KIESLING v. CITIZENS BANK OF PENNSYLVANIA

Filing 19

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 6/30/14. 7/1/14 ENTERED AND COPIES EMAILED.(rf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
KATHLEEN KIESLING,
Plaintiff,
v.
CITIZENS BANK OF PENNSYLVANIA,
Defendant.

:
:
:
:
:
:
:
:
:

CIVIL ACTION
NO. 13-00821

M E M O R A N D U M
EDUARDO C. ROBRENO, J.

June 30, 2014

This case arises from an allegation of gender
discrimination by Plaintiff Kathleen Kiesling (“Plaintiff”)
against her former employer, Defendant Citizens Bank of
Pennsylvania (“Defendant” or “Citizens Bank”). Plaintiff claims
that she was terminated from her position as branch manager of
Defendant’s 2309 East Lincoln Highway, Langhorne, Pennsylvania
location due to her gender, in violation of Title VII of the
Civil Rights Act of 1964 (“Title VII”) and the Pennsylvania
Human Relations Act, 43 P.S. § 951 et seq., (“PHRA”). The reason
given by Defendant for Plaintiff’s termination was her
participation, and that of four branch employees under her
supervision, in fraudulent activity related to an employee bonus
program at the branch in which she was the branch manager.

Currently pending is Defendant’s motion for summary
judgment. For the reasons that follow, the Court will grant
Defendant’s motion for summary judgment as to all counts.
I.

BACKGROUND
Plaintiff is a female former employee of Defendant Citizens

Bank. Compl. ¶ 15. Plaintiff was employed as a branch manager at
the East Lincoln Highway location from in or about August, 2008,
to January, 2010. Compl. ¶ 15. The parties do not contest the
fact that Plaintiff was terminated from her position in January
of 2010 and that the reason given by Defendant for this adverse
employment action was an “ethics violation.” Compl. ¶ 16.
While employed by Defendant, Plaintiff’s compensation was
supplemented by monetary bonuses earned through Citizens Bank’s
employee “Exsell” incentive program. See Resp. Opp’n Mot. Summ.
J., Ex. A, Dep. of Kathleen Kiesling, June 13, 2013 (“Kiesling
Dep.”) 93-94, ECF No. 18-2. The Exsell program allows branch
employees, including managers, to earn monetary bonuses based on
volume of retail sales made by individual employees and by a
branch as a whole. See Kiesling Dep. 94. One means of earning a
bonus within the Exsell incentive program is by opening and
maintaining a certain number of “active” accounts, meaning
accounts that have a certain number of transactions and maintain

2

a minimum balance within a fiscal quarter. See Kiesling Dep.
106.
The facts surrounding the ethics violation that predicated
Plaintiff’s termination are largely undisputed. Prior to
Plaintiff’s termination, in or about October of 2009, Defendant
engaged in an internal investigation which revealed that
Plaintiff, as well as several subordinates at the East Lincoln
Highway branch, had engaged in the practice of fraudulently
making deposits into customer accounts, using the employees’ own
funds, to make the accounts appear “active.” See Compl. ¶ 17;
Kiesling Dep. 113. It is also undisputed that Plaintiff, in her
role as branch manager, participated in a “branch discussion”
where this practice was proposed, see Kiesling Dep. 113, that
she was aware of at least one subordinate employee who engaged
in the practice, see Kiesling Dep. 114, and that she engaged in
this behavior herself, Kiesling Dep. 111, 114. The object of
this fraudulent behavior was to increase the number of “active”
customer accounts claimed by individual branch employees, and by
Plaintiff as branch manager, for purposes of earning monetary
bonuses through the Exsell incentive program. See Kiesling Dep.
109.
Plaintiff admits that her participation in this incentive
fraud was uncovered during the internal investigation, that she
was subsequently terminated from her position, and that the
3

