                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 11-3898
                                     ___________

                                 RICHARD CAREY,
                                           Appellant

                                              v.

                            FEDERAL EXPRESS CORP.
                      ____________________________________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                        (D.C. Civil Action No. 2-10-cv-02155)
                     District Judge: Honorable Faith S. Hochberg
                     ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  March 18, 2013

               Before: RENDELL, FISHER and GARTH, Circuit Judges

                            (Opinion filed: March 20, 2013)
                                    ___________

                                      OPINION
                                     ___________

PER CURIAM

      Richard Carey appeals pro se from the District Court’s orders granting summary

judgment in favor of the defendant and denying Carey’s related motions, including his

motion for reconsideration. We will affirm.
                                             I.

       Richard Carey, a Caucasian male, was employed by Federal Express Corporation

(“FedEx”), for approximately twenty-three years. In December 2008, Carey was accused

of violating the company’s Reduced Rate Shipping and FedEx Office Discount policy,

which prohibited FedEx employees from using their discounted shipping rate for any

business or commercial enterprise. Discipline for violating the policy included the

possibility of termination. An internal FedEx investigation revealed that, over the course

of twenty-one months, Carey’s discounted shipping number was used to make 382

commercial shipments. He was subsequently terminated in January 2009, at the age of

fifty-three.

       In a complaint filed pro se with the District Court, Carey alleged that he was fired

on the basis of his age and race in violation of both the Age Discrimination in

Employment Act (“ADEA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”).

Although he admitted using his employee rate to send a few packages for a commercial

enterprise, he asserted that he was unaware of the vast majority of the shipments made

from his account. Moreover, he claimed that non-Caucasian FedEx employees

committed similar violations but were not terminated. He also alleged that he was

replaced by two younger employees who were paid a lower wage than he was at the time

he was terminated.

       FedEx moved for summary judgment, arguing that Carey: (1) did not provide any

evidence to establish a prima facie case of age or race discrimination; (2) was actually

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fired for violating the company’s reduced rate shipping policy; and (3) did not put forth

admissible evidence that would cast doubt on the company’s legitimate,

nondiscriminatory reason for terminating him. Carey’s opposition to summary judgment

contained many of the same assertions as his Equal Employment Opportunity

Commission complaint, but included two exhibits that documented the existence of a

possible comparator.

       After the Magistrate Judge entered the Final Pretrial Order (and after Carey filed

his opposition to summary judgment), Carey moved the court for additional discovery to

obtain evidence relating to two particular FedEx employees who Carey believed violated

the reduced rate shipping policy. The court granted Carey’s request to amend the Final

Pretrial Order to add the names of witnesses with knowledge about the two particular

employees, but denied his request for additional discovery. However, the District Court

docket does not reflect whether Carey actually submitted an amended list for the Final

Pretrial Order.

       In its opinion and order granting summary judgment in favor of FedEx, the

District Court reasoned that Carey failed to demonstrate either: (1) a prima facie case of

race- or age-based discrimination; or (2) facts giving rise to an inference that FedEx’s

proffered reason for terminating Carey was pretext. The District Court subsequently

denied Carey’s motion for reconsideration. Carey now appeals.




                                             3
                                               II.

       We have jurisdiction pursuant to 28 U.S.C. § 1291 and exercise plenary review

over the District Court’s decision granting summary judgment. See Alcoa, Inc. v. United

States, 509 F.3d 173, 175 (3d Cir. 2007). Summary judgment is appropriate when the

movant demonstrates “that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We review the

denial of a motion for reconsideration for abuse of discretion. Lazaridis v. Wehmer, 591

F.3d 666, 669 (3d Cir. 2010). We may affirm the District Court on any grounds

supported by the record. See Nicini v. Morra, 212 F.3d 798, 805 (3d Cir. 2000). For the

following reasons, we will affirm.

       A. ADEA claim

       Summary judgment was warranted on Carey’s ADEA claim, which is governed by

the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973). See Smith v. City of Allentown, 589 F.3d 684, 689 (3d Cir. 2009). “When

the plaintiff alleges unlawful discharge based on age, the prima facie case requires proof

that (i) the plaintiff was a member of the protected class, i.e., was 40 years of age or

older, (ii) that the plaintiff was discharged, (iii) that the plaintiff was qualified for the job,

and (iv) that the plaintiff was replaced by a sufficiently younger person to create an

inference of age discrimination.” Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101,

1108 (3d Cir. 1997) (en banc) (citations omitted). Once a plaintiff makes out a prima

facie case, “[t]he burden of production . . . shifts to the [employer], who must then offer

                                                4
evidence that is sufficient, if believed, to support a finding that it had a legitimate,

nondiscriminatory reason for the discharge.” Id. If the employer satisfies that burden,

the plaintiff can overcome summary judgment with evidence “that the employer’s

proffered rationale was a pretext for age discrimination.” Smith, 589 F.3d at 690.

