973),

applies to all three statutes. See Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996).

Under the McDonnell Douglas three-step test, the plaintiff must first establish a prima

facie case of discrimination. Id. Second, “[o]nce the plaintiff establishes a prima facie

case, ‘the burden then . . . shift[s] to the employer to articulate some legitimate,

nondiscriminatory reason for the employee’s rejection.’” Iadimarco v. Runyon, 190 F.3d

151, 157 (3d Cir. 1999) (quoting McDonnell Douglas, 411 U.S. at 802). Third, if the

employer meets its burden, “[t]he plaintiff then must establish by a preponderance of the


       3
         The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367. We have
jurisdiction under 28 U.S.C. § 1291. Our review of the grant of summary judgment is
plenary. Mylan Inc. v. SmithKline Beecham Corp., 723 F.3d 413, 418 (3d Cir. 2013).
We apply the same standard as the District Court, viewing facts and making reasonable
inferences in the non-movant’s favor. Hugh v. Butler Cnty. Family YMCA, 418 F.3d
265, 266-67 (3d Cir. 2005). Summary judgment is appropriate where “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). “An issue is genuine only if there is a sufficient
evidentiary basis on which a reasonable jury could find for the non-moving party, and a
factual dispute is material only if it might affect the outcome of the suit under governing
law.” Kaucher v. Cnty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
                                               4
evidence that the employer’s proffered reasons were merely a pretext for discrimination,

and not the real motivation for the unfavorable job action.” Sarullo v. U.S. Postal Serv.,

352 F.3d 789, 797 (3d Cir. 2003). “[T]hroughout this burden-shifting paradigm[,] the

ultimate burden of proving intentional discrimination always rests with the plaintiff.”

Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994).

       BRCS does not dispute that Santiago established a prima facie case of age and

race discrimination, and Santiago concedes that BRCS articulated legitimate, non-

discriminatory reasons for not hiring him. Thus, “[t]he sole issue of contention in this

appeal . . . is whether [Santiago] has succeeded in creating an issue of fact as to whether

[BRCS’s] proffered non-discriminatory reasons for [not hiring him] are a pretext.” Kautz

v. Met-Pro Corp., 412 F.3d 463, 466-67 (3d Cir. 2005). To show pretext, the employee

“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.” Burton v. Teleflex Inc., 707 F.3d 417,

427 (3d Cir. 2013) (internal quotation marks and citation omitted). The employee “must

show[] not merely that the employer’s proffered reason was wrong, but that it was so

plainly wrong that it cannot have been the employer’s real reason.” Keller v. Orix Credit

Alliance, Inc., 130 F.3d 1101, 1109 (3d Cir. 1997) (en banc).

       Santiago argues that BRCS’s reasons for not hiring him are pretext because: (1)

his alleged job performance issues are unsupported by documentation; (2) the reasons are
                                             5
“conflicting,” in that Finocchio was not named in Anastasi’s deposition testimony,

Appellant Br. 18; (3) Anastasi never actually observed Santiago in connection with the

emergency incident; (4) the negative job performance reviews are inconsistent with

Jones’s favorable testimony about Santiago’s abilities; (5) he is significantly older than

many of the USF EEC employees who BRCS retained; and (6) he was replaced by a

white EEC operator, and only white EEC operators were promoted to managerial

positions.

       These arguments are unavailing. First, the absence of documentation about

Santiago’s job performance issues is not a barrier to summary judgment, particularly

where, as here, USF’s personnel files were not made available to BRCS. See Brewer v.

Quaker State Oil Ref. Corp., 72 F.3d 326, 334 (3d Cir. 1995) (noting that while an

employer’s inability to produce a relevant document permits a negative inference, “[f]or

the rule to apply, it is essential that the evidence in question be within the [employer’s]

control”).

       Second, BRCS’s reasons for not hiring Santiago have not changed. Santiago was

informed in January 2010 that BRCS was not going to hire him because of performance

issues, and in its interrogatories, BRCS indicated that performance issues were the main

reason Santiago was not hired. That Anastasi did not mention Finocchio in his deposition

testimony does not mean BRCS’s explanation is “‘unworthy of credence,’” Fuentes, 32

F.3d at 765 (quoting Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 531 (3d

Cir. 1992)), especially since the information BRCS maintains Finocchio provided to
                                              6
Anastasi is consistent with the information about Santiago’s performance that Anastasi

testified he had received from other employees, and which was corroborated by their

testimony.4 Moreover, although Anastasi did not observe Santiago commit an error

during the emergency incident, he overheard a “number of people” blame Santiago for it,

