2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-28-2012

Antonio Mercado Jr. v. Patrick R. Donahoe

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-2972

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Recommended Citation

"Antonio Mercado Jr. v. Patrick R. Donahoe" (2012). 2012 Decisions. Paper 814.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-2972

_____________

ANTONIO MERCADO, JR.,

Appellant

v.

*PATRICK R. DONAHOE, Postmaster General, U.S. Postal Service

*(Pursuant to Rule 43(c), Fed. R. App. P.)

_____________

On Appeal from the United States District Court

for the District of New Jersey

(No. 1-09-cv-01146)

District Judge: Hon. Joseph H. Rodriguez

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

June 26, 2012

____________

Before: SLOVITER, CHAGARES, and JORDAN, Circuit Judges.

(Filed: June 28, 2012)

____________

OPINION 

____________

CHAGARES, Circuit Judge

Antonio Mercado appeals the District Court’s grant of summary judgment in favor 

of the Postmaster General. Mercado claims his termination as a Part-Time Flexible Sales 

.
2

Associate at the Atco, New Jersey, Post Office was discriminatory on the basis of his 

gender and national origin, in violation of Title VII of the Civil Rights Act of 1964, as 

amended, 42 U.S.C. § 2000e et seq

I.

. For the reasons that follow, we will affirm.

We write for the parties’ benefit and recite only the facts essential to our 

disposition. Mercado, a Hispanic male, was hired by the Postal Service as a Part-Time 

Flexible Sales Associate assigned to the Atco Post Office on July 8, 2006. As an initial 

hire, Mercado was subject to a 90-day probationary period. His performance was 

evaluated at 30, 60, and 80 day intervals. Mercado received a satisfactory rating in all six 

rating categories after 30 days, but received unsatisfactory scores in all six categories at 

the 60 and 80 day intervals. On September 26, 2006, prior to the expiration of his 

probationary period, Mercado was terminated for unacceptable conduct in the workplace 

and unsatisfactory job performance.

After exhausting his administrative remedies, he filed suit, alleging that his 

termination was discriminatory on the basis of his gender and national origin. The 

District Court granted summary judgment in favor of the Postmaster General. The 

District Court found that Mercado had failed to establish a prima facie case of 

discrimination. The District Court further found that, even assuming arguendo that 

Mercado had established a prima facie case of discrimination, the Postmaster General had 

articulated legitimate, non-discriminatory reasons for Mercado’s termination and 

Mercado had failed to show those reasons were a pretext for unlawful discrimination. 
3

Mercado filed a motion for reconsideration, which the District Court denied. Mercado 

timely appealed. 

II.

Mercado contends that the District Court erred in holding that he failed to 

establish a prima facie case of discrimination.

1

 Because Mercado proffers no direct 

evidence of discrimination, we analyze Mercado’s Title VII discrimination claims under 

the familiar framework of McDonnell Douglas Corp. v. Green, 411 U.S. 793 (1973). 

Under the McDonnell Douglas framework, the employee bears the burden of establishing 

a prima facie case by a preponderance of the evidence. Sarullo v. U.S. Postal Service, 

352 F.3d 789, 797 (3d Cir. 2003). To establish a prima face case, the plaintiff must show 

“(1) membership in a protected group; (2) qualification for the job in question; (3) an 

adverse employment action; and (4) circumstances that support an inference of 

discrimination.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002); see also

Goosby, 228 F.3d at 318-19 (holding that to establish a prima face case, the plaintiff must 

show he was “(1) a member of the protected class, (2) qualified for the position [he] 

sought, and (3) nonmembers of the protected class were treated more favorably.”).2

 The 

prima facie case test “remains flexible and must be tailored to fit the specific context in 

which it is applied.” Sarullo, 352 F.3d at 797-98. “The central focus of the prima facie

 1 The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. This Court has 

jurisdiction pursuant to 28 U.S.C. § 1291. We review a grant of summary judgment de 

novo. J.S. ex rel Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915, 925 (3d Cir. 2011)

(en banc); Goosby v. Johnson & Johnson Med., Inc., 228 F.3d 313, 318 (3d Cir. 2000). 2 The Postmaster General concedes for the purposes of this appeal that Mercado 

established that he is a member of the protected class and was qualified for the position of 

Part-Time Flexible Sales Associate. 
4

case is always whether the employer is treating some people less favorably than others 

because of their race, color, religion, sex, or national origin.” Id.

The District Court found that Mercado failed to demonstrate a prima facie case 

because Ashley Hoak, a white, female casual employee at the Atco Post Office, whom 

Mercado alleged was treated more favorably than he, was not similarly situated to 

Mercado. Mercado argues that the District Court erred in concluding that different 

workplace standards applied to probationary employees, but we do not agree the District 

Court so concluded. Mercado also contends that the District Court erred in concluding 

that Mercado and Hoak were not similarly situated because she was not a probationary 

employee. Mercado contends that preferences given to Hoak permit an inference of 

discrimination. 

at 798 (quotation marks 

omitted). 

The District Court correctly determined that Hoak was hired as a casual employee, 

serving a 90-day dual appointment as a Rural Carrier Associate and a Temporary clerk. 