       There is no dispute that Carey established the first three elements of a prima facie

ADEA claim, but he did not provide admissible evidence that he was replaced by

younger employees. After FedEx filed its reply to Carey’s brief in opposition to

summary judgment, but before the court granted summary judgment, Carey submitted a

letter to the court requesting additional time for discovery. However, Carey did not

provide specified reasons for his failure to present facts regarding the age of the

employees who replaced him, nor was his request to the court styled as a declaration or

affidavit. See Fed. R. Civ. P. 56(d); see Dowling v. City of Phila., 855 F.2d 136, 140 (3d

Cir. 1988) (“[F]iling an affidavit is necessary for the preservation of a Rule [56(d)]

contention that summary judgment should be delayed pending further discovery.”)

(citations omitted).

       Moreover, although the District Court gave Carey additional time to add witnesses

to the Final Pretrial Order, Carey nonetheless failed to provide evidence regarding his

replacements. Carey did not claim that FedEx failed to respond to his discovery requests

until the time that he filed his motion for reconsideration, which was after the court had

already granted summary judgment in favor of FedEx. Therefore, Carey’s attempts at

demonstrating why he was unable to present facts essential to justify his opposition

                                               5
would not have satisfied Rule 56(d), and the District Court did not abuse its discretion in

denying Carey’s request for additional discovery.

       Even assuming that Carey had established a prima facie case based on the

evidence in the record, his ADEA claim would have failed because he lacks any evidence

of pretext. FedEx proffered the legitimate, nondiscriminatory reason that Carey was

terminated for violating the company’s reduced rate shipping privileges. Short of

providing any evidence regarding his replacements, Carey has not brought into question

whether his age was more likely than not the “but-for” cause of his termination. See

Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009). Summary judgment was

therefore warranted on Carey’s ADEA claim.

       B. Title VII claim

       As recognized by the District Court, the McDonnell Douglas burden-shifting

analysis also applies to claims of reverse discrimination. Iadimarco v. Runyon, 190 F.3d

151, 158 (3d Cir. 1999). To establish a prima facie case of reverse discrimination, the

plaintiff must present “sufficient evidence to allow a reasonable fact finder to conclude

(given the totality of the circumstances) that the defendant treated [him] less favorably

than others because of his race. . . .” Id. at 163 (citation omitted). After the plaintiff

establishes a prima facie case of discrimination, the burden shifts to the employer to

articulate some legitimate, nondiscriminatory reason for its adverse action. See id. at

157. If the employer offers some evidence of a legitimate, nondiscriminatory reason, a

plaintiff must then show that the stated reason was in fact pretext. Id. at 157-58.

                                               6
       Even assuming Carey established a prima facie case of reverse discrimination,

FedEx met its burden of identifying a legitimate, nondiscriminatory reason for firing

Carey. Neither party disputes that Carey violated FedEx’s reduced rate shipping policy,

or that the policy provides for termination as a possible penalty. Carey then faced the

“difficult burden” of demonstrating “such weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions in the employer’s proffered legitimate reasons for its

action that a reasonable factfinder could rationally find them unworthy of credence.”

Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994) (internal quotation marks and citation

omitted). Carey has failed to produce any evidence that would lead to the inference that

FedEx’s proffered reason for terminating Carey was mere pretext.

       Among the exhibits submitted alongside his brief in opposition to summary

judgment are two documents that demonstrate the existence of a possible comparator:

(1) a warning letter from a manager at FedEx to another employee; and (2) a copy of the

executive summary of FedEx’s Guaranteed Fair Treatment Procedure that FedEx

apparently produced as a result of Carey’s challenge to his termination. These documents

demonstrate that another employee was suspended, but not terminated, for violating the

company’s reduced rate shipping policy. However, Carey stated in his deposition

testimony that he and the other employee did not work in the same regional office or for

the same supervisors. He has therefore failed to show that the other employee was, in

fact, similarly situated. See Kosereis v. Rhode Island, 331 F.3d 207, 214 (1st Cir. 2003)

(“[E]xamples of disparate treatment need not be perfect replicas, but they must closely

                                             7
resemble one another in respect to relevant facts and circumstances.”) (internal quotations

and citation omitted); Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 802 (6th Cir.

1994) (stating that in order to show that an employee is “similarly situated,” all of the

relevant aspects of employment need to be nearly identical); see also Johnson v. Kroger

Co., 319 F.3d 858, 867 (6th Cir. 2003) (“In the context of personnel actions, the relevant

factors for determining whether employees are similarly situated often include the

employees’ supervisors, the standards that the employees had to meet, and the

employees’ conduct.”) (citation omitted).

       C. Carey’s motion for reconsideration

       Generally, motions for reconsideration under Federal Rule of Civil Procedure

59(e) must rely on one of the following three grounds: “(1) an intervening change in

controlling law; (2) the availability of new evidence; or (3) the need to correct clear error

of law or prevent manifest injustice.” Lazaridis, 591 F.3d at 669 (internal citation

omitted). Because Carey merely argued that he would be able to meet his burden of

proof by questioning his witnesses on the stand at trial, he did not demonstrate any of the

grounds justifying Rule 59(e) relief. Therefore, the District Court did not abuse its

discretion in denying Carey’s motion for reconsideration.

       For the foregoing reasons, we will affirm the judgment of the District Court.




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