reason given by her supervisor at the time of termination was
her role in the incentive fraud. See Kiesling Dep. 128.
Plaintiff also admits that at least one of her female
subordinates involved in the incentive fraud was reprimanded but
not terminated following the investigation. See Kiesling Dep.
131. Plaintiff could not provide any additional information
about whether other Citizens Bank branch managers were
terminated for incentive fraud. See Kiesling Dep. 136.
Defendant’s employment records indicate that in 2009, the year
that the incentive fraud occurred at Plaintiff’s branch, twelve
male employees (including three branch managers), and six female
employees were terminated for Exsell incentive fraud in
Pennsylvania. See Mot. Summ. J., Ex. N, Def.’s Objections Resp.
Pl.’s 2d Set Interrog. 4, ECF No. 17-17.
Plaintiff claims that the real reason for her termination
was her gender. As evidence of this allegation of gender-based
discrimination, Plaintiff primarily relies on an assertion that
Daniel Fitzpatrick, an employee within the ranks of Defendant’s
senior management, was not terminated despite also violating
Citizens Bank’s ethical rules governing employee conduct. The
unethical conduct that Mr. Fitzpatrick is alleged to have
committed is signing off on a loan rate exception for a family
member, where the family member did not qualify for such a
favorable rate based on his credit score. See Kiesling Dep. 140.
4

II.

PROCEDURAL HISTORY
Plaintiff was terminated from her employment at

Citizens Bank on or about January 2, 2010. See Compl. ¶ 15;
Kiesling Dep. 127. On or about April 23, 2010, Plaintiff filed a
timely charge of gender discrimination, based on her
termination, with both the Equal Employment Opportunity
Commission (“EEOC”) and the Pennsylvania Human Relations
Commission (“PHRC”). Compl. ¶ 11. The EEOC issued a Notice of
Right to Sue on this charge on or about November 16, 2012.
Compl. ¶ 11.
Having exhausted available administrative remedies,
Plaintiff timely filed the instant complaint on February 14,
2013. Defendant answered on March 14, 2013. Following the close
of discovery, Defendant moved for summary judgment on September
27, 2013. See Mot. Summ. J., ECF No. 17. Plaintiff filed a
timely response on October 15, 2013. See Resp. Opp’n, ECF No.
18. The matter is now ripe for disposition.
III. LEGAL STANDARD
Summary judgment is appropriate “if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). “A motion for summary judgment will not be defeated by
‘the mere existence’ of some disputed facts, but will be denied
when there is a genuine issue of material fact.” Am. Eagle
5

Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir.
2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986)). A fact is “material” if proof of its existence
or nonexistence might affect the outcome of the litigation, and
a dispute is “genuine” if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248.
The Court will view the facts in the light most
favorable to the nonmoving party. “After making all reasonable
inferences in the nonmoving party’s favor, there is a genuine
issue of material fact if a reasonable jury could find for the
nonmoving party.” Pignataro v. Port Auth. of N.Y. & N.J., 593
F.3d 265, 268 (3d Cir. 2010). While the moving party bears the
initial burden of showing the absence of a genuine issue of
material fact, meeting this obligation shifts the burden to the
nonmoving party who must “set forth specific facts showing that
there is a genuine issue for trial.” Anderson, 477 U.S. at 250.
Although the moving party bears the burden of
demonstrating the absence of a genuine issue of material fact,
in a case such as this, where the nonmoving party is the
plaintiff and bears the burden of proof at trial, the nonmoving
party must present affirmative evidence sufficient to establish
the existence of each element of his case. Id. at 306 (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). Where a
6

plaintiff fails to point to “sufficient cognizable evidence to
create a material issue of fact ‘such that a reasonable jury
could find in its favor,’” then summary judgment may be awarded
to a moving defendant. See Perez v. New Jersey Transit Corp.,
341 Fed. App’x 757, 760 (3d Cir. 2009) (not precedential)
(citing McCabe v. Ernst & Young, LLP, 494 F.3d 418, 424 (3d Cir.
2007)). The nonmoving party may survive a motion for summary
judgment by presenting direct or circumstantial evidence and
that evidence “need not be as great as a preponderance,” though
it must be “more than a scintilla.” McCabe, 494 F.3d at 424
(citing Hugh v. Butler County Family YMCA, 418 F.3d 265, 267 (3d
Cir. 2005)).
Though courts are to view facts and inferences in the
light most favorable to the nonmoving party, a nonmoving
plaintiff cannot rely on unsupported assertions, speculation, or
conclusory allegations to avoid the entry of summary judgment.
Rather, a plaintiff “must go beyond pleadings and provide some
evidence that would show that there exists a genuine issue for
trial.”

