NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________

No. 14-2067

_____________ ALBERT RONALD THOMPSON, Appellant

v. BRIDGETON BOARD OF EDUCATIO N; TERRELL EVERETT, Individual in his Official Capacity as Director of Human Resources

_____________ Appeal from the United States District Court for the District of New Jersey (D.C. Civ. No. 1:12-cv-06864) District Judge: Honorable Noel L. Hillman

______________ Submitted Under Third Ci rcuit L.A.R. 34.1(a) April 17, 2015

______________ Before: AMBRO, VANASKIE, and SHWARTZ, Circuit Judges

. (Opinion Filed: May 29, 2015)

______________ OPINION *

______________ VANASKIE, Circuit Judge

. At issue in this case is whether the District Court properly granted summary

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.2 judgment for the Bridgeton Board of Educa tion and Terrell Everett, its Director of Human Resources, after job applicant Albe rt Ronald Thompson brought a reverse discrimination claim under Title VII of the Ci vil Rights Act of 19 64, 42 U.S.C. § 2000e3(a), 1 and a Fourteenth Amendm ent Equal Protection claim under 42 U.S.C. § 1983. Because Thompson has failed to put forward evidence from which a reasonable factfinder could conclude that Appellees’ hiring process was a pretext fo r racial discrimination, we will affirm.
I. Appellant Albert Ronald Thompson has served his country and community with distinction throughout his life. He served as an Army officer during the Vietnam War, returned home, graduated first in his cla ss from the New Jersey State Police Academy, and served in the State Polic e for 25 years. Upon retirem ent from the State Police, he continued his service, earnin g excellent reviews as an educational enforcement officer with the Bridgeton Public Sc hools, where he worked for more than a decade. For budgetary reasons, the Board te rminated Thompson in 2010. When the Board advertised

1 In his complaint, Thompson cites 42 U.S. C. § 2000e-3(a), though this provision of Title VII provides a mean s to seek relief for retaliati on that is taken against an employee who participated in enforcement proceedings against the employer. Based on his allegations, Thompson more likely meant to refer to 42 U.S.C. § 2000e-2(a)(1), which prohibits an employer from “fail[ing] or refus[ing] to hire . . . any individual, or otherwise to discriminate agai nst any individual with respect to his compensation, terms, conditions, or privileges of employment, be cause of such individual’s race, color, religion, sex, or national origin.”3 open educational enfor cement officer positions in 2011, Thompson applied to get his old job back. The Director of Security, Thompson’s fo rmer boss Robert Stevens, wanted to rehire Thompson, but learne d that Thompson would have to reapply in the general applicant pool. The final round of the sele ction process was a brief interview in which each candidate was asked the same ten questi ons. The hiring committee interviewed four candidates, including Thompson, for two open positions. Appellees contend that the committee made hiring decisions based only on performance in this formal interview. Stevens stated that in order to keep the process fair and objec tive for all applicants, he did not inform the other members of the sele ction committee of his positive opinion of Thompson’s past performance. According to Appellees, Thompson’s inte rview did not go well. In depositions related to this litigation, two committee me mbers familiar with the high quality of Thompson’s prior work expressed their disa ppointment that he failed to convey his qualifications in the interview. Committee members recalled Thompson’s answers to questions as short, incomplete, or lacking detail. While Appellees have not produced documents recording the committ ee’s scores, committee member s agree that in the final tally Thompson was not among the top two performers. Appellees claim that they selected the two highest-scoring applic ants. Thompson is white; the committee recommended hiring one African American and one Hispanic candidat e. One of these applicants had only one year of experience wo rking as an aide at Bridgeton High School.4 The hiring committee consisted of two white and two African American members. Two members stated that the committee did not discuss a pplicants’ races, and one member stated that the committee had no affirmative action preferen ce for minority candidates. Thompson sued the Bridgeton Board of Education and Everett for reverse employment discrimination. According to Thompson, the interv iew process was a “ post hoc creation without any foundation,” Appellant Br. at 17 (emphasis in original), as evidenced by the fact that Appellees cannot produce interview scor e sheets, and that committee members only faintly recall Thompson’s interview. He argues that because he was the most experienced and best qualified ca ndidate, he must have been the victim of an impermissible preference for minority candidates.
II. The District Court had jurisdiction over this action under 28 U.S.C. §§ 1331 and 1343. We have appellate jurisdiction under 28 U.S.C. § 1291. Summary judgment is proper when “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). We review the District Court’s grant of summary judgment de novo , and view the eviden ce “in the light most favorable to the nonmoving party.” Heffernan v. City of Paterson , 777 F.3d 147, 151 (3d Cir. 2015) (citations and quotations omitted ). However, “the no n-moving party must present more than a mere scin tilla of evidence; there must be evidence on which the jury could reasonably find for the [non-movant].” Burton v. Teleflex Inc. , 707 F.3d 417, 425 (3d Cir. 2013) (citations and quotations omitted).5 III. We evaluate Thompson’s Title VII and Equal Protection claims using the threepart burden-shifting framework established in McDonnell Douglas Corp

