                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 14-2998
                                       ___________

                                  LAMONICA CROSS,
                                              Appellant

                                             v.

           STATE OF NEW JERSEY, DIVISION OF CRIMINAL JUSTICE
                   ____________________________________

                     On Appeal from the United States District Court
                              for the District of New Jersey
                          (D.C. Civil Action No. 3-11-03726)
                       District Judge: Honorable Mary L. Cooper
                      ____________________________________

                      Submitted under Third Circuit L.A.R. 34.1(a)
                                   March 24, 2015

       Before: HARDIMAN, GREENAWAY, JR., and KRAUSE, Circuit Judges

                                   (Filed: June 4, 2015)


                                        OPINION*




KRAUSE, 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.
       Lamonica Cross appeals from the District Court’s order granting summary

judgment on her Title VII claim for failure to promote based on race and gender. We will

affirm because the record amply supports the District Court’s grant of summary

judgment.

I.     Background

       Cross began working for the New Jersey Department of Criminal Justice (“DCJ”)

in August 2000. In 2009, Cross applied for a promotion to the position of Sergeant-State

Investigator. A total of ninety-six candidates applied for a single opening. The selection

process consisted of four phases: a review of the applicants’ credentials and any

recommendations by their Lieutenants; a written interview; a panel interview conducted

by Deputy Chiefs and Deputy Attorneys General; and an executive interview conducted

by senior and executive staff. Cross passed the first and the second phases but did not

move past the third. Only nineteen applicants advanced to the executive interview phase,

including one African-American female.

       After the selection process ended, Cross filed a complaint with the New Jersey

Office of Equal Employment Opportunity (“Office of EEO”), alleging discrimination

based on race and gender. The Office of EEO deemed her allegations unsubstantiated,

and Cross filed this lawsuit. DCJ moved for summary judgment, which the District Court

granted on May 14, 2014. The District Court did not address whether Cross could make

a prima facie case of discrimination because DCJ articulated a legitimate,

nondiscriminatory reason for not promoting Cross—that she had performed poorly during
                                            2
her panel interview—and Cross did not show that reason was pretextual. Cross filed a

timely appeal.

II.    Discussion

       The District Court had jurisdiction pursuant to 28 U.S.C. § 1331, and we have

jurisdiction under 28 U.S.C. § 1291. “[O]ur review of a grant of summary judgment is

plenary, and in making that review we use the same standard as a district court: whether

there are genuine issues of material fact precluding entry of summary judgment.”

Acumed LLC v. Advanced Surgical Servs., Inc., 561 F.3d 199, 211 (3d Cir. 2009) (citing

E.T. Browne Drug Co. v. Cococare Prods., Inc., 538 F.3d 185, 191 (3d Cir. 2008)).

       When analyzing discrimination claims under Title VII, we use the burden-shifting

approach outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). As we

explained in Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509 (3d Cir. 1992):

       The plaintiff must first establish by a preponderance of the evidence a
       prima facie case of discrimination. . . . After the plaintiff has established a
       prima facie case, the burden shifts to the defendant to produce evidence of a
       legitimate, nondiscriminatory reason for the employee’s rejection. . . .
       Then, the plaintiff, since she retains the ultimate burden of persuasion, must
       prove, by a preponderance of the evidence, that the defendant’s proffered
       reasons were a pretext for discrimination.

Id. at 522 (citations omitted). “This basic framework under Title VII illustrates that, to

defeat summary judgment when the defendant answers the plaintiff’s prima facie case

with legitimate, non-discriminatory reasons for its action, 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
                                             3
discriminatory reason was more likely than not a motivating or determinative cause of the

employer’s action.” Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994).

       DCJ’s proffered reason for denying Cross the promotion was her poor

performance during the panel interview. Several panelists testified that Cross had

difficulty with the interview, including that she failed to answer questions and appeared

intimidated and overwhelmed. In fact, the panelists unanimously ranked Cross second to

last among the thirty-one applicants who reached the third phase of the selection process.

We therefore agree with the District Court that DCJ established a legitimate,

nondiscriminatory reason for its action, shifting the burden to Cross to show pretext.