Jones v. United Parcel Serv., 214 F.3d 402, 407 (3d

Cir. 2000); see also Celotex, 477 U.S. at 324 (“[N]onmoving
party [must] go beyond the pleadings and . . . designate
‘specific facts showing that there is a genuine issue for
trial.’” (citing Fed. R. Civ. Pro. 56(e)); Kirleis v. Dickie,
McCamey & Chilcote, P.C., 560 F.3d 156, 161 (3d Cir. 2009)
7

(“Conclusory, self-serving [statements] are insufficient to
withstand a motion for summary judgment. Instead, the [party]
must set forth specific facts that reveal a genuine issue of
material fact.” (citations omitted))
IV.

DISCUSSION
Defendant moves for summary judgment on the basis that

Plaintiff fails to make a prima facie case of gender
discrimination in violation of Title VII and the PHRA. Mem. L.
Support Mot. Summ. J. 10. Alternatively, Defendant argues that
even if Plaintiff could establish a prima facie case of gender
discrimination, summary judgment should still be granted to
Defendant because the undisputed facts demonstrate that
Defendant had a legitimate, non-discriminatory reason for
Plaintiff’s termination, and Plaintiff fails to provide any
evidence on the record to suggest that this reason was
pretextual. See id. at 14.
A.

McDonnell Douglas Burden-Shifting Framework for Title
VII and PHRA Employment Discrimination Claims
“Title VII and the PHRA both prohibit an employer from

engaging in . . . gender discrimination against an employee.”
Goosby v. Johnson & Johnson Medical, Inc., 228 F.3d 313 (3d Cir.
2000).1
1

The analysis of Plaintiff’s discrimination claim is the
same under both Title VII and the PHRA, see Goosby, 228 F.3d 317
8

Claims under Title VII and the PHRA based on indirect
evidence of discrimination are analyzed under a three part
burden-shifting framework traced to the Supreme Court’s opinion
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under
this framework, a plaintiff must first establish a prima face
case of discrimination. See Jones v. Sch. Dist. of Philadelphia,
198 F.3d 403, 410-11 (3d Cir. 1999).
Second, if a plaintiff successfully makes a prima
facie showing, the burden of production shifts to the defendant
employer to “articulate some legitimate, non-discriminatory
reason” for the adverse employment action taken against the
plaintiff employee. McDonnell Douglas, 411 U.S. at 802. The
defendant’s burden at this stage is “relatively light,” as it is
satisfied if the defendant articulates “any legitimate reason
for the discharge.” Fuentes v. Perskie, 32 F.3d 759, 763 (3d
Cir. 1994).
Third, if the defendant employer advances a legitimate
non-discriminatory reason for the adverse employment action, the
burden shifts back to the plaintiff to show that the provided
reason was actually pretext for discrimination. McDonnell

n.3; see also Atkinson v. LaFayette College, 460 F.3d 447, 454
(3d Cir. 2006); Lopez v. Alrod Enterprises, Inc., 602 F. Supp.
2d 604, 608 (E.D. Pa. 2009); and therefore the Court need not
separately address Plaintiff’s claim under the PHRA.

9

Douglas, 411 U.S. at 804.

The Supreme Court has noted that

“[a]lthough the intermediate evidentiary burdens shift back and
forth under this framework, ‘[t]he ultimate burden of persuading
the trier of fact that the defendant intentionally discriminated
against the plaintiff remains at all times with the plaintiff.’”
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143
(2000) (quoting Texas Dept. Cmmt’y Affairs v. Burdine, 450 U.S.
248, 253 (1981)).
Once a defendant provides a legitimate, nondiscriminatory reason for an adverse employment action taken
against a plaintiff employee, “the presumption of discrimination
[established in the plaintiff’s prima facie showing] drops from
the case.” Fuentes, 32 F.3d at 763; see also Reeves, 530 U.S. at
143. At this point, the burden of production2 shifts back to the
plaintiff to provide evidence proving, by a preponderance, “both
that the reason [given by the defendant] was false, and that
discrimination was the real reason [for defendant’s adverse
employment action].” Woodson v. Scott Paper Co., 109 F.3d 913,
920 n.2 (3d Cir. 1997) (quoting St. Mary’s Honor Center v.
Hicks, 509 U.S. 502, 512 (1993)). In other words, in this third

