CCaassee22:0:085--cmv-c0-0624092-5TFMD-AocRuHmeDnto6c4u5mentF1iledF0il5e/d130/52/01038/08 PPaaggee11ooff1188

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DOUGLAS M. HODCZAK, JAMES M. CROSSAN, THOMAS J. MAGDIC AND JOSEPH A. LITVIK, on behalf of themselves and all others similarly situated,
Plaintiffs,
vs.
LATROBE SPECIALTY STEEL COMPANY,
Defendant.

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Civil Action No. _________

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Judge _________

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ELECTRONICALLY FILED

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JURY TRIAL DEMANDED

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COLLECTIVE ACTION COMPLAINT Representative Plaintiffs, Douglas M. Hodczak, James M. Crossan, Thomas J. Magdic, and Joseph A. Litvik, (collectively, the “Representative Plaintiffs”), on behalf of themselves and all others similarly situated, by and through their counsel, Obermayer Rebmann Maxwell & Hippel LLP, file this Collective Action Complaint against Defendant Latrobe Specialty Steel Company (“Latrobe” or “Defendant”), under the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq (the “ADEA”), and aver as follows:

THE PARTIES 1. Plaintiff Douglas M. Hodczak is an individual who is currently 58 years old and resides at 719 W. 5th Ave, Derry, PA 15627 2. Plaintiff James M. Crossan is an individual who is currently 60 years old and resides at 124 Irving Ave., Latrobe, PA 15650.

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3. Plaintiff Thomas J. Magdic is an individual who is currently 58 years old and resides at 222 Washington St., Ligonier, PA 15658.
4. Plaintiff Joseph A. Litvik is an individual who is currently 61 years old and resides at 717 Heathrow Lane, Blairsville, PA 15717.
5. Defendant Latrobe is a Pennsylvania corporation with its principal place of business located at 2626 Ligonier Street, Latrobe, Pennsylvania. At all relevant times, Latrobe has continuously been an “employer” within the meaning of 29 U.S.C. § 623.
6. Representative Plaintiffs are all former employees of Latrobe. 7. Once the discovery process in this matter is underway, the roles of other unknown conspirators and participants in the wrongdoing identified herein may be revealed, and Representative Plaintiffs will then seek leave of court to amend this Complaint to add new parties and/or new claims.
NATURE OF THIS ACTION 8. This is an action brought by the Representative Plaintiffs seeking redress on a collective basis for company-wide practices in which Latrobe has engaged which discriminate against its older work force in conducting terminations and forced retirements over an extended period of time, which practices are continuing in nature. Representatives Plaintiffs bring this collective action on behalf of themselves and all other present and former similarly situated salaried employees against Latrobe for discrimination in employment.

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JURISDICTION 9. This Court has jurisdiction over the federal question subject matter of this civil rights action under 28 U.S.C. § 1331 and 29 U.S.C. § 216(b), as made applicable by 29 U.S.C. § 626(b). 10. This Court has personal jurisdiction over Latrobe because Latrobe systematically and continuously engages in substantial interstate commercial conduct and business activity within this District. 11. On March 12, 2008, the Representative Plaintiffs each filed charges of employment discrimination based on age against Latrobe with the Equal Employment Opportunity Commission (“EEOC”). 12. More than 60 days have elapsed since the Representative Plaintiffs filed their charges with the EEOC.
VENUE 13. Venue is proper in the Western District of Pennsylvania under 28 U.S.C. § 1391(b), as the unlawful employment acts and practices complained of by the Representative Plaintiffs were committed or occurred, and continue to occur, within this District. Moreover, Latrobe maintains its headquarters in this District, and Representative Plaintiffs, as well as the majority of Class Members, reside and/or worked for Latrobe in this District.

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FACTUAL BACKGROUND
Allegations Concerning Hodczak 14. Hodczak was hired by Latrobe Steel Company (“LSC”) on July 23, 1973. At that
time, he had a degree in Political Science and a minor in Economics. 15. In 1975, LSC was acquired by The Timken Company and renamed Timken
Latrobe Steel. (“TLS”) 16. Over the years, Hodczak received a series of promotions and occupied a series of
different positions at LSC, the Timken Co., and TLS. 17. In 2006, the Timken Company divested the stock of TLS which was acquired by
the Watermill Group and Hicks Holdings, which renamed it Latrobe Specialty Steel (“LSS”). On October 1, 2007, Hodczak was promoted to the position of Manager of the Special Products Division.
18. On November 2, 2007, Hodczak received a phone call from Mark Webberding, Vice President of Sales and Marketing, telling him to come to a meeting in Rachel Grant’s office, in the Human Resources Department. When he arrived at the office, he was met by Webberding and Ms. Grant.
19. Webberding told him that he was being suspended without pay and that the reason was that he had been sending and receiving certain material at his LSS email address and that he was additionally guilty of sending emails critiquing management’s performance. He was told to go home and was escorted from the office.
20. On November 8, 2007, he was called into the LSS office and told by Dan Hennessey, Vice President of Manufacturing and Kevin Brahaney, Head of Human Resources,

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that, for the reasons given when he had been suspended, his employment with LSS of almost 35 years was being terminated, effective immediately. They told him they would allow him to “resign.”
21. Hodczak was immediately replaced by an individual that is several years younger then he.
22. The stated reasons given for his termination were merely a pretext for the real reason for his termination, which was LSS’s desire to rid itself of older employees. He was 57 years old at the time of his termination.
23. The emails that Hodczak sent and received were far less offensive than what many other employees and members of management, including Hans Sack, President of LSS, sent and received without any sanction from the company. In fact, there is an entire culture at LSS of sending pornographic emails.
24. Before he was summarily dismissed, he was not warned by the Company about any aspect of the conduct that allegedly formed the basis for his dismissal, as had other employees in the past who were disciplined for similar reasons.
25. The true reason for his dismissal, age discrimination in violation of the ADEA, is confirmed by the fact that LSS initially suspended six individuals, including Hodczak, involved in the “ring” that was emailing allegedly improper material. Of the six, five were over forty (40) years of age, and one was less than forty years of age. Ultimately, four of the six lost their jobs and all four were over forty years old.
26. Hodczak’s termination, along with three other employees in their late fifties or early sixties, on November 8, 2007, is part of a systematic pattern and practice of terminating older employees. LSS has targeted a class of employees over the age of forty for termination

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based largely, if not exclusively, on their age. In fact, the four that were fired, were among the oldest employees in the Company.
27. Each of the victims of LSS’s age discrimination, including each of the three who were terminated with Hodczak, is similarly situated to the others, and Hodczak is similarly situated to all of them.
Allegations Concerning Crossan 28. Crossan was hired by TLS, on March 19, 1979 as a programmer/analyst. 29. He attended night school while working at TLS and obtained a Bachelor of
Science degree in Business Computer Systems from St. Vincent College in May, 1985. 30. Over the years, he received a series of promotions and occupied a number of
different positions at TLS. 31. In 1999, He was promoted to the position of Supervisor of Logistics and MRO
Supplies Control. 32. On November 2, 2007, after TLS became LSS, Crossan was called into the office
of his supervisor, Ron Summerhill, Manager of Purchasing, by Randy Strayer, Director of Inventory Management. Crossan met with both of them.
33. He was told that he was being suspended without pay and that the reason was that he had been sending and receiving certain material at his LSS email address. He was told to go home.
34. On November 8, 2007, he was called at home by Dan Hennessy, Vice-President of Manufacturing, to come into the LSS office for a meeting. When he arrived, he met with Ron Summerhill and Kevin Brahaney, Director of Human Resources. They told him that, for the reasons given when he had been suspended, his employment with LSS of over 28 years was

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being terminated, effective immediately. He was told that, in recognition of his years of service, he would be allowed to “resign.”
35. The stated reasons given for his termination were merely a pretext for the real reason for that termination, which was LSS’s desire to rid itself of older employees. Crossan was 59 years old at the time of his termination.
36. Crossan was immediately replaced by an individual who was in his thirties. 37. The emails that he sent and received were far less offensive than what many other employees and members of management, including Hans Sack, President of LSS, sent and received without any sanction from the company. In fact there is an entire culture at LSS, which condones the transmission of emails which contain offensive content. 38. Before he was summarily dismissed, Crossan was not warned by the Company about any aspect of the conduct that allegedly formed the basis for his dismissal, as had other employees in the past who were disciplined for similar reasons. 39. The true reason for his dismissal, age discrimination in violation of the ADEA, is confirmed by the fact that LSS initially suspend six individuals, including Crossan, involved in the “ring” that was emailing allegedly improper material. Of the six, five were over forty years of age, and one was less than forty years of age. Ultimately, four of the six lost their jobs and all four were more than forty years old. In fact, those four were among the oldest employees in the Company. 40. Crossan’s termination, along with three other employees in their late fifties or early sixties, is part of a systematic pattern and practice of terminating older employees. LSS has targeted a class of employees over the age of forty for termination based largely, if not exclusively, on their age.

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41. Each of the victims of LSS’s age discrimination, including each of the three who were terminated with Crossan, is similarly situated to the others, and he is similarly situated to all of them.
Allegations Concerning Magdic 42. Magdic was hired by LSC on January 15, 1973 to work in the mail room. At that
time, he had a Bachelor of Science degree in Education. 43. In 1975, LSC was acquired by the Timken Company and renamed TLS and in
2006, renamed LSS. 44. Over the years, Magdic received a series of promotions, progressing to supervisor,
traffic coordinator and manager in cold finishing. In all, he occupied nineteen different positions at LSS and its predecessors.
45. In 2001, Magdic accepted an assignment to work in LSS’s continuous rolling mill.
46. On November 2, 2007, he was at the continuous rolling mill when he received a phone call to “come to a meeting” in the office. When he arrived at the office, he was met by Thomas Geary, Manager of Rolling, and Mr. Mikus, Director of Finance.
47. He was told that he was being suspended without pay and that the reason was that he had been accused of sexual harassment by an unnamed female employee of LSS based upon an innocuous email that he had sent to her, and was guilty of some unspecified breaches of “business ethics.” He was told to go home.

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48. On November 8, 2007, Magdic was called into the LSS office and told by Geary, with Hennessy present, that, for the reasons given when he had been suspended, relating to the benign email, his employment with LSS of almost 35 years was being terminated, effective immediately. He was told he would be allowed to “resign,” but only if he signed a document stating his reason for resigning, before he left the meeting, which he felt compelled to do.
49. The reasons given for Magdic’s termination were merely a pretext for the real reason for that termination which was LSS’s desire to rid itself of older employees. He was 58 years old at the time of his termination.
50. Under established company policy, any employee accused of sexual harassment is entitled to a warning before any punishment is meted out, particularly, where, as here, the accused employee has substantial tenure, where he is a member of management, where the accuser is not below him in his claim of command, where the alleged harassment is an isolated incident and where the alleged harassment is very mild. Magdic was given no such warning.
51. Moreover, Magdic did not engage in harassment of any kind. The emails that he sent and received were far less offensive than what many other employees and members of management, including Hans Sack, President of LSS, sent and received without any sanction from the company. In fact there is an entire culture at LSS, which condones the transmission of emails which contain inappropriate content.
52. Before he was summarily dismissed, Magdic was not warned by the Company about any aspect of the conduct that allegedly formed the basis for his dismissal, as had other employees in the past who were disciplined for similar reasons.

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53. The true reason for his dismissal, age discrimination in violation of the ADEA, is confirmed by the fact that LSS initially suspended six individuals, including Magdic, involved in the “ring” that was emailing allegedly improper material. Of the six, five were over forty (40) years of age. Ultimately, four of the six lost their jobs and all four were more than forty years old. In fact, those four were among the oldest and longest tenured employees in the Company.
54. Magdic’s termination, along with three other employees in their late fifties or early sixties, is part of a systematic pattern and practice of terminating older employees. LSS has targeted a class of employees over the age of forty for termination based largely, if not exclusively on their age.
55. Each of the victims of LSS’s age discrimination, including each of the three who were terminated with Magdic, is similarly situated to the others, and Magdic is similarly situated to all of them.
Allegations Concerning Litvik 56. Litvik was hired by LSC on September 3, 1969, to work on the labor gang. At
that time, he had just been discharged from the Army and was attending classes at the University of Pittsburgh, under the GI Bill.
57. In 1975, LSC was acquired by the Timken Company and renamed TLS and renamed LSS in 2006.
58. Over the years, Litvik received a series of promotions, progressing first to the industrial engineering department, then to supervisor of the continuous rolling mill then, to the manager of the continuous rolling mill and finally to manager of forgings.

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59. On November 2, 2007, he was off from work and was paged at home by his supervisor, Dan Hennessy, to come to a meeting in the office. When he arrived at the office, he was escorted to a conference room and met by Hennessy and Suzy Lawson from the Human Resources Department.
60. He was told that he was being suspended without pay and that the reason was that he had been sending and receiving certain material at my LSS email address.
61. On November 8, 2007, he was called into the LSS office and told by Dan Hennessy and Kevin Brahaney, head of Human Resources that, for the reasons given when he had been suspended, his employment with LSS of over 38 years was being terminated, effective immediately. He was told that he would be allowed to “resign.”
62. Litvik was immediately replaced by an individual in his forties. 63. The reasons given for Litvik’s termination were merely a pretext for the real reason for that termination which was LSS’s desire to rid itself of older employees. He was 60 years old at the time of his termination. 64. The emails that he sent and received were far less offensive than what many other employees and members of management, including Hans Sack, President of LSS, sent and received without any sanction from the company. In fact there is an entire culture at LSS which condones the transmission of inappropriate emails. 65. Before Litvik was summarily dismissed, he was not warned by the Company about the conduct that allegedly formed the basis for his dismissal, as had other employees in the past who were disciplined for similar reasons.

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66. The true reason for his dismissal, age discrimination in violation of the ADEA, is confirmed by the fact that LSS initially suspended six individuals, including Litvik, involved in the “ring” that was emailing allegedly improper material. Of the six, five were over forty years of age. Ultimately, four of the six lost their jobs and all four were more than forty years old. In fact, those four were among the oldest and longest tenured employees in the Company.
67. Litvik’s termination, along with three other employees in their late fifties, on November 8, 2007 is part of a systematic pattern and practice of terminating older employees. LSS has targeted a class of employees over the age of forty for termination based largely, if not exclusively, on their age.
68. Each of the victims of LSS’s age discrimination, including each of the three who were terminated with Litvik, is similarly situated to the others, and he is similarly situated to all of them.
Collective Action Allegations 69. The Representative Plaintiffs bring this action as a collective action under ADEA
under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b). 70. The Representative Plaintiffs are herein asserting claims for disparate treatment
and disparate impact under the ADEA arising out of Latrobe’s employment practices which discriminate against its older work force.

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71. Pursuant to Section 216(b) of the FLSA, the Representative Plaintiffs bring this ADEA action on behalf of themselves and all former salaried employees of Latrobe whose employment with Latrobe within the United States was terminated by Latrobe and who were at least 40 years of age at the time of such termination, and all present salaried employees of Latrobe who are at least 40 years of age and who are, therefore, at risk of being terminated by Latrobe as a consequence of the application of Latrobe’s unlawful employment practices (the “Class Members”).
72. The Representative Plaintiffs and the Class Members are similarly situated in that they have either been the victims of, or, by virtue of Latrobe’s continued application of the challenged policies, practices and procedures, are at risk of becoming the victims of Latrobe’s discriminatory conduct by which Latrobe has violated the ADEA by terminating older employees at least, in part, because that are older employees.
73. Under Section 216(b), Class Members must specifically opt-in to this collective action in order to be benefited or bound by the outcome. Thus, to certify this class, this Court need not make any inquiries beyond whether the Representative Plaintiffs and the Class Members are similarly situated.
COUNT I Disparate Treatment Under the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq 74. Representative Plaintiffs hereby repeat and incorporate by reference the allegations of Paragraphs 1 through 73 above as if fully set forth herein. 75. Each of the Representative Plaintiffs were members of a protected class at the time of their termination, ranging in age from 57 to 60.

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76. Each of the Representative Plaintiffs was well-qualified for his position with LSS and had a demonstrated and well-established record of success with the company prior to his termination.
77. Each of the Representative plaintiffs suffered an adverse employment action when his employment was terminated by LSS. That adverse employment action occurred in each case under circumstances giving rise to an inference of age discrimination.
78. LSS’s stated justifications for terminating the Representative Plaintiffs were a pretext for willful age-related discrimination.
79. The Representative Plaintiffs’ ages were a motivating factor in their terminations. 80. By terminating their employment, LSS discriminated against the Representative Plaintiffs in the terms and conditions of their employment on the basis of their ages, in violation of the ADEA, 29 U.S.C. § 621, et seq. 81. LSS has similarly discriminated or will discriminate against all Class Members in the terms and conditions of employment, on the basis of their age, in violation of ADEA. 82. As a consequence of the unlawful policy, pattern and practice, and unlawful conduct of LSS as described herein, Representative Plaintiffs and Class Members have suffered damages in the form of lost compensation and seek front-pay and back pay, attorneys’ fees and costs, declaratory and injunctive relief, lost pension benefits and punitive damages.

