                                   NOT PRECEDENTIAL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

                    No. 10-4273
                   _____________

                 RICHARD KREMP,
                                       Appellant,

                          v.

              WACHOVIA BANK, N.A.

                  _______________

    On Appeal from the United States District Court
             for the District of New Jersey
                 (D.C. No. 09-cv-2847)
      District Judge: Hon. Garrett E. Brown, Jr.
                   _______________

      Submitted Under Third Circuit LAR 34.1(a)
                 November 9, 2011

Before: SCIRICA, SMITH, and JORDAN, Circuit Judges.

              (Filed November 14, 2011)
                   _______________

             OPINION OF THE COURT
                 _______________
JORDAN, Circuit Judge.

          Richard Kremp appeals the order of the United States District Court for the

District of New Jersey, granting summary judgment to Wachovia Bank, N.A.

(“Wachovia”) on Kremp‟s age discrimination claim. For the following reasons, we will

affirm.

I.        Background1

          Kremp was employed at Wachovia from 1984 until his termination on

November 17, 2008.2 He began as a teller and eventually became a Vice

President/Financial Sales Leader (“FSL”) in 1998, the position he held until his

termination.

          As part of his duties as an FSL, Kremp directly supervised financial specialists in

sixteen Wachovia branches in central New Jersey. The financial specialists under his

supervision sold banking products, including loans and new accounts. Kremp also had

indirect supervisory authority over tellers and financial center managers within his

geographic area. His direct supervisor from 2004 until the time of his termination was

Peter Ameen, a Retail Bank Director who supervised all FSLs in central New Jersey.

Ameen‟s supervisor at the time of Kremp‟s termination was Joseph Kirk, a Retail

Banking Executive. Kremp was 47 when he lost his job. He testified that several months

prior to his dismissal, he heard Ameen make three comments reflecting age-based

          1
         Because we are reviewing a grant of summary judgment, we recount the facts in
the light most favorable to the non-movant, Kremp.
          2
        Kremp began his employment with Dime Savings Bank, which, through a series
of acquisitions, became part of Wachovia.
                                               2
animus. First, on November 20, 2007, Ameen told Kremp that “[m]aybe one of the

younger leaders can do what you can‟t.” (App. at 103.) Second, on March 7, 2008

Ameen told Kremp, “[y]ou‟re a dinosaur around here and there‟s a target on your back.”

(App. at 105.) Finally, on April 9, 2008, Ameen told Kremp “[y]ou better find out what

your younger leader peers are doing.” (App. at 107.) Prior to the events that led to

Kremp‟s termination, Ameen never expressed concerns about Kremp‟s honesty or

integrity, and, in reviews, Ameen did not express any concerns with respect to Kremp‟s

performance. On the contrary, Kremp‟s performance reviews were laudatory.

      That began to change in October 2008.         Wachovia‟s Corporate Compliance

Department (“CCD”) detected the improper use of general ledger (“GL”) tickets in

several Wachovia branches in central New Jersey.3 Specifically, the CCD notified Jack

Sahar, an employee in Wachovia‟s Retail Operations Division, that three banks in central

New Jersey, all within Kremp‟s area of supervision, were using GL tickets to withdraw

money from GL accounts that were designated for the receipt of fee income only. Those

GL accounts were being improperly debited to refund or reverse customer fees, and some

of the tickets bore the notation “per R. Kremp.” Wachovia does not dispute that Kremp

had the authority to waive fees, but it maintained a separate system, known as DOTS, to

allow for the reversal of customer fees. The DOTS system allowed Wachovia to track

fee reversals made by employees. Wachovia utilized the DOTS system for, among other


      3
        GL accounts are maintained by Wachovia to post internal transactions. There are
separate accounts for different expenditure or income transactions. The GL accounts at
issue here were used for the deposit of income from service-charge fees and loan fees.
GL tickets are used to transfer money to or from these GL accounts.
                                           3
things, the purpose of holding employees accountable for failing to collect fees and

educate customers.

      After conducting an initial investigation, Sahar turned the case over to Patricia

Moran in Wachovia‟s fraud department, due to the scale of the misconduct.             The

investigation identified several employees who prepared a majority of the improper GL

tickets. Those improper fee reversals were often not recorded on a single GL ticket at the

Wachovia branch where the transaction took place. Instead, the transactions were spread

out across different GL tickets and attributed to different New Jersey branches. Moran

and a second fraud department employee, Laura Sisto, interviewed the employees

identified as having improperly used GL tickets. The first employee interviewed, Alicia

Brander, stated that she used GL tickets to offset fees charged to her personal bank

account because Kremp told her to do so. Three other employees who directly reported

to Kremp, Suzette Bin, Nancy Ludwig, and Royston Hill also indicated that they

processed refunds to the fee income accounts using GL tickets, at Kremp‟s instruction.

