                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                    No. 11-3560
                                   _____________

                               ROSALIND NORMAN,
                                          Appellant

                                          v.

         KMART CORPORATION, T/D/B/A Kmart and Super Kmart;
    KMART MANAGEMENT CORPORATION, T/D/B/A Kmart and Super Kmart;
      KMART OF PENNSYLVANIA LP, T/D/B/A Kmart and Super Kmart;
          SEARS HOLDING CORP., T/D/B/A Kmart and Super Kmart
                          _____________

                     Appeal from the United States District Court
                       for the Middle District of Pennsylvania
                           (D.C. Civil No. 3:07-cv-02222)
                      District Judge: Honorable James Munley
                                   _____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   May 22, 2012

           Before: RENDELL, FUENTES, and HARDIMAN, Circuit Judges

                            (Opinion Filed: June 27, 2012)
                                   _____________

                             OPINION OF THE COURT
                                 _____________

FUENTES, Circuit Judge.

      Rosalind Norman was a store manager at a Pennsylvania Kmart when she was

terminated for manipulating payroll records and engaging in fraudulent behavior. She



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filed suit in the United States District Court for the Middle District of Pennsylvania

alleging that she was terminated because of her age and gender. After discovery, the

District Court granted Kmart’s motion for summary judgment dismissing all of her

claims. Norman appeals and we will affirm.

                                              I.

       Because we write primarily for the parties, we set forth only the facts relevant to

our conclusion. Rosalind Norman was the store manager at the Wilkes-Barre,

Pennsylvania Kmart until July 2005, when she was fired for payroll manipulation and

fraud. An investigation into Norman’s conduct revealed that she requested employees to

work off the clock, 1 compensated them with cash vouchers or personal time, allowed

them to be clocked-in when they were not working, and paid nonemployees to work. 2

Norman admitted to these actions in her deposition and in writing. Appendix (“App.”) at

67, 1240, 1247. These actions violated Kmart’s policy against fraud, which forbids

“[f]alse, fictitious, or misleading entries or reports,” App. at 1276, and its prohibition on

manipulation of payroll expenses, which forbids “allowing associates to work off the

clock, manipulating time clock punches to reduce hours worked, and deferring the

payment of any wages through the use of cash vouchers,” App. at 1320.




1
  Working off the clock refers to working without punching into the required time
recording system.
2
 Norman admittedly engaged in these activities in order to meet her payroll budget.
App. at 67. Paying employees with cash vouchers and personal time allowed Norman to
compensate them without increasing payroll expenditures.

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         Because of the seriousness and extent of these violations, Norman was terminated.

She was 54 years old at the time. After her termination, Kmart hired Frank Mussich, an

older male, to replace Norman. 3 He worked for approximately one year before leaving

Kmart on his own accord for medical reasons.

         After being terminated, despite having admitted in her deposition that she believed

she was treated more harshly than older employees, Norman pointed to younger

employees and male employees who she believed committed similar violations but were

not terminated. However, these employees each committed either one of the several

violations Norman committed, did not actually commit any violations, or acted at

Norman’s direction.

         Norman filed a complaint in the United States District Court for the Middle

District of Pennsylvania against Kmart, asserting it terminated her because of her age and

gender in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C.

§ 623(a), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a) (“Title

VII”). The District Court granted Kmart’s motion for summary judgment and dismissed

Norman’s claims. This appeal followed. 4

                                             II.

         Our review of a District Court order granting summary judgment is plenary.

Watson v. Eastman Kodak Co., 235 F.3d 851, 854 (3d Cir. 2000). As there is no direct

3
    The record does not indicate Mussich’s age, only that he was older than Norman.
4
 The District Court had subject matter jurisdiction pursuant to 28 U.S.C. § 1331. We
have jurisdiction pursuant to 28 U.S.C. § 1291 as an appeal of a final order of the District
Court.

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evidence of discrimination, we apply the three-part burden-shifting framework from

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) to Norman’s ADEA and Title

VII claims. Newman v. GHS Osteopathic, Inc., Parkview Hosp. Div., 60 F.3d 153, 157

(3d Cir. 1995). Under this framework, the plaintiff first must carry the initial burden of

establishing a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802.