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COUNT II Disparate Impact Under the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. 83. Plaintiffs hereby repeat and incorporate by reference the allegations of Paragraphs 1 through 82 above as if fully set forth herein. 84. The Representative Plaintiffs are members of a protected class. 85. Each of the Representative Plaintiffs was well-qualified for his position with LSS and had a demonstrated and well-established record of success with the company prior to his termination. 86. Each of the Representative Plaintiffs suffered an adverse employment action when his employment was terminated by LSS. That adverse employment action occurred in each case under circumstances giving rise to an inference of age discrimination. 87. The Representative Plaintiffs’ ages were a motivating factor in their terminations. 88. By terminating their employment LSS discriminated against the Representative Plaintiffs in the terms and conditions of their employment on the basis of their ages, in violation of the ADEA, 29 U.S.C. § 621, et seq. 89. LSS claims to have a neutral policy regarding discipline for the inappropriate use of LSS employee email. Even if LSS’s policies and practices have been facially neutral as to the age of discharged employees, they nonetheless have had a disparate impact on older employees. LSS has, in practice, favored younger employees and targeted older ones in deciding who would be terminated. 90. LSS has similarly terminated the employment of all other Class Members who are former employees in like fashion, upon the basis of their age. LSS has engaged in the patterns,

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practices and omissions that have had a disparate impact on Class Members on the basis of their ages and which have resulted in their terminations or early retirements.
91. LSS’s actions in terminating the Representative Plaintiffs’ employment and the employment of other Class Members and was in violation of and contrary to the provisions of the ADEA.
92. Class members who are present employees are at risk of being terminated as a consequence of the application of LSS’s continuing policies, patterns and practices.
93. As a direct and proximate result of LSS’s conduct, the Representative Plaintiffs and all other Class Members who are former employees have been deprived of their employment and have been damaged.
94. As a consequence of the unlawful policies, patterns and practices, and unlawful conduct of LSS, the Representative Plaintiffs and Class Members suffered damages in the form of lost compensation, and seek front-pay and back pay, attorneys’ fees and costs, declaratory and injunctive relief, and punitive damages.
PRAYER FOR RELIEF WHEREFORE, the Representative Plaintiffs, on behalf of themselves and prospective members of this collective action, pray that this Court: a. Enter a judgment declaring this action to be a collective action properly
maintained under 29 U.S.C. §216(b), that the Representative Plaintiffs be designated as representatives of the Class, and that their counsel of record be designated as Class Counsel; b. Enter a judgment declaring that LSS’s conduct in terminating the employment of, Class Members of the collective action who were 40 years of age or older at the time of their termination violates ADEA; c. Issue a permanent prohibitory injunction ordering LSS and its officers, agents, employees and successors to cease and desist from the unfair discriminatory

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employment, practices, complained of herein, which result in the termination of employees forty-years of age or older;
d. Issue a permanent mandatory injunction requiring LSS to take such affirmative action as will effectuate the purposes of ADEA, including adopting employment practices in accord with ADEA’s requirements;
e. Enter a judgment and award in favor of the Representative Plaintiffs and the Class Members, and against LSS for reasonable monetary damages, including back pay (plus interest or an appropriate inflation factor and an enhancement to offset any adverse tax consequences associated with lump sum receipt of back pay), front pay, benefits and all other damages owed to the Representative Plaintiffs and the Class Members, in an amount proven at trial, resulting from LSS’s unlawful and discriminatory acts or omissions;
f. Enter a judgment and award in favor of each of the Representative Plaintiffs and each Class Member for the maximum statutory amount of liquidated damages available under the ADEA;
g. Enter a judgment and award in favor of the Representative Plaintiffs and the Class for costs, including, but not limited to, reasonable attorney’s fees, experts’ fees, and other costs and expenses of this litigation;
h. Enter a judgment and award in favor of the Representative Plaintiffs and the ADEA Class for pre-judgment and post-judgment interest;
i. Award such other and further legal and equitable relief as may be found appropriate and as this Court may deem just and proper; and
j. Retain jurisdiction over this action until such time as it is satisfied that LSS has remedied the practices complained of and is determined to be in full compliance with the law.
JURY TRIAL DEMANDED ON ALL ISSUES SO TRIABLE

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Date: May 13, 2007

Respectfully submitted,
OBERMAYER REBMANN MAXWELL & HIPPEL LLP
s/Bruce C. Fox_____________________ Bruce C. Fox, Esquire Pa. I.D. No. 42576 bruce.fox@obermayer.com Rudy A. Fabian, Esquire Pa. I.D. No. 56703 rudy.fabian@obermayer.com One Mellon Center, Suite 5240 500 Grant Street Pittsburgh, PA 15219 (412) 566-1500 Fax: (412) 566-1508
Counsel for Plaintiffs, Douglas M. Hodczak, James M. Crossan, Thomas J. Magdic and Joseph A. Litvik, on behalf of themselves and all others similarly situated

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 Case 2:08-cv-00649-TFM-ARH Document 9 Filed 06/04/08 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DOUGLAS M. HODCZAK, JAMES M.

)

CROSSAN, THOMAS J. MAGDIC AND )

JOSEPH A. LITVIK, on behalf of themselves )

and all others similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

LATROBE SPECIALTY STEEL COMPANY, )

)

Defendant.

)

Civil Action No. 08-CV-00649 Magistrate Judge Amy Reynolds Hay Electronically Filed

DEFENDANT'S PARTIAL MOTION TO DISMISS

Defendant Latrobe Specialty Steel Company ("LSS") moves pursuant to Fed.R.Civ.P.

12(b)(6) to dismiss plaintiffs' disparate impact claims under the Age Discrimination in

Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq. ("ADEA"), stating as follows:

1. In count II of the complaint, plaintiffs allege, inter alia, ADEA disparate impact

claims on behalf of themselves and other similarly situated employees, purporting to bring a

nationwide ADEA collective action against LSS.

2. Plaintiffs' ADEA disparate impact claims should be dismissed because plaintiffs'

complaint and charges filed with the Equal Employment Opportunity Commission ("EEOC")

only contain allegations of intentional discrimination that can only be brought under disparate

treatment theory and not disparate impact theory.

3. Plaintiffs admit filing EEOC charges (Compl. ¶ ¶ 11,12), but failed to attach them

to their complaint. Each of plaintiffs' EEOC "Notice of Charge of Discrimination" and "Charge

of Discrimination" is attached hereto as Exhibits A, B, C and D, and they are incorporated by

reference.

Case 2:08-cv-00649-TFM-ARH Document 9 Filed 06/04/08 Page 2 of 3
4. Plaintiffs' ADEA disparate impact claims must be dismissed because by alleging only intentional age discrimination, they: (1) fail to identify a neutral policy that disparately impacted LSS's workers who are age forty and older, (2) fail to indicate how neutral work rules that prohibit employees from sending inappropriate emails can constitute the basis of a disparate impact claim as they do not fall more harshly on any particular group, and (3) they failed to file a charge that put the EEOC and LSS on notice that they were alleging disparate impact claims, thus not exhausting their administrative remedies.
5. In sum, the essence of a "disparate impact" age claim is that a facially-neutral policy (e.g. a policy that on its face does not make determinations based on age) necessarily falls more harshly on older workers, because they are older. Thus, the essential allegation that plaintiffs would need to make, which they do not, and cannot, make here, is that older workers are more likely by virtue of being older, to send emails with offensive, sexual content. In that circumstance, a "neutral" policy would be alleged to more harshly impact older workers. Plaintiffs' complaint advances no factual, or logical, basis to come to that conclusion.
6. Instead, the central allegations of the complaint are that a facially-neutral policy was intentionally administered in a way that would "get rid of" older workers. See Compl. ¶ ¶ 22, 35, 49, 63, 87, 90.
7. While LSS vehemently denies any such animus or motivation, it is plain that the only legal theory of liability actually alleged in the complaint, no matter how labeled, is one of disparate treatment, and any claims based on a disparate impact theory must, therefore, be dismissed.
WHEREFORE, for these reasons as discussed more fully in LSS's Brief in Support of Partial Motion to Dismiss, which is incorporated by reference, LSS respectfully requests that the
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Case 2:08-cv-00649-TFM-ARH Document 9 Filed 06/04/08 Page 3 of 3

Court dismiss with prejudice plaintiffs' ADEA disparate impact claims in count II of their

complaint.

Dated: June 4, 2008

Respectfully submitted,

/s/ Thomas S. Giotto Thomas S. Giotto, Esquire (PA 39568) thomas.giotto@bipc.com Joseph F. Quinn, Esquire (PA 37103) joseph.quinn@bipc.com Jaime S. Tuite, Esquire (PA 87566) jaime.tuite@bipc.com

BUCHANAN INGERSOLL & ROONEY PC One Oxford Centre 301 Grant Street, 20th Floor Pittsburgh, PA 15219-1041 Phone: 412-562-8800 Fax: 412-562-1041

Counsel for Defendant

#4347209-v1

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 Case 2:08-cv-00649-TFM-ARH Document 10 Filed 06/04/2008 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DOUGLAS M. HODCZAK, JAMES M.

)

CROSSAN, THOMAS J. MAGDIC AND )

JOSEPH A. LITVIK, on behalf of themselves )

and all others similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

LATROBE SPECIALTY STEEL COMPANY, )

)

Defendant.

)

Civil Action No. 08-CV-00649 Magistrate Judge Amy Reynolds Hay Electronically Filed

DEFENDANT'S BRIEF IN SUPPORT OF PARTIAL MOTION TO DISMISS

I.

INTRODUCTION

Plaintiffs are four former employees of Defendant Latrobe Specialty Steel Company

("LSS") who purport to bring a nationwide collective action under the ADEA. (Compl. ¶ 71).

They allege two counts under the ADEA: count I is disparate treatment and count II is disparate

impact. (Id. at ¶70). The Plaintiffs allege that their employment was not terminated for emailing

allegedly improper material, but because LSS "targeted a class of employees over the age of

forty." (Id. at ¶ ¶ 25-26, 39-40, 53-54, 66-67). LSS moves to dismiss count II -- Plaintiffs'

disparate impact claims -- for three reasons:

(A) Plaintiffs allege intentional age discrimination instead of identifying a neutral policy that disparately impacted workers over the age of forty;

(B) LSS's work rules that prohibit employees from sending inappropriate emails cannot constitute the basis of a disparate impact ADEA violation as it does not impact a protected class and there is no causal link between it and Plaintiffs' age;

(C) Plaintiffs only raised intentional discrimination claims in their EEOC charges -not disparate impact claims.