Yet another Wachovia employee, Andrea Ostrom, indicated that Kremp had asked her to

split large fee refunds across different GL tickets and branches. Ostrom also told the

fraud investigators that Kremp instructed her to credit the personal account of another

Wachovia employee using the GL fee income accounts. Brander was terminated shortly

after the fraud investigators met with her; Bin, Ludwig, Hill, and Ostrom were initially

suspended and subsequently terminated as well.

      Based on the employee interviews that implicated Kremp, along with a number of

improper GL tickets approved by him, the fraud investigators met with Kremp on

                                            4
October 30, 2008.      During the interview, Kremp provided general denials, and,

depending on the transaction in question, indicated either that he was not involved in

approving the transaction or did not recall the circumstances under which the GL ticket

had been approved. Kremp felt that the questioning was disrespectful and unfair, and he

left the meeting.4

       Following that interview, the fraud investigators located additional evidence of GL

ticket abuse, which they attributed to Kremp.        That evidence included one ticket

approved by Kremp for the amount of $151.48 that was labeled as a “fee reversal” but

was instead used to generate a money order payable to “America‟s Florist.” In another

transaction, Kremp used eight separate GL tickets spread across several Wachovia

branches to pay for $1,500 of a customer‟s $2,600 loan fees.5 Kremp later testified that

he was advised by Wachovia superiors Stan Cohen and Michelle Lee that fee reversals

should be spread amongst different branches so that there would not be a high reversal

rate in any one branch. With that additional information, the fraud investigators again

met with Kremp on November 13, 2008. Once more, he indicated that he did not recall

the circumstances under which the various GL tickets were approved.




       4
        Wachovia maintains that Kremp was evasive, feigned ignorance when asked
about various GL tickets, and ended the meeting after refusing to provide a written
statement.
       5
         In that transaction, the full $2,600 fee came from a check drawn on the
customer‟s account, making it appear as though the customer had paid the loan fee in full.
That allowed the customer to take advantage of lower interest rates on the loan.

                                            5
      On November 15, 2008, Ameen, Moran, and Kirk, along with three employees

from Wachovia‟s Human Resources Department, conducted a telephone conference to

discuss Kremp‟s discipline.6 Kirk was the decisionmaker with respect to the termination

of Kremp and also led the discussion.          The group agreed that termination was

appropriate, given the scale of Kremp‟s misconduct.7 Kirk believed that an additional

ground for terminating Kremp was his failure to cooperate with the investigation during

the October 30 and November 13 interviews with the fraud investigators.               On

November 17, 2008, Kirk, along with a Human Resources employee, met with Kremp to

inform him that he was being fired, effective immediately. According to Kremp, he was

told it was because of his lack of cooperation during the fraud investigation and that he

was only later told that he was fired for unethical sales practices, i.e., for wrongfully

using GL tickets to hide refunds.

      Ultimately, Kremp and seven other employees were terminated for engaging in

GL ticket misconduct. Only one of those employees was older than Kremp, with the ages

ranging from seven years older to twenty one years younger than Kremp. According to




      6
       Although Ameen was on disability leave at the time, he participated in the call.
Ameen‟s direct supervisor, Kirk, assumed Ameen‟s duties during that time period.
      7
         While portions of the Wachovia policy provide for progressive discipline, the
policy also allows for immediate termination without prior disciplinary action.

                                           6
Kremp, a Wachovia employee named Christopher Ruggiero, who was 32 years old at the

time, took over Kremp‟s job.8

       On December 19, 2008 Kremp filed an internal appeal of his termination.

Wachovia denied the appeal, explaining that “Mr. Kremp was discharged for unethical

sales practices involving his structuring in fee income only General Ledger („GL‟)

accounts. He created multiple GL tickets to offset a credit to Wachovia recorded as a fee

paid by the customer, when the customer did not pay the fee.” (App. at 147.) Wachovia

also cited Kremp‟s alleged failure to cooperate with the fraud investigators in denying his

appeal.

       Kremp then filed a complaint against Wachovia on May 7, 2009 in New Jersey

Superior Court, alleging that he was terminated because of his age in violation of the

New Jersey Law Against Discrimination (“LAD”). N.J. STAT. ANN. § 10:5-1 et seq.

Invoking diversity jurisdiction, Wachovia removed the action to the United States District

Court for the District of New Jersey.       After discovery, the District Court granted

summary judgment for Wachovia. It decided that, even if Kremp could establish a prima

facie case of discrimination, Wachovia had articulated a valid non-discriminatory reason

for terminating him. Further, the District Court held that Kremp had failed to provide

evidence sufficient for a factfinder to reasonably determine that Wachovia‟s non-

discriminatory motive was a pretext. This timely appeal followed.



       8
         Wachovia does not deny that Ruggiero took on some of Kremp‟s responsibilities,
but asserts that the person who finally replaced Kremp was not hired until January 2009
and that she is eight years older than Kremp.
                                            7
II.   Discussion9

      Kremp contends that the District Court erred in granting summary judgment for

Wachovia on his age-discrimination claim under the LAD. Following the McDonnell

Douglas framework in employment discrimination cases, New Jersey Law requires a

three step inquiry in analyzing LAD claims. N.J. STAT. ANN. § 10:5-12; McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973); Bergen Commercial Bank v.

