                                                                              NOT PRECEDENTIAL

                            UNITED STATES COURT OF APPEALS
                                 FOR THE THIRD CIRCUIT
                                    ________________

                                             No. 12-2201
                                          ________________

                                       LAVOTTE SAUNDERS,

                                                                   Appellant
                                                     v.

               APOTHAKER & ASSOCIATES, INC.; DAVID APOTHAKER

                                          ________________

                           Appeal from the United States District Court
                                   for the District of New Jersey
                             (D.C. Civil Action No. 1-10-cv-03170)
                            District Judge: Honorable Joseph E. Irenas
                                        ________________

                                     Argued November 19, 2013

                          Before: AMBRO, and SMITH, Circuit Judges
                           and O’CONNOR, * Associate Justice (Ret.)

                                  (Opinion filed: February 4, 2014)

Christine E. Burke, Esquire (Argued)
Ari R. Karpf, Esquire
Karpf, Karpf & Cerutti
3331 Street Road
Two Greenwood Square, Suite 128
Bensalem, PA 19020

             Counsel for Appellant
Claude I. Schoenberg, Esquire (Argued)

*
 Honorable Sandra Day O’Connor, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by
designation.
363 Bala Avenue
Bala Cynwyd, PA 19004

Kimberly F. Scian, Esquire
Apothaker & Associates
520 Fellowship Road, Suite C306
Mount Laurel, NJ 08054

       Counsel for Appellees

                                   ________________

                                       OPINION
                                   ________________

PER CURIAM

       Lavotte Saunders brought suit against Apothakar & Associates, Inc. and David

Apothaker, claiming that they discriminated against him on the basis of his religion in

terminating him from a debt collector job. The District Court granted the defendants’

motion for summary judgment, concluding, among other things, that Saunders failed to

show that the defendants’ stated reason for terminating him—his prior conviction and

failure to pay off restitution—was a pretext for discrimination. We agree and will affirm.

                                             I

       In 2005, Lavotte Saunders was convicted of felony retail theft in Pennsylvania

state court after taking $18,000 worth of merchandise from a jewelry store. He was

sentenced to three years of probation and ordered to pay $12,000 in restitution.

       In 2010, Saunders applied for a debt collector job at Apothakar & Associates, Inc.,

a law firm owned by David Apothaker. The application Saunders signed and submitted

was titled “Application for Employment and Background Check Authorization.” App.


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289. It stated: “I . . . authorize [the law firm] to conduct a comprehensive review of my

background related to this application for employment, and I understand that the scope of

this investigation may include . . . a criminal record report/investigation.” Id. at 290. The

application also stated: “I understand that if I am hired by [the law firm], . . . this

authorization continues during the course of my employment.” Id. And the application

advised that “[e]mployment is contingent upon satisfactory completion of employment

and reference checks.” Id.

        Saunders was selected to interview for the debt collector job.         He had two

interviews: one with two employees from the law firm’s collections department and one

with Lynn Anderson-Downs, the law firm’s human resources director. Saunders, who is

Muslim, wore a keffiyeh and thobe to both interviews. A keffiyeh is a traditional Muslim

garment that covers the head, and a thobe is a traditional Muslim garment that covers the

body.

        The law firm offered Saunders the debt collector job. The offer letter advised that

the law firm “will conduct a background check when you are hired and you understand

that this is a condition of employment.” Id. at 270. Anderson-Downs and Apothaker

testified in their depositions that Anderson-Downs told Apothaker that Saunders wore

traditional Muslim garments before Apothaker made the final hiring decision. Saunders

was the first person hired by the law firm to wear a keffiyeh and thobe.

        Saunders reported for his first day of work on May 19, 2010. The following

afternoon, Anderson-Downs advised Saunders that the results of his background check

had come in and required the law firm to terminate him. Between those two events,

                                             3
Saunders met Apothaker for the first time. 1 Saunders testified in his deposition that

Apothaker seemed taken aback by Saunders’ appearance and asked if he was new.

