Raymond Farzan v. Vanguard Group Inc , 582 F. App'x 105 ( 2014 )


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  •                                                              NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ___________
    No. 14-1340
    ___________
    RAYMOND FARZAN,
    Appellant
    v.
    THE VANGUARD GROUP, INC.; LIQUIDHUB, INC.
    ____________________________________
    On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
    (D.C. Civil Action No. 13-cv-02898)
    District Judge: Honorable Juan R. Sanchez
    ____________________________________
    Submitted Pursuant to Third Circuit LAR 34.1(a)
    September 22, 2014
    Before: JORDAN, SCIRICA and BARRY, Circuit Judges
    (Opinion filed: September 24, 2014)
    ___________
    OPINION
    ___________
    PER CURIAM
    Raymond Farzan, proceeding pro se, appeals orders of the United States District
    Court for the Eastern District of Pennsylvania granting summary judgment in favor of the
    defendants in his employment discrimination action. We will affirm.
    Farzan was born in 1950 in Iran, and is a Muslim of Arab descent. In 2011, he
    was hired as a temporary employee by LiquidHub, an information technology consulting
    company, to work as a senior business systems analyst (BSA) on a project run by the
    Vanguard Group (Vanguard), an investment management company. After approximately
    three months, Farzan’s supervisor at Vanguard, Joseph Corcoran, notified LiquidHub that
    he was dissatisfied with Farzan’s work. Over the next several weeks, a LiquidHub client
    manager, Jeffrey Fountaine, made several efforts to improve Farzan’s performance, but
    Corcoran ultimately concluded that Farzan did not meet the standards expected from a
    senior-level BSA. Consequently, Corcoran terminated Farzan from his assignment, and
    advised LiquidHub of the decision. Because there were no other opportunities available
    for Farzan at the time, LiquidHub terminated his employment. Farzan’s position was
    temporarily filled by a 27 year-old white female who was already employed by
    Vanguard.
    Farzan filed a complaint in the United States District Court, alleging that
    LiquidHub and Vanguard discriminated against him based on his race, religion, gender,
    national origin, and age, and retaliated against him for complaining about the
    discrimination. He brought his claims under Title VII of the Civil Rights Act of 1964
    (Title VII), the Age Discrimination in Employment Act (ADEA), and the Pennsylvania
    Human Relations Act (“PHRA”). Following discovery, the defendants filed motions for
    summary judgment. The District Court granted those motions. See Farzan v. Vanguard
    Group, Inc., -- F. Supp. 2d --, 
    2014 WL 116252
     (E.D. Pa. Jan. 10, 2014) (granting
    Vanguard’s motion for summary judgment). Farzan appealed.
    2
    We have jurisdiction pursuant to 
    28 U.S.C. § 1291
    . We review the District
    Court’s grant of summary judgment de novo, and view all inferences drawn from the
    underlying facts in the light most favorable to the nonmoving party. Montone v. City of
    Jersey City, 
    709 F.3d 181
    , 189 (3d Cir. 2013). Summary judgment is proper only if the
    record “shows that 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).
    The District Court properly analyzed Farzan’s discrimination and retaliation
    claims according to the familiar burden-shifting framework established by McDonnell
    Douglas Corp. v. Green, 
    411 U.S. 792
    , 802 (1973). See Jones v. Sch. Dist. of Phila., 
    198 F.3d 403
    , 410 (3d Cir. 1999); see also Kelly v. Drexel Univ., 
    94 F.3d 102
    , 105 (3d Cir.
    1996) (holding PHRA claims can be treated coextensively with Title VII and ADEA
    claims). Under the McDonnell Douglas framework, Farzan bore the initial burden of
    establishing a prima facie case of discrimination. See McDonnell Douglas, 
    411 U.S. at 802
    . If he succeeded, the burden would shift to the defendants to “articulate some
    legitimate, nondiscriminatory reason” for his termination. See 
    id.
     Farzan would then
    have an opportunity to prove by a preponderance of the evidence that the legitimate
    reason for his termination offered by the defendants was a pretext. See Jones, 198 F.3d at
    410.
    Here, even if Farzan had established a prima facie case of discrimination, the
    defendants articulated legitimate, nondiscriminatory reasons for his termination.