Hoak did not perform the same job functions as Mercado and her training differed from 

Mercado’s training. For instance, Mercado did not deliver mail and Hoak did not 

perform any retail counter functions. In addition, most of Hoak’s training was provided 

on the job, whereas Mercado received more formal training. Hoak also was not a 

probationary employee during Mercado’s probationary period — she had completed her 

probationary period for her dual appointment before Mercado was hired. Hoak 

eventually was hired as a Part-Time Flexible Clerk at the Atco Post Office, several 
5

months after Mercado’s termination, and completed a 90-day probationary period for that 

position. 

We agree with the District Court that Hoak was not sufficiently similar to 

Mercado to serve as a comparator and the circumstances otherwise do not support an 

inference of discrimination. Thus, Mercado failed to present a prima facie case of 

discrimination. Sarullo, 352 F.3d at 797-98; Goosby, 228 F.3d at 318-19; see also

Blanding v. Pa. State Police, 12 F.3d 1303, 1309-10 (3d Cir. 1993) (holding that tenured 

troopers were not similarly situated to a probationary trooper); accord Lee v. Kan. City S. 

Ry. Co., 574 F.3d 253, 259-61 (5th Cir. 2009) (applying factors such as whether 

comparators had the same job or responsibilities and same supervisor or decision-maker 

in analysis of whether comparator was sufficiently similar to make out a prima facie 

case); Pierce v. Commonw. Life Ins. Co.

Accordingly, the District Court properly granted the Postmaster General summary 

judgment. 

, 40 F.3d 796, 802 (6th Cir. 1994) (requiring “all 

the relevant aspects of” plaintiff’s employment situation to be “nearly identical” to 

comparator in prima facie analysis). 

III.

Even assuming arguendo that Mercado had established a prima facie case of 

discrimination, the District Court correctly determined that the Postal Service articulated 

legitimate, non-discriminatory reasons for Mercado’s termination. Mercado was 

terminated for unacceptable conduct in the workplace and unsatisfactory work 
6

performance. The District Court found that Mercado failed to show these reasons were 

pretextual. We agree. 

To show pretext, Mercado must submit evidence that would “allow a fact-finder 

reasonably to infer that each of the employer’s proffered non-discriminatory reasons was 

either a post hoc fabrication or otherwise did not actually motivate the employment 

action . . . .” Doe v. C.A.R.S. Prot. Plus, Inc., 527 F.3d 358, 370 (3d Cir. 2008). 

Mercado, as the non-moving plaintiff, “cannot simply show that the employer’s decision 

was wrong or mistaken” but instead “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.” Fuentes v. Perskie

Notwithstanding the fact that Mercado received unsatisfactory performance scores 

at 60 and 80 days of his probationary period, Mercado argues that the District Court erred 

because the Postal Service officials did not inform him of his conduct issues or 

performance deficiencies and the Postal Service failed to produce documentation to 

support its assessment of his conduct and performance during his probationary period. 

However, lack of notice or information about problems with performance does not 

constitute evidence of pretext. 

, 32 F.3d 759, 765 (3d Cir. 

1994) (quotation marks and citation omitted) (emphasis in original). 

Hague v. Thompson Distrib. Co., 436 F.3d 816, 827 (7th 

Cir. 2006). 
7

Mercado also argues that the District Court made impermissible credibility 

determinations by crediting the Postal Service’s evidence. We disagree. The District 

Court correctly determined that Mercado disputed his supervisors’ perceptions of 

interpersonal conflict incidents, but not the occurrence of incidents themselves. For 

instance, Mercado admitted to an argument with a senior mail processor assisting him 

with a mail sorting machine and to a conversation with a co-worker about reporting the 

incident that made the co-worker uncomfortable. That same co-worker also reported to 

management another incident with Mercado that upset him. Mercado acknowledged that 

he discussed proper attire with a supervisor, although he denied the supervisor’s version 

of the discussion that the supervisor informed him that he was dressed improperly. 

Mercado also admitted that his request for a schedule change resulted in an argument, 

although he disputed his supervisors’ descriptions of the incident. Finally, Mercado 

admitted to a discussion about workload distributions and assignments with a supervisor, 

which his supervisor described as an argument. The District Court also correctly noted

that Mercado’s arguments about his supervisors’ descriptions of his work performance 

deficiencies constituted only general denials. 

In sum, the District Court properly held that Mercado failed to show that the 

Postal Service’s evidence of his interpersonal conflicts and performance deficiencies 

constituted a pretext for discrimination. Billet v. CIGNA Corp., 940 F.2d 812, 825 (3d 

Cir. 1991) (“[The employee’s] view of his performance is not at issue; what matters is the 

perception of the decision maker. The fact that an employee disagrees with an 
8

employer’s evaluation of him does not prove pretext.” (citation omitted)), overruled in 

part on other grounds by St. Mary’s Honor Ctr. v. Hicks

Because we agree that Mercado failed to demonstrate that the Postal Service’s 

reasons for his termination were pretextual, we will affirm the District Court’s grant of 

summary judgment. 

, 509 U.S. 502 (1993).

IV.

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

summary judgment to the Postmaster General.