Hector Sanchez v. Sungard Availability Services Lp

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-2713
___________
HECTOR SANCHEZ,
Appellant
v.
SUNGARD AVAILABILITY SERVICES LP;
FIDEL CARDENAS
____________________________
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 06-cv-3660)
District Judge: Honorable Dickinson R. Debevoise
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 26, 2010
Before: RENDELL, HARDIMAN and ALDISERT, Circuit Judges.
(Filed: January 28, 2010 )
___________
OPINION OF THE COURT
___________
PER CURIAM
Appellant Hector Sanchez appeals from a decision of the District Court granting
Defendants’ motion for summary judgment. For the reasons set forth below, we will
affirm the judgment of the District Court.

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Sanchez also claimed for the first time in his brief opposing Defendants’ summary1
judgment motion that Cardenas also sent several racist emails to him about African-
Americans and Arab people.
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I.
Sanchez is a former employee of SunGard Availability Services, L.P. (“SunGard”).
He was hired as a Senior Software Specialist in 1999. The following month, Sanchez was
given a copy of SunGard’s Employee Handbook and he signed an Employee
Acknowledgment that explicitly outlined his status as an at-will employee. While at
SunGard, Sanchez was directly supervised by Fidel Cardenas (“Cardenas”). Sanchez,
who is originally from the Dominican Republic, claims that Cardenas, a Cuban-American,
made various disparaging remarks about his nationality. In his Complaint, Sanchez
described six specific incidents over the course of his six-year tenure at the company in
which his nationality served as the basis for discriminatory comments.1
In January 2005, Sanchez was terminated from SunGard. SunGard contends that
he was terminated for non-discriminatory reasons. In support of that argument, SunGard
points to three incidents in which Sanchez clashed with Cardenas and other SunGard
employees during the month before his termination. In December 2004, Cardenas
reprimanded Sanchez for failing to carry out his duties, stating in an email to Sanchez that
he did not approve of his sitting at his desk while other employees were hard at work.
Second, during the first week of January 2005, Sanchez was involved in a verbal
altercation with a co-worker. Cardenas was forced to intervene. The final incident,

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which SunGard claims led directly to Sanchez’s discharge, occurred on January 10, 2005.
That day, Sanchez arrived at the SunGard facility at approximately 6:15 a.m., but found
that his electronic security key did not work. He was unable to access the building. After
being admitted into the building by a co-worker, Sanchez had problems accessing a
different area in the facility due to his malfunctioning key. Approximately twenty
minutes later, Sanchez left his key with security personnel, told them to call him when
they had fixed the problem, and went home. Sanchez received a call from SunGard at
noon requesting that he return to work. When he did so, he was informed by Cardenas
that he was being terminated for insubordination and leaving the facility without prior
authorization.
Following the termination of his employment on January 10, 2005, Sanchez filed a
Complaint in the Superior Court of New Jersey alleging that Cardenas discriminated
against him on the basis of his nationality and that SunGard fired him in retaliation for
complaining about that discrimination. On the basis of those allegations, Sanchez
asserted claims for: (1) retaliatory discharge and the creation of a hostile work
environment in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) and the
New Jersey Law Against Discrimination (“NJLAD”); (2) infliction of emotional distress;
(3) breach of contract for reasons of race and national origin; (4) unequal payment in
contravention of the Equal Pay Act; (5) breach of implied contract of employment; (6)
violation on the part of SunGard of the “progressive disciplinary system established by its

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own policies, procedures, and practices;” and (7) breach of implied covenant of good
faith and fair dealing. Based on the federal nature of Sanchez’s Title VII claims,
Defendants removed the case to the District Court in August 2006.
At the close of discovery, Defendants moved for summary judgment on all of
Sanchez’s claims. After reviewing the parties’ arguments, the District Court determined
that Sanchez’s allegations of discrimination, even when viewed in their strongest possible
light, did not rise to the level of severity or pervasiveness required to sustain a hostile
work environment claim under Title VII or the NJLAD. Furthermore, the District Court
found that SunGard articulated legitimate reasons for Sanchez’s termination, and Sanchez
was unable to demonstrate that those reasons were a pretext for discriminatory purposes.
The District Court also found that Sanchez failed to produce evidence of sufficiently
outrageous activity on the part of the Defendants to support his claim for infliction of
emotional distress. Lastly, the District Court dismissed the remainder of Sanchez’s
claims because they were premised on the existence of an employment contract and it was
undisputed that no such contract existed. Sanchez filed a timely appeal from the District
Court’s determination.
II.
We have jurisdiction over the appeal under 28 U.S.C. § 1291 and exercise plenary
review over the District Court’s decision to grant summary judgment. McGreevy v.
Stroup, 413 F.3d 359, 363 (3d Cir. 2005). Summary judgment is appropriate when the

