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McClung v. Songer Steel Services, Inc.

United States District Court, W.D. Pennsylvania

February 26, 2014

DARRYL MCCLUNG, et. al., Plaintiffs,

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[Copyrighted Material Omitted]

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For ROBERT SMILEY, JR., Plaintiff: David B. Spear, LEAD ATTORNEY, Minto Law Group, LLC, Pittsburgh, PA; Foster S. Goldman, Jr., Goldman Schafer & Spear, Pittsburgh, PA.

For SONGER STEEL SERVICES, INC., Defendant: Jeffrey E. Beeson, LEAD ATTORNEY, Beeson Terhorst LLP, Healdsburg, CA.


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Mark R. Hornak, United States District Judge.

In this race discrimination suit, claims based solely on permissible inferences square off against an essentially vaporous defense on the summary judgment battlefield.

Plaintiff, Robert Smiley, Jr. (" Mr. Smiley" ), alleges that Defendant Songer Steel Services, Inc. (" Songer Steel" ), fired him because he is African American, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et. seq., The Civil Rights Act of 1866, 42 U.S.C. § 1981, as amended; and Section 5(a) of the Pennsylvania Human Relations Act, 43 P.S. § § 951-963. The parties have extensively briefed the Defendant's Motion for Summary Judgment, ECF No. 20, and the Court's deliberations have been aided by the oral argument presented by counsel. After consideration of Defendant's Motion, the various filings in support and opposition thereto, the relevant case law, and the record as a whole, the Court concludes that genuine issues of material fact remain, and therefore, for the reasons that follow, Defendant's Motion is denied.


The material facts are straightforward, and the parties agree on the following of them. Plaintiff Mr. Smiley was employed as a journeyman laborer at Defendant Songer Steel's construction project at U.S. Steel -- Clairton Coke Works (" Project" ) in Clairton, Pennsylvania. Def.'s Concise Statement of Material Facts (" Def.'s Stat. Facts" ) ¶ 1. Songer Steel employed union-represented bricklayers, ironworkers, and laborers on the Project, with the laborers and bricklayers scheduled in two work shifts, a day shift and a night shift. Id. at ¶ 2. Jim Leadbitter (" Mr. Leadbitter" ) and Justin Korotko (" Mr. Korotko" ) were the two night shift Laborer Foremen. Id. at ¶ 3. Mr. Leadbitter and Mr. Korotko reported to General Foreman Dean Kutemeier (" Mr. Kutemeier" ), the night shift Laborer General Foreman. Id. Under the Laborers Local Union procedures, laborers were allowed to solicit their own hiring instead of relying exclusively on referrals from the union. Id. at ¶ 4. After hiring the initial complement of laborers on the Project in September of 2010, all subsequent Songer Steel hiring was based on referrals from the Laborers Local Union. Id.

In early September of 2010, Mr. Smiley discussed employment on the Project in a phone conversation with Mr. Kutemeier. Id. at ¶ 5. Mr. Kutemeier offered Mr. Smiley a position for the second, or night, shift. Id. Mr. Smiley first met Mr. Kutemeier several days later at the Project site on September 7, 2010, and went through Songer Steel's orientation process for new hires. Id. at ¶ 6. Songer Steel avers that Mr. Smiley was hired on September 7, 2010, while Mr. Smiley avers that Mr. Kutemeier had already hired Mr. Smiley on September 5, 2010 during their initial phone conversation. Pl.'s Responsive Concise Statement (" Pl.'s Stat. Facts" ) ¶ 6. Mr. Smiley was laid off on November 4, 2010. Def.'s Stat. Facts ¶ 7.

From September 7, 2010 to November 4, 2010, the night shift laborers were split into two crews, one led by Foreman Korotko and the other by Foreman Leadbitter. Id. at ¶ 8. Mr. Smiley was assigned to a crew of eight to ten laborers on the night shift led by Mr. Leadbitter. Id. The two laborer crews typically worked 20 to 30 feet apart, and for some periods they worked on different coke batteries. Id. at ¶ 9. The applicable labor agreement for the Project laborers was the National Maintenance

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Agreement (" NMA" ). Id. at ¶ 10. The NMA does not require hiring, job assignments, layoffs, or recalls to be governed by seniority. Id. Article XXI of the NMA also provides that crew sizes " shall be increased or decreased at the discretion of the Employer," and Article XXIII gives the Employer the right to " lay off employees and supervision [sic] because of lack of work or for other legitimate reasons." Id.

The coke battery renovation work was performed in phases as the work progressed through the sections of the batteries. Id. at ¶ 21. On October 29, 2010, when the second phase of the work involving demolition of the top of the battery started, Songer Steel hired three additional laborers. Id. An increase of laborers to help with the demolition, or " tear-out," was common practice for this type of work. Id. More specifically, it was common practice to hire three or so additional workers and lay off those workers three, four, or five days later, when the tear-out was completed. Id. It was also common practice that the extra laborers hired for the tear-out work were not those necessarily laid off when the work was completed. Id. On November 4, 2010, when the tear-out work was completed, three second-shift laborers were laid off: Mr. Smiley, Mr. Darryl McClung (who was also African-American), and Mr. Richard Pierce, a white laborer. Id.

Mr. Pierce was first hired at the Project on October 29, 2010 (less than a week before he was laid off), as one of the three laborers hired for the tear-out. Id. at ¶ 39. Songer Steel then rehired Mr. Pierce on December 14, 2010. Id. Mr. Leadbitter had worked with Mr. Pierce before the Project, and believed that Mr. Pierce was a " good worker." Id. at ¶ 40. The parties do not dispute that Mr. Leadbitter recommended to Mr. Kutemeier that Mr. Pierce be rehired after his November 4, 2010 layoff. Id.

