PHILADELPHIA – According to a panel of judges from the U.S. Court of Appeals for the Third Circuit, a plaintiff suing Citizens Bank of Pennsylvania for wrongful termination based on alleged age, gender and racial discrimination rightfully had her case dismissed in a Western Pennsylvania federal court.

In a ruling issued June 9, U.S. Court of Appeals for the Third Circuit judges Thomas M. Hardiman, Jane R. Roth and D. Michael Fisher affirmed the decision on the instant litigation from the U.S. District Court for the Western District of Pennsylvania. Hardiman authored the Court’s opinion in this matter.

Plaintiff Denine Hood is an African-American woman who served as a Branch Manager for Citizens Bank, and who was fired after Citizens Bank determined she had permitted a customer to open an account by submitting an expired driver’s license. Hood first claimed she may have “misread” the license, but later admitted that she entered a false license expiration date into the bank’s computer program to open the account, and informed the customer he would have to return later with a valid ID or have the account closed. Hood also admitted that she opened an account for another customer who was not physically present.

Both incidents violated Citizens Bank corporate policies.

Subsequent to her termination, Hood sued Citizens Bank claiming age, gender, and race discrimination under state and federal law. Citizens moved for summary judgment and the Magistrate Judge recommended that the motion be granted, because Hood had not provided evidence from which a reasonable factfinder could conclude that the employer’s legitimate reasons for terminating Hood – violations of Bank policy – were pretextual.

Pertinent to the instant appeal in question, the Magistrate Judge indicated while Hood “argues that the record evidence shows that Citizens Bank treated other employees who violated bank policy outside of Hood’s protected classes more favorably…none of the employees to which Hood points as a comparator were similarly situated.” The District Court accepted the Magistrate Judge’s recommendation as its opinion in full, leading Hood to appeal that decision.

On appeal, Hood claims the District Court erred by: “(1) Not crediting her evidence that a white Branch Manager named G.P. received almost no discipline for a similar infraction; and (2) Failing to find that the actions Hood took which led to her firing were taken within her discretion as a manager.”

Hood attempted to make G.P. a valid comparator, as they were the subject of an investigation after making three deposits in her personal bank account, which raised a suspicion that she was “structuring” her transaction to avoid having to complete a Currency Transaction Report.

However, G.P. claimed that she was “depositing cash as she discovered it around her home, not intentionally dividing up a single transaction.” G.P.’s supervisor advised her to file Currency Transaction Reports “in the future to avoid the appearance of attempted structuring,” but took no other disciplinary action.

“We agree with the District Court that G.P. was not a valid comparator for Hood. For starters, the record is devoid of evidence that Citizens Bank believed G.P. was guilty of structuring. Although Hood finds G.P.’s story ‘laughable’, the bank was not required to find that G.P. had violated company policy, particularly in the face of a denial and in the absence of conclusive evidence that she had violated company policy. Hood speculates further that Citizens Bank would not have given G.P. a warning if it believed her explanation, but it is certainly plausible that the bank would caution G.P. going forward, even if it had been unable to prove misconduct,” Hardiman said.

Hardiman added, “In sum, because the record supported violations of Citizens Bank policy as to Hood and no violations as to G.P., the District Court did not err when it found G.P. to not be a valid comparator.”

Hood further contended the District Court “failed to credit evidence that her conduct did not constitute a violation of bank policies, or was not a terminable violation.” On the first point, Hood does not dispute that Citizens Bank requires that customers “provide an unexpired government-issued photo” identification when opening an account.

“The fact that Citizens Bank has other identification policies that are less specific as to the identification required does not mean that the policies are ‘inconsistent,’ as Hood claims. At most, it means she did not violate those more general policies. Finally, Hood further argues that the Bank’s deviation from a ‘progressive discipline system’ to immediately terminate her employment following two infractions is evidence of discriminatory intent. However, the ‘Performance Management Improvement Process’ Hood suggests should have been followed explicitly states that ‘immediate termination’ is an option for ‘serious misconduct,” Hardiman stated.

“Hood argues that a reasonable jury could find no such ‘zero tolerance’ policy for serious misconduct existed in practice, as other employees have not been immediately fired for assorted violations Hood considers to be of comparable or greater seriousness. But so long as those employees were not ‘similarly situated’ to Hood —and we agree with the District Court that they were not—the discipline they received is not probative of pretext as to Hood. For the reasons stated, we will affirm the judgment of the District Court,” Hardiman concluded.

The plaintiff is represented by James H. Logan of Logan & Logan, in Pittsburgh.

The defendant is represented by Amy Z. Snyder and William S. Myers of Eckert Seamans Cherin & Mellott in Philadelphia and Pittsburgh, plus Joshua Vaughn of Littler Mendelson, also in Pittsburgh.

U.S. Court of Appeals for the Third Circuit case 16-3313

U.S. District Court for the Western District of Pennsylvania case 2:14-cv-00867

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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