Filed: Feb. 22, 2018
Latest Update: Mar. 03, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 17-1797 _ ORLANDO A. SMITH, Appellant v. COMHAR, INC. _ On Appeal from the United States District Court for the Eastern District of Pennsylvania (E.D. Pa. No. 2-15-cv-04913) U.S. District Judge: Honorable Gerald A. McHugh _ Submitted Pursuant to Third Circuit L.A.R. 34.1(a) December 15, 2017 Before: CHAGARES, RESTREPO and FISHER, Circuit Judges. (Opinion Filed: February 22, 2018) _ OPINION* _ FISHER, Circuit Judge. Orlan
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 17-1797 _ ORLANDO A. SMITH, Appellant v. COMHAR, INC. _ On Appeal from the United States District Court for the Eastern District of Pennsylvania (E.D. Pa. No. 2-15-cv-04913) U.S. District Judge: Honorable Gerald A. McHugh _ Submitted Pursuant to Third Circuit L.A.R. 34.1(a) December 15, 2017 Before: CHAGARES, RESTREPO and FISHER, Circuit Judges. (Opinion Filed: February 22, 2018) _ OPINION* _ FISHER, Circuit Judge. Orland..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 17-1797
____________
ORLANDO A. SMITH,
Appellant
v.
COMHAR, INC.
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(E.D. Pa. No. 2-15-cv-04913)
U.S. District Judge: Honorable Gerald A. McHugh
____________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
December 15, 2017
Before: CHAGARES, RESTREPO and FISHER, Circuit Judges.
(Opinion Filed: February 22, 2018)
____________
OPINION*
____________
FISHER, Circuit Judge.
Orlando Smith, an employee of COMHAR, Inc., was fired in September 2014. He
sued COMHAR, claiming sex discrimination under Title VII and a related claim under
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
the Pennsylvania Human Relations Act.1 Following discovery, the District Court granted
summary judgment in favor of COMHAR, which we will affirm.
I
COMHAR is a nonprofit organization serving individuals with mental and
physical disabilities. In April 2014, Smith was promoted to a supervisory position in
which he oversaw six case managers. Smith was hired by and reported directly to Ms.
Catina Anastasiadis, who had previously held Smith’s new position.
Smith’s relationships with two of his subordinates, Ms. Tammy Hairston and Ms.
Lori Mina, deteriorated almost immediately. Smith complained of disrespectful and
insubordinate conduct, while Hairston and Mina complained of unprofessionalism and a
domineering attitude. These strained relationships led to many meetings, mediated by
Anastasiadis, in which she supported Smith in his role as supervisor and attempted to
help the parties resolve their differences. This pattern repeated itself several times over
the ensuing months: a flare up, followed by a meeting with Anastasiadis, and a brief
rapprochement.
Smith alleges that, around the time these disputes first arose, Anastasiadis
disclosed to him that Hairston and Mina disagreed with her decision to promote Smith in
the first place. According to Smith, Anastasiadis told him that she would keep the case
managers informed during the hiring process, and that “the only people that had any
1
42 U.S.C. § 2000e et seq.; 43 PA. CONS. STAT. § 951 et seq.
2
problem [with potential candidates] were [Hairston and Mina] and it seemed to be about
the men.”2
Smith eventually drafted two disciplinary memos directed to Hairston and Mina,
but Anastasiadis and an assistant Human Resources director recommended that Smith not
issue the memos given how short a time he had been in the supervisor position. In
response, Smith went directly to Anastasiadis’ boss for support. This prompted a meeting
between Smith and Anastasiadis, during which Anastasiadis claims he behaved in a
condescending, disrespectful, and aggressive manner towards her, though Smith denies
this characterization of his conduct. That evening, Smith sent an email directly to the
Director of Human Resources, Barry McLaughlin, expressing his concern that he was
being discriminated against based on his gender because everybody who was critical of
his treatment of Hairston and Mina were women. McLaughlin, a man, offered to meet
with Smith to address his concerns, but Smith declined. About two weeks later, Smith
and Mina had a highly contentious meeting, with Mina storming out of Smith’s office
and yelling, “I’m going to get that bastard fired, I promise I’m going to get him fired.”3
The next day, Thursday, Mina sent an email to the case management team
(including Smith) in anticipation of her two-day vacation the following week. In this
email, Mina provided an update on several of her more challenging clients, including
KM, whom Mina identified as being particularly high-risk due to a recent relapse. Mina
2
Ohio App. 51.
3
Ohio App. 96.
