                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-8-2008

Dowling v. Citizens Bank
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4054




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"Dowling v. Citizens Bank" (2008). 2008 Decisions. Paper 392.
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                                                           NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ____________

                                 No. 07-4054
                                ____________

                            MARIANN DOWLING,

                                      Appellant

                                       v.

                              CITIZENS BANK

                                ____________

                On Appeal from the United States District Court
                     for the Western District of Pennsylvania
                             (D.C. No. 05-cv-00914)
                District Judge: Honorable David Stewart Cercone
                                 ____________

                  Submitted Under Third Circuit LAR 34.1(a)
                              October 2, 2008

         Before: FISHER, CHAGARES and HARDIMAN, Circuit Judges.

                            (Filed: October 8, 2008)

                                ____________

                           OPINION OF THE COURT
                                ____________




HARDIMAN, Circuit Judge.
       Mariann Dowling appeals from an order of the District Court granting summary

judgment in favor of Citizens Bank on Dowling’s employment discrimination claims. We

will affirm.

                                            I.

       Dowling was employed as a Branch Manager at the Peebles Road Office of

Citizens Bank until she was dismissed in May 2004. Dowling was responsible for the

branch’s retail banking operations and supervised 10-15 employees. During the period

relevant to this litigation, Dowling reported to Regional Manager Charlotte Bullock and

Regional Director of Retail Banking Craig Campbell.

       Beginning in 2003, Citizens made it a priority to open new consumer checking

accounts. To this end, Bullock and Campbell pressured their employees to solicit family

members and friends to open accounts, which could be established with initial deposits of

$10. Employees who met this and similar performance goals were eligible for incentives,

including vacation packages and prizes. The bank’s 2003 Retail Incentive Program

provided that “[a]ny attempts at gaming, altering or modifying results in any element of

the employee incentive program are grounds for withholding payment and disciplinary

action up to and including termination.”

       Pursuant to the incentive program, Citizens awarded Dowling a company-paid

vacation to the Caribbean in early 2004. Shortly thereafter, Campbell received an

anonymous letter stating:



                                            2
       Someone needs to seriously research Marianne [sic] Dowling and Teresa
       Rotondo of the Peebles Rd office for gaming in checking accounts.
       Everyone in our region knows, it’s like an unspoken issue among us. We
       don’t think it’s fair because of this that she keeps being rewarded with trips
       and incentive [sic] and those of us that make our goals the right way are
       overlooked. We could never figure out how she always pulled out making
       her goal. The proof is all in black and white, you just need to look.

App’x 167. Campbell asked Richard Sedory, Vice President of Human Resources, and

Matt Clydesdale, Director of Corporate Security, to investigate.

       Assisted by an auditor, Clydesdale discovered that Dowling had opened 114

checking accounts in her name or in the names of her family members and friends. Most

were opened with nominal deposits and closed after short periods of time during which

little or no account activity occurred. Two of Dowling’s employees — Teresa Rotondo

and Assistant Branch Manager Terry Braun — engaged in similar conduct. In addition,

Braun had been transferring funds from the bank’s general ledger to customers’ personal

and business accounts to inflate her performance rating.

       Campbell confronted Dowling about the aforementioned activities on May 3,

2004. Despite Dowling’s insistence that she did not intentionally violate bank policy,

Campbell fired her because he “no longer had confidence in her as a manager.” Campbell

also fired Braun, but issued only a warning to Rotondo because “it appeared that she was

acting under the instructions[] . . . of Ms. Dowling,” and “given her status as a less

experienced nonmanagement employee,” she was less culpable.




                                              3
       Dowling sued Citizens for employment discrimination claiming that she was fired

because of her sex, age, association with her disabled husband, and expected exercise of

Family Medical Leave Act rights.1 The Magistrate Judge recommended that Citizens’s

motion for summary judgment be granted because Dowling failed to “refute the

Defendant’s legitimate, non-discriminatory reasons for her termination.” The District

Court adopted the Magistrate Judge’s Report and Recommendation and entered summary

judgment in favor of Citizens.

                                             II.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review is plenary, and we

apply the same standard as the District Court. Marzano v. Computer Science Corp., 91

F.3d 497, 501 (3d Cir. 1996). We will affirm the District Court’s grant of summary

judgment if “there is no genuine issue as to any material fact” and Citizens is “entitled to

judgment as a matter of law.” F ED. R. C IV. P. 56(c). In making this determination, we

“view the facts in the light most favorable” to Dowling and “draw all inferences” in her

favor. Marzano, 91 F.3d at 501.

       Citizens argues that even if Dowling made out prima facie cases for each of her

claims, it responded with legitimate, nondiscriminatory justifications for her termination.


