Venson C. Davis v. JOHN ASHCROFT, UNITED STATES ATTORNEY GENERAL, On Appeal from the United States…

1 The Honorable Evan J. Wallach, United States Court of International Trade, sitting
by designation.
1
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 02-1863
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VENSON C. DAVIS
Appellant
v.
JOHN ASHCROFT, UNITED STATES ATTORNEY GENERAL,
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On Appeal from the United States District Court
for the District of New Jersey.
(Civil Action No. 00-cv-00548).
District Judge: Judge William G. Bassler
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Submitted Under Third Circuit LAR 34.1(a)
December 10, 2002
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Before FUENTES, GARTH, Circuit Judges, and WALLACH, Judge1
(Opinion Filed: February 6, 2003)

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OPINION
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GARTH, Circuit Judge:
Plaintiff Venson C. Davis appeals the District Court’s grant of the Government’s
summary judgment motion. Davis, an African-American, had alleged that in violation of
Title VII he was denied a promotion based on his race and in retaliation for providing an
affidavit adverse to a friend and colleague of William Slattery, the decision-maker
responsible for the promotion decision. Because we agree with the District Court that
Davis’ claim raised no genuine issues of material fact, we will affirm.
I.
Because we write solely for the benefit of the parties, we recount the facts and
procedural history of the case only as they are relevant to the following discussion.
Venson Davis, an African-American, brought this employment discrimination action
against the Government, alleging that in the course of his employment with the Immigration
and Naturalization Service (“INS”), he was passed over for a promotion on the basis of his
race and retaliated against in violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e et seq.
Davis began his career as an INS Border Patrol Agent in 1980. In 1996, he had
advanced through the ranks to become a GS-12 level Supervisory Immigration Inspector at

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Newark International Airport (“NIA”). On May 29, 1996, the INS posted a vacancy
announcement for a GS-13 Supervisory Detention and Deportation Officer position at the
INS’s Elizabeth, New Jersey Detention Facility. Davis applied and was placed on a staffing
list as one of six applicants that were deemed best qualified, as compiled by the INS’
Human Resources Office. Mason Ruhlen, a Caucasian who had a higher ranking of GS-13,
was also on this list.
INS Executive Associate Commissioner William Slattery, third in command of the
entire INS, had selecting authority for the Detention and Deportation position. To get
recommendations for the position, he sought the input of the Acting Eastern Regional
Director, Robert Brown, who in turn sought a recommendation from the New Jersey
District Director Warren Lewis, an African-American. Lewis, after consulting the Human
Resources list, and after consulting with Leroy Frederick, an African-American who was
the supervisory officer at the Elizabeth Detention Facility, forwarded a list of candidates to
Brown naming Davis as his first choice, followed by Ruhlen and Earline Boyer, an African-
American who had not even applied for the position.
Lewis wrote that Davis had been a Supervisory Inspector at NIA for four years and
had been a Border Patrol Agent for twelve years; that Ruhlen has been a Supervisory Special
Agent for eight years and had been with the INS for over eighteen years; and that Boyer was
a GS-13 with eleven years supervisory experience and twenty-eight years total INS
experience, with her previous experience as an Investigator and Contact Representative.
After reviewing Lewis’ letter, Deputy Assistant Regional Director Michael Rozos,

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who worked under Brown, concluded that because the letter listed more than one candidate
and a candidate who did not even apply (and would thus present labor management
problems), that Lewis was not satisfied with the candidate pool. Accordingly, Rozos
recommended that the position be re-announced. Subsequently, Lewis was replaced by
Andrea Quarantillo who was delegated the responsibility to select candidates for the
Detention and Deportation position.
Accordingly, a new vacancy announcement was posted for this position. All those
who had applied under the first announcement were automatically considered for the
position. Frederick, the supervisory officer who, as noted earlier, was an African-
American, interviewed the candidates, including Davis and Ruhlen. Frederick found Ruhlen
to be the more desirable candidate and recommended Ruhlen’s selection to Quarantillo.
Unlike Davis, Ruhlen’s experience encompassed working with deportation and detention
officers. Moreover, Frederick had known Ruhlen for fifteen to twenty years and Ruhlen
presented better and more straight-forward responses to the interview questions. Ruhlen
was chosen on November 15, 1996.
On May 15, 1997, Davis filed an Equal Employment Opportunity Commission
(“EEOC”) Complaint against Quarantillo for failure to promote him and for retaliation. On
March 8, 2002, the District Court granted the Government’s motion for summary judgment
on Davis’ claims because there was insufficient evidence to permit a reasonable jury to find
that the Government’s reasons for failing to promote Davis were unbelievable. This timely
appeal followed.

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II.
We exercise plenary review over an order granting summary judgment, applying the
same standard that the district court should have initially applied. Armbruster v. Unisys
Corp., 32 F.3d 768, 777 (3d Cir. 1994). In so doing, we must review the record in the light
most favorable to Davis, drawing all inferences from the facts in his favor and determine
whether genuine issues of material fact exist. Armbruster, 32 F.3d at 777. We have
jurisdiction to hear Davis’ appeal pursuant to 28 U.S.C. § 1291.
III.
On appeal, Davis claims that the Government’s reason for re-announcing the
position was pretextual for race discrimination. Davis claims that the Government’s reason
for ultimately failing to promote him was similarly pretextual. He also claims that the
Government failed to promote him in retaliation for his protected activity (the filing of an
affidavit with the EEOC, see III.B, infra).
A.
Davis has four main arguments to support his position that the Government’s reason
for its re-announcement of the position and ultimate failure to promote him should not be
believed. He claims that: (1) Rozos’ determination that Lewis was not satisfied with the
candidate pool is inconsistent with Lewis’ unequivocal recommendation of Davis at the
first announcement; (2) Rozos’ conclusion that Lewis was not satisfied with the pool of
applicants, without first speaking to Lewis, was implausible; (3) the Government’s failure
to submit a declaration of Lewis that he was in fact not satisfied with the applicant pool is