. v. Green , 411 U.S. 792, 802 (1973). In reverse-discrimina tion suits like this, (1) a plaintiff must establish a prima facie case of racial disc rimination; (2) the bu rden shifts “to the employer to articulate some legitimate, nondiscriminatory reason for the employee’s rejection,”; and (3) “[t]he plaintiff must be given the opportunity to introduce evidence that the proffered justification is me rely a pretext for discrimination.” Iadimarco v. Runyon , 190 F.3d 151, 157, 166 (3d Cir. 1999) (citations and quotations omitted). The parties do not contest that Thom pson has established a prima fa cie case of discrimination, so we focus on prongs two and three.
A. The second prong of the McDonnell Douglas framework asks whether Appellees articulated a legitimate, non-discriminato ry reason for failing to hire Thompson. Appellees argue that other candidates outpe rformed Thompson in their interviews. Because poor interview performance is a le gitimate non-discriminat ory reason for refusal to hire, we agree with the District Court that Appellees met their burden at this step. See Narin v. Lower Merion Sch. Dist. , 206 F.3d 323, 330 (3d Cir. 2000). 2

2 Thompson argues that the lack of docum entary evidence pr events Appellees from meeting their burden here. However, we consider the nature of the evidentiary submissions, i.e., that Ap pellees rely on oral testim ony and not contemporaneously-6 B. Under the third prong of the McDonnell Douglas framework, we ask whether the “record clearly allows a reasonable fact finde r to conclude that [Appellees’] proffered explanation was a pretext for race-based discrimination.” Iadimarco , 190 F.3d at 166. Proving pretext “places a difficu lt burden on the plaintiff.” Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994). To survive summary judgment, a plaintiff may “put forward ‘such weaknesses, implausibilities, inconsistencies, incoherenc ies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence.’” Kautz v. Met-Pro Corp. , 412 F.3d 463, 467 (3d Cir. 2005) (quoting Fuentes, 32 F.3d at 765) (emphasis in original). A plaintiff may also point to “ some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disb elieve the employer’s articulated legitimate reasons; or (2) believe that an invidious disc riminatory reason was more likely than not a motivating or determinative cause of the employer’s action.” Iadimarco , 190 F.3d at 166 (quoting Fuentes, 32 F.3d at 764) (emphasis in original). Thompson argues that because his em ployment history made him the most qualified candidate, and he was not hired, we must conclude that the interview process was a pretext for discrimination. However, Ap pellees claim that they based their hiring decisions solely on interv iew scores, and under the McDonnell Douglas test we do not

generated documents, in analyzing whether Thompson rebutted Appe llees’ rationale as pretext in the third prong of the McDonnell Douglas test.7 “second guess the method an employer us es to evaluate its employees.” Kautz , 412 F.3d at 468. Thus, we reject his argument that a tr ier of fact could conclude that the interview process “was either a post hoc fabrication or otherwise did not actually motivate the employment action.” Fuentes , 32 F.3d at 764. Thompson is left with his argument that because Appellees cannot produce original documents from the interviews, and because co mmittee members do not fully recall some details, a genuine issue of material fact exists as to whether Thompson should have been hired based on his interview performance. Howeve r, given the consistency of the committee members’ testimony and the fact that Thompson fails to point to any evidence in the reco rd from which a reasonable fact finder could conclude that Thompson’s scores were marked down based on his race, we concl ude that no reasonable factfinder could deem Appellees’ explanation so unworthy of credence that it is probably pretext for discrimination. Based on these facts, we conclude that Thompson failed to meet his burden in the third prong of the McDonnell Douglas test. IV. For the reasons set forth herein, we hold that Thompson fa iled to establish a genuine issue of material fact regarding wh ether Appellees intentionally discriminated against him on the basis of race. Accordingly, we will affirm the District Court’s order entered March 28, 2014, gr anting summary judgment in favor of Appellees.