Sisler, 723 A.2d 944, 954-55 (N.J. 1999). At the first step, the plaintiff-employee must

establish a prima facie case of discrimination. If the plaintiff succeeds, the burden of

production shifts to the defendant-employer to articulate a legitimate, non-discriminatory

motive for its action. Finally, if the defendant is able to articulate such a motive, the

burden shifts back to the plaintiff to show that the articulated motive was a pretext for

discrimination. Bergen Commercial Bank, 723 A.2d at 954-55.

      Assuming, as did the District Court, that Kremp could make out a prima facie

claim of discrimination under the LAD, the undisputed facts nevertheless demonstrate

that Wachovia had a legitimate non-discriminatory reason for firing him. Even if Kremp

had been told by some superiors that he could spread fee reversals across different

Wachovia branches using multiple GL tickets, his activities in labeling a debit to a GL


      9
         The District Court had jurisdiction over this case pursuant to 28 U.S.C. § 1332.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of an order granting
summary judgment is plenary. Curley v. Klem, 298 F.3d 271, 276 (3d Cir. 2002). “A
grant of summary judgment is appropriate where the moving party has established that
there is no genuine dispute of material fact and „the moving party is entitled to judgment
as a matter of law.‟” Hugh v. Butler Cnty. Family YMCA, 418 F.3d 265, 266 (3d Cir.
2005) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).

                                            8
account as a fee reversal when funds were actually used to purchase flowers or to credit a

customer‟s account that had not been charged any fees were contrary to Wachovia‟s

written policies. Fee refunds may well be an ordinary means of acquiring and keeping

customers, but there is no evidence at all that Wachovia condones the falsifying of

internal bank records. It is thus apparent that Kremp‟s actions went far beyond anything

that was acceptable to his employer. And if some superiors had advised Kremp how to

engage in GL ticket abuse, that would not absolve him of misconduct. Following a

suggestion to ignore company policy obviously entails ignoring company policy, which

can be predicted to have disciplinary consequences.          Indeed, several Wachovia

employees who directly or indirectly reported to Kremp were likewise terminated for GL

ticket abuse, even though they claimed their actions were taken at Kremp‟s direction.

Kremp‟s abuse of the GL ticket system was plainly a legitimate, non-discriminatory

reason for his termination.

       Because Wachovia had a sound basis for firing Kremp, the burden is his to

demonstrate that the given reason was a pretext for unlawful age-based discrimination.

To satisfy his burden, Kremp must point to some evidence upon which a factfinder could

reasonably either disbelieve Wachovia‟s articulated motive or believe that age-based

animus was more likely than not a motivating cause for Wachovia‟s action. Fuentes v.

Perskie, 32 F.3d 759, 764 (3d Cir. 1994). He has not done so.

       First, he has offered no basis for disbelieving Wachovia‟s stated reason for the

dismissal.   As Kremp himself emphasized, his performance reviews and promotion

record show that he was a successful employee until Wachovia discovered his serious

                                            9
misconduct. That misconduct ultimately led to the firing of eight employees, all but one

of whom are younger than Kremp.         Second, Kremp has failed to provide evidence

sufficient for a reasonable factfinder to believe that age-based animus was more likely

than not a motivating cause of the employer‟s actions.         Ameen‟s comments about

Kremp‟s age, assuming they occurred, came many months prior to Kremp‟s termination

and, in light of this record, are insufficient to carry his burden. Fuentes, 32 F.3d at 767

(“Stray remarks by non-decisionmakers or by decisionmakers unrelated to the decision

process are rarely given great weight, particularly if they were made temporally remote

from the date of decision.” (quoting Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983

F.2d 509, 545 (3d Cir. 1992))). Further, it was Kirk, not Ameen, who made the ultimate

decision to terminate Kremp. While Kremp alleges that Ameen was the decisionmaker in

his termination, Kremp fails to provide any evidence to support that allegation. Celotex,

477 U.S. at 325 (“When a motion for summary judgment is made … an adverse party

may not rest upon the mere allegations or denials of his pleading, but his response …

must set forth specific facts showing that there is a genuine issue for trial.” (citation

omitted)). Additionally, while Ruggiero may have taken over Kremp‟s responsibilities

shortly after his termination, Kremp fails to offer evidence to counter Wachovia‟s proof

that his ultimate replacement is eight years his senior. Finally, evincing the seriousness

of Kremp‟s misconduct, it is undisputed that eight Wachovia employees in total were

terminated due to GL ticket abuse. Again, all but one of those former employees are

younger than Kremp. Given that evidence, no reasonable factfinder could conclude that

Wachovia‟s articulated non-discriminatory purpose was simply a pretext.

                                            10
III.   Conclusion

   For the foregoing reasons, we will affirm.




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