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questionable; and (4) Brown’s claim that he was not responsible for selecting candidates
was inconsistent with a letter he signed recommending a re-announcement of the position
to Slattery.
Davis’ attempt to establish race discrimination is analyzed under the familiar
McDonnell Douglas burden-shifting framework. See McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). In Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994), we
instructed that:
[T]o defeat summary judgment when the defendant answers the plaintiff’s
prima facie case with legitimate, non-discriminatory reasons for its action,
the plaintiff must point to some evidence, direct or circumstantial, from
which a factfinder could reasonably either (1) disbelieve the employer’s
articulated legitimate reasons; or (2) believe that an invidious discriminatory
reason was more likely than not a motivating or determinative cause of the
employer’s action. Id. at 764.
To discredit the employer’s stated reasons, however, the plaintiff cannot merely show that
the employer’s decision was “wrong or mistaken . . . . Rather, the non-moving plaintiff must
demonstrate such weaknesses, implausibilities, inconsistencies, or contradictions in the
employer’s proffered legitimate reasons for its action that a reasonable factfinder could
rationally find them ‘unworthy of credence.’” Id. at 765. (Internal citations omitted).
Davis’ claims are without merit. The District Court correctly concluded that Lewis’
recommendation letter was not “unequivocal” because the letter recommends three
candidates for the position, one of whom did not even apply for the position. Thus, the
letter only buttresses the Government’s contention that Rozos was led to believe that the
announcement had failed to attract enough qualified personnel. Similarly, a rational juror

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could not find that Rozos’ failure to communicate with Lewis, to confirm Rozos’ belief
that Lewis had doubts about the applicant pool, amounted to an inconsistency. The issue is
not what Lewis believed, but rather whether Rozos’ assertion was not credible. See
Fuentes, 32 F.3d at 765 (“To discredit the employer’s proffered reason . . . the plaintiff
cannot simply show that the employer’s decision was wrong or mistaken, since the factual
dispute at issue is whether discriminatory animus motivated the employer, not whether the
employer is wise, shrewd, prudent, or competent.”) For the same reason, there is no need
for the Government to have submitted an affidavit from Lewis that he had doubts as to the
applicant pool.
Furthermore, Davis’ claim that the Government’s explanation for its employment
decision should not be believed, because there are inconsistencies in Brown’s involvement
with the re-announcement, is also without merit. Specifically, Davis claims that because
Brown testified that he was not aware of the letter that he signed (that was prepared by
Rozos) and forwarded to Slattery, and because Brown does not recall any discussions with
Frederick or Lewis about their support of Davis, that these inconsistencies amount to a
showing of pretext.
We conclude, as did the District Court, that the fact that Brown was responsible for
supervising some 8,000 employees and traveled frequently in that connection, thus
requiring him to delegate many of his responsibilities to his staff, like Rozos, including the
authority to draft and sign correspondence for him, is not inconsistent with Brown’s
statement that he did not recall signing the document prepared by Rozos. Similarly, even if

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2 Davis also contends that the Government’s reason for its decision was pretextual
based on an “inconsistency” in Quarantillo’s testimony that she had no involvement in
canceling the first announcement of the position vacancy and two memoranda from her to
the INS Human Resources Department requesting the vacancy to be re-announced.
Quarantillo’s deposition testimony reveals that although she sent those memoranda, the
decision to re-announce the vacancy had been made by someone else.
8
Lewis did have a conversation with Brown where he requested that Brown support his
nomination of Davis, it is undisputed that the decision to re-announce the vacancy was made
by Brown’s staff and not by Brown, who had delegated that responsibility to his staff. Nor
is there evidence that Brown met with Frederick or personally made the decision to re-
announce the vacancy in his letter to Slattery.2
B.
Davis’ retaliation claim is also baseless. Previously, in 1995, Lewis had instituted
an investigation of corruption in the INS. As a result of this investigation, John Lonergan,
an INS employee who was allegedly a close friend of Slattery’s, was ultimately fired and
convicted of accepting bribes from immigrants. Lonergan commenced an EEOC
proceeding against Lewis stemming from this investigation. As part of this proceeding, in
September 1995, Davis had submitted an affidavit adverse to Lonergan.
On appeal, Davis claims that he was not promoted in retaliation for his filing of an
affidavit adverse to Lonergan, a friend and colleague of Slattery. Davis has failed to make
out his prima facie case however because, inter alia, he has not shown a causal link
between the protected activity and the alleged adverse action. See Weston v.
Pennsylvania, 251 F.3d 420, 430 (3d Cir. 2001) (for prima facie case for retaliation

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claim, plaintiff must show that he engaged in a protected activity; the employer took an
adverse employment action after or contemporaneous to said activity; and a causal link
exists between activity and adverse action.)
IV.
In sum, after careful consideration of the record and the parties’ submissions, we
agree with the District Court that Davis failed to adduce sufficient evidence to preclude
summary judgment.
For the foregoing reasons, we will affirm the District Court’s order granting summary
judgment to the Government.
TO THE CLERK:
Please file the foregoing opinion.
_______________________________

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/s/ Leonard I. Garth

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