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“pleadings, the discovery and disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(c). A court reviewing a summary
judgment motion must evaluate the evidence in the light most favorable to the
nonmoving party and draw all reasonable inferences in that party’s favor. Brewer v.
Quaker State Oil Ref. Corp., 72 F.3d 326, 330 (3d Cir. 1995). However, a party opposing
summary judgment “must present more than just ‘bare assertions, conclusory allegations
or suspicions’ to show the existence of a genuine issue.” Podobnik v. U.S. Postal Serv.,
409 F.3d 584, 594 (3d Cir. 2005).
III.
After a careful review of the record, we find that the District Court properly
entered summary judgment in favor of Defendants on all of Sanchez’s claims.
Title VII and NJLAD Claims
Hostile Work Environment
The District Court dismissed Sanchez’s hostile work environment and retaliation
claims because he was unable to establish a prima facie case on either claim. With regard
to a hostile work environment claim, this Court has articulated factors that must be
proven in order to establish the existence of an actionable hostile work environment under
Title VII. A plaintiff must prove: (1) that he suffered intentional discrimination because
of his race or national origin; (2) that the discrimination was severe and pervasive; (3)

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We have held that the elements for a hostile work environment claim under NJLAD2
“closely resemble the first four elements of [a] Title VII hostile work environment claim.”
Cardenas v. Massey, 269 F.3d 251, 263 (3d Cir. 2001). Accordingly, the reasoning we
apply regarding Sanchez’s Title VII claim applies to his NJLAD claim as well.
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that the discrimination detrimentally affected him; (4) that the discrimination would
detrimentally affect a reasonable person of the same race in that position; and (5) the
existence of respondeat superior liability. See Aman v. Cort Furniture Rental Corp., 85
F.3d 1074, 1081 (3d Cir. 1996).2
In employing this analysis, a court must evaluate the frequency of the conduct, its
severity, whether it is physically threatening or humiliating, and whether it unreasonably
interferes with an employee’s work performance. See Harris v. Forklift Sys., Inc., 510
U.S. 17, 23 (1993). Title VII is not violated by “[m]ere utterance of an . . . epithet which
engenders offensive feelings in an employee” or by mere “discourtesy or rudeness,”
unless so severe or pervasive as to constitute an objective change in the conditions of
employment. See Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998).
The District Court correctly ruled that under the totality of the circumstances, any
discrimination was not sufficiently severe or pervasive to support a hostile work
environment claim. Sanchez alleges that Cardenas made several derogatory comments
relating to Sanchez’s Dominican nationality over a period of six years. During that time,
Sanchez also received three racially-charged emails. However, none of the content in the
emails implicated Sanchez’s own nationality or any other protected trait. Furthermore, he

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admitted that he did not report the emails or seek redress under the company’s non-
discrimination policy and, on at least one occasion, responded to an email from Cardenas
without acknowledging the allegedly-discriminatory comments contained therein.
With regard to the alleged discriminatory comments made by Cardenas implicating
Sanchez’s nationality, upon review, we agree with the District Court that they did not
reach a level of sufficient severity or pervasiveness to alter the conditions of his
employment. See Faragher, 524 U.S. at 787. There is no evidence in the record that the
complained-of conduct ever interfered with Sanchez’s ability to do his work. To the
contrary, Sanchez stated that he was “routinely applauded for his great teamwork and
willingness to both come in early and stay beyond his normal working hours in order to
satisfy the company and its clients.” (Complaint at ¶ 1.) Moreover, Sanchez does not
assert that he was physically threatened by the comments. See Harris, 510 U.S. at 23.
Therefore, while we agree that the comments may have been inappropriate, there is
insufficient evidence in the record to suggest that the a reasonable jury could conclude
that the comments, when considered cumulatively, were sufficiently severe or pervasive.
Accordingly, the District Court properly granted summary judgment on this claim.
Retaliatory Discharge
The District Court also properly granted summary judgment in favor of Defendants
on Sanchez’s claim of retaliatory discharge. In order to establish a prima facie case of
retaliatory discharge under Title VII or the NJLAD, Sanchez must show: (1) that he