2

The burden of persuasion remains at all times with the
plaintiff. See Reeves, 530 U.S. at 143.
10

step a plaintiff must show that the reason given by the
defendant employer was pretextual.3
The Third Circuit has recognized two ways in which a
plaintiff can prove pretext:
First, the plaintiff can present evidence
that “casts sufficient doubt upon each of
the legitimate reasons proffered by the
defendant
so
that
a
factfinder
could
reasonably conclude that each reason was a
fabrication.” Second, and alternatively, the
plaintiff can provide evidence that “allows
the factfinder to infer that discrimination
was more likely than not a motivating or
determinative
cause
of
the
adverse
employment action.”
Atkinson, 460 F.3d at 454 (quoting Fuentes, 32 F.3d at 762); see
also Reeves, 530 U.S. at 143.
To establish pretext by casting doubt on the
articulated reason of the defendant, plaintiff cannot “merely
[show] that the employer's proffered reason was wrong, but that
it was so plainly wrong that it cannot have been the employer's
real reason.” Atkinson, 460 F.3d at 454 (internal citations

3

The Third Circuit recognizes two types of disparate
treatment employment discrimination actions, “pretext” and
“mixed-motive,” and applies different standards of causation
depending on the type of case the plaintiff presented. Watson v.
SEPTA, 207 F.3d 207, 214-15 (3d Cir. 2000). Plaintiff in the
instant case has presented only an argument based on pretext,
not on mixed-motive. However, even if Plaintiff were to assert a
mixed-motive claim, this would fail as well, as the evidence of
disparate treatment that Plaintiff relies upon to prove
discrimination could not lead a reasonable factfinder to find
even the suggestion of a discriminatory motive.
11

omitted); see also Keller v. Orix Credit Alliance, Inc., 130
F.3d 1101, 1008-09 (3d Cir. 1997) (“The question is not whether
the employer made the best, or even a sound, business decision;
it is whether the real reason is [discrimination.]”). In
analyzing whether the plaintiff has made a sufficient showing of
why the defendant’s proffered reason should not be believed, the
Third Circuit has held that the plaintiff must “demonstrate such
weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer's proffered legitimate reasons
for its action that a reasonable factfinder could rationally
find them unworthy of credence.” Fuentes, 32 F.3d at 765
(internal citations omitted).
The Third Circuit suggests that “[a] plaintiff may
support an assertion that an invidious discriminatory reason was
more likely than not a motivating cause by showing that ‘the
employer has treated more favorably similarly situated persons
not within the protected class.’” See Garges v. People’s Light &
Theatre Co., 529 F. App’x 156, 161 (3d Cir. 2013) (not
precedential) (quoting Jones v. Sch. Dist. of Philadelphia, 198
F.3d at 413). See also Fuentes, 32 F.3d at 765.
Similarly-situated employees do not need to be
“identically situated” to create an inference of unlawful
discrimination, though they must be “similar in all relevant
respects.” Opsatnik v. Norfolk Southern Corp., 335 F. App’x 220,
12

222-23 (3d Cir. 2009) (not precedential). The Third Circuit has
suggested that relevant factors in this analysis include whether
the employees share common supervisors, whether they are subject
to the same standards, and whether they engaged in “similar
conduct without such differentiating or mitigating circumstances
as would distinguish their conduct or the employer’s treatment
of them.” Houston v. Easton Area Sch. Dist., 355 F. App’x 651,
654 (3d Cir. 2009) (not precedential); see also Opsatnik, 335 F.
App’x at 223.
B.

Defendant’s Legitimate Non-Discriminatory Reason for
Plaintiff’s Termination
For the purpose of ruling on this motion, the Court

assumes without deciding that Plaintiff has established a prima
facie claim of employment discrimination. Thus the analysis
shifts to step two of the McDonnell Douglas framework. Plaintiff
concedes that her termination was predicated on an ethics
violation which occurred on or about September of 2009. See
Compl. ¶ 16. This violation consisted of “Plaintiff’s team using
their own funds to fund accounts for incentive purposes.” Compl.
¶¶ 16-17. Defendant’s contention that Plaintiff was terminated
for an ethical violation, including her failure to correct the
ethical violations of subordinate employees within the branch,
states a legitimate non-discriminatory reason for the adverse

13

employment action, thus satisfying step 2 of McDonnell Douglas.
See Compl. ¶ 16; Kiesling Dep. 128.
Given that Defendant has stated a legitimate, nondiscriminatory reason for the adverse employment action,
Plaintiff must now show, under step 3 of McDonnell Douglas, that
the reason provided was pretextual, and that discrimination was
the real reason for Plaintiff’s termination.
C.