3
expressed her concern that KM could overdose or get into legal trouble in the near future,
and also noted that she would be meeting with KM the following day.
The next morning, KM arrived at COMHAR to receive her entitlement money.
For some clients, government benefits are paid to COMHAR on behalf of the client, with
COMHAR then disbursing the funds in installments. Mina had not yet arrived at the
office, so a clerical worker contacted Smith to ask if he would provide KM with her
allotted payment. Smith complied without contacting Mina. When Mina arrived shortly
thereafter, she was dismayed at Smith’s decision and his lack of communication. Mina
then left to search for KM. The next day, Mina sent Anastasiadis an email detailing
Smith’s actions and describing the incident as “another prime example of no
communication.”4 Anastasiadis forwarded this email to her supervisor, who made the
decision to suspend Smith. The next week, Smith met with Anastasiadis and other
directors to discuss the KM incident. During this meeting, Smith took the position that he
had done nothing wrong and blamed both Mina and the clerical worker.
During Smith’s suspension, Anastasiadis assumed his job responsibilities.
Anastasiadis discovered several additional examples of Smith’s mismanagement, such as
his lack of regular meetings with his team and his failure to follow through on
administrative tasks Anastasiadis had assigned him. Anastasiadis sent a memo to her
supervisors cataloguing all of her concerns with Smith and concluding that he was “not
4
Ohio App. 209.
4
appropriate for [the supervisor position] . . . [and] present[ed] a risk” to COMHAR’s
clients.5 About one month after the KM incident, COMHAR fired Smith, citing Smith’s
lack of supervision, poor communication, poor clinical judgment, and inability to resolve
persistent conflicts with his subordinates.
II
The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367. We
exercise jurisdiction under 28 U.S.C. § 1291. On an appeal from a grant of summary
judgment, our review is plenary.6 Summary judgment is appropriate when there are no
genuine disputes as to material facts and the moving party is entitled to judgment as a
matter of law. We will view the evidence in the light most favorable to the nonmovant,
but “[t]he mere existence of some evidence in support of the nonmovant is insufficient to
deny a motion for summary judgment; enough evidence must exist to enable a jury to
reasonably find for the nonmovant on the issue.”7 Smith’s claims under Title VII and the
Pennsylvania Human Relations Act will be analyzed jointly.8
III
5
Ohio App. 218.
6
Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009).
7
Id.
8
Faush v. Tuesday Morning, Inc.,
808 F.3d 208, 213 (3d Cir. 2015) (claims under
these laws are generally “interpreted coextensively”).
5
As first articulated in McDonnell Douglas Corp. v. Green, a Title VII complainant
carries the initial burden of establishing a prima facie case of discrimination.9 The burden
then shifts to the employer to “articulate some legitimate, nondiscriminatory reason for
the employee’s” termination.10 A complainant will survive summary judgment if he can
show that the proffered reason was a pretext.11 This he may do by presenting evidence
that would allow a reasonable factfinder to either “conclude that each reason was a
fabrication[,]” or, alternatively, “infer that discrimination was more likely than not a
motivating . . . cause” of the firing.12
Assuming that Smith presented a prima facie case, COMHAR easily meets its
burden of proffering legitimate, nondiscriminatory grounds for Smith’s termination: his
inability to communicate with his subordinates, poor clinical judgment, and abrasive
conduct. Smith attempts both available avenues of attack on COMHAR’s proffered
reasons, painting COMHAR’s rationale as a weak and implausible fabrication, and also
arguing that discriminatory animus was the true cause of his termination. For the reasons
explained below, Smith’s arguments fail.
A. Smith has not shown that COMHAR’s justifications were fabricated.
9
411 U.S. 792, 802 (1973).
10
Id.
11
Id. at 804–05.
12
Atkinson v. Lafayette College, 460 F.3d 447, 454 (3d Cir. 2006) (quoting
Fuentes v. Perskie,
32 F.3d 759, 762 (3d Cir. 1994)) (internal quotation marks omitted).
6
Smith focuses the lion’s share of his argument on the chain of events surrounding
Mina’s missing client, KM. Smith contends that the entire incident was overblown,
disputes the length of time that KM was unaccounted for, and places all blame on Mina
and other COMHAR employees. Smith’s singular focus on the missing client fails in its
own right, but also neglects the additional, valid reasons COMHAR proffered.
