DOUGBOH v. CISCO SYSTEMS, INC.
Filing
85
OPINION. Signed by Judge William J. Martini on 10/20/16. (gh, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civ. No. 2:13-cv-04267 (WJM)
PASCAL DOUGBOH,
Plaintiff,
OPINION
v.
CISCO SYSTEMS, INC.,
Defendant.
WILLIAM J. MARTINI, U.S.D.J.:
Plaintiff, pro se, alleges that Defendant Cisco Systems violated Title VII of
the Civil Rights Act of 1964 by declining to hire him on account of race. This
matter comes before the Court on Defendant’s motion for summary judgment
pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons below,
Defendant’s motion is GRANTED and Plaintiff’s Amended Complaint is
DISMISSED with prejudice.
I.
BACKGROUND
The following facts are drawn from Plaintiff’s Amended Complaint and the
parties’ papers in connection with Defendant’s motion for summary judgment.1 In
2007, Plaintiff Pascal Dougboh applied for a position as a Network Consulting
Engineer (“NCE”) with Defendant Cisco Systems, Inc., (“Cisco” or “Defendant”),
a multinational communications and technology company. Cert. of Hubert Dalmon
Norris, III (“Norris Cert.”) ¶ 3. Cisco requires each applicant to create an online
profile that allows applicants to search for and apply to Cisco’s job openings.
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The Amended Complaint contains little factual background, and the Plaintiff failed to provide a
Rule 56.1 counter-statement to material facts. See N.J. L. Civ. R. 56.1(a). Plaintiff, however, is a
pro se litigant, and “district court judges often relax procedural rules, including Local Civil Rule
56.1(a), for an unrepresented litigant.” Shuman v. Sabol, No. CIV.A. 09-2490, 2011 WL
4343780, at *6 (D.N.J. Sept. 14, 2011).
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Norris ¶6. When creating their profiles, applicants are prompted to voluntarily
self-identify their race and gender, because Defendant is a federal government
contractor and is required to track the race and gender of its applicants. Norris
Cert. ¶ 7. Defendant insists that information on race and gender is kept separately
from the applications and is not accessible to decision-makers during the hiring
process. Fortner ¶ 21; Lima Cert. ¶ 24; Norris Cert. ¶ 10. Plaintiff offers no
evidence to the contrary.
Plaintiff, who self-identifies as an African-American male, says he was
interviewed twice over the telephone and twice in person for the 2007 NCE
position. Plaintiff says he received overwhelmingly positive feedback from all the
interviews and that he believed an offer was forthcoming. Pl. Dep. Tr. 128-29. One
of the phone interviewers, however, allegedly told Plaintiff that he “spoke with an
accent that might not be acceptable and too fast.” Pl. Resp. 3. Plaintiff never
received an offer. He became suspicious of Defendant’s motive several years later
upon learning of Defendant’s involvement in an unrelated employment
discrimination lawsuit. Pl. Dep. Tr. 118:18-25, 119:10-14.
Since his 2007 application was denied, Plaintiff has applied for hundreds of
positions with Cisco, “ranging from low level positions to Director level positions,
and everything in between.” Norris Cert. ¶ 11. He was interviewed in 2010 and
2011 for several positions not directly at issue in this action. Norris Cert. ¶ 12. In
June of 2012, Plaintiff applied for two NCE positions labeled by Cisco’s online
platform as Requisitions “S924147” and “S924148.2 Norris Cert., Exs. A, B. He
was not selected to interview for these positions.
In November of 2012, Plaintiff responded to a “mass computer generated
email[]” inviting him to apply to a separate position in Herndon, Virginia. Fortner
Cert. ¶ 14. John Fortner, who initiated that email, explained his decision not to
select Plaintiff to be interviewed:
“While I had not yet completed a review of all applications, nor had I
filled the available positions at the time I sent Plaintiff the email, I
declined to consider Plaintiff for the position because I determined his
resume was sub-par compared to others received, and that Plaintiff
Strictly speaking, Requisition Numbers refer not to present job openings but to “a pipeline of
candidates for future job openings in a particular position.” Lima Cert. ¶ 13. That distinction
does not affect the Court’s analysis in this case.
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lacked the consistent employment history and career growth Cisco was
seeking in candidates.”