Plaintiff’s Attempts to Prove Pretext
As evidence that Defendant’s decision to terminate

Plaintiff was not based on the legitimate reason provided, and
that gender-based discrimination was the real reason, Plaintiff
asserts that while she was terminated for this misconduct,
similarly-situated male employees were not terminated or
disciplined. Plaintiff provides three scenarios under which she
seeks to demonstrate that similarly-situated male employees were
subject to different discipline for similar ethical violations.
1.

Disparate Treatment of Other Employees at the
East Lincoln Highway Branch.

Plaintiff asserts in her complaint that while
four other persons at the East Lincoln Highway branch, some of
which are male,4 were implicated in the incentive fraud ethics
4

Plaintiff fails to specifically aver that some of the four
subordinate employees at the East Lincoln Highway Branch
implicated in the incentive fraud ethics violation were male. In
fact, while she indicates in her complaint that four subordinate
14

violation, only Plaintiff was terminated. See Compl. ¶ 18.
Defendant concedes that Plaintiff was the only employee from her
branch to be terminated as a result of the episode of unethical
conduct. See Answer ¶ 18. However, these facts, if true and even
taken in the light most favorable to Plaintiff, cannot establish
that similarly-situated male employees received different
treatment than Plaintiff.
First, the other four individuals implicated at
Plaintiff’s branch were employed in separate positions, with
different job descriptions and responsibilities. Plaintiff was
the branch manager, a supervisory position, and was in charge of
daily operations within the branch location. See Kiesling Dep.
77. By contrast, the four other employees implicated in the

employees were implicated, the only two who are identified are
Dot Mari and Erin Boyce, female customer service
representatives. See Kiesling Dep. 82, 109. Plaintiff can only
prevail in her gender discrimination claims on a disparate
treatment theory by proving that she was treated differently
than similarly-situated employees outside of her protected
class. As Plaintiff is female, she thus must show that she was
treated differently than similarly-situated male employees. See
Pivirotto v. Innovative Systems, Inc., 191 F.3d 344, 359 (3d
Cir. 1999).
Plaintiff indicates in her deposition that some of the
subordinate employees working under her supervision at the East
Lincoln Highway branch were male. See Kiesling Dep. 81-84. The
Court will therefore assume, for the purposes of deciding the
pending motion for summary judgment only, that at least one
requisite male subordinate employee was implicated in the
incentive fraud ethics violation at the East Lincoln Highway
Branch.
15

episode of incentive fraud occupied low-level, non-supervisory
roles. These employees were bank tellers or customer service
representatives responsible for taking deposits or opening and
servicing customer accounts. See Kiesling Dep. 82.
Second, Plaintiff and the other four employees at the
East Lincoln Highway branch implicated in the incentive fraud
episode reported to different supervisors. The four subordinate
employees reported to Plaintiff herself, but she in turn
reported to a regional manager. Compare Kiesling Dep. 81
(Plaintiff stating that the other branch employees reported
directly to Plaintiff), with Kiesling Dep. 73-75 (Plaintiff
stating that she reported to regional managers Fran Craig, Donna
Farrell, and Dennis Ferretti).
Third, Plaintiff concedes that other branch employees
were, at most, implicated in fraudulently depositing their own
funds into customer accounts, or proposing such conduct.
Plaintiff alone was accused of the additional ethical violation
of encouraging and failing to curb incentive fraud in at least
one subordinate employee. See Kiesling Dep. 114.
Plaintiff and the other four branch employees were
subject to a common set of ethical rules. Because Plaintiff and
her four subordinates held different levels of responsibility,
answered to different supervisors, and engaged in ethical

16

violations of differing severity, however, a reasonable jury
could not find that they were similarly situated.
2.