        The law firm did not run background checks on every potential hire. It also did

not have a firm policy on what prior convictions precluded employment. Instead, the law

firm reviewed potential hires’ backgrounds on a case-by-case basis to determine whether

a specific prior conviction precluded employment. Saunders’ background check revealed

his prior conviction. Apothaker testified in his deposition that he did some additional

checking and learned that Saunders had failed to pay off his court-ordered restitution.

Anderson-Downs, Apothaker, and David Aglira, the law firm’s collections department

director, testified in their depositions that they then discussed Saunders’ prior conviction

and failure to pay off restitution and decided to terminate him.

        Following his termination, Saunders learned that the law firm hired three other

employees with prior convictions.                The law firm hired Darron Wilson despite his

convictions for theft of utilities, receipt of stolen property, and a drug-related offense.

The latter two convictions did not appear on the background check run by the law firm.

The law firm hired Oronde West despite his conviction for a drug-related offense. And

the law firm hired Latoya Dickerson despite her convictions for driving with a suspended

license, receipt of stolen property, and theft by unlawful taking.                         As with Wilson,

Dickerson’s latter two convictions did not appear on the background check run by the law

firm.

1
 Throughout this litigation, the parties have taken different positions on whether Saunders first met Apothaker on
May 19, the first day of Saunders’ employment, or May 20, the second day of Saunders’ employment. Whether
Saunders and Apothaker first met on May 19 or May 20 does not affect our analysis.

                                                        4
        Saunders brought suit against the law firm and Apothaker, claiming that they

terminated him on the basis of his religion, in violation of Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e et seq, and the New Jersey Law Against Discrimination

(NJLAD), N.J. Stat. Ann. § 10:5–1 et seq. 2 The District Court granted the defendants’

motion for summary judgment. It reasoned that Saunders did not establish a prima facie

case of discrimination because he failed to show that he was qualified for the debt

collector position in light of his prior conviction and failure to pay off restitution. The

District Court also reasoned that, even if Saunders had established a prima facie case of

discrimination, he did not show that the defendants’ stated reason for terminating him—

his prior conviction and failure to pay off restitution—was a pretext for discrimination.

                                                        II

        On appeal, Saunders contends that the District Court erred in granting the

defendants’ motion for summary judgment on his religious discrimination claims. The

District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367, and we have appellate

jurisdiction under 28 U.S.C. § 1291. We review the District Court’s grant of summary

judgment de novo. See Burton v. Teleflex Inc., 707 F.3d 417, 424-25 (3d Cir. 2013).

        Because Saunders has provided no direct evidence of religious discrimination, we

use the familiar McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), burden-

shifting framework to evaluate his Title VII and NJLAD claims. See Sarnowski v. Air

Brooke Limousine, Inc., 510 F.3d 398, 403 (3d Cir. 2007) (applying McDonnell Douglas

2
  Earlier in this litigation, Saunders also claimed that the defendants terminated him on the basis of his race, in
violation of 42 U.S.C. § 1981, Title VII, and the NJLAD. Saunders has since abandoned those claims, and they are
not before us.

                                                        5
framework to NJLAD claim). Under the first step of the McDonnell Douglas analysis, a

plaintiff bears the burden of establishing a prima facie case of discrimination. McDonnell

Douglas, 411 U.S. at 802. If the plaintiff satisfies that burden, the burden shifts to the

employer at the second step “to articulate some legitimate, nondiscriminatory reason” for

the adverse employment action. Id. And if the employer satisfies that burden, we move

to the final step of the McDonnell Douglas analysis where the plaintiff bears the burden

of showing that “[the employer’s] stated reason . . . was in fact pretext.” Id. at 804.

       Even assuming for the sake of argument that Saunders established a prima facie

case of discrimination at the first step of the McDonnell Douglas analysis, his religious

discrimination claims do not survive summary judgment. At the second step of the

McDonnell Douglas analysis, the defendants have offered a legitimate, nondiscriminatory

reason for the adverse employment action—Saunders’ prior conviction and failure to pay

off restitution. The burden thus shifts back to Saunders to show that the defendants’

stated reason was a pretext for discrimination.

