Hat’s off to Hon. Mark R. Hornak, U.S. District Court Judge

March 7, 2014
By: Charles Lamberton


From the very first sentence of the Hon. Mark R. Hornak’s opinion in McClung et al. v. Songer Steel Services, Inc., No. 12-341, 2014 WL 793133 (W.D.Pa.), the reader knew they were in for a special treat:  “In this race discrimination suit, claims based solely on permissible inferences square off against an essentially vaporous defense on the summary judgment battlefield.”  Here are a couple of my favorite excerpts:

In finding the plaintiff’s comparator similarly-situated:  “Here, both Mr. Smiley and Mr, Pierce were employed as second-shift laborers at Defendant Songer Steel’s construction project at U.S. Steel—Clairton Coke Works, in Clairton, Pennsylvania, and as such, were listed with identical job titles in Songer Steel’s Employee List and Clairton Laborer List. Songer Steel identifies these two individuals’ work performance as “the particular criteria or qualification” that was behind its reason to terminate Mr. Smiley’s employment and not recall him….” However, Songer Steel’s contention that Mr. Smiley and Mr. Pierce were not similarly situated because Mr, Pierce had no negative performance reviews misses the mark because it instead points to Songer Steel’s alleged dissimilar treatment of Mr. Smiley, a black second-shift laborer, and Mr. Pierce, a white second-shift laborer, and does not point to Mr. Smiley and Mr. Pierce being dissimilarly situated as employees. [n. 3] In some ways, Songer Steel’s argument is circular, since the next “logical” step in this mode of analysis would be that Messrs. Smiley and Pierce were not “similarly situated” because one was recalled and the other was not. Under this analytical model, no plaintiff could ever be found to be similarly situated to a better-treated comparator in any discharge/failure-to-rehire case in which the employer claims that the plaintiff’s performance was less satisfactory than that of better-treated employees. Under this approach, every such claim would fail ab initio. Moreover, the fact that Mr. Pierce had been working on the job only six days before he was fired, whereas Mr. Smiley had been working on the job for nearly two months, is not fatal to Plaintiff’s claim that the two laborers are similarly situated because the standard is that the comparator be “similar,” not identical. Mr. Smiley and Mr. Pierce were indeed hired at different times to do identical work at the same Songer Steel facility. Further, that Mr. Smiley had worked at Songer Steel longer than Mr. Pierce simply begs the question as to why, if Mr. Smiley was such a poor worker, he wasn’t laid off much earlier given Songer Steel’s stated common pattern and practice as to layoffs.”

On whether the defendant satisfied its light burden to articulate a legally sufficient reason for the plaintiff’s termination: When Plaintiff’s counsel attempted to elicit testimony from Mr. Smiley about the specifics of Mr. Smiley’s alleged “slacking off,” Mr. Leadbitter’s testimony became a veritable matryoshka doll of stacked up inconsistencies and equivocations. Here, what emerges from Mr. Leadbitter’s testimony is, at best, his wholly uncertain and conditional knowledge of Plaintiff’s allegedly subpar work performance. The sweeping, yet essentially unsupported, generalities in Mr. Kutemeier’s affidavit do little more to suggest a “legally-sufficient [explanation] to justify a judgment for the defendant.” [n.12] Based on the Third Circuit’s admonitions in Ezold, at least prior to the 2010 amendments to the notice provisions Federal Rule of Civil Procedure 56, consideration of granting summary judgment for the nonmovant (Plaintiff) would have been this Court’s next move. See Keller v. Oriz Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir.1997) (noting that in an employer’s Title VII motion for summary judgment, as to the second prong of McDonnell Douglas, “[i]f the defendant cannot satisfy this burden, judgment must be entered for the plaintiff.”). However, under the amended Rule 56, a court may grant summary judgment for the nonmovant only “after giving notice and a reasonable time to respond.” Fed.R.Civ.P. 56(f).