Fortner Cert. ¶19. Fortner and two other members of Defendant’s hiring staff,
Vanessa Lima and Hubert Dalmon Norris, III, certify they had no knowledge of
Plaintiff’s race at the time of the adverse employment decisions in June and
November of 2012. Fortner ¶ 21; Lima Cert. ¶ 24; Norris Cert. ¶ 10. Defendant
asserts that twelve of the fifty individuals eventually hired for the June 2012
positions were African American. Lim Cert. ¶ 25, Ex. F. Of those hired for the
November 2012 openings, three out of thirteen self-identified as AfricanAmerican. Fortner Cert., Ex. C.
A. Procedural History of Instant Action
Plaintiff filed a Charge of Discrimination with the Equal Employment
Opportunity Commission (“EEOC”) on December 18, 2012, alleging that
Defendant violated Title VII of the Civil Rights Act of 1964 by declining to hire
Plaintiff on account of his race. Adams Cert., Ex. F. The Charge stated that in June
2012 Plaintiff applied for one of Defendant’s NCE positions; that Defendant
instead “selected a non-Black person” for the job; that Plaintiff believed he was
denied on account of race; and that “[o]ver the years,” Plaintiff “applied for several
positions with this employer [but] only received four interviews and was rejected
each time.” Adams Cert., Ex. F.
On April 9, 2013, after an EEOC investigation uncovered no information
establishing a statutory violation, the agency dismissed the Charge and notified
Plaintiff of his right to sue. Adams Cert., Ex. G. Plaintiff filed the Complaint on
July 8, 2013, and amended the Complaint on April 22, 2014. On June 10, 2016,
after an extended discovery period, Defendant moved for summary judgment.
II.
DISCUSSION
Defendant’s Motion for Summary Judgment asserts that Plaintiff’s action for
Title VII employment discrimination is untimely and meritless.
A. Timeliness of Plaintiff’s Action
A plaintiff must raise all Title VII claims with the EEOC prior to filing a
complaint in federal court. An EEOC charge must be filed within 300 days of the
alleged discriminatory action. 42 U.S.C § 2000e(5); National R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 111-13 (2002). Once the EEOC issues a
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determination and right-to-sue letter, a plaintiff has ninety days to seek relief in
federal court. 42 U.S.C. § 2000e-5(f). Each instance of failure to hire must be
viewed as a “discreet act,” not as part of an ongoing practice. See Morgan, 536
U.S., at 112, 114 (holding that “discrete acts that fall within the statutory period do
not make timely acts that fall outside the time period”). The Court may, however,
consider Plaintiff’s earlier applications as “background evidence” in support of
Plaintiff’s timely claims. Morgan, 536 U.S., at 113.
The three adverse employment actions in 2012 fall within the 300-day
EEOC filing window. Plaintiff also filed the Complaint with this Court on July 8,
2013, within ninety days of the EEOC notice. In short, claims relating to the two
June 2012 application and the November 2012 application were timely filed.
The claim arising out of the 2007 application is statutorily barred because
Plaintiff did not file with the EEOC until roughly five years after the alleged
discrimination took place. To the extent Plaintiff intended to incorporate into this
action the 2010 and 2011 positions, for which he was interviewed, those claims are
also barred. They are discussed below only as “background evidence” relevant to
the 2012 actions.
B. Merits of Plaintiff’s Title VII Claims
Absent direct evidence of discriminatory intent, a prima facie showing of
discrimination for “failure to hire” contains four elements: the plaintiff (1) belongs
to a protected class, (2) was qualified for the position, (3) was subjected to an
adverse employment action despite being qualified, and, (4) under circumstances
that raise an inference of discriminatory action, the employer continued to seek out
individuals with qualifications similar to the plaintiff's to fill the position. Jones v.
City of Philadelphia Fire Dept., 549 Fed. Appx. 71, 72 (3d Cir. 2014). This test
“remains flexible and must be tailored to fit the specific context in which it is
applied.” Id. at 797-98. Defendants can rebut a successful prima facie case by
“articulat[ing] some legitimate, nondiscriminatory reason for the employee’s
rejection.” McDonnell Douglas, 411 U.S., at 802-03. To move forward with the
action, a plaintiff must then show that the stated nondiscriminatory reasons were
pretextual. Shahin, 531 Fed. Appx. 200, 203 (3d Cir. 2013).
Plaintiff’s Qualifications
Eligibility requirements for the 2012 positions included a Cisco Certified
Network Associate certification (“CCNA”) as well as a BS or BA from a four-year
technical program. Lima Cert., Exs. A, B. At the time of the 2012 applications,
Plaintiff had obtained his CCNA certification, and his resume shows several
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requisite technical degrees. Adams Cert., Ex. B. Defendant argues Plaintiff was not
qualified because of his “lack of substantive experience” and because his “frequent
job changes raised concerns about performance issues and possible employment
termination.” Def. Br. 17; Adams Cert., Ex. B.