Case 2:08-cv-00649-TFM-ARH Document 10 Filed 06/04/2008 Page 2 of 12
II. LEGAL STANDARD The Third Circuit has extended the Supreme Court's standard for deciding a Rule 12(b)(6) motion first articulated in Bell Atlantic Corp. v. Twombly, --- U.S.---, 127 S.Ct. 1955 (2007), described as the "plausibility paradigm," to the employment discrimination context. Wilkerson v. New Media Technology Charter School, 522 F.3d 315, 321 (3d Cir. 2008); Twombly, 127 S.Ct. 1955, 1974 (while not adopting a heightened pleading standard, a plaintiff must "nudge [his or her] claims across the line from conceivable to plausible"). Under Twombly, "it is no longer sufficient to allege mere elements of a cause of action; instead a complaint must allege facts suggestive of the [proscribed] conduct." Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). This means that plaintiffs must not only provide a "short and plain statement," but also a statement "showing that the pleader is entitled to relief." Id. LSS's submission of each Plaintiff's EEOC Charge of Discrimination -- attached as Exhibits A-D to this motion -- does not convert it to a motion for summary judgment as they are public records. Wilson v. Philadelphia Housing Auth., Civ.Act. No. 06-4932, 2008 WL 699001, *4 (E.D. Pa. March 12, 2008) (in ruling on a 12(b)(6) motion and evaluating whether a plaintiff has exhausted administrative remedies, "courts routinely consider the plaintiff's administrative filings as public records.") (citing cases). The court may also consider the EEOC documents on a motion to dismiss because they are integral to plaintiffs' claims and authentic.1 See U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002) ("[A] document integral to or explicitly relied upon in the complaint may be considered without converting the motion to dismiss into one for summary judgment") (emphasis in original); Pension Benefit Guaranty Corp. v. White Cons. Indus., Inc., 998 F.2d 1192, 1196-97 (3d Cir. 1993) (an undisputedly authentic document relied on in a complaint is to be considered when resolving a 12(b)(6) 1 Plaintiffs allege filing these charges (Compl. ¶ ¶ 11, 12), but did not attach them to their complaint.
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Case 2:08-cv-00649-TFM-ARH Document 10 Filed 06/04/2008 Page 3 of 12
motion); see also Rogan v. Giant Eagle, Inc., 113 F.Supp.2d 777, 782 (W.D. Pa. 2000) (Cohill, J.) ("It is clear to us that under the applicable legal standard we may consider the EEOC charge and related EEOC documents . . . without converting this [12(b)(6)] motion to one for summary judgment.").
III. ARGUMENT Plaintiffs fail to allege a prima facie case for their ADEA disparate impact claims. A prima facie case under a disparate impact theory requires a showing that an employment practice that is facially neutral in its treatment of different groups in fact falls more harshly on one group than another and cannot be justified by business necessity. Smith v. City Jackson, 544 U.S. 228, 239 (2005) (citing Teamsters v. U.S., 431 U.S. 324,335-36 n.15 (1977); see Hazen Paper Co. v. Biggins, 507 U.S. 604, 609 (1993) (citing same). Evidence in disparate impact cases usually focuses on statistical disparities, rather than specific incidents, and on competing explanations for those disparities. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 987 (1988). The purpose behind this theory is to proscribe "practices that are fair in form, but discriminatory in operation." Griggs v. Duke Power Co. 401 U.S. 424, 431 (1971) (involving general aptitude tests and high school diploma requirements). For example, in Smith v. City Jackson, the senior police officer plaintiffs alleged that the City promulgated a neutral pay policy that disproportionately impacted officers over the age of forty, who received fewer raises than officers under forty years of age. The Supreme Court held, inter alia, that plaintiffs failed to isolate and identify "the specific employment practices that are allegedly responsible for any observed statistical disparities." Smith, 544 U.S. 228, 241 (emphasis in original) (affirming summary judgment). It stated:
petitioners have done little more than point out that the pay plan at issue is relatively less generous to older workers than to younger workers. They have not identified any specific test, requirement,
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Case 2:08-cv-00649-TFM-ARH Document 10 Filed 06/04/2008 Page 4 of 12
or practice within the pay plan that has an adverse impact on older workers. Id. Thus, plaintiffs are required to allege: (1) a specific facially neutral practice, (2) the degree of the impact that practice has on a protected class, and (3) the causal relationship between the practice and adverse impact. ROBERT BELTON & DIANNE AVERY, EMPLOYMENT DISCRIMINATION LAW 170 (6th ed. 1999). Plaintiffs do not meet this standard. Their disparate impact theory boils down to LSS having a "neutral policy regarding discipline for the inappropriate use of LSS employee email" that it intentionally applied in a discriminatory manner in that it "favored younger employees and targeted older workers in deciding who would be terminated." (Compl. ¶ 89). They further claim that "the Representative Plaintiffs' ages were a motivating factor in their terminations," LSS "terminated the employment of all other Class Members . . . upon the basis of their age," and "LSS's desire to rid itself of older employees." (Compl. ¶ ¶ 22, 35, 49, 63, 87, 90). These allegations clearly fall under disparate treatment theory and not disparate impact model. See Wilson v. The Philadelphia Housing Auth., Civ. Act. No. 06-4932, 2008 WL 699001, *5 (E.D. Pa. March 12, 2008) (concluding the plaintiff complained not of the neutral procedures, but of her supervisor's directive to violate them-- which is at most, a complaint of disparate treatment not disparate impact); Kourofsky v. Genencor Intern, Inc., 459 F.Supp.2d 206, 215 (W.D.N.Y. 2006) (concluding plaintiffs' "factual allegations indicate that they are really alleging disparate treatment only") (citing multiple cases). For that reason, as set forth below, they do not meet the prima facie standard for a disparate impact claim and do not meet the requisite administrative exhaustion requirements.
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Case 2:08-cv-00649-TFM-ARH Document 10 Filed 06/04/2008 Page 5 of 12
A. Plaintiffs Do Not Identify Any Specific, Neutral Employment Practice Resulting in Disparate Impact. To meet the requirements of Fed.R.Civ.P 8(a)(2), emphasized in Twombly, 127 S.Ct.
1955, 1974 (2007), Plaintiffs' vague and conclusory allegations regarding LSS's "company-wide practices" (Compl. ¶ 8), its "policies, practices and procedures" (Compl. ¶ 72), and "neutral policy regarding discipline for the inappropriate use of LSS employee email" (Compl. ¶ 89) are insufficient to withstand this motion to dismiss. Kourofsky, 459 F.Supp.2d at 215 (granting defendant's motion to dismiss because plaintiffs only alleged "the involuntary reduction in force had a disparate impact against those employees over the age of forty"). See also Ladd v. The Boeing Co., Civ. Act. No. 06-28, 2008 WL 375725, *15 (E.D. Pa. Feb. 8, 2008) (finding plaintiff failed to identify specific employment practices having disparate impact on his protected group); Silver v. Leavitt, No. Civ.A. 05-0968, 2006 WL 626928, *14 (D. D.C. March 13, 2006) (granting the employer's motion to dismiss because it is not enough to allege that the GS-9 interview policy disparately impacted older workers).
Plaintiffs allege that LSS terminated their employment (and that of other Class Members) "because that [sic] are older employees." (Compl. ¶ 72) (emphasis in original). Such allegations that LSS applied its neutral policy in a discriminatory fashion equate to claims that "non-neutral employment practices were being utilized." Tomaselli v. Upper Pottsgrove Township 1409, No. Civ.A. 04-2646, 2004 WL 2988515, (E.D. Pa. Dec. 22, 2004) (granting motion to dismiss the disparate impact claims because plaintiffs alleged they were "outwardly discriminated against"); Mongo v. The Home Depot, Inc., No.3:02-CV-2593, 2003 WL 22227864, *2 (N.D. Texas Sept. 26, 2003) (finding Mongo "wrongly combine[d] the mutually exclusive and often competing disparate impact theory and disparate treatment analysis.").
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Case 2:08-cv-00649-TFM-ARH Document 10 Filed 06/04/2008 Page 6 of 12
Plaintiffs in the case at hand allege far less than the plaintiffs in Smith v. City Jackson. In Smith, the plaintiffs pointed to a pay plan that they claimed was relatively less generous to older workers than to younger workers. 544 U.S. 228, 241 (2005). The Plaintiffs here mention a work rule -- not sending inappropriate emails -- among vague references to non-specific "policies, practices, and procedures," but they claim LSS applied its policies in a non-neutral, discriminatory manner to target employees over forty. (Compl. ¶ ¶ 25-26, 39-40, 53-54, 66-67, 89). Plaintiffs confuse disparate impact theory with disparate treatment. See George v. Genuine Parts Co., No. Civ.A.3:04-108, 2007 WL 217684, *6 (W.D. Pa. Jan. 25, 2007) (concluding plaintiff cannot proceed on a disparate impact claim because only intentional discrimination can be inferred from the complaint).
Thus, this Court should hold that Plaintiffs fail to isolate and identify any specific employment practice allegedly responsible for any purported statistical disparities and dismiss count II of Plaintiffs' complaint. See Rodriguez v. Beechmont Bus Service, Inc., 173 F.Supp.2d 139, 147-148 (S.D.N.Y. 2001) (finding allegations of "facially neutral employment practices in regard to employee discipline" that allegedly disparately impacted Hispanic employees insufficient to state a claim). B. LSS'S Prohibition Against Sending Inappropriate Emails Cannot Form the Basis
of a Disparate Impact Claim -- It Does Not Fall More Harshly on Older Employees, Therefore Lacking a Causal Link. Even assuming the LSS's work rule against sending inappropriate emails constituted a specific neutral practice that meets the requirements specified in Smith v. City Jackson, 544 U.S. 228, 241 (2005) -- which it does not -- Plaintiffs fail to allege sufficiently its impact on workers over forty or any causal link between the policy and their employment terminations. They, like the EEOC in EEOC v. Greyhound Lines, Inc., 635 F.2d 188, 192-193 (3d Cir. 1980), ignore that a neutral, work rule does not fall more harshly on any particular protected class.
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Case 2:08-cv-00649-TFM-ARH Document 10 Filed 06/04/2008 Page 7 of 12
In that case, the EEOC alleged that Greyhound's neutral no-beard policy in public-contact positions disparately impacted African American males. EEOC v. Greyhound Lines, Inc., 635 F.2d 188, 189 (3d Cir. 1980). At the outset, the court stated that it was concerned that the "EEOC may have seriously misconceived the nature and purpose of Title VII and the disparate impact theory" as the "wearing of beards is not a characteristic that is peculiar to any race." Id. at 191 n.3. It further noted that "we may have been willing to hold that a policy against beards simply cannot constitute a Title VII violation." Id. Consistent with the Third Circuit's invitation, LSS contends that a truly neutral work rule of not sending inappropriate emails, like a no-beard policy, cannot form the basis of disparate impact claim. Id. As discussed above, disparate impact claims must be based upon policies that appear neutral but are "discriminatory in operation." Griggs v. Duke Power Co. 401 U.S. 424, 431 (1971).
Furthermore, in Greyhound Lines, Inc., the Third Circuit held that the plaintiff must show: (1) an actual "disparate impact" on the members of the protected class, see id. at 192, and (2) "a causal connection between the challenged policy or regulation and a racially unequal result." Id. at193. Plaintiffs must plead factual allegations that demonstrate the disparate impact and causal connection is more than conceivable, but is plausible. Twombly, 127 S.Ct. 1955, 1974 (2007). Alleging six employees were suspended for emailing improper material, five of whom were over forty and the four plaintiffs, who are over forty, were fired, see Compl. ¶ ¶ 25, 39, 53, 66, is insufficient. See Pippin v. Burlington Resources Oil & Gas Co., 440 F.3d 1186, 1198, 1201 (10th Cir. 2006) (concluding that Pippin's statistical evidence that fourteen out of nineteen RIF-terminated employees were over forty was insufficient as it represented a small sample size and failed to show what portion of the workforce was over forty).
A bare allegation that a small number of older workers were suspended/terminated -- for
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Case 2:08-cv-00649-TFM-ARH Document 10 Filed 06/04/2008 Page 8 of 12
their actions -- fails to establish that there is any evidence of younger, similarly situated employees being treated differently. See id. at 1201; Aylward v. Hyatt Corp., No 03C6097, 2005 WL 1910904, *15 (N.D. Ill. Aug. 5, 2005) (holding the plaintiff failed to state a valid disparate impact claim because, inter alia, she made "no effort to show . . . any rigorous analysis that her statistics [involving just ten employees] are either reliable or relevant"). Plaintiffs must plead some factual basis that makes it plausible that they will be able to show "through relevant statistic analysis . . . that the challenged practice has an adverse impact on a protected group." Butts v. McCullough, Nos. 05-6337, 05-6488, 237 Fed.Appx. 1, 2007 WL 1296030, *7 (6th Cir. May 2, 2007) (granting summary judgment on the disparate impact claim for Butts' complete failure to make any statistical showing).
Plaintiffs' allegations are somewhat analogous to those alleged in Ackerman v. Home Depot, Inc. Ackerman alleged that the companywide Performance Management Initiative ("PMI") to standardize wages disparately impacted older workers. Ackerman v. Home Depot, Inc., No.Civ.A. 304CV0058N, 2005 WL 1313429, *1, 5 (N.D. Texas May 31, 2005). To show causation between the PMI policy and its impact on older workers, she merely claimed that she was over forty, the policy caps her salary and limits her overtime opportunities, and younger workers were not similarly affected. Id. at *5. The court held, albeit on a summary judgment motion, that the "evidence does not establish any correlation between membership in a protected class and adverse effects from the PMI." Id. Plaintiffs similarly simply allege that they are over forty and were terminated for violating the policy, they do not allege that LSS investigated and knew of similarly situated, substantially younger employees who violated the work rule in the same manner who were treated differently. There is no allegation of how many employees allegedly violated the work rule, how many employees that the Company allegedly investigated
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Case 2:08-cv-00649-TFM-ARH Document 10 Filed 06/04/2008 Page 9 of 12
or were somehow aware violated the work rule, or the ages of such employees. But even if Plaintiffs made more specific allegations, their claims would be of intentional
discrimination and not disparate impact claims. To allege disparate impact, Plaintiffs would have to claim LSS's facially neutral policy of not sending inappropriate emails falls more harshly on older workers because they are older workers. That would require Plaintiffs to allege that older workers are more likely, by virtue of being older, to send emails with offensive content. Plaintiffs, however, are not logically or factually advancing such claims.
In sum, count II of the complaint should be dismissed because a neutral work-rule cannot form the basis of a disparate impact claim and Plaintiffs' allegations -- involving just six suspensions and four terminations -- do not show the necessary causal link between LSS's prohibition against sending inappropriate emails and an adverse impact on workers over forty years of age. C. Plaintiffs Failed to Raise Disparate Impact Claims in Their EEOC Charges.
Even if this case were to proceed despite Plaintiffs' failure to allege the prima facie case for disparate impact ADEA claims, their claims for disparate impact discrimination in count II of the complaint must be dismissed for failure to exhaust administrative prerequisites.
Before filing suit alleging violation of the ADEA, a plaintiff must exhaust administrative prerequisites by filing a timely charge of discrimination with the EEOC. 29 U.S.C. § 626(d)(2). The underlying EEOC charge or ensuing investigation must give notice of the claims in the subsequent lawsuit. Robinson v. Dalton, 107 F.3d 1018, 1025 (3d Cir. 1997); Waiters v. Parsons, 729 F.2d 233, 237 (3d Cir. 1984); Rogan v. Giant Eagle, 113 F.Supp.2d 777, 786, 788 (W.D. Pa. 2000). The relevant test is whether the claims in the lawsuit are fairly within the
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Case 2:08-cv-00649-TFM-ARH Document 10 Filed 06/04/2008 Page 10 of 12
scope of the prior EEOC charge or investigation. Antol v. Perry, 82 F.3d 1291, 1295 (3d Cir. 1996). If they are not, their dismissal is appropriate. Id.
The basis for the ADEA disparate impact claims Plaintiffs allege in count II must be a specific practice or policy that has an adverse impact on older workers in the form of observed statistical disparities. See Smith v. City of Jackson, 544 U.S. 228, 238-39, 241 (2005). However, Plaintiffs' underlying EEOC submissions allege only intentional discrimination.
Allegations of intentional discrimination in an EEOC charge will not support a disparate impact claim in federal court. See, e.g., Pacheco v. Mineta, 448 F.3d 783, 791 (5th Cir. 2006) (affirming dismissal of Plaintiff's disparate impact claim because charge failed to allege any elements of a disparate impact claim, including neutral employment policy); Lawton v. Sunoco, Inc., No. 01-2784, 2002 WL 1585582 (E.D. Pa. Jul. 17, 2002), aff'd, 65 Fed. Appx. 874 (3d Cir. 2003) (dismissing disparate impact claim because plaintiff's EEOC documents failed adequately to describe policy or practice that disparately impacted African Americans); Woodman v. WWOR-TV, 293 F.Supp.2d 381, 390 (S.D.N.Y. 2003) (dismissing disparate impact claim because charge only alleged intentional discrimination). The EEOC charge underlying a judicial claim for disparate impact discrimination must contain notice of a facially neutral practice (or policy) that adversely affects a protected group disproportionately. Jackson v. Merck & Co., No. 99-cv-3069, 1999 WL 962522, at *5 (E.D. Pa. Oct. 21, 1999); Woodman, 293 F. Supp. 2d at 390.
Here, Plaintiffs' EEOC charges contain no reference to adverse or disparate impact age discrimination and identify no neutral policy or practice with an adverse effect on older workers. See Exhibits A-D. Each of Plaintiffs' EEOC charges say: (1) "the real reason for my termination was LSS's desire to rid itself of older employees," (2) "[m]y termination . . . is part of a systematic pattern and practice of terminating older workers," (3) "LSS has targeted a class of
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Case 2:08-cv-00649-TFM-ARH Document 10 Filed 06/04/2008 Page 11 of 12
employees over the age of forty for termination based largely, if not exclusively on their age." Id. ¶ ¶ 9, 13. These statements describe intentional discrimination.
Because they identify no neutral policy claimed to have disparate impact on older workers, but instead claim that LSS intentionally applied LSS's work rule against sending inappropriate email to Plaintiffs because of their age, which at best constitutes intentional discrimination, Plaintiffs' disparate impact claims in count II of the complaint must be dismissed.
IV. CONCLUSION Plaintiffs only allege facts supporting claims of intentional discrimination --not disparate impact -- in both their complaint and EEOC charges. The essence of a "disparate impact" claim is that a facially-neutral policy (e.g. a policy that on its face does not make determinations based on age) necessarily falls more harshly on older workers because they are older. Thus, the essential allegation that Plaintiffs would need to make, which they do not, and cannot, make here, is that older workers are more likely, by virtue of being older, to send emails with offensive content. In that circumstance, a "neutral" policy would be alleged to more harshly impact older workers. Plaintiffs' complaint advances no factual, or logical, basis to come to that conclusion. Instead, the central allegations of the complaint are that a facially-neutral policy was intentionally administered in a way that would "get rid of" older workers. See Compl. ¶ ¶ 22, 35, 49, 63, 87, 90. While LSS vehemently denies any such animus or motivation, it is plain that the only legal theory of liability actually alleged in the complaint, no matter how labeled, is one of disparate treatment, and any claims based on a disparate impact theory must, therefore, be dismissed.
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Dated: June 4, 2008

Respectfully submitted,
/s/ Thomas S. Giotto Thomas S. Giotto, Esquire (PA 39568) thomas.giotto@bipc.com Joseph F. Quinn, Esquire (PA 37103) joseph.quinn@bipc.com Jaime S. Tuite, Esquire (PA 87566) jaime.tuite@bipc.com
BUCHANAN INGERSOLL & ROONEY PC One Oxford Centre 301 Grant Street, 20th Floor Pittsburgh, PA 15219-1041 Phone: 412-562-8800 Fax: 412-562-1041
Counsel for Defendant

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 Case 2:08-cv-00649-TFM-ARH Document 14 Filed 06/16/08 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DOUGLAS M. HODCZAK, JAMES M. CROSSAN, THOMAS J. MAGDIC AND JOSEPH A. LITVIK, on behalf of themselves and all others similarly situated,
Plaintiffs,
vs.
LATROBE SPECIALTY STEEL COMPANY,
Defendant.

)

)

Civil Action No. 08-649

)

)

)

)

)

Honorable Judge Terrence F. McVerry

)

Magistrate Judge Amy Reynolds Hay

)

)

)

)

)

ELECTRONICALLY FILED

)

PLAINTIFFS’ MOTION TO VOLUNTARILY DISMISS COUNT II OF PLAINTIFFS’ COMPLAINT

Representative Plaintiffs move, pursuant to Rule 41(a)(2) of the Federal Rules of Civil

Procedure, to voluntarily dismiss Count II of their Complaint, which seeks relief for violations

by Defendant Latrobe Specialty Steel (“LSS”) of the Age Discrimination in Employment Act

(“ADEA”), 29 U.S.C. § 621 et seq., stating as follows:

1. In their Complaint, Plaintiffs have alleged that LSS unlawfully terminated them

and others similarly situated, on basis of age, in violation of the Age Discrimination in

Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.

2. Plaintiffs have asserted claims for disparate treatment and disparate impact, in

Counts I and II, respectively. These ADEA claims have been asserted by Plaintiffs on behalf of

themselves and all others similarly situated in a collective action pursuant to 29 U.S.C. § 626(b),

which incorporates by reference the procedures for collective claims under the Fair Labor

Standards Act (“FLSA”), 29 U.S.C. § 216(b).

3. On June 4, 2008, LSS filed a Partial Motion to Dismiss in which it sought the

dismissal of Plaintiffs’ Count II disparate impact claim. LSS argued that the gravamen of

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Case 2:08-cv-00649-TFM-ARH Document 14 Filed 06/16/08 Page 2 of 3

Plaintiffs claims as set forth in the Complaint is the intentional age discrimination set forth in

Count I of the Complaint.

4. Upon review of LSS’s Motion and Supporting Brief and in the interest of

narrowing the issues to be litigated, Plaintiff have concluded that they want to voluntarily

dismiss Count II of their Complaint pursuant to Rule 41(a)(2), Fed.R.Civ.P.

5. LSS will not be prejudiced by the voluntary dismissal of the disparate impact

claim, as the case has only recently been commenced and no discovery or litigation activity

related to the disparate impact claim has occurred. Indeed, LSS has sought such dismissal in its

Motion.

6. Plaintiffs, including putative class members, will not be harmed by this voluntary

dismissal without prejudice.

WHEREFORE, Plaintiffs respectfully request that this Court dismiss without prejudice

Count II of Plaintiffs’ Complaint.

Respectfully submitted,

OBERMAYER REBMANN MAXWELL & HIPPEL LLP

Date: June 16, 2007

s/Bruce C. Fox_______________________________ Bruce C. Fox, Esquire Pa. I.D. No. 42576 bruce.fox@obermayer.com Rudy A. Fabian, Esquire Pa. I.D. No. 56703 rudy.fabian@obermayer.com One Mellon Center, Suite 5240 500 Grant Street Pittsburgh, PA 15219 (412) 566-1500 Fax: (412) 566-1508

Counsel for Plaintiffs, Douglas M. Hodczak, James M. Crossan, Thomas J. Magdic and Joseph A. Litvik, on behalf of themselves and all others similarly situated

2
4287074

Case 2:08-cv-00649-TFM-ARH Document 14 Filed 06/16/08 Page 3 of 3 CERTIFICATE OF SERVICE
I hereby certify that the foregoing Plaintiffs’ Motion to Voluntarily Dismiss Count II of Plaintiffs’ Complaint has been served to all counsel of record via ECF Notification, this 16th day of June, 2008, addressed as follows:
Thomas S. Giotto, Esquire thomas.giotto@bipc.com Joseph F. Quinn, Esquire joseph.quinn@bipc.com Jaime S. Tuite, Esquire
jaime.tuite@bipc.com BUCHANAN INGERSOLL & ROONEY PC
One Oxford Centre 301 Grant Street, 20th Floor Pittsburgh, PA 15219-1041
s/Bruce C. Fox______________ Bruce C. Fox, Esquire
4287074

Case 2:08-cv-00649-TFM-ARH Document 14-1 Filed 06/16/08 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DOUGLAS M. HODCZAK, JAMES M. CROSSAN, THOMAS J. MAGDIC AND JOSEPH A. LITVIK, on behalf of themselves and all others similarly situated,
Plaintiffs,
vs.
LATROBE SPECIALTY STEEL COMPANY,
Defendant.

)

)

Civil Action No. 08-649

)

)

)

)

)

Honorable Judge Terrence F. McVerry

)

Magistrate Judge Amy Reynolds Hay

)

)

)

)

)

)

ORDER

Upon consideration of Plaintiffs’ Motion to Voluntarily Dismiss Count II of Plaintiffs’

Complaint, and good cause appearing therefor, it is hereby,

ORDERED that Count II of Plaintiffs’ Complaint is Dismissed without prejudice.

Date: ______________, 2008

_________________________________________ United State District Judge

4287108

 
 Case 2:08-cv-00649-TFM-ARH Document 15 Filed 06/30/2008 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DOUGLAS M. HODCZAK, JAMES M.

)

CROSSAN, THOMAS J. MAGDIC AND )

JOSEPH A. LITVIK, on behalf of themselves )

and all others similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

LATROBE SPECIALTY STEEL COMPANY, )

)

Defendant.

)

Civil Action No. 08-CV-00649
Judge Terrence F. McVerry and Magistrate Judge Amy Reynolds Hay
Electronically Filed

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ON ALL COLLECTIVE ACTION CLAIMS

Defendant Latrobe Specialty Steel Company ("LSS") moves pursuant to Fed.R.Civ.P.

56(b) to dismiss plaintiffs' collective action claims, stating as follows:

1. Plaintiffs filed a two-count Complaint alleging LSS violated the Age

Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq. ("ADEA").

2. Count I alleged disparate treatment, and count II alleged disparate impact based

upon LSS's "employment practices which discriminate against older workers." Compl. ¶ 70.

3. Specifically, Plaintiffs sought to proceed with a nationwide collective action by

claiming LSS engaged in a pattern and practice of involuntarily separating Plaintiffs (and

presumably other employees) from their employment with LSS because of their age and not

because of the sexually offensive emails that they were sending. Compl. ¶¶ 22, 25-26, 35, 39-

40, 49, 53-54, 63, 66-67, 81-82, 89-90.