       To show that an employer’s stated reason was a pretext for discrimination, a

plaintiff “generally must submit evidence which: 1) casts sufficient doubt upon [the

stated reason] so that a factfinder could reasonably conclude that [it] was a fabrication; or

2) allows the factfinder to infer that discrimination was more likely than not a motivating

or determinative cause of the adverse employment action.” Fuentes v. Perskie, 32 F.3d

759, 762 (3d Cir. 1994). When a plaintiff relies on the former mode of showing pretext,

he “must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies,

or contradictions in the employer’s [stated reason] that a reasonable factfinder could

                                              6
rationally find [it] unworthy of credence, and hence infer that the employer did not act for

[the stated reason].” Id. at 765 (internal quotation marks and citations omitted).

       Saunders contends that the defendants’ stated reason for his termination is a

fabrication. He relies on two lines of argument to discredit it. First, Saunders argues that

the defendants’ stated reason is false because it shifted with time. He points to: 1) his

termination letter and the defendants’ answer to his second amended complaint, which

indicate that the termination was based on an “unfavorable background check,” App. 251,

271; 2) the defendants’ answer to his first amended complaint, which indicates that the

termination was based on a “felony conviction,” id. at 233; 3) Apothaker’s and Aglira’s

testimony, which indicates that the termination was based on a “crime of dishonesty,” id.

at 95, 198; and 4) Apothaker’s testimony and the defendants’ response to an

interrogatory, which indicate that the termination was based in part on a “failure to make

restitution,” id. at 110, 258.    We have previously explained that “[i]f a plaintiff

demonstrates that the reasons given for her termination did not remain consistent,

beginning at the time they were proffered and continuing throughout the proceedings, this

may be viewed as evidence tending to show pretext, though of course it should be

considered in light of the entire record.” Abramson v. William Paterson Coll., 260 F.3d

265, 284 (3d Cir. 2001). But here, the defendants’ stated reason has remained consistent;

it has just been stated at different levels of generality. That reason is an unfavorable

background check consisting of a felony conviction for a crime of dishonesty and a

failure to pay off restitution.



                                             7
      Second, Saunders argues that the defendants’ stated reason is false because the

defendants hired other employees who had prior convictions but did not wear traditional

Muslim garments. He points to: 1) Wilson and his convictions for theft of utilities,

receipt of stolen property, and a drug-related offense; 2) West and his conviction for a

drug-related offense; and 3) Dickerson and her convictions for driving with a suspended

license, receipt of stolen property, and theft by unlawful taking. There is no evidence,

however, that the defendants knew about Wilson’s receipt of stolen property and drug-

related convictions or Dickerson’s receipt of stolen property and theft by unlawful taking

convictions when Wilson and Dickerson were hired.

      That leaves Wilson’s theft of utilities conviction, West’s drug-related conviction,

and Dickerson’s driving with a suspended license conviction. Wilson’s theft of utilities

conviction is different in magnitude from Saunders’ retail theft conviction. Wilson’s

conviction was a misdemeanor, and Apothaker testified in his deposition that he

understood it to be for not paying an electricity bill. West’s drug-related conviction and

Dickerson’s driving with a suspended license conviction are different in kind from

Saunders’ retail theft conviction. The parties agree that debt collectors have access to

debtors’ sensitive personal and financial information, including social security numbers,

bank account numbers, and credit card numbers. That information can be used to steal

funds from debtors’ bank accounts and to charge their credit cards without authorization.

We thus find it reasonable to conclude that a drug-related conviction and a driving with a

suspended license conviction do not pose the same risk for hiring someone as a debt

collector as does a retail theft conviction. Moreover, to the defendants’ knowledge,

                                            8
Wilson, West, and Dickerson did not defy a court order to make restitution. In sum,

Saunders has not cast sufficient doubt upon the defendants’ stated reason for his

termination for us to reasonably conclude that it was a fabrication.

                                     * * * * *

       We will affirm the judgment of the District Court.




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