To start, there is ample evidence in the record that Smith demonstrated poor
clinical judgment in disbursing funds to KM. More importantly, the fact that this mistake
could be traced back to poor communication within the case management team, the
maintenance of which was Smith’s responsibility, provided all the more reason for
COMHAR to factor this incident into its termination decision. How long KM was
missing for, whether she used the allotted funds to purchase drugs, and whether Mina
should have been more clear in her warning email about KM are ultimately beside the
point. COMHAR was justified in holding Smith accountable for the overall failure of his
team. Notably, Smith’s burden is not simply to show that COMHAR was wrong, “but
that it was so plainly wrong that [its reasons] cannot have been” the true motivation for
the firing.13 Smith has failed to do so with regard to the KM incident, much less with
regard to the complete justification proffered by COMHAR.
B. Smith has not shown that discrimination was more likely than not the motivating factor
in his termination.
13
Id. (quoting Keller v. Orix Credit All., Inc.,
130 F.3d 1101, 1109 (3d Cir. 1997))
(internal quotation marks omitted).
7
Smith also pursues the alternative approach of demonstrating that gender
discrimination was more likely than not the motivating factor in his firing. Smith’s sole
piece of affirmative evidence even plausibly suggestive of gender discrimination is the
comment, allegedly made by Anastasiadis in reference to Mina and Hairston, that the
latter two “had objections” to certain candidates for the supervisor role eventually given
to Smith, “and it seemed to be about the men.” Even assuming that Anastasiadis made
this statement, and that her impression of Mina and Hairston’s feelings was accurate,
both Mina and Hairston worked under Smith and had no apparent ability to affect his
employment status, whatever their prejudices.
To circumvent this obstacle, Smith posits the “cat’s paw” theory of liability,
whereby an employer may still be liable for discrimination even if the discriminatory
motivation comes from somebody other than the ultimate decision-maker. According to
Smith, Mina, motivated by gender bias, orchestrated the entire KM episode in order to
get Smith fired, and COMHAR’s upper-level management culpably abetted her
discriminatory plot. Plausibility aside, the basic infirmity with Smith’s theory is that,
since the “injection” of “cat’s paw” liability into discrimination law, the underlying
assumption has always been that the animus-harboring individual is at least senior to the
8
victim.14 Likewise, when we have addressed questions arising out of “cat’s paw” claims,
we have operated under the same assumption.15 Ultimately, we need not decide whether a
subordinate’s bias could theoretically lead to liability for an employer, because even
assuming this to be the case, Smith’s claim fails.
The Supreme Court has clarified that in “cat’s paw” cases the relevant question is
whether a bias-motivated action was the proximate cause of the ultimate employment
action.16 That would be plausible here only if: (1) Mina actually harbored a
discriminatory animus, (2) it was this animus, not reasoned judgment, that led her to take
the eminently practical step of reporting her concerns about Smith’s disbursement of
funds to KM, and (3) relevant decision-makers at COMHAR based their firing decision
on Mina’s report, and not an independent assessment of the KM situation and Smith’s
overall record of performance as supervisor. The record arguably presents a genuine issue
of material fact as to the first premise, but not the second or third. In short, no reasonable
14
Staub v. Proctor, 131 S. Ct. 1186, 1190 n.1 (2011) (citing Shager v. Upjohn Co.,
913 F.2d 398, 405 (7th Cir. 1990)). While the doctrine is sometimes given the potentially
misleading title of “subordinate bias,” in such usage “subordinate” refers to the biased
party being subordinate to the ultimate decision-maker, not subordinate to the injured
party. See EEOC v. BCI Coca-Cola Bottling Co.,
450 F.3d 476, 487–88 (10th Cir. 2006).
15
See Jones v. SEPTA, 796 F.3d 323, 330–31 (3d Cir. 2015) (discussing whether
the “supervisor’s biased report” was the proximate cause of the employment action);
McKenna v. City of Philadelphia,
649 F.3d 171, 177–78 (3d Cir. 2011) (assessing relative
weight given to supervisors’ opinions before rendering termination decision).
16
Staub, 131 S. Ct. at 1194.
9
“factfinder could conclude by a preponderance of the evidence that [discrimination] was
a motivating or determinative factor in [COMHAR’s] employment decision.”17
Smith has failed to rebut COMHAR’s proffered justifications for his firing, so the
District Court’s grant of summary judgment was appropriate.18
IV
The Order of the District Court is AFFIRMED.
17
Simpson v. Kay Jewelers, 142 F.3d 639, 644–45 (3d Cir. 1998).
18
In the District Court, Smith also raised a retaliation claim under Title VII.
Smith’s passing reference to this claim in the final paragraph of his initial brief is
insufficient to sustain the issue, and it is accordingly waived.
10