4. On June 16, 2008, Plaintiffs voluntarily moved to withdraw their ADEA disparate

impact claims, and this Court dismissed them on June 17, 2008, leaving Plaintiffs' alleged

nationwide class disparate treatment claims. (Doc. No. 14).

Case 2:08-cv-00649-TFM-ARH Document 15 Filed 06/30/2008 Page 2 of 6
5. While not a model of clarity, Plaintiffs' disparate treatment, collective claims appear to allege that LSS has intentionally discriminated against its older workers by terminating their employment under the pretext that they violated the Electronic Communications Policy. Compl. ¶¶ 22, 25-26, 35, 39-40, 49, 53-54, 63, 66-67, 81-82. No Pattern and Practice Prima Facie Case
6. Those remaining allegations, however, do not satisfy the applicable pattern and practice prima facie case requiring Plaintiffs to allege and show, by a preponderance of the evidence, that “discrimination was the company’s standard operating procedure - the regular rather than the unusual practice.” International Board of Teamsters v. United States, 431 U.S. 324, 336 (1977).
7. Since December 9, 2006, when Watermill Group and Hicks Holdings purchased Timken Latrobe Steel, and it became LSS, other than Plaintiffs, only two other salaried employees age 40 or older have been involuntary separated (an Accounting Processor employee whose job was eliminated on March 30, 2007 and the Manager- Customer Service, Purchasing and Production Planning who resigned in connection with violation of accounting procedures on March 11, 2008). Facts ¶¶ 9-11.1
8. Besides Plaintiffs, no other LSS employee has filed an EEOC Charge alleging age discrimination. Id. at ¶ 14.
9. Besides Plaintiffs, no other LSS employee over the age of forty has been involuntarily separated in connection with the Electronic Communications Policy. Id. at ¶¶ 7-8.
10. As there are no other LSS employees involuntarily separated in connection with the Electronics Communications Policy, Plaintiffs cannot demonstrate a consistent history of
1 LSS cites to the paragraphs contained in its Concise Statement of Material Facts that is simultaneously filed in support of this motion and refers to them as "Facts ¶ _____."
-2-

Case 2:08-cv-00649-TFM-ARH Document 15 Filed 06/30/2008 Page 3 of 6
discriminatory decision-making based on age with the alleged pretextual reason involving the Electronic Communications Policy. See Lilly v. Harris-Teeter Supermarket, 720 F.2d 326, 328, 338 (4th Cir. 1983) (testimony of nine witnesses who had prevailed on their individual promotion claims established too few instances of direct discrimination to support inference of a companywide pattern or practice of discrimination with respect to promotions), cert. denied, 466 U.S. 951 (1984).
11. Put simply, Plaintiffs cannot establish a prima facie pattern or practice case because the involuntary separation of them in connection with LSS's Electronic Communications Policy fails to establish a standard operating procedure -- they are four, isolated employment separations. See International Board of Teamsters, 431 U.S. at 336. No Similarly Situated Employees
12. There are no other similarly situated salaried employees who could opt-in to the class described, in part, by Plaintiffs as "former salaried employees . . . who were at least 40 years of age at the time of such termination." Compl. ¶ 71.
13. Since LSS was acquired by the Watermill Group and Hicks Holdings on December 9, 2006, Plaintiffs Douglas Hodczak, James Crossan, Thomas Magdic, and Joseph Litvik are the only employees that LSS has involuntarily separated in connection with an application of its Electronic Communications Policy. Facts ¶ 8.
14. Since that time, other than Plaintiffs, LSS has only involuntarily separated two other salaried employees age forty or older: an Accounting Processor whose job was eliminated on March 30, 2007 and a Manager - Customer Service, Purchasing and Production Planning on March 11, 2008 in connection with a violation of accounting procedures. Id. at ¶¶ 10-12.
-3-

Case 2:08-cv-00649-TFM-ARH Document 15 Filed 06/30/2008 Page 4 of 6
No Other Employees Have Exhausted Their Administrative Remedies 15. There are no LSS current or former employees capable of meeting the exhaustion
requirement under 29 U.S.C. § 626(b). 16. Because Plaintiffs are the only LSS employees who have filed Charges alleging
age discrimination, see Facts ¶ 14, for any employee to "piggyback" onto Plaintiffs' age discrimination Charges, such employee would have to have been involuntarily separated during the 300-day period preceding the date when Plaintiffs filed their "charges" and would have to be similarly situated to Plaintiffs. Hipp v. Liberty National Life Insur. Co., 252 F.3d 1208, 12191221, 1225, 1227 (11th Cir. 2001); see also Ruehl v. Viacom, 500 F.3d 375, 386 (3d Cir. 2007).
17. Assuming that March 20, 2008 is the date that Plaintiffs first filed their "charges,"2 the only former or current employee who could possibly piggyback is the Manager Customer Service, Purchasing and Production Planning because he is the only salaried employee over the age of 40 who was involuntarily separated between May 25, 2007 and March 20, 2008. Facts ¶¶ 9-13.
18. Nevertheless, the Manager - Customer Service, Purchasing and Production Planning cannot "piggyback" on Plaintiffs' charges because he is in no way similarly situated to Plaintiffs because: (1) he was age 46 at the time of his separation -- approximately ten years
2 In light of the Supreme Court's new, broad definition of the term "charge" as including affidavits and EEOC questionnaires that: (1) are in writing, (2) identify the prospective respondent and generally allege the discriminatory acts, and (3) can be "reasonably construed as a request for the agency to take some remedial action to protect the employee's rights or otherwise settle a dispute between the employer and the employee" see Federal Express Corp. v. Holowecki, 128 S.Ct. 1147, 1154, 1158-60 (2008), the actual date that each of the Plaintiffs filed a "charge" with the EEOC likely occurred earlier than March 20, 2008 and most likely, it occurred before the Manager - Customer Service, Purchasing and Production Planning was involuntarily separated on March 11, 2008. Regardless, however, the Manager - Customer Service, Purchasing and Production Planning could not "piggyback" on Plaintiffs' charges as he is not similarly situated to them.
-4-

Case 2:08-cv-00649-TFM-ARH Document 15 Filed 06/30/2008 Page 5 of 6
younger than Plaintiffs, (2) he was employed at a facility outside the Latrobe Plant -- at an entirely different location than Plaintiffs, (3) the reason for his separation had nothing to do with the Electronic Communications Policy -- it was in connection with admitted, well-documented violations of accounting procedures. Facts ¶ 11. See Hipp, 252 F. 3d at 1217 (requiring the named plaintiffs establish that the potential plaintiffs are similarly-situated before they may proceed as a collective action); Haynes v. Singer, Co., Inc., 696 F.2d 884, 887 (11th Cir. 1983) (holding unsupported allegations that FLSA violations were widespread and that additional plaintiffs exist are insufficient to establish that similarly situated employees exist). Current Employees Lack Standing
19. Plaintiffs' class cannot include "all present salaried employees of Latrobe who are at least 40 years of age and who are, therefore, at risk of being terminated by Latrobe." Compl. ¶ 71.
20. Current employees who have not been involuntarily separated lack standing as any alleged risk of being terminated is purely speculative. Whitmore v. Arkansas, 495 U.S. 149, 155 (1990) (citations omitted) (requiring that any alleged harm be “actual or imminent, not ‘conjectural’ or ‘hypothetical.”’).
21. Logically, Congress did not intend for this court, or any other, to exercise general prophylactic supervision of every employer’s future possible termination decisions by assuming that every employee, or applicant for that matter, could invoke the limited jurisdiction of the federal courts out of a generalized concern that at some time in the future, something unlawful might occur.
WHEREFORE, for these reasons as discussed more fully in LSS's Brief in Support of Motion for Summary Judgment on all Collective Action Claims, which is incorporated by
-5-

Case 2:08-cv-00649-TFM-ARH Document 15 Filed 06/30/2008 Page 6 of 6

reference, LSS respectfully requests that the Court dismiss with prejudice plaintiffs' collective action in their complaint.

Dated: June 30, 2008

Respectfully submitted,
/s/ Thomas S. Giotto Thomas S. Giotto, Esquire (PA 39568) thomas.giotto@bipc.com Joseph F. Quinn, Esquire (PA 37103) joseph.quinn@bipc.com Jaime S. Tuite, Esquire (PA 87566) jaime.tuite@bipc.com
BUCHANAN INGERSOLL & ROONEY PC One Oxford Centre 301 Grant Street, 20th Floor Pittsburgh, PA 15219-1041 Phone: 412-562-8800 Fax: 412-562-1041
Counsel for Defendant

#4356500-v2

-6-

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DOUGLAS M. HODCZAK; JAMES M. )

CROSSMAN; THOMAS J. MAGDIC; )

JOSEPH A. LITVIK, on behalf of

)

themselves and all others similarly

)

situated,

)

Plaintiffs, )

)

vs.

)

)

LATROBE SPECIALTY STEEL

)

COMPANY,

)

Defendant. )

Civil Action No. 08-649
Judge Terrence F. McVerry Magistrate Judge Amy Reynolds Hay

O R D E R

AND NOW, this 31st day of March, 2009, after the plaintiffs, Douglas M.

Hodczak, James M. Crossman, Thomas J. Magdic and Joseph A. Litvik, filed the above-

captioned case on behalf of themselves and others similarly situated, and after defendant, Latrobe

Specialty Steel Company, filed a Motion for Summary Judgment on All Collective Action

Claims, and after plaintiffs filed a Motion Pursuant to Rule 56(f) to Deny or Continue

Defendant’s Motion for Summary Judgment on All Collective Action Claims, and after a Report

and Recommendation was filed by the United States Magistrate Judge granting the parties until

March 19, 2009, to file written objections thereto, and upon consideration of the objections filed

by defendant and the response thereto submitted by plaintiffs, and upon independent review of

the record, and upon consideration of the Magistrate Judge’s Report and Recommendation,

which is adopted as the opinion of this Court,

IT IS HEREBY ORDERED that plaintiffs’ motion to deny summary judgment

pursuant to Fed. R. Civ. P. 56(f) on all Collective Action Claims [Dkt. 42] is GRANTED, and

that Defendant’s Motion for Summary Judgment on All Collective Action Claims [Dkt. 15] is, in fact, DENIED.
IT IS FURTHER ORDERED that, pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure, if the parties desire to appeal from this Order they must do so within thirty (30) days by filing a notice of appeal as provided in Rule 3, Fed. R. App. P.
s/ Terrence F. Mcverry United States District Judge cc: Honorable Amy Reynolds Hay United States Magistrate Judge All Counsel of Record by electronic filing
2

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DOUGLAS M. HODCZAK; JAMES M. )

CROSSMAN; THOMAS J. MAGDIC; )

JOSEPH A. LITVIK, on behalf of

)

themselves and all others similarly

)

situated,

)

Plaintiffs, )

)

vs.

)

)

LATROBE SPECIALTY STEEL

)

COMPANY,

)

Defendant. )

Civil Action No. 08-649
Judge Terrence F. McVerry Magistrate Judge Amy Reynolds Hay

O R D E R

AND NOW, this 31st day of March, 2009, after the plaintiffs, Douglas M.

Hodczak, James M. Crossman, Thomas J. Magdic and Joseph A. Litvik, filed the above-

captioned case on behalf of themselves and others similarly situated, and after defendant, Latrobe

Specialty Steel Company, filed a Motion for Summary Judgment on All of Plaintiff Hodczak’s

Claims, and after Plaintiffs filed a Motion Pursuant to Rule 56(f) to Deny or Continue

Defendant’s Motion for Summary Judgment on All of Plaintiff Hodczak’s Claims, and after a

Report and Recommendation was filed by the United States Magistrate Judge granting the parties

until February 9, 2009, to file written objections thereto, and no objections having been filed with

respect to these motions, and upon independent review of the record, and upon consideration of

the Magistrate Judge’s Report and Recommendation, which is adopted as the opinion of this

Court,

IT IS HEREBY ORDERED that plaintiffs’ motion to deny summary judgment

pursuant to Fed. R. Civ. P. 56(f) on all of plaintiff Hodczak’s claims [Dkt. 41] is GRANTED,

and that defendant’s motion for summary judgment on all of plaintiff Hodczak’s claims [Dkt. 19] is, in fact, DENIED.
IT IS FURTHER ORDERED that, pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure, if the parties desire to appeal from this Order they must do so within thirty (30) days by filing a notice of appeal as provided in Rule 3, Fed. R. App. P.
s/Terrence F. McVerry United States District Judge cc: Honorable Amy Reynolds Hay United States Magistrate Judge All Counsel of Record by electronic filing
2

 
 Case 2:08-cv-00649-TFM Document 57 Filed 01/23/09 Page 1 of 20

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DOUGLAS M. HODCZAK; JAMES M. )

CROSSMAN; THOMAS J. MAGDIC; )

JOSEPH A. LITVIK, on behalf of

)

themselves and all others similarly

)

situated,

)

Plaintiffs, )

)

vs.

)

)

LATROBE SPECIALTY STEEL

)

COMPANY,

)

Defendant. )

Civil Action No. 08-649
Judge Terrence F. McVerry Magistrate Judge Amy Reynolds Hay

REPORT AND RECOMMENDATION I. RECOMMENDATION
Plaintiffs, Douglas M. Hodczak, James M. Crossan, Thomas J. Magdic and Joseph A. Litvik, on behalf of themselves and others similarly situated, commenced this collective action suit under the Age Discrimination in Employment Act of 1967 (“ADEA”), as amended, 29 U.S.C. §§ 621 et seq, alleging that defendant Latrobe Specialty Steel Company (“LSS”), discriminated against them because of their age when it terminated their employment in November of 2007. Despite the fact that discovery has not yet issued, LSS has filed two motions for summary judgment arguing, respectively, that it is entitled to judgment in its favor on plaintiff Hodczak’s claims because he is unable to demonstrate a prima facie case of discrimination, and that the collective action claims are subject to summary judgment because plaintiffs cannot establish a prima facie case of pattern and practice discrimination. LSS also argues that summary judgment is appropriate on plaintiffs’ collective action claims because there are no other similarly situated salaried employees who could consent to be a party to the action;

Case 2:08-cv-00649-TFM Document 57 Filed 01/23/09 Page 2 of 20
there are no other current or former LSS employees who can meet the ADEA’s exhaustion requirements; and that plaintiffs’ proposed class of “all present salaried employees of Latrobe who are least 40 years of age and who are, therefore, at risk of being terminated by Latrobe” lack standing to bring such a claim.
Plaintiffs have opposed these motions as premature and have filed their own motions pursuant to Federal Rule of Civil Procedure 56(f) in which they ask that LSS’s motions for summary judgment be denied or, in the alternative, that the court postpone ruling on the motions until they have had an opportunity to conduct discovery. For the reasons that follow, it is respectfully recommended that plaintiffs’ motion to deny summary judgment pursuant to Fed. R. Civ. P. 56(f) on all of plaintiff Hodczak’s claims [Dkt. 41] be granted; that defendant’s motion for summary judgment on all of plaintiff Hodczak’s claims [Dkt. 19], in fact, be denied; that defendant’s motion for summary judgment on all collective action claims [Dkt. 15] be treated as a motion to dismiss and be granted; and that plaintiffs’ motion to deny defendant’s motion for summary judgement pursuant to Rule56(f) on all collective action claims [Dkt. 42] be denied. II. REPORT
A. Background Hodczak was hired by Latrobe Steel Company on July 23, 1973. Complaint ¶ 14
[Dkt. 1]; Answer ¶ 14 [Dkt. 11]. In 1975, Latrobe Steel Company was subsequently acquired by the Timken Company and renamed Timken Latrobe Steel. Timken Latrobe Steel was then acquired by the Watermill Group and Hicks Holdings in 2006 and renamed LSS. Id. at ¶¶ 15, 17. At some point prior to the last change of ownership, Timken Latrobe Steel gave a number of employees, including plaintiffs, the opportunity to retire before the acquisition took place, which
2

Case 2:08-cv-00649-TFM Document 57 Filed 01/23/09 Page 3 of 20
plaintiffs apparently chose to do. Defendant’s Concise Statement of Material Undisputed Facts regarding Hodczak’s claims (“DSOF-H”), ¶¶ 3, 4 [Dkt. 21]; Plaintiffs’ Responsive Concise Statement regarding Hodczak’s claims (“PRCS-H”), ¶ 4 [Dkt. 26]; Defendant’s Concise Statement of Material Undisputed Facts regarding Collective Action claims (“DSOF-CA”), ¶ 6 [Dkt. 17]; Plaintiffs’ Responsive Concise Statement regarding Collective Action Claims (“PRCS-CA”), ¶ 6 [Dkt. 27].1 On December 9, 2006, after retiring from Timken Latrobe Steel, all of the plaintiffs were offered and accepted employment with LSS; Hodczak, in particular, was hired as a Senior Sales and Marketing Representative. DSOF-H at ¶ 5; PRSF-H ¶ 5; DSOF-CA ¶ 6; PRSF-CA ¶ 6. Hodczak, who had received a series of promotions over the years while employed with these various companies, was again promoted by LSS on October 1, 2007, to Manager of Special Products Division. Complaint ¶ 16, 17; Answer ¶¶ 16, 17; DSOF ¶¶ 8-10; PRCS ¶¶ 8-10.
On November 2, 2007, plaintiffs were each called to the Human Resources Department and informed that they were being suspended without pay because they had been sending and receiving certain material via their LSS e-mail addresses which, according to LSS, violated the company’s Electronic Communications Policy. Complaint ¶¶ 18-19, 32-33, 46-47,
1Although LSS has labeled its statement of the facts as “undisputed,” plaintiffs have, in fact, disputed all but four of the twenty facts listed by LSS in support of its motion for summary judgment as to Hodczak’s claims and all but one of the fourteen facts offered by LSS in support of its motion regarding plaintiffs’ collective action claims. See Dkts. 26, 27. While it does appear that plaintiffs have disputed a number of facts simply for the sake of disputing them, such as where the disputed fact is supported by the complaint, their quarrel with LSS’s statement of the facts is largely that they have not had the opportunity to test the veracity of the facts as stated since there has been no opportunity to conduct discovery. Thus, to the extent that LSS complains that plaintiffs have not supported their objections with any evidence they are seemingly unable to do so given the posture of the case.
3

