2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-14-2011

Kremp v. Wachovia Bank, N.A.

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-4273

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Recommended Citation

"Kremp v. Wachovia Bank, N.A." (2011). 2011 Decisions. Paper 222.

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NOT PRECEDENTIAL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

_______________
2

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. 
3

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.
4

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 
5

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.
6

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. 
7

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 nondiscriminatory 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. 
8

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)). 
9

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 
10

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.
11

III. Conclusion

For the foregoing reasons, we will affirm.