Other Managers Terminated for Ethics Violations
Related to Incentive Program

Plaintiff next attempts to prove disparate treatment
based on the contention that male branch managers at Defendant’s
other Pennsylvania locations were also investigated for Exsell
incentive fraud but were not terminated. See Compl. ¶ 23
(“[O]ther male employees . . . have also committed alleged
ethics violations and not been subject to termination as
Plaintiff was.”); Kiesling Dep. 129 (“There [were] 80 people
[being investigated for incentive fraud] . . . . [A]s far as I’m
aware . . . I was the one of the only ones who was
terminated.”).
Even after the completion of discovery, Plaintiff has
provided no evidence to support her assertion that male managers
implicated in the incentive fraud were not also terminated.
Instead, Plaintiff stated on the record that she did not know if
other managers or assistant managers were terminated for such
violations. See Kiesling Dep. 129.
Defendant, by contrast, has identified a total of
eighteen employees, of both genders, who were terminated for the
same type of incentive program fraud that formed the basis for
Plaintiff’s termination. See Def.’s Objections Resp. Pl.’s 2d
17

Set Interrog. 4. Plaintiff does not contest this factual
assertion.
Given the total absence of facts of record, no
reasonable jury could find that Plaintiff was treated
differently than similarly-situated male employees based on the
theory that male branch managers were not terminated for the
ethical violation of incentive fraud.
3.

Daniel Fitzpatrick

Plaintiff’s third basis for proving that she was
subject to disparate treatment based on her gender is the
assertion that she was similarly situated to Daniel Fitzpatrick,
a Citizens Bank regional executive, and that while both breached
Defendant’s code of ethical conduct, Plaintiff was terminated
and Mr. Fitzpatrick was not. See Compl. ¶ 20-22.
The facts of record show that Mr. Fitzpatrick is a
senior manager at Citizens Bank,5 not a branch manager, as

5

The record contains several different descriptions of Mr.
Fitzpatrick’s title, including “CEO,” “regional executive,” and
“senior manager.” See, e.g., Compl. ¶ 20 (describing Mr.
Fitzpatrick as a “senior manager,” and “President of the MidAtlantic Region”); Kiesling Dep. 137 (describing Mr. Fitzpatrick
as “CEO of Citizens Bank” but expressing uncertainty about his
exact title), Kiesling Dep. 138 (stating Mr. Fitzpatrick “was up
there in the ranks of Citizens Bank”); Resp. Opp’n Mot. Summ. J.
2 (describing Mr. Fitzpatrick as “President of Citizen’s Bank of
Pennsylvania”); see Resp. Opp’n Mot. Summ. J. Ex C, “Consumer
Loan – Senior Level Override Recommendation” (describing Mr.
Fitzpatrick’s title as “Market President, CBPA”).
18

Plaintiff was at the time of the ethical violation. See Compl. ¶
20; Mot. Summ. J. 7; Kiesling Dep. 137–38. Plaintiff concedes
that Mr. Fitzpatrick and Plaintiff reported to different
supervisors and that they held positions with different
responsibilities. See Kiesling Dep. 138–40.
Plaintiff claims that she and Mr. Fitzpatrick were
disparately treated because she was terminated as a result a
result of her ethics violation (incentive fraud) whereas Mr.
Fitzpatrick also allegedly committed an ethics violation but was
not terminated. See Compl. ¶¶ 20-22. Plaintiff asserts that Mr.
Fitzpatrick signed off on a more favorable loan rate for his
brother-in-law, which the brother-in-law was not entitled to
based on his credit score, in violation of Citizens Bank’s
ethical rules. Even if Plaintiff’s allegations are correct, no
reasonable jury could find that Mr. Fitzpatrick and Plaintiff
were similarly situated in all relevant respects, due to their
different job responsibilities, supervisors, and the nature of
their alleged unethical conduct.

While the record is not clear as to Mr. Fitzpatrick’s exact
title, Plaintiff does not contest that he holds a position high
within Citizens Bank’s management, that he operates at a
regional level, and holds a position that is distinguishable
from that of a local branch manager. See Kiesling Dep. 138.
19

V.

CONCLUSION
Under these circumstances, no reasonable jury could

conclude that the legitimate non-discriminatory reason given by
Defendant for Plaintiff’s termination was pretextual and that
discrimination was the real reason for the adverse employment
action. Thus, Defendant’s motion for summary judgment will be
granted.
An appropriate order and entry of judgment follow.

20