The parties do dispute the following facts. Defendant contends that " according to Leadbitter's assessment, Smiley's work performance was not as good as the other laborers and Smiley was not getting enough work done." Id. at ¶ 12. Defendant avers that Mr. Leadbitter saw Mr. Smiley and Mr. McClung sitting down on the job when they should have been working. Id. at ¶ 13. Mr. Smiley denies this. Pl.'s Stat. Facts ¶ ¶ 12, 13 (quoting Leadbitter Dep. 40:5-14, Ex. 2).

According to the Defendant, when Mr. Leadbitter saw Mr. Smiley sitting down on the job while others in the crew were working, it was not in a rest area or break area; it was in a job site work area where Mr. Smiley was supposed to be working. Def.'s Stat. Facts ¶ 14. Defendant contends that Mr. Leadbitter " said something" to Mr. Smiley when Mr. Smiley was sitting down without permission, but Mr. Leadbitter cannot remember the exact details of what he said. Def.'s Stat. Facts ¶ 16.

The parties do not dispute that it was Mr. Leadbitter's practice as a supervisor to approach any worker, regardless of whether or not they were in his crew, if he saw them sitting down on the job while others were working, in order to determine why they were sitting down because, according to Mr. Leadbitter, " if you're there to work, you're there to work. You're not sitting down." Def.'s Stat. Facts ¶ 17. Nor do the parties dispute that Mr. Kutemeier, Mr. Korotko, and Mr. Leadbitter met on a regular basis, along with Superintendent Joseph Rodriguez, id. at ¶ 18, or that Mr. Kutemeier generally oversaw the laborers' work, and was present in the laborers' work area every night for between three to eight hours each shift, id. at ¶ 19. It is undisputed that Mr.

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Korotko never saw Mr. Smiley's work, never worked with Mr. Smiley, Def.'s Reply ¶ 10, and has no recollection of Mr. Smiley's name being mentioned in any co-worker's complaints, id. at ¶ 11.

Further, the parties agree that the decision as to which three laborers to lay off on November 4, 2010 was made after discussions among General Foreman Kutemeier and the two Laborer Foremen, Mr. Leadbitter and Mr. Korotko, during which Mr. Kutemeier sought Mr. Leadbitter and Mr. Korotko's input. Id. at ¶ 22. Mr. Kutemeier stated in his affidavit that he based his belief on the recommendations of Mr. Leadbitter and Mr. Korotko, and what he himself observed. Id. at ¶ 26.

However, Mr. Smiley avers that Mr. Kutemeier never told him that his work ethic or performance was lacking, and Mr. Leadbitter never reprimanded Mr. Smiley nor spoke to him about working too slowly. Id. Further, Mr. Smiley avers that he asked Mr. Leadbitter for extra work to do. Id. Plaintiff denies that Mr. Leadbitter did not treat any worker differently because of their race, alleging instead that while other laborers rested, Mr. Leadbitter would pick out Mr. Smiley and assign him extra work to do. Id. at ¶ 29 (admitted by Defendant at Def.'s Reply and Objections to Pl.'s Responsive Concise Statement of Other Material Facts (" Def.'s Reply" ) ¶ 4).

Moreover, when Safety Inspector John Bordas (" Mr. Bordas" ) asked Mr. Smiley why he worked the way he did while other laborers were sitting down, Mr. Smiley explained that " as a black man," in order to fit in and prove himself to the others, he had to do extra work so that the others would not " look at him in a certain fashion." Id. at ¶ 6. While Defendant admits that Mr. Bordas observed that Mr. Smiley went " above and beyond what was required for his job and that Smiley's work was superior to other laborers," Defendant contends that Mr. Bordas had limited personal knowledge of Mr. Smiley's work. Id. at ¶ 7.

Mr. Smiley ultimately alleges that his two Songer Steel supervisors, Mr. Kutemeier and Mr. Leadbitter, discriminated against him on the basis of his race. Def.'s Stat. Facts ¶ 36. Notably, the parties agree that there were no racial comments or any negative or derogatory statements based on race attributable to any of the supervisors or managers involved in the layoff decisions. Def.'s Stat. Facts ¶ 30. Mr. Smiley raised no concerns or complaints to anyone at Songer Steel about any harassment or discrimination, id. at ¶ 32, and did not ask any of his union representatives to file a grievance on his behalf to challenge his layoff, id. at ¶ 34.

On December 13, 2010, Mr. Smiley filed a charge against Songer Steel with the Pennsylvania Human Relations Commission (" PHRC" ), and this charge was dual-filed with the Equal Employment Opportunity Commission (" EEOC" ). Pl.'s Compl. ¶ 4. On March 20, 2012, Plaintiffs Mr. McClung, Mr. Richard Prater (a bricklayer laid off on September 29, 2010), and Mr. Smiley filed suit in this Court against Songer Steel, alleging in Count I, " Violation of Title VII -- Race," in Count II, " Violation of PHRA -- Race," and in Count III, " Violation of Section 1981." On March 12, 2013, this Court granted Plaintiff Mr. Prater's Stipulation of Dismissal, such that Mr. Prater's case against Songer Steel was dismissed with prejudice. See ECF No. 17. On March 26, 2013, this Court granted Plaintiff Mr. McClung's Stipulation of Dismissal, such that Mr. McClung's case against Songer Steel ...

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