                                                              NOT PRECEDENTIAL


        UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                                     No. 09-1944




                                SHERRIE VERNON,
                                              Appellant

                                          v.

                                   A&L MOTORS




                   On Appeal from the United States District Court
                      for the Western District of Pennsylvania
                              (D.C. No. 2-07-cv-01508)
                          District Judge: Joy Flowers Conti




                     Submitted Under Third Circuit LAR 34.1(a)
                                February 12, 2010

             Before: SLOVITER, ROTH, and TASHIMA,* Circuit Judges

                                (Filed: May 26, 2010)

                                        ____

                                      OPINION




*Honorable A. Wallace Tashima, Senior Judge of the United States Court of Appeals for
the Ninth Circuit, sitting by designation.
TASHIMA, Circuit Judge.

      Sherrie Vernon appeals the District Court’s grant of A&L Motors’ (“A&L”)

Motion for Summary Judgment in her action alleging gender discrimination in violation

of Title VII, 42 U.S.C. § 2000e, et seq., and the Pennsylvania Human Relations Act

(“PHRA”), 43 Pa. Cons. Stat. § 951, et seq. We affirm.1

                                            I.

      Vernon worked as an Accounts Payable/Accounts Receivable clerk at A&L, an

automobile dealership owned by Steve and Brian Lamfrom. App. 20, 73-74, 183, 443,

476. She was hired on April 30, 2007, by Kim Beter, A&L’s female Office Manager,

who is responsible for supervising the Accounting Department. App. 66-67, 69, 330,

478. Vernon’s pay was $12.00 an hour, a higher rate than A&L typically paid those with

her position, because Vernon reported to Beter that she had 16 years of accounting

experience. App. 66-68, 139, 784-800.

      A&L also has an After Sales Department, which Richard Brooks manages. App.

222, 735. Ron Koski, a Warranty Administrator, is an the employee in that department.

App. 111, 741-42. Brooks hired Koski around August 2005. App. 699, 741-42.

      Both Brooks and Beter report directly to the Lamfroms, but each has the authority




                   1
                      The District Court had jurisdiction over Vernon’s Title
            VII claim pursuant to 28 U.S.C. §§ 1331 & 1343(a) and over her
            PHRA claim pursuant to 28 U.S.C. § 1367(a). We have
            jurisdiction pursuant to 28 U.S.C. § 1291.

                                            2
to make hiring and firing decisions with respect to the employees in their respective

departments. App. 125, 220-21, 478-79, 739-40.

       On June 18, 2007, Beter learned that Vernon disclosed her wages in front of

Koski, who allegedly became upset because he was being paid less than a woman.2 App.

120, 239-40. Steve Lamfrom confronted Beter, asking her, “Who is this girl upstairs that

is causing a problem and going around talking about her wages?” and stating, “Get rid of

her.” App. 82, 239-40. Beter investigated the incident, first asking Vernon whether she

had disclosed her wages to anyone. App. 126-27. After Vernon denied having done so,

Beter went to find Steve Lamfrom, presumably to clear up the misunderstanding. App.

245. On her way, Beter ran into Brooks, who confirmed that Vernon had disclosed her

wages to him in Koski’s presence. App. 126-27, 245-46. Beter then called Vernon into

her office, and Vernon confirmed what Brooks said. App. 127-28, 256-57. Beter then

fired Vernon. App. 129, 250-52. She told Vernon that she had to fire her because Koski

complained that Vernon made more money than him. App. 129, 130-31. Vernon testified

at her deposition that Beter also told her she had to fire her or else Steve Lamfrom would

make Beter’s life “a living hell.” App. 129. In Vernon’s termination paperwork, Beter



                   2
                     Beter denies that Koski complained that a woman was
            making more than he was. App. 242. Koski claims that he never
            complained that Vernon was making more than him and that he
            was given a raise unexpectedly based on merit. App. 710-11, 716-
            17. Viewing the facts in the light most favorable to Vernon, we
            assume that Koski complained that he was being paid less than a
            woman.

                                             3
indicated that Vernon had been fired for disclosing her wages contrary to company

policy.3 App. 259, 271-72. Although Beter testified that Vernon’s performance had been

deficient, she did not bring the deficiency up with Vernon when she fired her or include it

in the termination paperwork. App. 259, 271.

       Vernon was replaced by a female. App. 179-80. Koski was given a raise two to

three weeks after Vernon was terminated. App. 716-17.

       Vernon filed a charge with the Equal Employment Opportunity Commission

(“EEOC”) alleging gender discrimination, App. 19, and the EEOC issued a Notice of

Right to Sue. Vernon timely sued in federal court, alleging gender discrimination under

Title VII and the PHRA. App. 22-23. A Magistrate Judge issued a Report &

Recommendation (“R&R”) finding that Vernon failed to make out a prima facie case of

gender discrimination and that even if she had, Vernon failed to rebut A&L’s legitimate,

non-discriminatory business reasons for terminating her. The District Court adopted the

Magistrate Judge’s R&R, granting summary judgment to A&L.4


                   3
                       Vernon points out that A&L has identified several other
            reasons for terminating her, suggesting that Vernon’s wage
            disclosure was pretextual. Although A&L has pointed to multiple
            reasons for Vernon’s termination, it has not abandoned its initial
            reason, nor has it identified any reasons that are inconsistent with
            this initial reason.
                   4
                     We exercise plenary review over the District Court’s grant
            of summary judgment. Abramson v. William Patterson Coll. of
            N.J., 260 F.3d 265, 276 (3d Cir. 2001). If there is no genuine issue
            as to any material fact and the moving party is entitled to judgment
            as a matter of law, we affirm the District Court’s ruling. Fed. R.