       Cross’s attempts to dispute DCJ’s evaluation of her interview performance are

unpersuasive. She admits there were two questions for which she did not have an

immediate response: one about how she would handle a disagreement with a co-worker

and one about what negatives she perceived to exist within DCJ. She urges that there

were inconsistencies in the panelists’ accounts of her interview but cannot identify any

that could be considered material. Cross also points to a statement by one panelist,

Deputy Chief Beiger, that the panelists “were all impressed with the people who

interviewed” and that “[i]t was a very difficult decision,” and asserts that this statement

creates a dispute of fact about her poor performance. Appellant’s Br. 29 (quoting App.

324). This general, polite statement, however, does not contradict the panel’s unanimous

conclusion that Cross did not interview as well as the other candidates and thus should

not advance in the selection process.
                                              4
       Cross’s other attempts to demonstrate pretext are also unavailing. Cross maintains

that she was more qualified than other applicants, but “[t]o 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.” Fuentes, 32 F.3d at 765. “Rather, the non-moving 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.

(emphasis and alteration in original) (citations and internal quotation marks omitted).

       Cross cannot do this. She argues that DCJ employed inconsistent interview

techniques, but she cannot show any material differences between the questions she was

asked and those asked of other candidates.1 She responds with allegations that DCJ

destroyed evidence that could support her contentions, specifically, the candidates’

resumes and notes taken by the panelists during the interviews, and argues that such

spoliation of evidence suggests pretext. But Cross has not put forward any evidence to


       1
        Cross was asked about her duties and responsibilities when she was a Winslow
Township police sergeant. While other applicants, given their varying job histories, were
not asked this particular question, we agree with the District Court that this “is a fair
interview question and does not demonstrate that [Cross] was treated differently from any
other applicants, or that the interviewers demanded more from her during her interview.”
App. 13.
                                              5
show that DCJ intentionally destroyed any evidence; to the contrary, the record indicates

that DCJ diligently searched for the missing documents and was unable to find them.

Accordingly, DCJ’s inability to produce, years later, documents reviewed or notes taken

during the interviews does not raise a triable issue of fact as to pretext. See Brewer v.

Quaker State Oil Ref. Corp., 72 F.3d 326, 334 (3d Cir. 1995) (“No [spoliation] inference

arises when the circumstances indicate that the document or article in question has been

lost or accidentally destroyed, or where the failure to produce it is otherwise properly

accounted for.”).

       Further, Cross’s assertions of disparate treatment by two of her past Lieutenants

do not undermine DCJ’s legitimate reasons for its decision. Even if Cross could show

discriminatory conduct by either Lieutenant, neither of them was on the interview panel,

which included one white woman and one African-American woman, and Cross cannot

show that either Lieutenant had any influence on the panel’s unanimous decision that she

should not advance.2 In short, Cross cannot meet her “difficult burden” of establishing a

dispute of fact as to pretext. Fuentes, 32 F.3d at 765.3


       2
         The District Court previously dismissed claims regarding these past incidents of
alleged discrimination on statute of limitations grounds. While Cross does not challenge
those rulings, she argues that the District Court “committed legal error . . . by failing to
assess this evidence.” Appellant’s Br. 23. These assertions are undercut by Cross’s
failure to argue in her opposition to summary judgment that any past incidents
demonstrate pretext. See Pl.’s Opp’n to Summ. J. 13-18, ECF No. 30. In any event,
Cross cannot show any connection between her past interactions with her Lieutenants and
the interview panel’s decision.
       3
           Cross supplements her pretext claim with two theories of liability raised for the
                                              6
III.   Conclusion

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




first time on appeal: a mixed-motives theory and a retaliation theory. We will not
consider issues raised for the first time on appeal except in “exceptional circumstances.”
In re Mystic Tank Lines Corp., 544 F.3d 524, 528 (3d Cir. 2008) (citing Del. Nation v.
Pennsylvania, 446 F.3d 410, 416 (3d Cir. 2006)). No such circumstances are present
here. Regardless, we see no merit in these additional contentions. To succeed on a
mixed-motives theory, Cross would need to show “conduct or statements by persons
involved in the decisionmaking process that may be viewed as directly reflecting the
alleged discriminatory attitude.” Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089,
1096 (3d Cir. 1995) (internal quotation marks omitted). She has not. As for the
retaliation theory, Cross cannot establish any connection between a February 2008 EEO
complaint she filed about her Lieutenant and the panel’s decision not to promote her in
September 2009. The only panelist who even knew about the complaint was Deputy
Chief Beiger, and Cross testified she did not believe Deputy Chief Beiger ever
discriminated against her.
                                               7