    Vanguard provided evidence indicating that Farzan did not perform at the level required
    3
    of a senior BSA. 1 See Ross v. Gilhuly, 
    75 F.3d 185
    , 193 (3d Cir. 2014) (recognizing that
    “demonstrably poor job performance” qualifies as a legitimate, nondiscriminatory reason
    for termination). Vanguard’s dissatisfaction with Farzan’s performance provided a
    legitimate reason for LiquidHub to terminate him. Indeed, when a client removes a
    temporary LiquidHub employee from a project due to dissatisfaction, LuquidHub’s usual
    practice is to fire that employee. 2
    Farzan has not produced a material issue of fact demonstrating that the defendants’
    proffered reasons for firing him were a pretext for discrimination. To establish pretext
    under the summary judgment standard, a plaintiff must either (1) offer evidence that
    “casts sufficient doubt upon each of the legitimate reasons proffered by the defendant so
    that a factfinder could reasonably conclude that each reason was a fabrication,” or (2)
    present evidence sufficient to support an inference that “discrimination was more likely
    than not a motivating or determinative cause of the adverse employment action.” Fuentes
    v. Perskie, 
    32 F.3d 759
    , 762 (3d Cir. 1994). To meet that burden, a plaintiff “cannot
    simply show that the employer’s decision was wrong or mistaken.” 
    Id. at 765
    .
    1
    For example, Farzan’s mentor indicated that Farzan failed to adequately prepare for and
    lead meetings. A business manager working with Farzan stated that his work was at
    times inaccurate and incomplete, and that he often failed to take the lead during project
    meetings, as was his responsibility. A manager of a project that Farzan was working on
    reported that he had missed meetings and was not adhering to the project’s schedule.
    2
    Farzan claims that he was a full-time employee of LiquidHub. Farzan’s classification is
    not material, however, because, even in the case of a “Full-time Salaried Associate,”
    LiquidHub’s practice is to determine on a case-by-case basis whether termination is
    warranted when a client dismisses an associate from an assignment. Vanguard’s
    dissatisfaction with Farzan’s performance, whether he was a temporary or full-time
    employee, provided a legitimate reason for LiquidHub to terminate him.
    4
    Farzan attempted to cast doubt on the defendants’ proffered reasons for
    terminating him by noting that Corcoran had complimented his “good progress” in an
    email dated March 28, 2012. That isolated instance of positive feedback does not
    undermine the otherwise consistent criticism of Farzan’s performance. Ezold v. Wolf,
    Block, Schorr and Solis-Cohen, 
    983 F.2d 509
    , 528 (3d Cir. 1992) (“Pretext is not
    established by virtue of the fact that an employee has received some favorable comments
    in some categories or has, in the past, received some good evaluations.”). Farzan also
    asserted that the defendants’ proffered reasons for terminating him are suspect because he
    was not made aware of his poor performance through a formal evaluation. 3 As the
    District Court explained, however, “the lack of such an evaluation . . . does not make the
    reasons unworthy of belief.” Farzan, 
    2014 WL 116252
    , at *5. Moreover, on several
    occasions Farzan was informally notified that his work needed improvement, see Kautz
    v. Met-Pro Corp., 
    412 F.3d 463
    , 471 (3d Cir. 2005) (stating that “[e]vidence that the
    method of evaluation an employer used was not the best method does not amount to
    evidence that the method was so implausible, inconsistent, incoherent or contradictory
    that it must be a pretext for something else”), and the defendants took steps to help
    Farzan meet the job’s requirements. Clearwater v. Indep. Sch. Dist. No. 166, 
    231 F.3d 1122
    , 1127 (8th Cir. 2000) (holding that plaintiff failed to show that defendant’s reason
    3
    To the extent that Farzan challenges the District Court’s denial of his letter request for
    additional discovery material, including information related to the defendants’ evaluation
    procedures, we discern no abuse of discretion. See Petrucelli v. Bohringer and Ratzinger,
    
    46 F.3d 1298
    , 1310 (3d Cir. 1995) (applying “abuse of discretion standard when
    reviewing orders regarding the scope and conduct of discovery.”).
    5
    for firing her was pretextual where, inter alia, defendant “provided her with numerous
    opportunities to rectify her behavior.”). To the extent that Farzan claims that he
    performed adequately, the District Court properly held that his disagreement with the
    critical feedback does not demonstrate pretext. See Billet v. CIGNA Corp., 
    940 F.2d 812
    , 825 (3d Cir. 1991) (“The fact that an employee disagrees with an employer’s
    evaluation of him does not prove pretext.”).
    The District Court also properly held that Farzan failed to demonstrate that his
    termination was motived by invidious discriminatory reasons. In support of his
    argument, Farzan noted that he was the only Iranian and Muslim in Corcoran’s group.