App. 193, an assertion Santiago does not rebut. As to Jones’s positive views of

Santiago’s job performance, Santiago has not shown that Anastasi was aware of Jones’s

perspective at the time of the hiring decision. Thus, even if Santiago was not at fault for

the emergency incident and was in fact a good performer, he has offered no evidence to

indicate that Anastasi knew this at the time Anastasi made his decision or that the

decision was motivated by discriminatory animus. See Fuentes, 32 F.3d at 765 (“To

discredit the employer’s proffered reason . . . the plaintiff cannot simply show that the

employer’s decision was wrong or mistaken, since the factual dispute at issue is whether

discriminatory animus motivated the employer, not whether the employer is wise,

shrewd, prudent, or competent.”); see also Pollard v. Rea Magnet Wire Co., 824 F.2d

557, 559 (7th Cir. 1987) (“A reason honestly described but poorly founded is not a

pretext, as that term is used in the law of discrimination.”).

       Third, the composition of BRCS’s work force undercuts Santiago’s assertion that

he was not hired based on his age or race. Of the ten employees BRCS hired, eight were

       4
        For example, Gougler testified that Santiago had “issues [and] flaws,” App. 271,
including a failure to master the SSA building’s fire alarm system, and that he heard from
multiple sources that Jones had to assist Santiago with his duties because Santiago was
unable to complete them himself. Casey testified that he frequently had to assist Santiago
because he was unable to master the computer systems.
                                              7
over the age of forty, including Santiago’s older brother, Angel, who was seventy-nine.

Similarly, while Santiago maintains that a white employee, Joseph Dingler, took over his

role, he concedes that Dingler was ultimately replaced by a Hispanic employee.5 These

facts undermine the assertion that BRCS’s decision was motivated by Santiago’s age or

race.6 See Ansell v. Green Acres Contracting Co., Inc., 347 F.3d 515, 524 (3d Cir. 2003).

       Santiago has thus failed to show that a reasonable juror would find BRCS’s

reasons for not hiring him are “so plainly wrong” that they could not have been the real

reasons, and so he has failed to establish pretext. See Keller, 130 F.3d at 1109.

                                             B

       Santiago’s reliance on the subordinate bias theory of discrimination also does not

provide him a basis for relief. Under this theory, an employer may be liable for

discrimination claims when an unbiased decision-maker is influenced by a biased


       5
         To the extent only white EEC operators were promoted to managerial positions,
Santiago has not shown that these operators were unqualified or promoted at the expense
of better qualified members of the protected class, and absent such proof, we will not
second-guess these business decisions. See Brewer, 72 F.3d at 332.
       6
         Santiago also argues that under the mixed-motive theory of discrimination, there
is a genuine dispute of material fact regarding whether race was a motivating factor in
BRCS’s decision not to hire him. Under the mixed-motive theory, as opposed to the
McDonnell Douglas burden-shifting framework, the key question “is not whether
discrimination played the dispositive role [in the adverse employment decision] but
merely whether it played a motivating part.” Makky v. Chertoff, 541 F.3d 205, 214 (3d
Cir. 2008) (internal quotation marks omitted). To succeed on such a claim, the plaintiff
must produce “evidence sufficient to allow the jury to find that the decision makers
placed substantial negative reliance on . . . race in reaching” the adverse job decision.
Brown v. J. Kaz, Inc., 581 F.3d 175, 183 (3d Cir. 2009) (internal quotation marks
omitted). For the reasons set forth in the text, we conclude that Santiago has failed to
show that race in any way motivated the decision not to hire him.
                                             8
managerial employee.7 See Staub v. Proctor Hosp., 131 562 U.S. 411, 420-21 (2011).

To prevail on this theory, the plaintiff must demonstrate that the managerial employee

performed an act motivated by discriminatory animus that was intended to cause, and was

in fact the proximate cause of, an adverse employment action. Id. at 422. In this context,

proximate cause is a cause that bears “a direct and substantial relation” to the adverse

hiring decision. McKenna v. City of Phila., 649 F.3d 171, 178-79 (3d Cir. 2011).

       Santiago argues that Casey’s alleged anti-Hispanic bias caused Casey to provide

negative information to Anastasi, which led Anastasi not to hire Santiago. Santiago has

failed to demonstrate, however, that Casey’s statements to Anastasi were the proximate

cause of the decision not to hire him. Anastasi testified that Casey’s input did “[n]ot

really” have an impact on the decision, App. 194, and solidified it only “[a] little bit,”

App. 195. Accordingly, the subordinate bias theory is inapplicable here.

                                              III

       For the foregoing reasons, we will affirm the order of the District Court granting

summary judgment for BRCS.




       7
         Santiago’s claim that Casey was the decision-maker is not supported by the
record, which makes clear that Anastasi was the decision-maker, and merely asked Casey
for his views about his fellow employees.
                                              9
