2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-27-2012

Rosalind Norman v. Kmart Corp

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-3560

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1

NOT PRECEDENTIAL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

 1 Working off the clock refers to working without punching into the required time 

recording system.

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.

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. 
3

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

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. 

 He worked for approximately one year before leaving 

Kmart on his own accord for medical reasons. 

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. 
4

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). 
5

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, 
6

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.