Case 2:08-cv-00649-TFM Document 57 Filed 01/23/09 Page 4 of 20
59-60; Answer ¶¶ 18-19, 32-33, 46-47, 59-60.2 Almost a week later, on or about November 8, 2007, plaintiffs were informed that their employment was being terminated for the reasons articulated at the time of their suspension. Complaint ¶¶ 20, 34, 48, 61; Answer ¶¶ 20, 34, 48, 61; DSOF-H ¶ 12; PRCS-H ¶ 12; DSOF-CA ¶ 7; PRSF-CA ¶ 7.
Plaintiffs nevertheless filed the instant complaint on May 13, 2008, bringing a single claim of disparate treatment under the ADEA.3 Plaintiffs allege that LSS’s stated reasons for terminating their employment are pretext for age discrimination and that their termination was part of a “systematic pattern and practice of terminating older employees.” Complaint ¶¶ 22, 26, 35, 40, 49, 54, 63, 67. Plaintiffs point to the fact that at the time they were terminated Hodczak was 57 years old, Crossan was 59, Magdic was 58 and Litvik was 60.4
LSS now seeks summary judgment on all of plaintiffs’ claims to which plaintiffs have responded by seeking relief under Rule 56(f).
B. Standard of Review Summary judgment is warranted only where “the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P.
2LSS has represented in its Answer, and plaintiffs do not appear to dispute, that the e-mails were sexually explicit in nature. See Complaint ¶¶ 23, 37, 51, 64 (Acknowledging that “there is an entire culture at LSS” of sending pornographic and/or offensive e-mails, and categorizing those sent by plaintiffs as “less offensive” than those sent by other employees).
3Although plaintiffs also brought a disparate impact claim at Count II of the complaint, they moved to voluntarily dismiss that claim on June 16, 2008 [Dkt. 14]. The motion was granted by the court on June 17, 2008.
4Of course, this necessarily means that when plaintiffs were hired by LSS in December of 2006, Hodczak was at least 56 years old, Crossan was 58, Magdic was 57, and Litvik was 59.
4

Case 2:08-cv-00649-TFM Document 57 Filed 01/23/09 Page 5 of 20
56(c). The moving party bears the initial burden of demonstrating to the court that there is an absence of evidence to support the non-moving party’s case. Celotex Corporation v. Catrett, 477 U.S. 317, 322 (1986). See Conoshenti v. Public Service Electric & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004). When the moving party has met this burden, the burden then shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e)(2). The mere existence of some evidence favoring the non-moving party, however, will not defeat the motion; there must be enough evidence with respect to a particular issue to enable a reasonable jury to find in favor of the non-moving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). See McGreevy v. Stroup, 413 F.3d 359, 363-64 (3d Cir. 2005).
As the standard of review suggests, “the summary judgment process presupposes the existence of an adequate record.” Doe v. Abington Friends School, 480 F.3d 252, 257 (3d Cir. 2007), citing Fed. R. Civ. P. 56(c). Accordingly, where a party opposing summary judgment is of the opinion that the record is inadequate and discovery is needed in order to fully address the motion, the party may file an affidavit pursuant to Rule 56(f) setting forth the reasons why it “cannot present facts essential to justify its opposition.” Id.; Fed. R. Civ. P. 56(f). See Wheatley v. Guardian Life Insurance Co., 2007 WL 2893383 at *2 (D.N.J. Sept. 28, 2007). Should the court agree, it may either deny the motion for summary judgment or grant a continuance so that discovery my be obtained. Fed. R. Civ. P. 56(f). See Wheatley v. Guardian Life Insurance Co., 2007 WL 2893383 at *3. Although within the court’s discretion, where a proper affidavit is filed, “a district court should grant a Rule 56(f) motion almost as matter of course unless the information is otherwise available” to the party opposing summary judgment. Contractors
5

Case 2:08-cv-00649-TFM Document 57 Filed 01/23/09 Page 6 of 20
Association of Eastern Pennsylvania, Inc. v. City of Philadelphia, 945 F.2d 1260, 1267 (3d Cir.
1991). See Doe v. Abington Friends School, 480 F.3d at 257 (“If discovery is incomplete in any
way material to a pending summary judgment motion, a district court is justified in not granting
the [summary judgment] motion”). Either way, it is incumbent on a court to address a pending
Rule 56(f) motion before deciding whether summary judgment is proper. Id., citing St. Surin v.
Virgin Islands Daily News, Inc., 21 F.3d 1309, 1315 (3d Cir. 1994).
C. Discussion
1. Plaintiff Hodczak’s Claims
LSS has filed a motion for summary judgment arguing that it is entitled to
judgment in its favor on all of plaintiff Hodczak’s claims because he is unable to establish a
prima facie case of discrimination which, according to LSS, he is required to do having advanced
his claim on a pretext theory rather than a “mixed-motives” theory.5 In particular, LSS contends
5In a pretext case, the three-stage shifting burdens of proof developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) applies. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993); Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994). Under this standard, plaintiff has the initial burden of demonstrating, by a preponderance of the evidence, a prima facie case of discrimination. Id. Under the ADEA, a prima facie case will be found where plaintiff can demonstrate: 1) that he or she was a member of the protected age class; 2) that he or she was qualified to hold the position; 3) that he or she suffered an adverse employment decision; and, typically, 4) that he or she was replaced by a significantly younger individual. Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 330 (3d Cir. 1995). Once the plaintiff has established a prima facie case, the burden of production shifts to the defendant to articulate a legitimate, non-discriminatory reason for the employment decision. Sempier v. Johnson & Higgins, 45 F.3d 724, 728 (3d Cir.), cert. denied, 515 U.S. 1159 (1995). If the defendant succeeds in articulating such a reason, the burden then shifts back to the plaintiff, "who must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were pretext for discrimination." Marzano v. Computer Science Corp., 91 F.3d 497, 502-03 (3d Cir. 1996), quoting Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). At all times, however, the burden of persuasion remains with the plaintiff. Id. at 503.
In contrast, in a “mixed-motives” case, the employee must produce direct evidence of discrimination thereby shifting both the burden of production and persuasion to defendant to demonstrate that the same employment decision would have been made regardless of its discriminatory animus. Walden v. Georgia-Pacific Corp., 126 F.3d 506, 512-13 (3d Cir. 1997), cert. denied, 523 U.S. 1074
6

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that Hodczak cannot meet his burden in this regard because he was not replaced by a significantly younger individual. Hodczak has responded by filing a Rule 56(f) motion and affidavit arguing that LSS’s motion is premature as he has not had the benefit of any discovery. Hodczak contends that discovery will reveal direct evidence of discrimination and preclude the need to demonstrate a prima facie case of discrimination under a pretext theory and that, even if he is required to rely on circumstantial evidence and prove a prima facie case, he is not required to show that he was replaced by someone sufficiently younger in order to meet that burden.
In addressing a Rule 56(f) motion, the court must consider what particular information is sought; how, if uncovered, it would preclude summary judgment; and why it has not been previously obtained. San Filippo v. Bongiovanni, 30 F.3d 424, 432 (3d Cir. 1994), cert. denied, 513 U.S. 1082 (1995), quoting Contractors Association of Eastern Pennsylvania, Inc. v. City of Philadelphia, 945 F.2d at 1266. Because it is undisputed that the parties had not engaged in any discovery at the time the instant motions or the responses thereto were filed, the reason the information sought has not been previously obtained appears clear. As such, the court need only address the first two factors which initially requires the court to consider the affidavit submitted with the Rule 56(f) motion. Contractors Association of Eastern Pennsylvania, Inc. v. City of Philadelphia, 945 F.2d at 1266.
Here, Hodczak has stated in his affidavit that he seeks letters, e-mails memorandum or other writings that likely memorialize discussions amongst LSS management
(1998). See Price Waterhouse v. Hopkins, 490 U.S. 228, 244-45 (1989). The evidence at issue, however, must be “so revealing of discriminatory animus that it is not necessary to rely on any presumption from the prima facie case” as in a pretext action. Armbruster v. Unisys Corp., 32 F.3d 768, 778 (3d Cir. 1994).
7

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between the time that Hodczak was suspended on November 2, 2007, and his termination on November 8, 2007, as well as the opportunity to depose those individuals involved in the decision to terminate his employment. Hodczak Aff. ¶¶ 10-14 [Dkt. 41-2]. Hodczak also states that, in addition to interrogatories and document requests, he needs to depose Mark Webberding, LSS Vice President of Sales and Marketing; Dan Hennessey, LSS Vice President of Manufacturing; Kevin Brahaney, former LSS Head of Human Resources; and Hans Sack, President of LSS, amongst others, in order “to explore LSS’s conduct in identifying the employees that LSS claims had been sending/receiving inappropriate e-mails and in deciding which ones to discipline and how they would be disciplined.” Hodczak Aff. ¶ 17. As well, Hodczak has indicated that he seeks information regarding the “identity and number of salaried employees whose employment with LSS has ended at any time during the past several years, the ages of such employees, the stated reason(s) for that separation, whether such separations were voluntary or involuntary,” and LSS’s termination practices and procedures. Hodczak ¶¶ 20, 22.
Having identified the information he seeks in discovery, the remaining inquiry is whether the information, if uncovered, would preclude summary judgment. While at first blush it does not appear that the information identified by Hodczak speaks to whether or not he was replaced by someone sufficiently younger, which is the only issue raised in LSS’s motion for summary judgement regarding Hodczak’s claims, Hodczak contends that evidence of discussions that took place amongst LSS’s managers would provide direct evidence of discrimination and obviate the need to demonstrate a prima facie case of discrimination under a pretext theory all together.
LSS does not dispute that, in the event direct evidence of discrimination is
8

Case 2:08-cv-00649-TFM Document 57 Filed 01/23/09 Page 9 of 20
obtained during discovery, plaintiff would not need to establish a prima facie case of discrimination but, rather, point to the affidavits presently submitted by Hodczak and the other plaintiffs in opposition to LSS’s motions for summary judgment in which they offer as direct evidence of discrimination certain statements allegedly made by LSS managers. LSS argues that because the statements cited by plaintiffs are nothing more that “stray remarks” and/or are inadmissible and irrelevant, plaintiffs have no direct evidence of discrimination and, therefore, are required to establish a prima facie case under the McDonnell Douglas shifting-burden framework. Moreover, LSS suggests in its reply brief filed in conjunction with the motion for summary judgment that plaintiffs’ failure to allege facts in their complaint establishing a mixedmotives theory somehow precludes plaintiffs from engaging in discovery that might reveal direct evidence of discrimination. LSS argues that to permit plaintiffs to engage in discovery in the hopes that they may find direct evidence without identifying what that evidence is would amount to a fishing expedition at LSS’s expense.
The difficulty with LSS’s argument is that plaintiffs are not required to identify or plead evidence, direct or indirect, to support their claims at this stage of the proceedings. Rather, as stated by the United States Supreme Court in Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) (“Swierkiewicz”), ordinary rules for assessing the sufficiency of a complaint apply and that under Federal Rule of Civil Procedure 8(a), a complaint “must include only a ‘short and plain statement of the claim showing that the pleader is entitled to relief,’ [which] must simply ‘give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it
9

