                                                                   NOT PRECEDENTIAL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
           App. 51.
       3
           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
          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
         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
