                                                           NOT PRECEDENTIAL
                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                 ________

                                     No. 12-1914
                                     _________

                              PATRICIA L. CATULLO
                                            Appellant
                                       v.

                       LIBERTY MUTUAL GROUP, INC.;
                   LIBERTY MUTUAL INSURANCE COMPANY
                                ________

                   On Appeal from the United States District Court
                            for the District of New Jersey
                              (D.C. No. 1-09-cv-03359)
                    District Judge: Honorable Robert B. Kugler
                                       _______

                     Submitted Under Third Circuit LAR 34.1(a)
                                December 21, 2012

      Before: MCKEE, Chief Judge, SLOVITER, and VANASKIE, Circuit Judges

                              (Filed: January 14, 2013)
                                   ______________

                                    OPINION
                                  _______________

SLOVITER, Circuit Judge.


      Patricia Catullo appeals the District Court’s grant of summary judgment in favor

of her former employer, Liberty Mutual Group, Inc. and Liberty Mutual Insurance

Company, Inc. (collectively “Liberty Mutual”). The District Court granted summary


                                           1
judgment on Catullo’s age discrimination and intentional infliction of emotional distress

(“IIED”) claims. We will affirm the District Court’s grant of summary judgment on

Catullo’s age discrimination claim and vacate the dismissal of her IIED claim. 1

                                            I.

      Catullo began working for Liberty Mutual in May 1998. She was hired as a

Claims Specialist III and was promoted to Senior Claims Specialist I in 2000. She held

this position until she was terminated in 2008. In 2006, Catullo was transferred from the

Personal Injury Protection (“PIP”) litigation department to the PIP medical claims unit.

      In November 2008, supervisor Rose Salcedo became suspicious that Jen Bailey,

an adjuster at Liberty Mutual, was improperly discarding documents into recycling bins,

instead of placing them in claim files. Salcedo and Lisa Kerns, a manager, secured the

bins and attempted to identify improperly discarded documents and which adjusters were

responsible for those documents. Kerns and Salcedo attributed one stack of documents to

Jen Bailey, one stack to Glenn Moorehead, and some documents to Catullo. In

December 2008, Catullo was told that she was being terminated for cause for improperly

discarding documents. She was fifty-nine years old when she was terminated.




1
  The District Court had jurisdiction under 28 U.S.C. § 1332 and we have jurisdiction
under 28 U.S.C. § 1291. We review de novo a district court’s grant of summary
judgment and we employ the same standard as applied below. DeHart v. Horn, 390 F.3d
262, 267 (3d Cir. 2004). “A district court may grant summary judgment when there is no
genuine issue of material fact to be resolved at trial and the moving party is entitled to
judgment as a matter of law.” Id.
                                            2
                                             II.

       Catullo brings her age discrimination claim pursuant to the New Jersey Law

Against Discrimination (“the LAD”). N.J. STAT. ANN. § 10:5-1 et seq. (West 2002 &

Supp. 2012). The LAD makes it unlawful for an employer to “discharge or require to

retire . . . from employment [an] individual or to discriminate against [an] individual in

compensation or in terms, conditions or privileges of employment” on the basis of age.

§ 10:5-12(a). Catullo presents circumstantial evidence and no direct evidence of age

discrimination. In cases under the LAD where a party presents circumstantial evidence

of discrimination, New Jersey has adopted the McDonnell Douglas burden-shifting

analysis. Monaco v. Am. Gen. Assurance Co., 359 F.3d 296, 300 (3d Cir. 2004); Bergen

Commercial Bank v. Sisler, 723 A.2d 944, 954-55 (N.J. 1999). Under the McDonnell

Douglas standard, Catullo must first present evidence to establish a prima facie case of

discrimination. Bergen, 723 A.2d at 955. Liberty Mutual must then come forward with

“admissible evidence of a legitimate, non-discriminatory reason” for the adverse action

challenged. Id. The burden then shifts back to Catullo, “who has ‘the opportunity to

prove by a preponderance of the evidence that the legitimate nondiscriminatory reason

articulated by the defendant was not the true reason for the employment decision but was

merely a pretext for discrimination.’” Id. (quoting Andersen v. Exxon Co., U.S.A., 446

A.2d 486, 491 (N.J. 1982)).

       Catullo alleges three adverse actions taken against her by Liberty Mutual:

wrongful termination, discriminatory transfer, and failure to promote. We assume, as the

District Court did, that Catullo has established prima facie cases of discrimination for

                                             3
these three adverse actions. 2 Liberty Mutual provides legitimate nondiscriminatory

reasons for taking these actions. Catullo is unable to prove these reasons are pretextual,

warranting dismissal of her age discrimination claim.