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rests.’” Id. at 512.6 Indeed, the Court specifically held that a complaint in an employment discrimination suit need not contain specific facts establishing a prima facie case of discrimination under McDonnell Douglas, because the framework set forth therein is an evidentiary standard and not a pleading standard. Id. at 510, citing McDonnell Douglas, 411 U.S. at 800. See Texas Department of Community Affairs v. Burdine, 450 U.S. at 252-53 (“In [McDonnell Douglas,] we set forth the basic allocation of burdens and order of presentation of proof ...”). See also Cockerham ex rel. Cockerham v. Stokes County Board of Education, 302 F. Supp. 2d 490, 494 (M.D.N.C. 2004)(“The role of the prima facie case requirement is to set forth the burdens of evidentiary production, a stage which must necessarily follow, rather than precede, discovery”).
In so finding, the Court recognized that a plaintiff may not have direct evidence of discrimination when the complaint is filed and that it would be unreasonable under such circumstances to require a plaintiff to plead a prima facie case or “more facts than he may ultimately need to prove to succeed on the merits if direct evidence of discrimination is discovered.” Id. at 511-12. Implicit in the Court’s finding is that a plaintiff need not plead facts in the complaint to establish either a direct evidence case or a prima facie case as long as he or
6Although the Supreme Court’s decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955 (2007) (“Twombly”), has somewhat altered the standard by which a Rule 12(b)(6) motion is reviewed by requiring the plaintiff to alleged enough facts to state a claim for relief that is plausible on its face, the Court left Rule 8(a)’s pleading standard intact, reaffirming that the plaintiff need only give the defendant fair notice of what the claim is and the grounds upon which it rests. Id., 127 S. Ct. at 196465. Although the Court held that “fair notice” requires the plaintiff to state sufficient facts to raise the right to relief above the speculative level, it reiterated that a complaint need not include detailed factual allegations. Id. See Swedron v. Baden Borough, 2008 WL 5051399 at *3-4 (W.D. Pa. Nov. 21, 2008), quoting Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). Moreover, the Court expressly rejected the plaintiff’s argument that its holding ran afoul of Swierkiewicz. Twombly, 127 S. Ct. at 1973. See Bell v. KA Industrial Services, LLC, 567 F. Supp. 2d 701, 706-07 (D.N.J. 2008).
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she has given the defendant fair notice of what the claim is and the grounds upon which it rests, and that the theory upon which the plaintiff ultimately proceeds is dictated by the nature of the evidence obtained during discovery.7 See Id. at 512 (“This simplified notice pleading standard relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims”).
Here, Hodczak has alleged in the complaint that he was terminated from his employment because of his age in violation of the ADEA and has detailed the events leading up to his termination, including relevant dates and the names of persons involved in the decision to discharge him, as well as the fact that he was replaced by someone several years younger. The complaint also alleges that LSS has engaged in a pattern and practice of terminating older employees, identifies Hodczak’s age and that of the others who were terminated at the same time, and asserts that the reason given for their involuntary separations was pretext for discrimination as the e-mails he sent and received were far less offensive than those sent by other employees. These facts, found sufficient in Swierkiewicz, appear to give LSS fair notice of what Hodczak’s claims are and the grounds upon which they rest. See Swierkiewicz, 534 U.S. at 514. As such, the fact that Hodczak has not identified direct evidence of discrimination in his complaint and the fact that the evidence plaintiffs have submitted in an effort to thwart a pre-discovery motion for
7Although Swierkiewicz involves the shifting burdens of proof in a pretext case, there is no reason to find the same rationale inapplicable to a mixed-motives case or where direct evidence may be at issue. See Price Waterhouse v. Hopkins, 490 U.S. 228, 272 (1989) (O’Connor, J. concurring) (Describing the rule shifting the burden of persuasion to the employer where the employee has produced direct evidence of discrimination as an “evidentiary standard”); Witte v. Rippe & Kingston Systems, Inc., 358 F. Supp. 2d 658, 666 (S.D. Ohio 2005) (Finding that the Supreme Court’s conclusion in Swierkiewicz, that the requirements for establishing a prima facie case under McDonnell Douglas is not a pleading standard, is equally applicable to direct evidence cases of discrimination and, thus, a plaintiff is not required to plead the elements of the direct evidence standard in the complaint).
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summary judgment may not constitute direct evidence, does not preclude the possibility that they may uncover direct evidence during discovery or that they should be given the opportunity to do so. Moreover, as previously pointed out, Hodczak has identified in his Rule 56(f) affidavit the direct evidence he seeks which, if uncovered, would preclude summary judgment absent undisputed proof by LSS that Hodczak would have been terminated regardless of any discriminatory animus. Because it has not been suggested that the direct evidence sought by plaintiffs is otherwise available to them, it appears that plaintiffs’ Rule 56(f) motion is properly granted. Contractors Association of Eastern Pennsylvania, Inc. v. City of Philadelphia, 945 F.2d at 1267. See Doe v. Abington Friends School, 480 F.3d at 257, quoting Dowling v. City of Philadelphia, 855 F.2d 136, 139 (3d Cir. 1988) (“[I]t is well established that a court ‘is obligated to give a party opposing summary judgment an adequate opportunity to obtain discover’”); Mueller v. CBS, Inc., 200 F.R.D. 242, 244 (W.D. Pa. 2001) (Ambrose, C.J.) (Finding that plaintiffs’ motion for summary judgment on the issue of whether defendant engaged in a pattern or practice of discrimination against its older workforce was premature under Rule 56(f) as the parties had not yet engaged in merits discovery).
Moreover, to the extent that LSS has argued that the circumstantial evidence sought by Hodczak will not preclude summary judgment since he cannot show that he was replaced by someone sufficiently younger, it has failed to address Hodczak’s argument that he does not have to show that he was replaced by someone sufficiently younger to establish a prima facie case of discrimination but, rather, may prove the fourth prong simply by providing evidence that creates the inference that the adverse employment decision was based on discriminatory criteria. Although to be sure, the majority of cases have found that a plaintiff proceeding under
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the ADEA has the burden of demonstrating that he or she was replaced by someone sufficiently younger, there is certainly support for the proposition that the fourth prong of the prima facie case is a flexible one and may be satisfied simply where the evidence suggests that the plaintiff was discharged because of his age. See Pivirotto v. Innovative Systems, Inc., 191 F.3d 344, 357 (3d Cir. 1999), quoting Torre v. Casio, Inc., 42 F.3d 825, 831 (3d Cir.1994) (“[W]e have repeatedly emphasized that the requirements of the prima facie case are flexible, and in particular that ‘the fourth element must be relaxed in certain circumstances ....’”); Johnson v. McGraw-Hill Companies, 451 F. Supp. 2d 681, 695 (W.D. Pa. 2006) (“It is, of course, true that Johnson need not show that he was replaced by a significantly younger individual in order to establish a prima facie case of discriminatory discharge under the ADEA.... In order to surmount this initial hurdle, Johnson need only produce ‘evidence adequate to create an inference that an employment decision was based on an illegal discriminatory criterion’”) (internal citation omitted); Grabosky v. Tammac Corp., 127 F. Supp. 2d 610, 620 (M.D. Pa. 2000) (“Having considered the purposes served by a prima facie case, the Supreme Court's holding in O'Connor, and cases in the employment discrimination context addressing the precise issue presented here, I am convinced that the Third Circuit would not hold that a plaintiff must show that he or she was replaced by a younger person as part of a prima facie age discrimination case”); Roach v. American Radio Systems Corp., 80 F. Supp. 2d 530, 532 (W.D. Pa. 1999) (Ambrose, C.J.) (“Thus, in order to establish his prima facie case, Plaintiff need not present sufficient proof that he was replaced by a sufficiently younger person to create an inference of age discrimination. Rather, the facts viewed in a light most favorable to Plaintiff simply must create the inference that he was discharged
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because of his age”)(emphasis in original).8 See Perry v. Woodward, 199 F.3d 1126, 1138 (10th Cir. 1999), cert. denied, 529 U.S. 1110 (2000) (“The replacement of a terminated plaintiff with an individual who shares the plaintiff's protected attribute does not necessarily negate the inference that the plaintiff was unlawfully discriminated against”).
Nor has LSS discussed the evidence Hodczak has indicated in his Rule 56(f) affidavit that he needs in discovery in order to establish an inference of discrimination, including interrogatories, document requests, and depositions of certain LSS managers to explore how LSS identified the employees it claims had been sending/receiving inappropriate e-mails and who to discipline, as well as information regarding LSS’s termination practices and procedures and that of salaried employees whose employment with LSS has ended during the past several years.9 Rather, LSS merely challenges the evidence Hodczak has presented in response to LSS’s motion for summary judgment out of an apparent abundance of caution since he has simultaneously complained that the motion is premature. Whether or not the evidence available to Hodczak prediscovery is sufficient to create an inference of discrimination, however, does not negate the fact that he has plead sufficient facts in his complaint to entitle him to discover other evidence in an effort to support his claims. As such, plaintiffs’ Rule 56(f) motion is properly granted.
8Chief Judge Ambrose subsequently declined to deviate from the standard fourth prong of a prima facie case under the ADEA in Hicks v. Tech Industries, 512 F. Supp. 2d 338, 347-48 (W.D. Pa. 2007), finding that the plaintiff was required to establish that he was replaced by someone sufficiently younger. In so holding, however, Judge Ambrose distinguished Hicks from her earlier decision in Roach, stating that, unlike Hicks, Roach had “presented significant other evidence that his age nevertheless played a role in his discharge.” Id. at 348 n.6. Notably, in both cases, the parties had already engaged in discovery and, thus, unlike the instant plaintiffs, had the opportunity to discover evidence that age played a role in their respective terminations.
9The court notes that the propriety of any specific discovery requests that plaintiffs may submit is not at issue here.
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2. Collective Action Claims10 As previously noted, LSS has also filed a motion seeking summary judgment on plaintiffs’ collective action claims arguing that: 1) plaintiffs are unable to establish a prima facie case of pattern and practice discrimination or that age discrimination was the company’s standard operating procedure; 2) there are no other similarly situated salaried employees who could consent to be a party to the action; 3) there are no other current or former LSS employees who can meet the ADEA’s exhaustion requirements; and 4) plaintiffs’ proposed class of “all present salaried employees of Latrobe who are least 40 years of age and who are, therefore, at risk of being terminated by Latrobe” lack standing to bring such a claim. To support its position, LSS has submitted an Affidavit from Susan Lawson, LSS’s Senior Organizational Advancement Analyst, in which she has set forth certain facts surrounding plaintiffs’ involuntary separations, the hiring of Mr. Hodczak’s replacement, and the nature of the only other four separations that have allegedly occurred since LSS acquired ownership of the company in December of 2006 [Dkt. 18-2]. In response, plaintiffs initially argue that LSS is, in essence, challenging the certification of the collective action rather than seeking dismissal of any substantive claims and that because they have not yet sought certification of the class, LSS’s motion is premature.
10The ADEA expressly adopts the provisions of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., which authorizes employees to bring collective age discriminations actions “in behalf of ... themselves and other employees similarly situated.” 29 U.S.C. § 216(b) (made applicable to ADEA actions by 29 U.S.C. § 626(b)). Unlike class actions filed pursuant to Fed. R. Civ. P. 23, which requires class members who do not wish to be bound by the action to “opt-out,” a collective action brought pursuant to § 216(b) requires the potential members of the putative class to “opt-in” before they can participate in the action. Ruehl v. Viacom, Inc., 500 F.3d 375, 379 (3d Cir. 2007).
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Plaintiffs also contend that because no discovery has been exchanged, LSS’s motion is the functional equivalent of a motion to dismiss and should be denied because their complaint complies with Rule 8 and contains sufficient allegations to survive a 12(b)(6) motion. Accordingly, LSS filed a reply brief addressing the appropriate standard under which the sufficiency of plaintiffs’ complaint should be assessed, concluding that plaintiffs’ collective action claims fall short of what is required under Twombly, 550 U.S. 544, 127 S. Ct. 1955 (2007), and Rule 8.11 We agree.
As previously discussed, the Supreme Court has recently altered the standard by which the sufficiency of a complaint is reviewed and now requires a plaintiff to alleged enough facts to state a claim for relief that is plausible on its face. Twombly, 127 S. Ct. at 1974. Although the Court maintained that Rule 8(a)’s pleading standard was left intact, it also stated that Rule 8 “requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief,” and that “a plaintiff’s obligation to provide the ‘grounds’ for his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 1964-65, 1965 n.3. See Phillips v. County of Allegheny, 515 F.3d 231. The Court further explained that a complaint’s “[f]actual allegations must be enough to raise a right to relief above the speculative level,” and “to raise a reasonable expectation that discovery will
11Although plaintiffs condemn LSS’s argument in this regard as an improper reply because it raises new arguments not raised in LSS’s opening brief, it appears clear that LSS is merely refuting plaintiffs’ argument raised in their responsive brief which, even under the cases cited by plaintiffs, is the proper subject of a reply brief. See In Dehaarte v. City of Newark, 2006 WL 561925 at *2 (D.N.J. March 7, 2006); Rolls-Royce Corp. v. Heros, Inc., 2008 WL 783549 at *5 (N.D. Tex. March 25, 2008). Moreover, having argued that LSS is, in fact, seeking dismissal of the collective action claims under Rule 12(b)(6) because no discovery has yet been exchanged, the court sees no reason why the motion should not be treated as such. Consequently, the court has not addressed plaintiffs’ Rule 56(f) motion since the question of whether plaintiffs are entitled to discovery in order to refute a motion for summary judgment is no longer at issue. See Doe v. Abington Friends School, 480 F.3d at 257.
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reveal evidence of [the claim].” Id. at 1965. Here, with respect to their collective action claims, plaintiffs point to paragraphs
26 and 27 of the complaint as satisfying the Twombly standard: 26. Hodczak’s termination, along with three other employees in their late fifties or early sixties, on November 8, 2007, is part of a systematic pattern and practice of terminating older employees. LSS has targeted a class of employees over the age of forty for termination based largely, if not exclusively, on their age. In fact, the four that were fired, were among the oldest in the company. 27. Each of the victims of LSS’s age discrimination, including each of the three who were terminated with Hodczak, is similarly situated to the others, and Hodczak is similarly situated to all of them.
Complaint ¶¶ 26, 27 [Dkt. 1]. These allegations, however, are devoid of any facts which would support a collective action or which suggest that other class members even exist. Rather, plaintiffs merely conclude that plaintiffs’ firings are part of a systematic pattern and practice of terminating older employees without offering any basis whatsoever that would “raise a reasonable expectation that discovery will reveal evidence of” such a pattern and practice or evidence that a class of similarly situated employees who have been victims of the same policy or plan exist. Twombly, 127 S. Ct. at 1965. It therefore appears that plaintiffs’ collective action claims are purely speculative and insufficient to state a claim under Twombly.
Moreover, plaintiffs’ argument that LSS is, in essence, challenging certification of the class and its motion is premature because they have not conducted discovery on the issue or sought class certification, is misplaced. While discovery may be appropriate in certain cases prior to the notice phase to assist the plaintiffs in identifying potential class members, that does not relieve plaintiffs of their obligation of filing a properly pled complaint in the first instance
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demonstrating that they are entitled to that discovery. Plaintiffs appear to concede as much by arguing that they have met the Twombly standard and by citing to Brothers v. Portage National Bank, 2007 WL 965835 (W.D. Pa. March 29, 2007), for the proposition that the standard for assessing a motion for class certification is irrelevant where no such motion has yet been filed and that, at the motion to dismiss stage, the plaintiff need only satisfy the requirements of Rule 12(b)(6).12 Having already found that plaintiffs have not pled any facts in the complaint to support a collective action claim, they have not demonstrated that they are entitled to the discovery they seek and those claims are properly dismissed. See Smith v. Lyons, Doughty & Veldhuius, P.C., 2008 WL 2885887 at *5 (D.N.J. July 23, 2008) (Rejecting plaintiff’s argument that dismissal of the class action claims is premature because he has not yet had discovery to uncover facts to support the propriety of class action treatment, finding that “[t]he purpose of discovery is to uncover evidence of the facts pleaded in the Complaint” and “should not serve as a fishing expedition during which Plaintiff searches for evidence in support of facts he has not yet pleaded”); Benoit v. Ocwen Financial Corp., 960 F. Supp. 287, 289 (S.D. Fla. 1997) (Dismissing plaintiffs’ class action complaint for failing to comply with Rule 8 where, “the complaint is rife with broad, vague, and conclusory statements that a ‘pattern and practice’ of discrimination exists,” and finding that, “[m]ore is required than the plaintiffs’ general ‘across
12Moreover, although the court in Brothers found that the complaint filed in that case satisfied Rule 12(b)(6)’s requirements as the allegations “adequately inform [defendant] of the claims and provide notice that a motion for class certification is forthcoming,” it is unclear from the Memorandum Opinion precisely what was alleged in the complaint and what facts plaintiff had set forth in support thereof. Moreover, Brothers was decided before the Supreme Court decided Twombly. In this manner, the other cases cited by plaintiffs are equally unavailing as they too were either decided before Twombly and/or the existence of other class members was evident from the allegations in the complaint so as to withstand a Rule 12(b)(6) motion. See Mueller v. CBS, Inc., 201 F.R.D. 425 (W.D. Pa. 2001); Baas v. Dollar Tree Stores, Inc., 2007 WL 2462150 (N.D. Cal. Aug, 29, 2007); Badgett v. Texas Taco Cabana, L.P., 2006 WL 367872 (S.D. Tex. Feb. 14, 2006).
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the board’ assertion that defendants have a pattern and practice of discrimination”). Cf. Melendez Cintron v. Hershey Puerto Rico, Inc., 363 F. Supp. 2d 10, 18 (D. Puerto Rico 2005), quoting Severtson v. Phillips Beverage Co., 137 F.R.D. 264, 266-67 (D. Minn. 1991) (“The more thoroughly reasoned cases regarding the appropriate degree of factual support for class allegations prior to authorization of notice require plaintiffs to provide a preliminary factual showing that there actually exists a similarly situated group of potential party plaintiffs. The Court is persuaded by these cases' reasoning for ‘[a]s a matter of sound case management, a court should, before offering [to assist plaintiffs in locating additional plaintiffs], make a preliminary inquiry as to whether a manageable class exists .... Additionally, a frivolous fishing expedition at the employer's expense is avoided”).
D. Conclusion For these reasons, it is recommended that plaintiffs’ motion to deny summary
judgment pursuant to Fed. R. Civ. P. 56(f) on all of plaintiff Hodczak’s claims [Dkt. 41] be granted; that defendant’s motion for summary judgment on all of plaintiff Hodczak’s claims [Dkt. 19], in fact, be denied; that defendant’s motion for summary judgment on all collective action claims [Dkt. 15] be treated as a motion to dismiss and be granted; and that plaintiffs’ motion to deny defendant’s motion for summary judgement pursuant to Rule56(f) on all collective action claims [Dkt. 42] be denied.
In accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1)(B) & (C), and Local Rule 72.1.4 B, the parties are permitted to file written objections and responses thereto in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Failure to timely file objections may constitute a waiver of any appellate
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rights.

Respectfully submitted,

Dated: 23 January, 2009 cc: Counsel of Record via CM-ECF

/ s/ Amy Reynolds Hay AMY REYNOLDS HAY United States Magistrate Judge

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 Case 2:08-cv-00649-TFM Document 64 Filed 03/09/09 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DOUGLAS M. HODCZAK; JAMES M. )

CROSSMAN; THOMAS J. MAGDIC; )

JOSEPH A. LITVIK, on behalf of

)

themselves and all others similarly

)

situated,

)

Plaintiffs, )

)

vs.

)

)

LATROBE SPECIALTY STEEL

)

COMPANY,

)

Defendant. )

Civil Action No. 08-649
Judge Terrence F. McVerry Magistrate Judge Amy Reynolds Hay

REPORT AND RECOMMENDATION I. RECOMMENDATION
Plaintiffs, Douglas M. Hodczak, James M. Crossan, Thomas J. Magdic and Joseph A. Litvik, on behalf of themselves and others similarly situated, commenced this collective action suit under the Age Discrimination in Employment Act of 1967 (“ADEA”), as amended, 29 U.S.C. §§ 621 et seq, alleging that defendant Latrobe Specialty Steel Company (“LSS”), discriminated against them because of their age when it terminated their employment in November of 2007. Despite the fact that discovery has not yet issued, LSS filed a motion for summary judgment arguing that it is entitled to judgment in its favor on all collective action claims. Plaintiffs have opposed the motion as premature and filed their own motion pursuant to Federal Rule of Civil Procedure 56(f) in which they ask that LSS’s motion for summary judgment be denied or, in the alternative, that the court postpone ruling on the motions until they have had an opportunity to conduct discovery. For the reasons that follow, it is respectfully recommended that plaintiffs’ motion to deny summary judgment pursuant to Fed. R. Civ. P. 56(f)