Viewed in a most favorable light, Plaintiff’s technical certification and
education qualified him for the 2012 NCE and pNCE positions.
Circumstances Do Not Raise an Inference of Discriminatory Intent
Although Plaintiff belongs to a protected class, was qualified for the
positions and was subject to adverse employment actions, he fails to raise an
inference of discriminatory intent. As evidence, Plaintiff states that he was
repeatedly denied a job offer; was asked to provide his race when completing
Defendant’s online job applications; that after an otherwise positive interview in
2007, one of Defendant’s employees allegedly told Plaintiff his accent was
problematic and that Plaintiff spoke too fast; and that Defendant was previously
sued for race discrimination by other applicants. ECF 69, at 10.
Three Cisco employees who reviewed Plaintiff’s 2012 applications testify
that they had no knowledge of his race when they declined to interview or hire
him. Although Defendant asked for Plaintiff’s race in connection with the Office of
Federal Contract Compliance Program, the hiring staff had no access to that
information. Lima Cert. ¶ 6; Norris Cert. ¶ 8; Fortner Cert. ¶ 6. Those who
interviewed Plaintiff in person in 2010 and 2011 obviously knew his race, but there
is no basis for attributing that knowledge to the Cisco recruiters who declined
Plaintiff’s 2012 applications. See Harris v. Dow Chemical Co., 586 Fed. Appx.
843, 847 (3d Cir. 2014) (affirming grant of summary judgment where plaintiff
failed to rebut testimony that hiring decision-maker had no knowledge of
plaintiff’s race or age); Shahin v. Delaware, 531 Fed. Appx. 200, 203 (3d Cir.
2013) (finding no prima facie case of discrimination where record included no
evidence that employer knew of plaintiff’s national origin).
Legitimate, Nondiscriminatory Reasons for Hiring Decision
Even had the circumstances permitted an inference of discrimination,
Defendant presents “legitimate, nondiscriminatory reason” for declining to hire
Plaintiff for the 2012 positions. See Shahin v. Delaware, 531 Fed. Appx. 200, 203
(3d Cir. 2013). Specifically, the record shows that Defendant’s hiring staff
perceived Plaintiff to possess less technical skill and relevant experience than other
applicants. See id. (holding plaintiff’s lack of desirable experience relative to hired
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candidates was legitimate, non-discriminatory reason for not hiring plaintiff);
Nelson v. Borgata Hotel Casino & Spa, 05-5705, 2007 WL 2121643, at *6 (D.N.J.
July 23, 2007) (finding that employer rebutted prima facie discrimination by
showing that plaintiff “was not as experienced with modern equipment and
technology as the individuals that [the defendant] chose to hire.”).
Viewed as background evidence, interview notes in connection with
Plaintiff’s 2010 and 2011applications suggest that he was being denied for reasons
unrelated to race. Norris Cert., Ex. C. Specifically, all ten interviewers whose notes
are available stated that Plaintiff’s technical skillset was inadequate. Id. Nothing in
these interview notes even vaguely suggests racial animus. Members of
Defendant’s hiring staff were permitted to consider that Plaintiff’s resume did not
reflect recent periods of sustained employment. Adams Cert., Ex. B. And by the
time of the 2012 adverse employment decisions at issue, Defendant was
understandably alarmed that Plaintiff had applied for literally hundreds of positions
at the company. Norris Cert. ¶ 11, Ex. B. Plaintiff does not respond with evidence
“that Defendant’s ‘proffered reasons are weak, incoherent, implausible,’ or ‘so
inconsistent that a reasonable factfinder could rationally find them unworthy of
credence.’” Sarullo, 352 F.3d at 800.
To summarize, the record does not permit an inference of discriminatory
intent, so Plaintiff fails to establish prima facie employment discrimination under
Title VII. Even had Plaintiff succeeded, Defendant has provided legitimate,
nondiscriminatory reasons for denying Plaintiff’s application, and Plaintiff offers
no evidence that these reasons were pretextual. It is unfortunate that Plaintiff feels
he has been subject to racial discrimination, but the record simply would not allow
a reasonable jury to reach that conclusion. This litigation has run its course.
III.
CONCLUSION
The Defendant’s Motion for Summary Judgment is GRANTED and
Plaintiff’s Amended Complaint DISMISSED.
/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
October 20, 2016
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