       As an initial matter, Catullo argues that the District Court erred in requiring her to

“show not only that the defendant employer’s supposed legitimate nondiscriminatory

reason was false, but also that discrimination was the real reason for termination,” in

order to establish pretext. Catullo v. Liberty Mut. Grp., Inc., No. 09-3359, 2012 WL

762163, at *5 (D.N.J. March 6, 2012) (internal quotation marks omitted). As we have

stated, a plaintiff must prove both that the asserted reason is false and that discrimination

is the real reason at trial. See Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). At the

summary judgment stage, a plaintiff can show pretext by either means. Id. at 764; see

also Bergen, 723 A.2d at 955. 3 However, as Catullo cannot establish pretext under either


2
  Liberty Mutual argues that the discriminatory transfer was not an adverse action, as
Catullo experienced no material changes as a result of the transfer. “Under the LAD, an
adverse employment action is one sufficiently severe or pervasive to have altered
plaintiff's conditions of employment in an important and material manner.” Ivan v. Cnty.
of Middlesex, 595 F.Supp.2d 425, 470 (D.N.J. 2009) (internal quotation marks omitted).
Catullo argues this was an adverse employment action because her new position was a
“dead-end job where there were no claims personnel higher than Catullo’s ranking of
Senior Claims Specialist I.” Reply Br. at 10. She further testified that there was a
perception in the office that her new position was not as prestigious as her old position.
We will assume without deciding that the discriminatory transfer is an adverse
employment action.
3
  There may be some confusion on this point. See Bergen, 723 A.2d at 955 (“An
employee may [show pretext at the summary judgment stage] either by persuading the
court directly that a discriminatory reason more likely motivated the employer or
indirectly by showing that the employer's proffered explanation is unworthy of
credence.”) (internal quotation marks omitted). But see Henry v. N.J. Dep’t of Human
Servs., 9 A.3d 882, 889 (N.J. 2010) (stating that to prove pretext at the summary
judgment stage, “the plaintiff must show that the employer's reason was both false and
                                              4
prong, we will affirm the District Court’s judgment. See Nicini v. Morra, 212 F.3d 798,

805 (3d Cir. 2000) (en banc) (“We may affirm the District Court on any grounds

supported by the record.”).

A. Wrongful Termination

       Liberty Mutual states that Catullo was terminated because an investigation, led by

Kerns, established that Catullo had improperly discarded documents in the recycling bins.

       To demonstrate pretext, Catullo first argues that Kerns conducted a sham

investigation and “engaged in a witch-hunt in an effort to frame Catullo.” Appellant’s

Br. at 12. Catullo points to several alleged flaws in the investigation. However, this is

not enough to show pretext. Kerns testified as to her reasons for attributing certain

documents to Catullo. For example, Kerns matched the claim number on the document

to Catullo’s claim number; additionally, Catullo’s name appears on several of the

documents. “To discredit the employer's proffered reason . . . . the non-moving plaintiff

must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions in the employer's proffered legitimate reasons for its action” that a

reasonable factfinder can find them “unworthy of credence.” Fuentes, 32 F.3d at 765

(internal citations and quotation marks omitted). Catullo has not met her burden of

demonstrating such inconsistencies and contradictions here.

       Catullo also argues that the District Court erred in pointing to Jen Bailey and

Glenn Moorehead as further evidence to substantiate Liberty Mutual’s reason for

motivated by discriminatory intent.”) (internal quotation marks omitted). In this case, as
Catullo’s evidence is insufficient under either prong, her discrimination claim can be
dismissed under both standards.
                                              5
Catullo’s termination. The District Court did not err in pointing to Bailey and

Moorehead. Bailey and Moorehead, both significantly younger than Catullo, were

accused of improperly discarding mail at the same time as Catullo, under the same

investigation, with the same supervisors involved in the decision to terminate. Catullo,

Bailey, and Moorehead were all terminated as a result. Instead, Catullo states that the

Court should have compared her to other employees who improperly discarded

documents at different periods of time but were not terminated. Catullo does not provide

enough evidence to demonstrate that these other employees are sufficiently similar to her.

Thus, she does not establish that they were proper comparators.

       Finally, Catullo argues that the District Court improperly ignored statistical

evidence regarding terminations at Liberty Mutual and erred in requiring expert

testimony to prove discrimination. Under Third Circuit precedent, Catullo is “not

precluded from introducing statistical evidence as circumstantial evidence of

discrimination.” Abrams v. Lightolier Inc., 50 F.3d 1204, 1217 (3d Cir. 1995). Such

statistical evidence in disparate treatment cases, such as this one, does not have to be “so

finely tuned.” Bruno v. W.B. Saunders Co., 882 F.2d 760, 767 (3d Cir. 1989). However,

a court can disregard or give little weight to statistical evidence that it finds to be

unconvincing. See Castillo v. Am. Bd. of Surgery, 221 F.Supp.2d 564, 570 (E.D. Pa.

2002) (stating that the evidence provided was statistically insignificant); Riding v.

Kaufmann’s Dep’t Store, 220 F.Supp.2d 442, 459 (W.D. Pa. 2002) (holding that as

plaintiff did not place her statistics in context, she did not raise an inference of

discrimination). Here, the District Court did not give weight to the statistics presented, as

                                               6
Catullo had not meaningfully analyzed them. We agree with the District Court and find

Catullo’s statistics insufficient to show pretext. As Catullo has not shown that Liberty

Mutual’s reason for terminating her is pretextual, we affirm the District Court on this

claim.