                                             4
                                              II.

       Title VII prohibits discrimination with respect to “compensation, terms,

conditions, or privileges of employment because of . . . sex[.]” 42 U.S.C. § 2000e-

2(a)(1).5 Where, as here, there is no direct evidence of gender discrimination, we apply

the McDonnell Douglas burden-shifting framework. See McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802 (1973). Under this framework, Vernon must first establish a

prima facie case of gender discrimination by showing that: (1) she is a member of a

protected class; (2) she is qualified for the position in question; (3) she suffered an

adverse employment action; and (4) circumstances exist that give rise to an inference of

unlawful discrimination. See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253

(1981); Jones v. Sch. Dist. of Phila., 198 F.3d 403, 410-11 (3d Cir. 1999); Pivirotto v.

Innovative Sys., Inc., 191 F.3d 344, 357 (3d Cir. 1999). Because A&L does not dispute

Vernon’s ability to establish the first three elements, we turn to the fourth element.

       Vernon argues that a similarly situated individual outside of her protected class

engaged in the same conduct as she did and was treated more favorably. The


             Civ. P. 56(c)(2). In our review, we must view the facts in the light
             most favorable to Vernon, the non-moving party. See Abramson,
             260 F.3d at 276.
                    5
                      As the District Court noted, for the purpose of deciding an
             employer’s motion for summary judgment in an action under Title
             VII and the PHRA, the standards under the federal and state
             statutes are the same. See Jones v. Sch. Dist. of Phila., 198 F.3d
             403, 409 (3d Cir. 1999). Accordingly, our decision with respect to
             Vernon’s Title VII claim applies as well to her PHRA claim.

                                               5
identification of such an individual may give rise to an inference of unlawful

discrimination. See id. at 358-59; Bennun v. Rutgers State Univ., 941 F.2d 154, 170 (3d

Cir. 1991), abrogated on other grounds by St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,

515-16 (1993). “[I]n determining whether similarly situated male employees were treated

more favorably, our ‘focus is on the particular criteria or qualifications identified by the

employer as the reason for the adverse action.’” Pivirotto, 191 F.3d at 359 (quoting

Simpson v. Kay Jewelers, 142 F.3d 639, 647 (3d Cir. 1998)).

       The only comparator Vernon identifies is Koski. However, Koski performed a

different job than Vernon, in a different department, for a different supervisor. See

Pivirotto, 191 F.3d at 359 (holding that male employee, who was in-house counsel to

employer, was not similarly situated to plaintiff, who was director of regional sales

operations). Moreover, unlike Vernon, who disclosed her wage in front of a co-worker,

Koski only disclosed his wage to his supervisor, not another co-worker. See id. (holding

that male employee was not similarly situated where plaintiff was fired for a “tendency to

blame others” and there was no evidence that male employee had exhibited a similar

tendency).

       Also undermining any inference of unlawful discrimination is the fact that Beter,

the woman who initially hired Vernon, was responsible for firing her. Vernon seeks to

attribute the adverse employment action to either Steve Lamfrom or Koski. However, her

attempt to paint Beter as merely fulfilling the wishes of Steve Lamfrom is defeated by the



                                              6
evidence that Beter conducted her own investigation of the matter and was prepared to

advocate on Vernon’s behalf when Beter was under the impression that the charges of

wage disclosure by Vernon were unfounded.

       Vernon’s suggestion that Koski somehow influenced the decision-maker

responsible for the adverse employment action also fails. Although, viewing the facts in

the light most favorable to Vernon, the inference can be drawn that Koski had a gender

bias, there is no basis for attributing that bias to Beter or the Lamfroms – especially

because the underlying complaint was that Vernon was being paid more than Koski.

       In sum, Vernon has not established any causal nexus between her membership in a

protected class and the decision to terminate her. See Sarullo v. U.S. Postal Serv., 352

F.3d 789, 798 (3d Cir. 2003). Accordingly, Vernon has failed to make out a prima facie

case of gender discrimination.

       Because we conclude that Vernon has failed to make out a prima facie case, we

need not reach the issue whether Vernon established that A&L’s proffered reasons for

terminating her were pretextual.6



                    6
                       We reject Vernon’s assertion that once a defendant has
             offered a legitimate reason for the adverse employment action, the
             prima facie inquiry becomes “irrelevant.” The cases on which
             Vernon relies merely hold that once a plaintiff has successfully
             established a prima facie case and the defendant has proffered a
             legitimate, non-discriminatory business reason to rebut it, the
             analysis proceeds to the ultimate question whether the plaintiff has
             established discrimination. See, e.g., Reeves v. Sanderson
             Plumbing Prods., Inc., 530 U.S. 133, 142-43 (2000) (holding that

                                              7
                                    III.

For the above-stated reasons, the judgment of the District Court will be affirmed.




     once the plaintiff establishes a prima facie case of discrimination
     and the defendant meets its burden of production to show a
     legitimate, nondiscriminatory reason for its decision, “the
     McDonnell Douglas framework – with its presumptions and
     burdens – disappear[s] and the sole remaining issue [is]
     discrimination vel non.” (internal citations and quotation marks
     omitted)). That a defendant can meet its burden of production does
     not excuse a plaintiff’s failure to make a prima facie case.
                                   8