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on all collective action claims [Dkt. 15] be granted, and that defendant’s motion for summary judgement on all collective action claims [Dkt. 42], in fact, be denied. II. REPORT
A. Factual and Procedural Background Hodczak was hired by Latrobe Steel Company on July 23, 1973. Complaint ¶ 14
[Dkt. 1]; Answer ¶ 14 [Dkt. 11]. In 1975, Latrobe Steel Company was subsequently acquired by the Timken Company and renamed Timken Latrobe Steel. Timken Latrobe Steel was then acquired by the Watermill Group and Hicks Holdings in 2006 and renamed LSS. Id. at ¶¶ 15, 17. At some point prior to the last change of ownership, Timken Latrobe Steel gave a number of employees, including plaintiffs, the opportunity to retire before the acquisition took place, which plaintiffs apparently chose to do. Defendant’s Concise Statement of Material Undisputed Facts regarding Hodczak’s claims (“DSOF-H”), ¶¶ 3, 4 [Dkt. 21]; Plaintiffs’ Responsive Concise Statement regarding Hodczak’s claims (“PRCS-H”), ¶ 4 [Dkt. 26]; Defendant’s Concise Statement of Material Undisputed Facts regarding Collective Action claims (“DSOF-CA”), ¶ 6 [Dkt. 17]; Plaintiffs’ Responsive Concise Statement regarding Collective Action Claims (“PRCS-CA”), ¶ 6 [Dkt. 27].1 On December 9, 2006, after retiring from Timken Latrobe Steel, all of the plaintiffs were offered and accepted employment with LSS; Hodczak, in particular, was
1Although LSS has labeled its statement of the facts as “undisputed,” plaintiffs have, in fact, disputed all but one of the fourteen facts offered by LSS in support of its motion. See Dkt. 27. While it does appear that plaintiffs have disputed a number of facts simply for the sake of disputing them, such as where the disputed fact is supported by the complaint, their quarrel with LSS’s statement of the facts is largely that they have not had the opportunity to test the veracity of the facts as stated since there has been no opportunity to conduct discovery. Thus, to the extent that LSS complains that plaintiffs have not supported their objections with any evidence, they are seemingly unable to do so given the posture of the case.
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hired as a Senior Sales and Marketing Representative. DSOF-H at ¶ 5; PRSF-H ¶ 5; DSOF-CA ¶ 6; PRSF-CA ¶ 6. Hodczak, who had received a series of promotions over the years while employed with these various companies, was again promoted by LSS on October 1, 2007, to Manager of Special Products Division. Complaint ¶ 16, 17; Answer ¶¶ 16, 17; DSOF ¶¶ 8-10; PRCS ¶¶ 8-10.
On November 2, 2007, plaintiffs were each called to the Human Resources Department and informed that they were being suspended without pay because they had been sending and receiving certain material via their LSS e-mail addresses which, according to LSS, violated the company’s Electronic Communications Policy. Complaint ¶¶ 18-19, 32-33, 46-47, 59-60; Answer ¶¶ 18-19, 32-33, 46-47, 59-60.2 Almost a week later, on or about November 8, 2007, plaintiffs were informed that their employment was being terminated for the reasons articulated at the time of their suspension. Complaint ¶¶ 20, 34, 48, 61; Answer ¶¶ 20, 34, 48, 61; DSOF-H ¶ 12; PRCS-H ¶ 12; DSOF-CA ¶ 7; PRSF-CA ¶ 7.
Plaintiffs nevertheless filed the instant complaint on May 13, 2008, bringing a single claim of disparate treatment under the ADEA.3 Plaintiffs allege that LSS’s stated reasons for terminating their employment are pretext for age discrimination and that their termination was part of a “systematic pattern and practice of terminating older employees.” Complaint ¶¶ 22,
2LSS has represented in its Answer, and plaintiffs do not appear to dispute, that the e-mails were sexually explicit in nature. See Complaint ¶¶ 23, 37, 51, 64 (Acknowledging that “there is an entire culture at LSS” of sending pornographic and/or offensive e-mails, and categorizing those sent by plaintiffs as “less offensive” than those sent by other employees).
3Although plaintiffs also brought a disparate impact claim at Count II of the complaint, they moved to voluntarily dismiss that claim on June 16, 2008 [Dkt. 14]. The motion was granted by the court on June 17, 2008.
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26, 35, 40, 49, 54, 63, 67. LSS filed the instant motion as well as a motion for summary judgment on all of
plaintiff Hodczak’s claims on June 30, 2008. Plaintiffs responded to both motions with a Rule 56(f) motion on August 28, 2008. In a Report and Recommendation filed on January 23, 2008 [Dkt. 57], it was recommended that plaintiffs’ motion to deny summary judgment pursuant to Fed. R. Civ. P. 56(f) on all of plaintiff Hodczak’s claims be granted; that defendant’s motion for summary judgment on all of plaintiff Hodczak’s claims, in fact, be denied; that defendant’s motion for summary judgment on all collective action claims be treated as a motion to dismiss and be granted; and that plaintiffs’ motion to deny defendant’s motion for summary judgement pursuant to Rule56(f) on all collective action claims be denied.
On February 10, 2009, plaintiffs’ filed objections to the portion of the Report wherein it was recommended that plaintiffs’ collective action claims be dismissed pursuant to Rule 12(b)(6) [Dkt. 59].4 LSS responded to plaintiffs’ objections on February 18, 2009 [Dkt. 60], and on February 26, 2009, plaintiffs, with leave of court, filed a reply brief [Dkt. 63]. Having found plaintiffs’ objections persuasive, the undersigned has vacated section II. C. 2. of the previously filed Report and Recommendation and submits the instant Report and Recommendation on plaintiffs’ collective action claims in its stead.
B. Standard of Review Summary judgment is warranted only where “the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to any
4Plaintiffs have not objected to the portion of the previously filed Report recommending that LSS’s motion for summary judgment regarding Hodczak’s claims be denied and LSS has not filed any objections at all. See Pls.’ Objections, p. 2 n.1 [Dkt. 59].
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material fact and that the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). The moving party bears the initial burden of demonstrating to the court that there is an absence of evidence to support the non-moving party’s case. Celotex Corporation v. Catrett, 477 U.S. 317, 322 (1986). See Conoshenti v. Public Service Electric & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004). When the moving party has met this burden, the burden then shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e)(2). The mere existence of some evidence favoring the non-moving party, however, will not defeat the motion; there must be enough evidence with respect to a particular issue to enable a reasonable jury to find in favor of the non-moving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). See McGreevy v. Stroup, 413 F.3d 359, 363-64 (3d Cir. 2005).
As the standard of review suggests, “the summary judgment process presupposes the existence of an adequate record.” Doe v. Abington Friends School, 480 F.3d 252, 257 (3d Cir. 2007), citing Fed. R. Civ. P. 56(c). Accordingly, where a party opposing summary judgment is of the opinion that the record is inadequate and discovery is needed in order to fully address the motion, the party may file an affidavit pursuant to Rule 56(f) setting forth the reasons why it “cannot present facts essential to justify its opposition.” Id.; Fed. R. Civ. P. 56(f). See Wheatley v. Guardian Life Insurance Co., 2007 WL 2893383, at *2 (D.N.J. Sept. 28, 2007). Should the court agree, it may either deny the motion for summary judgment or grant a continuance so that discovery my be obtained. Fed. R. Civ. P. 56(f). See Wheatley v. Guardian Life Insurance Co., 2007 WL 2893383, at *3. Although within the court’s discretion, where a proper affidavit is filed, “a district court should grant a Rule 56(f) motion almost as matter of course unless the
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information is otherwise available” to the party opposing summary judgment. Contractors Association of Eastern Pennsylvania, Inc. v. City of Philadelphia, 945 F.2d 1260, 1267 (3d Cir. 1991). See Doe v. Abington Friends School, 480 F.3d at 257 (“If discovery is incomplete in any way material to a pending summary judgment motion, a district court is justified in not granting the [summary judgment] motion”). Either way, it is incumbent on a court to address a pending Rule 56(f) motion before deciding whether summary judgment is proper. Id., citing St. Surin v. Virgin Islands Daily News, Inc., 21 F.3d 1309, 1315 (3d Cir. 1994).
C. Discussion Plaintiffs collective action claims have been brought under the ADEA. The
ADEA expressly adopts the provisions of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., which authorizes employees to bring collective age discriminations actions “in behalf of ... themselves and other employees similarly situated.” 29 U.S.C. § 216(b) (made applicable to ADEA actions by 29 U.S.C. § 626(b)). Unlike class actions filed pursuant to Fed. R. Civ. P. 23, wherein the class action is described and requires each person who falls within the description to “opt-out” if they do not wish to be bound by the action, Sussman v. Vornado, Inc., 90 F.R.D. 680, 683 n.7 (D.N.J. 1981); Hendricks v. JPMorgan Chase Bank, 2008 WL 5191819 (D. Conn. Nov. 21, 2008), a collective action brought pursuant to § 216(b) requires the potential members of the putative class to “opt-in” before they can participate in the action. Ruehl v. Viacom, Inc., 500 F.3d 375, 379 (3d Cir. 2007). Accordingly, potential class members must receive notice of the proposed § 216(b) collective action before they are able to opt-in and before it can be determined whether the action may properly proceed as a collective action. Mueller v. CBS, Inc., 201 F.R.D. 425, 427-28 (W.D. Pa. 2001); Spellman v. Visionquest National, 1998
6

Case 2:08-cv-00649-TFM Document 64 Filed 03/09/09 Page 7 of 13
WL 1997458 at *2 (W.D. Pa. Feb. 13, 1998). Before putative class members will be permitted to opt-in the court must determine that each person is “similarly situated,” a determination that “is necessarily fact specific.” Id. See Sperling v. Hoffman-La Roche Inc., 862 F.2d 439, 444 (3d Cir. 1988). aff’d, 493 U.S. 165 (1989); Mueller v. CBS, Inc., 201 F.R.D. at 428; Brothers v. Portage National Bank, 2007 WL 965835 at, *3 (W.D. Pa. Mar. 29, 2007).5
LSS has nevertheless filed a motion seeking summary judgment on plaintiffs’ collective action claims before plaintiffs have sought authorization to notify the class or moved for conditional certification arguing that plaintiffs are unable to establish that there are any other similarly situated salaried employees who could consent to be a party to the action. LSS also contends that plaintiffs are unable to demonstrate a prima facie case of pattern and practice discrimination or that any other potential opt-ins can meet the ADEA’s administrative exhaustion requirements.
As previously discussed, plaintiffs have responded by filing a Rule 56(f) motion and affidavit arguing that LSS’s motion is premature since they have not had the benefit of discovery and, thus, they are unable to properly respond to LSS’s motion.
In addressing a Rule 56(f) motion, the court must consider what particular information is sought; how, if uncovered, it would preclude summary judgment; and why it has
5This process typically proceeds in two phases: The first step is the “notice phase” at which time the plaintiff seeks authorization to issue notice to other potential class members. At that point “[a] court may conditionally certify the class for purpose of notice and discovery under a comparatively liberal standard, i.e., by determining that the members of the putative class ‘were together the victims of a single decision, policy or plan.’” Mueller v. CBS, Inc., 201 F.R.D. at 427-28, quoting Sperling v. Hoffmann-La Roche, Inc., 118 F.R.D. 392, 407 (D.N.J.), aff'd, 862 F.2d 439 (3d Cir.1988), and 493 U.S. 165 (1989). The second phase begins after all potential class members have filed their consents to opt-in and the parties have engaged in further discovery; the court then revisits the class certification question. Id. At this juncture, if the court concludes that the plaintiffs are not “similarly situated,” the conditional class is decertified. Id.
7

Case 2:08-cv-00649-TFM Document 64 Filed 03/09/09 Page 8 of 13
not been previously obtained. San Filippo v. Bongiovanni, 30 F.3d 424, 432 (3d Cir. 1994), cert. denied, 513 U.S. 1082 (1995), quoting Contractors Association of Eastern Pennsylvania, Inc. v. City of Philadelphia, 945 F.2d at 1266. Because it is undisputed that the parties had not engaged in any discovery at the time the instant motions or the responses thereto were filed, the reason the information sought has not been previously obtained appears clear. As such, the court need only address the first two factors which initially requires the court to consider the affidavit submitted with the Rule 56(f) motion. Contractors Association of Eastern Pennsylvania, Inc. v. City of Philadelphia, 945 F.2d at 1266.
In support of their motion, plaintiffs have submitted an affidavit from plaintiff Magdic wherein he states that in order to fully respond to LSS’s arguments that plaintiffs are unable to prove a pattern and practice of age discrimination or that discriminating against older employees was LSS’s standard operating procedure, they need to discover historical employment and/or termination information of salaried employees of LSS and its predecessors which will enable plaintiffs to make a statistical showing of age discrimination. Magdic Aff. ¶¶ 7, 8 [Dkt. 42-2]. Specifically, Mr. Magdic indicates that plaintiffs must have the opportunity to serve interrogatories and requests for documents concerning the separation of salaried employees over the past several years including personal information, personnel files, reasons for separation and age at the time of separation. Id. at ¶¶ 7, 10. Magdic also indicates that plaintiffs must have the opportunity to depose a number of salaried employees who were nominally separated from LSS voluntarily during the past several years to explore whether the reasons given for their separations were pretext for age discrimination. Id. at ¶ 9. As well, Magdic states that plaintiffs will need to explore LSS’s employment and termination practices going back several years and to
8

Case 2:08-cv-00649-TFM Document 64 Filed 03/09/09 Page 9 of 13
depose a number of LSS’s top managers in this regard, including Mark Webberding, LSS Vice President of Sales and Marketing; Dan Hennessey, LSS Vice President of Manufacturing; Kevin Brahaney, former LSS Head of Human Resources; Hans Sack, President of LSS; and Joseph Wakeling, Vice President Distribution Marketing. Id. at ¶ 12.
Having identified the information they seek in discovery, the remaining inquiry is whether the information, if uncovered, would preclude summary judgment. As previously discussed, in its motion for summary judgment, LSS has challenged plaintiffs ability to establish a prima facie case of pattern and practice discrimination and whether there are any other similarly situated salaried employees who could consent to be a party to the action, as well as plaintiff’s ability to demonstrate that any other potential opt-ins can meet the ADEA’s administrative exhaustion requirements. Because it appears that the discovery plaintiffs seek speaks directly to these issues, it follows that plaintiff’s Rule 56 (f) motion is properly granted.
LSS nevertheless argues that plaintiffs’ motion should be denied, and its motion for summary judgment granted without giving plaintiffs the benefit of discovery, because plaintiffs have failed to plead or identify a single decision, policy or plan other than the Electronic Communications Policy as the basis for their claim and, thus, have failed to show that the putative class members are similarly situated, and because they have not identified any discovery to refute LSS’s evidence that plaintiffs are the only potential opt-in plaintiffs. To support its position, LSS has submitted an affidavit from Susan Lawson, LSS’s Senior Organizational Advancement Analyst, in which she has set forth certain facts surrounding plaintiffs’ involuntary separations, the hiring of Mr. Hodczak’s replacement, and the nature of the only other four separations that have allegedly occurred since LSS acquired ownership of the
9

Case 2:08-cv-00649-TFM Document 64 Filed 03/09/09 Page 10 of 13
company in December of 2006 [Dkt. 18-2]. Upon reflection, the court finds LSS’s arguments unpersuasive.
First, it appears that the question of whether plaintiffs are able to support a determination that the members of the putative class are affected by a “single decision, policy or plan,” is only at issue once the plaintiffs seek conditional certification of the class for purposes of providing notice to the other prospective class members. Mueller v. CBS, Inc., 201 F.R.D. at 428. See Brothers v. Portage National Bank, 2007 WL 965385, at *3; Spellman v. Visionquest National, 1998 WL 1997458, at *2. Plaintiffs in this case, however, have not yet sought to certify the class, conditionally or otherwise.
Further, LSS’s argument that plaintiffs have not identified any discovery to refute its evidence regarding other potential opt-in plaintiffs only bolsters plaintiffs’ position that they need discovery in order to properly respond to LSS’s motion. While plaintiffs may ultimately be unable to demonstrate that the putative class members are similarly situated, it nevertheless appears that, at this juncture, they should be given the opportunity to test the veracity of LSS’s evidence and to otherwise seek facts that will assist them in defining the class they propose to represent.
Indeed, it appears that in collective action cases, where the individual named plaintiffs have stated legally sufficient claims, any challenge to the propriety of allowing the case to proceed as a collective action is properly reserved until such time as the plaintiffs actually move to conditionally certify the class. Hughes v. Getronics Wang LLC, 2008 WL 2778885, at *1 (S.D.N.Y. July 8, 2008) (Finding that where the named plaintiffs have stated legally sufficient claims, contention that the case should not be permitted to proceed as a collective action “are
10

Case 2:08-cv-00649-TFM Document 64 Filed 03/09/09 Page 11 of 13
properly considered in the context of a class or collective action determination – they do not go to the sufficiency of the complaint”).6 See Equal Opportunity Commission v. University of Phoenix, Inc., 2008 WL 1971396, at *5 (D. Ariz. May 2, 2008) (Finding that plaintiffs’ First Amended Complaint brings plaintiffs’ collective action claims into the realm of Twombly’s plausibility standard where it set forth the factual predicates for the named plaintiffs’ claims and indicated that the claims were being brought on behalf of a class whose members had not yet been entirely determined); Brothers v. Portage National Bank, 2007 WL 965385, at *7 (“By simply proposing to represent all similarly situated Portage employees who were subject to and harmed by the same policies, Brothers is entitled to offer evidence to support her allegations”); Badgett v. Texas Taco Cabana, 2006 WL 367872, at **5-6 (S.D. Texas Feb. 14, 2006) (Agreeing with plaintiffs’ argument that defendant’s motion for a more definite statement should be denied because a determination of whether the case may proceed as a collective action is premature since plaintiffs have not yet filed a motion for class notice).
It also appears that courts generally allow the representative plaintiffs to conduct limited discovery so that they may more carefully define the proposed class before seeking authorization to notify the putative class members or moving for conditional certification. Mueller v. CBS, Inc., 201 F.R.D. at 427, 429; Brooks v. BellSouth Telecommunications, Inc., 164 F.R.D. 561, 566 (N.D. Ala. Sept. 29, 1995), aff’d, 114 F.3d 1202 (11th Cir. 1997). See Hughes v. Getronics Wang LLC, 2008 WL 2778885, at *1; Spellman v. Visionquest National,
6In contrast, class action suits brought pursuant to Rule 23 may be dismissed based upon the sufficiency of the pleadings before any discovery has been taken place since, in those cases, the class is necessarily described at the outset and includes any person falling within the description unless they “opt-out.” See Hendrick v. JPMorgan Chase Bank, N.A., 2008 WL 5191819, at *2.
11

Case 2:08-cv-00649-TFM Document 64 Filed 03/09/09 Page 12 of 13
1998 WL 1997458, at *3. Cf. Smith v. Sovereign Bancorp, Inc., 2003 WL 22701017, at *3 (E.D. Pa. Nov. 13, 2003) (Denying plaintiff’s motion to conditionally certify the class without prejudice to refiling after plaintiffs have had the opportunity to conduct discovery on the issue).7
Here, LSS does not dispute that the individual plaintiffs have stated legally sufficient claims. Nor can it dispute that plaintiffs in this case have not yet moved to conditionally certify the class. As such, it appears that the arguments advanced by LSS challenging the propriety of permitting the case to proceed as a class action are premature and are more appropriately addressed at such time as plaintiffs seek conditional certification.
D. Conclusion For these reasons, it is recommended that plaintiffs’ motion to deny summary
judgment pursuant to Fed. R. Civ. P. 56(f) on all collective action claims [Dkt. 15] be granted, and that defendant’s motion for summary judgement on all collective action claims [Dkt. 42], in fact, be denied.
In accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1)(B) & (C), and Local Rule 72.1.4 B, the parties are permitted to file written objections and responses thereto in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Failure to timely file objections may constitute a waiver of any appellate rights.
7As the court noted in its Report and Recommendation pertaining to plaintiff Hodczak’s claims, the propriety of any specific discovery requests that plaintiffs may submit is not at issue here. Nevertheless, it appears clear that, at this juncture, plaintiffs are only entitled to minimal discovery designed only to assist them in defining the proposed class in anticipation of moving for conditional certification. See Mueller v. CBS, Inc., 201 F.R.D. at 429; Spellman v. Visionquest National, Inc., 1998 WL 1997458, at *3.
12

Case 2:08-cv-00649-TFM Document 64 Filed 03/09/09 Page 13 of 13 Respectfully submitted, /s/ Amy Reynolds Hay United States Magistrate Judge
Dated: 9 March, 2009 cc: Hon. Terrence F. McVerry
All counsel of record by Notice of Electronic Filing
13

 
 Case 2:08-cv-00649-TFM Document 69 Filed 04/23/09 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DOUGLAS M. HODCZAK; JAMES M. )

CROSSMAN; THOMAS J. MAGDIC; )

JOSEPH A. LITVIK, on behalf of

)

themselves and all others similarly

)

situated,

)

Plaintiffs, )

)

vs.