       1
        Dowling brought claims under the Age Discrimination in Employment Act
(ADEA), 29 U.S.C. § 621 et seq., Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq., the Family Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., the
Americans With Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and the Pennsylvania
Human Relations Act (PHRA), 43 P.S. § 951 et seq.

                                              4
See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Fuentes v. Perskie, 32

F.3d 759, 763 (3d Cir. 1994). Dowling argues that Citizens’s justifications are

insufficient “to meet [her] prima facie case,” and that the justifications are “pretext for the

sort of discrimination prohibited” by Title VII, the ADEA, the ADA, the FMLA, and the

PHRA. McDonnell Douglas, 411 U.S. at 804.

       To show pretext, a claimant must present “some evidence . . . 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.” Fuentes, 32 F.3d at 764-65;

see Torre v. Casio, Inc., 42 F.3d 825, 830 (3d Cir. 1994). Most of Dowling’s arguments

focus on the former category of evidence.

       First, Dowling argues that Citizens proffered “inconsistent” and “shifting”

justifications for her discharge. It is true that inconsistency is indicative of pretext, see,

e.g., Fuentes, 32 F.3d at 764, but Citizens’s justifications were not inconsistent. When

Campbell fired Dowling, he told her that he lost “confidence in her as a manager.”

Subsequently, Citizens prepared an Equal Employment Opportunity Commission

statement indicating that Dowling was dismissed for: (1) her improper “gaming” in

checking accounts, and (2) her failure to properly supervise her staff (especially Braun

and Rotondo). These explanations are entirely consistent; the EEOC statement simply

specifies the reasons for Campbell’s loss of confidence in Dowling’s managerial abilities.



                                               5
       Second, Dowling argues that because she did not intentionally violate bank policy,

Citizens’s reliance on her “gaming” activities as a basis for her termination was

pretextual. We are unpersuaded because Citizens need not show that Dowling

intentionally violated company policy in order to have a legitimate reason for firing her.

See Kautz v. Met-Pro Corp., 412 F.3d 463, 467-68 (3d Cir. 2005). So long as Citizens’s

decision was not motivated by discriminatory animus, we defer to it. Id. at 468.

       Third, Dowling argues that she established pretext through evidence that Citizens

treated similarly situated employees more favorably. See Simpson v. Kay Jewelers, 142

F.3d 639, 645-46 (3d Cir. 1998). Specifically, she complains that Scott Vidovich, a “30-

year-old male branch manager” who failed to audit his tellers in accordance with bank

policy, and Teresa Rotondo, who engaged in gaming, received only warnings for their

conduct. We find these employees’ situations distinguishable.

       Vidovich, like Dowling, failed to properly supervise his employees, allowing one

to embezzle $69,800. Unlike Vidovich, however, Dowling’s negligent supervision was

compounded by her own gaming activities. Conversely, Rotondo engaged in gaming

activities, but she was a non-management employee under Dowling’s direct supervision.

Accordingly, Citizens had a legitimate reason to view Rotondo as less culpable and less

of a threat to the proper and efficient operation of the bank.

       Finally, Dowling shifts her focus from discrediting Citizens’s explanations to

suggesting “invidious discriminatory reason[s]” that “more likely than not” motivated the



                                              6
bank’s decision. Fuentes, 32 F.3d at 764. Dowling highlights Bullock’s testimony that

she believed Campbell was hiring “young kids” to replace older branch managers.

Bullock admitted, however, that her belief was based on “rumor [more] than anything

else.” Dowling also points to statistical evidence that she claims substantiates Bullock’s

speculation by showing that “only eight persons over the age of 50 were hired or

promoted to the position of branch manager out of a total of 39” applicants.

       This evidence falls short of demonstrating that discriminatory animus was more

likely than not a motivating factor in Citizens’s decision to fire Dowling. First, the

ADEA protects individuals over the age of forty, 29 U.S.C. § 631, and Dowling’s

statistics show that 15 of the 39 individuals promoted to branch manager fell into this

class. Second, Dowling’s statistics address neither the characteristics of the applicant

pool from which the remaining 24 “young kids” were selected nor the characteristics of

the branch managers they replaced. Without these comparisons, we cannot determine

whether qualified individuals over the age of 40 were rejected in favor of less qualified,

younger applicants. See Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 542-

43 (3d Cir. 1992).

                                             III.

       In short, Dowling presented insufficient evidence from which a reasonable

factfinder could conclude that Citizens’s legitimate, nondiscriminatory justification for

her dismissal was pretextual. Intentionally or otherwise, Dowling violated the bank’s



                                              7
policy against “gaming” and supervised her employees so negligently that one managed to

steal from the bank’s general ledger. Her supervisor’s loss of confidence in her as a

manager was neither pretextual nor improper. We will affirm the order of the District

Court.




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