                                                            NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                            _______________

                                 No. 11-2422
                               _______________


                           JOSEPH GREENAWALT,

                                            Appellant

                                       v.

                             CLARION COUNTY

                               _______________

                 On Appeal from the United States District Court
                    For the Western District of Pennsylvania
                     (D.C. Civil Action No. 2-09-cv-01489)
                  District Judge: Honorable Gary L. Lancaster
                               _______________

                   Submitted Under Third Circuit LAR 34.1(a)
                               January 23, 2012
                              _______________


         Before: AMBRO, CHAGARES and HARDIMAN, Circuit Judges

                        (Opinion filed: January 30, 2012)
                               _______________

                                  OPINION
                               _______________

AMBRO, Circuit Judge
       Joseph Greenawalt appeals the District Court’s grant of summary judgment to his

former employer, Clarion County, in his suit alleging unlawful employment

discrimination on the basis of age and gender. For the reasons that follow, we affirm.

                                             I.

       Because we write solely for the parties, we set forth only those facts necessary to

our decision. Greenawalt worked as a corrections officer at the Clarion County Jail from

November 2001, when he was hired at age 51, until August 2008, when he was

terminated at age 58. An investigation by the Deputy Warden in 2008 revealed that

Greenawalt, using an alias to conceal his identity, had been covertly mailing ―gifts‖ of

about $20 per week ($600 to $700 total) to a female inmate and depositing that money in

her account at the Jail. Clarion County Jail Administrative Policy A-106, which was in

place at the time of Greenawalt’s employment, restricted the permissible nature of

relationships between corrections officers and current and former inmates. It specifically

prohibited monetary gifts. When confronted, Greenawalt admitted that he sent the money

to the inmate under a false name and that his actions violated Policy A-106. After an

administrative hearing on the matter, Greenawalt was discharged.

       Greenawalt then sued Clarion County, claiming that he was discharged on the

basis of his age and gender in violation of the Age Discrimination in Employment Act of

1967 (ADEA), 29 U.S.C. § 621 et seq., Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e–2 et seq., and the Pennsylvania Human Relations Act (PHRA), 43 Pa.

Cons. Stat. Ann. § 951 et seq. Although Greenawalt admitted he knowingly violated



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Policy A-106, he claimed that he was treated less favorably than younger, mostly female,

corrections officers who violated that same policy.

       Greenawalt pointed to four comparators. Corrections Officer Bobbie Mangiantini

married a former inmate. She was also, according to some of her evaluations, too

―inmate-friendly.‖ Among other things, she reportedly had a snowball fight and played a

―foot game‖ with current inmates. The County did not discharge Mangiantini nor did it

ask her to resign. Corrections Officer Holly Parrish was permitted to resign, and did so,

after the County discovered that she had written a letter to a former inmate. Corrections

Officer April Johnston was given a oral warning for her involvement with a former

inmate on Facebook. Corrections Officer Brad Smith, according to Greenawalt, was also

involved with a former inmate and not disciplined.

       The District Court granted Clarion County’s motion for summary judgment. The

Court determined that Greenawalt failed to establish a prima facie case of age or gender

discrimination. Specifically, he did not produce evidence that would give rise to an

inference of discrimination because he did not show that he was treated differently than

similarly situated individuals who were not members of his protected class. Greenawalt’s

suggested comparators, according to the Court, were not similarly situated to him. It

found that the circumstances surrounding their violations of Policy A-106 (relationships

with former inmates) and the circumstances of his violation (covertly ―gifting‖ money to

a current inmate) were sufficiently distinguishable such that it was reasonable for the

County to treat their offenses differently. In addition, the Court assumed that even if

Greenawalt could establish a prima facie case, he offered insufficient evidence to suggest

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that Clarion County’s non-discriminatory reason for his termination (his violation of

Policy A-106) was merely pretext for unlawful discrimination. The Court also rejected

his mixed-motive and subordinate-bias theories. Greenawalt appeals.

                                             II.

       The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction

under 28 U.S.C. § 1291.

       We review de novo a grant of summary judgment. Regents of Mercerberg Coll. v.

Republic Franklin Ins. Co., 458 F.3d 159, 163 (3d Cir. 2006). Summary judgment is

proper when, viewing the evidence in the light most favorable to the non-movant, there is

no genuine issue of material fact and the moving party is entitled to judgment as a matter

of law. Fed. R. Civ. P. 56(a); Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).

                                            III.

       Greenawalt offers three theories of discrimination — a pretext theory, a mixed-

motive theory, and a subordinate-bias (or ―cat’s paw‖) theory. All three theories fail.