       If the plaintiff establishes a prima facie case of discrimination, the burden of

production shifts to the employer to demonstrate that the plaintiff was terminated for

some legitimate, nondiscriminatory reason. Id. at 802. Lastly, “should the defendant

carry this burden, the plaintiff then must have an opportunity to prove by a

preponderance of the evidence that the legitimate reasons offered by the defendant were

not the true reasons, but were a pretext for discrimination.” Jones v. Sch. Dist. of Phila.,

198 F.3d 403, 410 (3d Cir. 1999). 5

                                             A.

       Kmart has articulated a legitimate, nondiscriminatory explanation for its

termination of Norman, and has thus satisfied the second prong of the burden-shifting

framework. Kmart put forth evidence that Norman repeatedly manipulated payroll

expenses and engaged in fraudulent behavior as the reason she was terminated. These

infractions suffice as a legitimate, nondiscriminatory reason for termination, which has


5
 We will assume Norman established a prima facie case of age and gender
discrimination, and thus we will only discuss the second two prongs of the McDonnell
Douglas test. Although the District Court only opined on the prima facie element, “[w]e
may affirm on any grounds supported by the record.” Kossler v. Crisanti, 564 F.3d 181,
186 (3d Cir. 2009) (quoting Nicini v. Morra, 212 F.3d 798, 805-06 (3d Cir. 2000) (en
banc)) (internal quotation marks omitted).

                                              4
no relation to her age or gender, because Kmart is explicit that they can result in

termination. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000)

(finding employee’s failure to keep accurate records and adhere to general work rules

amounted to a legitimate reason for termination); see also Glanzman v. Metro. Mgmt.

Corp., 391 F.3d 506 (3d Cir. 2004) (finding that evidence of employee’s violations of

company policies sufficed as proof employer would have fired employee without

consideration of her age).

                                             B.

       Norman fails to introduce any evidence that sufficiently demonstrates that Kmart’s

legitimate, nondiscriminatory reason for terminating her was a pretext. To do so,

Norman must point to evidence from which a jury could reasonably “(1) disbelieve the

employer’s articulated legitimate reasons; or (2) believe that an invidious discriminatory

reason was more likely than not a motivating or determinative cause of the employer’s

action.” Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994). She need not introduce

evidence beyond her prima facie case, but must point to “weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate

reasons” to show that they were not the true motivation. Simpson v. Kay Jewelers, Div.

of Sterling, Inc., 142 F.3d 639, 644 (3d Cir. 1998) (quoting Ezold v. Wolf, Block, Schorr

and Solis-Cohen, 983 F.2d 509, 531 (3d Cir. 1992)) (citation and internal quotation mark

omitted).

       Norman fails to show that it is more likely than not that Kmart’s stated reason for

firing her was a pretext. First, because Norman admits to the violations she committed,


                                              5
she cannot show that Kmart’s reason was false. She also offers no direct or indirect

evidence that would permit a reasonable factfinder to find Kmart’s real motivation for

terminating her was her age or gender. Norman contends that similarly situated

employees were treated more favorably than she was, but the employees to whom

Norman points were not similarly situated because they either were her subordinates or

did not commit violations of the same scope and scale as she. See Maxfield v. Cintas

Corp. No. 2, 427 F.3d 544, 550 (8th Cir. 2005) (finding two employees not similarly

situated when they were not similar in “all relevant respects”); see also Vernon v. A& L

Motors, 381 F. App’x. 164, 167 (3d. Cir. 2010) (finding identification of a similarly

situated individual may give rise to an inference of unlawful discrimination).

         Because Norman is unable to point to any inconsistencies or contradictions in

Kmart’s proffered reason and has failed to bring forth any other evidence that would

permit a reasonable factfinder to find that this explanation was a pretext, she has failed to

meet her burden under the McDonnell Douglas framework.

                                             III.

         For the foregoing reasons, we will affirm the opinion and order of the District

Court.




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