    But “[b]ecause no conclusion can be drawn from [Farzan’s] raw numbers on
    underrepresentation, they are not probative of [the defendants’] alleged discriminatory
    motive.” Ezold, 983 F.3d at 543. Furthermore, although Farzan emphasized that he was
    not provided with adequate training or equipment to handle a heavy workload, the
    evidence fails to establish that similarly situated employees not within the protected class
    were treated more favorably. See Jones, 198 F.3d at 413 (holding that a plaintiff may
    support an assertion that an invidious discriminatory reason was more likely than not a
    determinative cause by showing that “the employer has treated more favorably similarly
    situated persons not within the protected class.”); see also Fane v. Locke Reynolds, LLP,
    
    480 F.3d 534
    , 539 (7th Cir. 2007) (holding that employee’s subjective belief that her
    workload was greater than other similarly situated employees was insufficient to establish
    disparate treatment). Farzan also notes that he was replaced by a 27 year-old woman.
    This fact helps establish a prima facie case of age discrimination, but, without more, it
    6
    does not demonstrate that the defendants’ decision to terminate Farzan for poor
    performance was pretextual. See Thomas v. Corwin, 
    483 F.3d 516
    , 529 (8th Cir. 2007)
    (affirming entry of summary judgment for defendant where plaintiff “present[ed] no
    evidence, other than her replacement by a younger woman, indicating [defendant’s]
    proffered reasons for her termination were a pretext for age discrimination.”). Farzan
    further sought to demonstrate a discriminatory motive by relying on various comments
    made to him by Vanguard employees. For reasons thoroughly explained by the District
    Court, however, we agree that these comments are immaterial because they were either
    not directed at Farzan, not uttered by decisionmakers, or, even viewed in the light most
    favorable to Farzan, not indicative of discriminatory animus. 4 See Farzan, 
    2014 WL 116252
    , at *7-8; see also Ryder v. Westinghouse Elec. Corp., 
    128 F.3d 128
    , 133 (3d Cir.
    1997) (stating that when evaluating whether comments are probative of discrimination,
    courts should consider the relationship of the speaker to the employee and within the
    corporate hierarchy, the temporal proximity of the statement to the adverse employment
    decision, and the purpose and content of the statement); Fuentes, 
    32 F.3d at 767
    (recognizing that “[s]tray remarks by non-decisionmakers or by decisionmakers unrelated
    to the decision process are rarely given great weight, particularly if they were made
    temporally remote from the date of decision.”).
    4
    We also agree that these comments are insufficient to establish a hostile work
    environment claim. See Caver v. City of Trenton, 
    420 F.3d 243
    , 262 (3d Cir. 2005)
    (stating that “offhanded comments and isolated incidents (unless extremely serious) are
    not sufficient to sustain a hostile work environment claim. Rather, the conduct must be
    extreme to amount to a change in the terms and conditions of employment.”)
    7
    Finally, the District Court properly rejected Farzan’s retaliation claim. To
    establish a prima facie claim of unlawful retaliation, Farzan was required to show that:
    (1) he engaged in a protected activity; (2) the defendants took an adverse action against
    him; and (3) there was a causal connection between the protected activity and the adverse
    action taken. Moore v. City of Phila., 
    461 F.3d 331
    , 340-41 (3d Cir. 2006). Farzan
    claimed that he was fired because he threatened to file a complaint “if something
    happened to [his] job.” Importantly, however, Farzan failed to demonstrate that a
    decisionmaker at Liquidhub was aware of any protected activity in which he may have
    engaged. See Manning v. Chevron Chem. Co., 
    332 F.3d 874
    , 883 n.6 (5th Cir. 2003)
    (stating that “[i]f the decisionmakers were completely unaware of the plaintiff’s protected
    activity, then it could not be said . . . that the decisionmakers might have been retaliating
    against the plaintiff for having engaged in that activity.”). In addition, although Farzan
    told a Vanguard employee that he would file a complaint if he was fired, he did “not
    explicitly or implicitly allege” that he was experiencing discrimination. Barber v. CSX
    Distrib. Serv., 
    68 F.3d 694
    , 702 (3d Cir. 1995); see also Curay-Cramer v. Ursuline Acad.
    of Wilmington, Del., Inc., 
    450 F.3d 130
    , 135 (3d Cir. 2006) (stating that “it must be
    possible to discern from the context of the statement that the employee opposes an
    unlawful employment practice.”).
    For the foregoing reasons, we will affirm the judgment of the District Court.
    8