       We analyze Greenawalt’s pretext theory under the familiar McDonnell Douglas

burden shifting analysis.1 See Sheridan v. E.I. Dupont de Nemours & Co., 100 F.3d

1061, 1065-66 (3d Cir. 1996) (en banc). Under McDonnell Douglas, a plaintiff bears the

initial burden of making out a prima facie case of discrimination. If the plaintiff does so,

the burden shifts to the defendant to state a legitimate, non-discriminatory reason for the


1
 The same analysis applies to Greenawalt’s Title VII, ADEA, and PHRA claims. See
Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003); Kelly v. Drexel Univ., 94
F.3d 102, 105 (3d Cir. 1996).

                                             4
employment action. Once the defendant does so, the presumption of discriminatory

action is rebutted and the plaintiff must prove that the defendant’s stated reasons are a

pretext for unlawful discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802-04 (1973).

       To make out a prima facie case, Greenawalt must show, among other things, that

he suffered an adverse employment action under circumstances that give rise to an

inference of unlawful discrimination. See Jones v. Sch. Dist. of Phila., 198 F.3d 403,

410-11 (3d Cir. 1999). Those circumstances may include the more favorable treatment of

similarly situated individuals outside of the plaintiff’s protected class. Id.

       We agree with the District Court that Greenawalt did not meet his burden of

making out a prima facie case of discrimination. His proffered comparators are not

similarly situated to him. Although each of the corrections officers violated the same

policy (Policy A-106) as he did, none of them covertly deposited money in a current

inmate’s account at the jail. The County was well within its discretion in treating

Greenawalt’s case differently than those of his comparators. If a current inmate can

convince a corrections officer to send the inmate hundreds of dollars, the officer may be

subject to the inmate’s direction in other ways. In fact, according to Greenawalt, the

female inmate told other inmates that she ―owned‖ him. That is a security risk. It was

permissible for the County to believe that relationships with former inmates, though they

violate the policy, are not nearly as egregious as Greenawalt’s behavior.

       We also agree with the District Court that, assuming Greenawalt had established a

prima facie case of age or gender discrimination, the County has given a legitimate, non-

                                              5
discriminatory reason for Greenawalt’s termination, and Greenawalt has failed to present

evidence of pretext. ―In order to show pretext, a plaintiff must submit evidence which (1)

casts doubt upon the legitimate reason proffered by the employer such that a fact-finder

could reasonably conclude that the reason was a fabrication; or (2) would allow the fact-

finder to infer that discrimination was more likely than not a motivating or determinative

cause of the employee’s termination.‖ Doe v. C.A.R.S. Protection Plus, Inc., 527 F.3d

358, 370 (3d Cir. 2008). As proof of pretext, Greenawalt again points to the more

favorable treatment his comparators received. But, as we noted, his comparators did not

engage in similar conduct. We agree with the District Court that the County’s

―determination that Greenawalt committed a sufficiently egregious offense worthy of

termination was such that a fact-finder could not reasonably infer that Greenawalt’s

termination was a post hoc fabrication, or that Greenawalt’s age or gender motivated

[the] decision.‖

       Greenawalt’s mixed-motive theory also fails. To begin, a violation of the ADEA

cannot be shown using a mixed-motive theory. Smith v. City of Allentown, 589 F.3d 684,

690-91 (3d Cir. 2009). Under Title VII, a mixed-motive plaintiff may establish an

unlawful employment practice by demonstrating ―that race, color, religion, sex, or

national origin was a motivating factor for any employment practice, even though other

factors also motivated the practice.‖ 42 U.S.C. § 2000e-2(m). The plaintiff is not

required to present direct evidence of discrimination in order to proceed on a mixed-

motive theory under Title VII. Desert Palace, Inc. v. Costa, 539 U.S. 90, 92 (2003).

Circumstantial evidence of discrimination is sufficient. Id. at 99-100. As our discussion

                                            6
above makes clear, Greenawalt presents no direct or circumstantial evidence that his

gender was a motivating factor in his termination.

       Finally, Greenawalt cannot proceed on a subordinate-bias, or ―cat’s paw,‖ theory

of discrimination. A plaintiff may proceed on this theory if he offers evidence that ―those

exhibiting discriminatory animus influenced or participated in the decision to terminate‖

him. Abramson v. William Patterson Coll. of N.J., 260 F.3d 265, 286 (3d Cir. 2001).

Greenawalt claims that the County relied on the Jail’s Warden to provide them with the

facts on which they based their termination decision. However, he has failed to point to

any evidence that the Warden had discriminatory, bad intent toward him.

                                     *   *   *   *   *

       For these reasons, we affirm the order of the District Court granting Clarion

County summary judgment.




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