B. Discriminatory Transfer

         Catullo states that she was transferred to a less prestigious position in the PIP

medical claims unit in 2006 for discriminatory reasons. Liberty Mutual states that

Catullo had trouble meeting deadlines and performing effectively in the PIP litigation

unit and therefore was transferred to a unit with “less stringent requirements.” Appellee’s

Br. at 29. Catullo argues that there is no evidence to support this claim. However,

Liberty Mutual’s proffered reason is supported by comments in employment evaluations

of Catullo for the years 2003, 2004, and 2005, written by Kendra Godwin. Godwin

noted, for example, that Catullo “has been severely behind in addressing her new

arbitration and litigation assignments” App. at 427, and that “[l]itigation assignment

backlog is still a major issue.” App. at 428. Kerns, who made the decision to transfer

Catullo, also testified that Godwin told her Catullo was having trouble managing her

workload. Catullo does not provide sufficient evidence to show that Liberty Mutual’s

reason for her transfer is pretextual.

C. Failure to Promote

         Catullo was promoted from Claims Specialist III to Senior Claims Specialist I in

2000. She alleges that she was not promoted after this time for discriminatory reasons.

Liberty Mutual states that Catullo was not promoted due to her inadequate performance

                                                7
at work. Liberty Mutual points to Catullo’s annual reviews for support. For example, in

2007, Catullo’s supervisor Stanley Gorecki rated her overall performance as below the

range of effective performance, stating, “Pat continues to have a difficult time managing

her caseload and keeping it current. As a Sr. Claims Specialist Pat should be better

organized and self-disciplined to ensure the successful management of her active

caseload and her in-box.” App. at 217.

       To demonstrate pretext, Catullo first states that other younger employees were

promoted to Senior Claims Specialist II. However, she does not produce any evidence to

show that these employees were similarly situated to her, such as by having received

similarly negative evaluations. Catullo also states that Gorecki’s supervisors told him to

lower Catullo’s evaluation ratings and raise the ratings of younger employees. Gorecki

testified that he was told by Linda Frey and Kevin Rawlins to lower or raise the ratings

for certain employees according to perceptions of those employees’ performances. He

was told to lower the ratings for Catullo and Rita Thompson, an employee younger than

Catullo, because Frey and Rawlins felt they “weren’t performing up to standard.” App.

at 783. Therefore, Catullo does not show that Liberty Mutual’s reason for not promoting

her is pretextual.

                                            III.

       The District Court erred in dismissing Catullo’s IIED claim, as Catullo did not

have notice that this claim would be considered as part of the summary judgment motion.

A court must “giv[e] notice and a reasonable time to respond” before granting a motion

for summary judgment on “grounds not raised by a party.” Fed. R. Civ. P. 56(f)(2); see

                                             8
also Otis Elevator Co. v. George Washington Hotel Corp., 27 F.3d 903, 910 (3d Cir.

1994) (“Under our cases, a district court may not grant summary judgment sua sponte

unless the court gives notice and an opportunity to oppose summary judgment.”); Bradley

v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1069 (3d Cir. 1990) (noting that in a summary

judgment proceeding, nonmovant has ten days to “marshall his or her evidence to show

that there is a genuine issue of material fact”). A party has notice when it “had reason to

believe the court might reach the issue and received a fair opportunity to put its best foot

forward.” Gibson v. Mayor & Council of Wilmington, 355 F.3d 215, 223 (3d Cir. 2004)

(internal quotation marks omitted).

       Here, as the District Court itself noted, Liberty Mutual’s motion for summary

judgment did not address Catullo’s IIED claim. However, the Court reached the merits

of the IIED claim because in its summary judgment motion, Liberty Mutual stated

summarily that it moved for judgment on all claims. This is insufficient to put Catullo

on notice that her IIED claim would be considered by the Court, as Liberty Mutual did

not present any facts or legal analysis related to this claim. See Sealey v. Giltner, 116

F.3d 47, 52 (2d Cir. 1997) (“A party has no obligation to respond to grounds that the

moving party does not raise in a summary judgment motion.”); Edwards v. Honeywell,

Inc., 960 F.2d 673, 674 (7th Cir. 1992) (“Honeywell never raised the causation ground in

support of its motion for summary judgment. As such, Mrs. Edwards was not required

to present evidence sufficient to raise an issue of material fact as to whether Honeywell's

alleged negligence caused her husband's death; for its part, the district court was

precluded from granting summary judgment on that ground.”). Therefore, we remand the

                                              9
IIED claim, so that Catullo may be given a chance to marshall her evidence before the

District Court considers summary judgment.

                                           IV.

              As Catullo does not present sufficient evidence of pretext, we affirm the

District Court’s dismissal of her age discrimination claim. We vacate the dismissal of the

IIED claim, as Catullo was not provided the required notice, and remand that claim to the

District Court.

_____________________




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