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engaged in a protected activity; (2) that he suffered an adverse employment action; and
(3) that there was a causal connection between the protected activity and the adverse
employment action. See Moore v. City of Philadelphia, 461 F.3d 331, 340-41 (3d Cir.
2006); Tartaglia v. UBS PaineWebber Inc., 961 A.2d 1167, 1192 (N.J. 2008).
Sanchez’s retaliation claim is based entirely upon his alleged experiences during a
January 7, 2005 lunch with several of his co-workers at SunGard, which he claims led to
his dismissal. During the lunch, Sanchez claims that he reported to co-workers that he
was being discriminated against, harassed, and bullied. However, none of Sanchez’s
colleagues was able to recall the incident, nor is there any evidence to suggest that
Cardenas was ever told of Sanchez’s alleged comments. As mentioned earlier, Sanchez
does not allege that he ever reported any of the other comments made by Cardenas
regarding his nationality during his six-year employment with SunGard.
First, we agree with the District Court that the alleged remark Sanchez made to his
co-workers during lunch was too vague to constitute protected activity. See Barber v.
CSX Distrib. Servs., 68 F.3d 694, 702 (3d Cir. 1995) (holding that complaints must be
specific enough to notify management of the particular type of discrimination at issue in
order to constitute “protected activity”). Moreover, because the individuals who were
responsible for deciding to discharge Sanchez were unaware of his complaints of
discrimination, Sanchez has failed to establish a causal connection between his
termination and his alleged reporting the discrimination. See Jones v. Sch. Dist. of Phila.,

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We note that even if Sanchez could establish a prima facie case of retaliation, he3
would be unable to demonstrate that SunGard’s stated reason for terminating his
employment was pretextual. SunGard presented substantial evidence that Sanchez’s
termination was motivated by non-discriminatory considerations. Specifically, during the
month before his termination, Sanchez was reprimanded for dereliction of his duties and
was involved in an altercation with a co-worker. On the day he was terminated, he left
work without authorization.
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198 F.3d 403, 415 (3d Cir. 1999) (affirming a grant of summary judgment on a retaliation
claim under Title VII where there was no evidence that the principals who made the
decision to fire the plaintiff were aware of the protected action). Summary judgment was
therefore appropriate as Sanchez failed to establish a prima facie case of retaliatory
discharge.3
Infliction of Emotional Distress
We also agree with the District Court that there is insufficient record evidence to
sustain Sanchez’s claim of infliction of emotional distress. In New Jersey, it is
“extremely rare to find conduct in the employment context that will rise to the level of
outrageousness necessary to provide a basis for recovery for the tort of intentional
infliction of emotional distress.” Griffin v. Tops Appliance City, Inc., 766 A.2d 292, 297
(N.J. Super. Ct. App. Div. 2001). The distress suffered by the plaintiff must be so severe
that “no reasonable man could be expected to endure it.” Buckley v. Trenton Saving
Fund Soc’y, 544 A.2d 857, 863 (N.J. 1988). Having concluded that the District Court
properly determined that the alleged discriminatory comments made by Cardenas were
not so severe or pervasive as to alter the conditions of Sanchez’s employment, we agree

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Sanchez claims that the District Court failed to consider all of the claims in his4
Complaint. A review of Sanchez’s Complaint shows that the District Court properly
considered and reviewed all of the claims set forth in the Complaint.
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with the District Court’s further assessment that the comments, although inappropriate,
were not sufficiently outrageous in character to sustain a claim for infliction of emotional
distress.
Unequal Payment
Sanchez also claims that SunGard compensated him at a lesser rate than similarly
situated employees in violation of the Equal Pay Act of 1963, 29 U.S.C. § 206(d). The
District Court correctly concluded that Sanchez failed to set forth any evidence that he
was paid less than similarly-situated female employees at SunGard. See Stanziale v.
Jargowsky, 200 F.3d 101, 107 (3d Cir. 2000).
Contract Claims
Sanchez’s remaining claims – breach of contract for reasons of race and national
origi, breach of implied contract of employment, violation on the part of SunGard of the
“progressive disciplinary system established by its own policies, procedures and
practices,” and breach of implied covenant of good faith and fair dealing – were also
properly dismissed. As the District Court correctly noted, it is undisputed that Sanchez4
was an at-will employee and that no employment contract between the parties existed.
Summary judgment was therefore appropriate.

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