)

)

LATROBE SPECIALTY STEEL

)

COMPANY,

)

Defendant. )

Civil Action No. 08-649
Judge Terrence F. McVerry Magistrate Judge Amy Reynolds Hay

AMENDED ORDER AND NOW, this 23rd day of April, 2009, after the plaintiffs, Douglas M. Hodczak, James M. Crossman, Thomas J. Magdic and Joseph A. Litvik, filed the abovecaptioned case on behalf of themselves and others similarly situated, and after defendant, Latrobe Specialty Steel Company, filed a Motion for Summary Judgment on All of Plaintiff Hodczak’s Claims, and after Plaintiffs filed a Motion Pursuant to Rule 56(f) to Deny or Continue Defendant’s Motion for Summary Judgment on All of Plaintiff Hodczak’s Claims, and after a Report and Recommendation was filed by the United States Magistrate Judge granting the parties until February 9, 2009, to file written objections thereto, and no objections having been filed with respect to these motions, and upon independent review of the record, and upon consideration of the Magistrate Judge’s Report and Recommendation, which is adopted as the opinion of this Court, IT IS HEREBY ORDERED that plaintiffs’ motion to deny summary judgment pursuant to Fed. R. Civ. P. 56(f) on all of plaintiff Hodczak’s claims [Dkt. 41] is GRANTED,

Case 2:08-cv-00649-TFM Document 69 Filed 04/23/09 Page 2 of 2 and that defendant’s motion for summary judgment on all of plaintiff Hodczak’s claims [Dkt. 19] is, in fact, DENIED.
/ s/ Terrence F. McVerry TERRENCE F. MCVERRY United States District Judge cc: Honorable Amy Reynolds Hay United States Magistrate Judge All Counsel of Record by electronic filing
2

 
 Case 2:08-cv-00649-TFM Document 70 Filed 04/23/09 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DOUGLAS M. HODCZAK; JAMES M. )

CROSSMAN; THOMAS J. MAGDIC; )

JOSEPH A. LITVIK, on behalf of

)

themselves and all others similarly

)

situated,

)

Plaintiffs, )

)

vs.

)

)

LATROBE SPECIALTY STEEL

)

COMPANY,

)

Defendant. )

Civil Action No. 08-649
Judge Terrence F. McVerry Magistrate Judge Amy Reynolds Hay

AMENDED ORDER AND NOW, this 23rd day of April, 2009, after the plaintiffs, Douglas M. Hodczak, James M. Crossman, Thomas J. Magdic and Joseph A. Litvik, filed the abovecaptioned case on behalf of themselves and others similarly situated, and after defendant, Latrobe Specialty Steel Company, filed a Motion for Summary Judgment on All Collective Action Claims, and after plaintiffs filed a Motion Pursuant to Rule 56(f) to Deny or Continue Defendant’s Motion for Summary Judgment on All Collective Action Claims, and after a Report and Recommendation was filed by the United States Magistrate Judge granting the parties until March 19, 2009, to file written objections thereto, and upon consideration of the objections filed by defendant and the response thereto submitted by plaintiffs, and upon independent review of the record, and upon consideration of the Magistrate Judge’s Report and Recommendation, which is adopted as the opinion of this Court, IT IS HEREBY ORDERED that plaintiffs’ motion to deny summary judgment pursuant to Fed. R. Civ. P. 56(f) on all Collective Action Claims [Dkt. 42] is GRANTED, and

Case 2:08-cv-00649-TFM Document 70 Filed 04/23/09 Page 2 of 2 that Defendant’s Motion for Summary Judgment on All Collective Action Claims [Dkt. 15] is, in fact, DENIED.
/ s/ Terrence F. McVerry TERRENCE F. MCVERRY United States District Judge cc: Honorable Amy Reynolds Hay United States Magistrate Judge All Counsel of Record by electronic filing
2

 
 Case 2:08-cv-00649-TFM Document 76 Filed 06/11/09 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DOUGLAS M. HODCZAK; JAMES M. )

CROSSMAN; THOMAS J. MAGDIC; )

JOSEPH A. LITVIK, on behalf of

)

themselves and all others similarly

)

situated,

)

Plaintiffs )

)

vs.

)

)

LATROBE SPECIALTY STEEL

)

COMPANY,

)

Defendant )

Civil Action No. 08-649
Judge Terrence F. McVerry Magistrate Judge Amy Reynolds Hay

ORDER AND NOW, this 11th day of June, 2009, upon consideration of the Defendant’s Motion for Judgment on the Pleadings Limiting Temporal Scope of Plaintiffs’ Claims, Dkt. [71], and Plaintiffs’ Notice of Non-Opposition to the relief requested in said motion, Dkt. [74], IT IS HEREBY ORDERED that the motion is GRANTED to the extent that this action shall not include any claims under the Age Discrimination in Employment Act, as amended, on behalf of any Plaintiff, that accrued before May 17, 2007.

s/ Terrence F. McVerry United States District Judge

cc: All counsel of record by Notice of Electronic Filing

 
 Case 2:08-cv-00649-TFM Document 132-1 Filed 05/06/10 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DOUGLAS M. HODCZAK, JAMES M.

)

CROSSAN, THOMAS J. MAGDIC AND )

JOSEPH A. LITVIK, on behalf of themselves )

and all others similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

LATROBE SPECIALTY STEEL COMPANY, )

)

Defendant.

)

Civil Action No. 08-CV-00649
Judge Terrence F. McVerry and Magistrate Judge Amy Reynolds Hay
Electronically Filed

ORDER OF COURT AND NOW, this ____ day of ___________, 2010, upon consideration of Defendant's Motion for Summary Judgment, Plaintiffs' opposition thereto and all reply briefs, it is hereby ORDERED, ADJUDGED AND DECREED that said Motion is GRANTED and Plaintiffs' complaint is dismissed in its entirety with prejudice.

________________________________

 
 Case 2:08-cv-00649-TFM Document 132 Filed 05/06/10 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DOUGLAS M. HODCZAK, JAMES M.

)

CROSSAN, THOMAS J. MAGDIC AND )

JOSEPH A. LITVIK, on behalf of themselves )

and all others similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

LATROBE SPECIALTY STEEL COMPANY, )

)

Defendant.

)

Civil Action No. 08-CV-00649
Judge Terrence F. McVerry and Magistrate Judge Amy Reynolds Hay
Electronically Filed

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Pursuant to Federal Rule of Civil Procedure Rule 56, and based on the reasons set
forth in Defendant's Brief in Support of its Motion for Summary Judgment, Statement of
Material Facts and the Appendix thereto, which will be filed forthwith, under seal, upon
authorization of the Court to do so, Defendant Latrobe Specialty Steel Company moves
for summary judgment on the claim set forth in the above-captioned case. Pending
before the Court is an uncontested Motion to file such documents under seal. All such
materials have nonetheless been served this date upon counsel for Plaintiffs, pursuant to
the terms of the Protective Order previously entered in this action. A proposed order is
attached.
Respectfully submitted,
_/s/Mark R. Hornak Mark R. Hornak (PA 35187) mark.hornak@bipc.com Thomas S. Giotto, Esquire (PA 39568) thomas.giotto@bipc.com Joseph F. Quinn, Esquire (PA 37103) joseph.quinn@bipc.com

Case 2:08-cv-00649-TFM Document 132 Filed 05/06/10 Page 2 of 2
BUCHANAN INGERSOLL & ROONEY . One Oxford Centre 301 Grant Street, 20th Floor Pittsburgh, PA 15219-1041 Phone: 412-562-8800 Fax: 412-562-1041
Counsel for Defendant

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DOUGLAS M. HODCZAK, JAMES M. )

CROSSAN, THOMAS J. MAGDIC

)

AND JOSEPH A. LITVIK, on behalf of

)

themselves and all others similarly situated, )

)

Plaintiffs,

)

v.

)

)

LATROBE SPECIALTY STEEL

)

COMPANY,

)

)

Defendant.

)

2:08-cv-649

MEMORANDUM ORDER

Pending before the Court are DEFENDANT‟S OBJECTIONS TO MAGISTRATE JUDGE‟S MEMORANDUM ORDER DATED AUGUST 10, 2010 (Document No. 160). The Objections have been thoroughly briefed by both sides (Document Nos. 163, 164, 165, 166) and are ripe for disposition.
This is an age discrimination case. Plaintiffs were terminated from their employment by Defendant Latrobe Specialty Steel Company (“LSS”), for allegedly sending graphic and sexually explicit emails on company time and equipment. Plaintiffs contend that this expressed reason was a pretext insofar as other LSS employees, including senior management personnel, engaged in similar conduct and were not terminated. In their effort to establish pretext, Plaintiffs intend to introduce testimony from a former LSS employee, Gene F. Zurawsky, regarding the conduct in which the alleged comparators engaged and the discipline meted to them. Plaintiffs apparently also propose to introduce other statements allegedly made by LSS executives to Zurawsky regarding personnel decisions. Defendant‟s motion for summary judgment is pending.
1

LSS filed a motion to “preclude Plaintiffs from (1) proffering Zurawsky‟s testimony in support of their case and (2) using, in any way, directly or indirectly, the information disclosed by Attorney Zurawsky.” LSS asks the Court to preclude: (a) any reference to LSS personnel decisions relating to any employees; (b) any reference to five particular individuals; and (c) any references to comments allegedly made by Hans Sack to Zurawsky. In essence, Defendant argues that LSS and Zurawsky had an attorney-client relationship, and therefore, that his testimony would violate his duties under the Pennsylvania Rules of Professional Conduct 1.6(a) and 1.9(c) and/or the attorney-client privilege. LSS further argues that counsel for Plaintiffs in this action have violated Pennsylvania Rules of Professional Conduct 4.2 and 4.4 by obtaining evidence from Zurawsky.
On August 10, 2010, Magistrate Judge Amy Reynolds Hay issued a ten-page Memorandum Order which denied the evidentiary motion in limine filed by LSS. Magistrate Judge Hay thoroughly reviewed the evidentiary record developed by both parties and concluded that LSS had failed to establish the essential prerequisite that an attorney-client relationship existed between LSS and its employee, Zurawsky. Instead, Magistrate Judge Hay found that any advice provided by Zurawsky was in his business capacity as a high-level executive in the company and she credited Zurawsky‟s deposition testimony that he had never provided legal advice to LSS.
All parties agree that the applicable standard of review is “clearly erroneous or contrary to law.” See 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a). As recently explained in Bell v. Lockheed Martin Corp., 2010 WL 3724271 (D.N.J. September 15, 2010), under this standard of review:
2

the magistrate judge's findings should not be rejected even if the district court could have decided the matter differently. See Andrews v. Goodyear Tire & Rubber Co., 191 F.R.D. 59, 68 (D.N.J. 2000) (a district court's “simple disagreement with the magistrate judge's findings is insufficient to meet the clearly erroneous standard of review”); Toth v. Alice Pearl, Inc., 158 F.R.D. 47, 50 (D.N.J. 1994). Moreover, there is particularly broad deference given to a magistrate judge's discovery rulings, especially when the magistrate judge has managed the case from the outset and developed a thorough knowledge of the proceedings.
A party's failure to present an argument to the magistrate judge constitutes a waiver of that
argument on appeal to the district court. See Lithuanian Commerce Corp. v. Sara Lee Hosiery, 177
F.R.D. 205, 209-13 (D.N.J. 1997).
The factual finding of the Magistrate Judge that Zurawsky and LSS did not have an
attorney-client relationship was not clearly erroneous. “Application of the privilege can be
difficult when the client is a corporation seeking legal advice regarding a business transaction and
when the client's attorney is in-house counsel who wears “ „two hats' ” by performing a dual role of
legal advisor and business advisor.” S.F. Pacific Gold Corp. v. United Nuclear Corp., 175 P.3d
309, 319 (N.M. App. 2007). The Magistrate Judge fairly and thoroughly considered the record,
including the evidence that tended to show that Zurawsky was acting in a legal capacity. In
particular, the Magistrate Judge persuasively explained why she refused to credit the self-serving,
non-detailed “verifications” submitted by LSS executives as to their subjective belief that an
attorney-client relationship existed. Accordingly, the finding of Magistrate Judge Hay will be
affirmed.
There are a number of additional difficulties with the position espoused by Defendant.
Even if the Court were to conclude that the Rules of Professional Conduct were implicated, the
Court agrees with the Magistrate Judge that those Rules do not constitute substantive law which
would govern the admissibility of evidence in court proceedings. See Commonwealth v. Chmiel,
3

738 A.2d 406, 415 (Pa. 1999) (“The rules that govern the ethical obligations of the legal profession (presently, the Rules of Professional Conduct) do not constitute substantive law.”) Similarly, LSS has not adequately addressed the implications of the apparent fact that the information about which Zurawsky will allegedly testify has become “generally known.” See Memorandum Order at 4 n.2 (LSS does not dispute that the information is “generally known”). If the information at issue is indeed “generally known,” such would certainly complicate the ability of LSS to assert the attorney-client privilege. See Love v. New Jersey Div. of Youth & Family Services, 2010 WL 715357 *2 (D.N.J. 2010) (citations omitted) (attorney-client privilege is waived when privileged information is disclosed to third parties). Moreover, LSS‟ concession is difficult to reconcile with its present assertion that Plaintiffs have wrongly obtained “confidential information.” Also problematic has been the focus of LSS upon Zurawsky‟s job duties in general, as opposed to evidence that Zurawsky was acting in an attorney capacity when he obtained the specific information which LSS seeks to exclude from evidence. In other words, even if Zurawsky wore his “attorney hat” at certain times while employed by LSS, LSS has failed to establish that he was wearing his “attorney hat” when he obtained the information about which he will allegedly testify. Finally, the relief requested by LSS is substantially overbroad. Even assuming, arguendo, that the attorney-client privilege would apply, it would protect only against disclosure of attorney-client communications, and would not protect disclosure of the underlying facts. See, e.g., Upjohn Co. v. United States, 449 U.S. 383, 395-96 (1981). Plaintiffs are certainly entitled to present facts regarding the conduct in which the alleged comparators engaged and the discipline meted to them, in support of their theory of the case, and the Court is entitled to consider such information in ruling upon the pending summary judgment motion.
4

In accordance with the foregoing, DEFENDANT‟S OBJECTIONS TO MAGISTRATE JUDGE‟S MEMORANDUM ORDER DATED AUGUST 10, 2010 (Document No. 160) are DENIED.
SO ORDERED this 5th day of October, 2010.
BY THE COURT:
s/ Terrence F. McVerry United States District Court Judge
cc: Bruce C. Fox, Esquire Email: bruce.fox@obermayer.com Rudy A. Fabian, Esquire Email: rudy.fabian@obermayer.com Thomas S. Giotto, Esquire Email: thomas.giotto@bipc.com Jaime S. Tuite, Esquire Email: Jaime.Tuite@bipc.com Joseph F. Quinn, Esquire Email: joseph.quinn@bipc.com Erin J. McLaughlin, Esquire Email: erin.mclaughlin@bipc.com Mark R. Hornak, Esquire Email: mark.hornak@bipc.com
5

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DOUGLAS M. HODCZAK; JAMES M. )

CROSSMAN; THOMAS J. MAGDIC; )

JOSEPH A. LITVIK, on behalf of

)

themselves and all others similarly

)

situated,

)

Plaintiffs, )

)

vs.

)

)

LATROBE SPECIALTY STEEL

)

COMPANY,

)

Defendant. )

Civil Action No. 08-649 Judge Terrence F. McVerry

MEMORANDUM OPINION

McVerry, District Court Judge

Plaintiffs, Douglas M. Hodczak (“Hodczak”), James M. Crossan (“Crossan”), Thomas J. Magdic (“Magdic”) and Joseph A. Litvik (“Litvik”) (collectively, “plaintiffs”), commenced this action under the Age Discrimination in Employment Act of 1967 (AADEA@), as amended, 29 U.S.C. '' 621 et seq, alleging that defendant Latrobe Specialty Steel Company (ALSS@), discriminated against them because of their age when it terminated their employment in November of 2007, and not, as LSS contends, for sending sexually explicit emails in violation of LSS‟ Electronic Communications Policy (“EC Policy”).
A. Factual and Procedural Background It is undisputed that all four plaintiffs were hired by LSS‟ predecessor, Latrobe Steel Company, between 1969 and 1979. (ECF 135-2, ¶ 2). In 1975, Latrobe Steel Company was subsequently acquired by the Timken Company and, in 2006, Timken Latrobe Steel (“Timken”)

1

was acquired by the Watermill Group and Hicks Holdings and renamed LSS. (ECF 1, ¶¶ 15, 17). At some time prior to the last change of ownership, Timken Latrobe Steel gave a number of employees, including plaintiffs, the opportunity to retire before the acquisition took place. Although plaintiffs chose to retire from Timken, they were subsequently offered and accepted employment with LSS on December 9, 2006. (ECF 21, ¶¶ 3-5; ECF 26, ¶¶ 3-5; ECF 17, & 6; ECF 27, & 6).
In the fall of 2007, pictures taken at a going away party for an LSS intern were posted on LSS‟ intranet site. One picture was that of an LSS employee, Melissa Jespersen (“Jespersen”), wearing a v-neck shirt revealing her cleavage. (ECF 135-4, pp. 11, 48; ECF 135-7, p. 8; ECF 172-3, pp. 11-12). On October 5, 2007, Magdic saw the picture and sent an email to Jespersen, with the picture attached and the phrase “Pretty nice!” in the subject line. (ECF 135-7, pp. 7-8; ECF 135-4, p. 11; ECF 172-3, pp. 11-12). Ms. Jespersen apparently found the email offensive and, on Monday, October 29, 2007, made a complaint to Susan Lawson (“Lawson”), LSS‟ Manager of Human Resources and Benefits Administration. According to Lawson, Jespersen also told her that she was uncomfortable being around Magdic because of comments he made to her after sending the picture to her and that she did not want to be alone with him. (ECF 135-9, pp. 18-19, 21, 22-23; ECF 135-6, pp. 6, 7). Lawson conveyed Jespersen‟s complaint to Dan Hennessy (“Hennessy”), LSS‟ Vice President of Manufacturing and Magdic‟s boss, and discussed investigating Magdic‟s emails to see if he had, in fact, sent the email at issue. (ECF 135-9, pp. 21, 23-24; ECF 135-6, pp. 7-9). John Katic (Katic”), the Principal Application Analyst in the IT Department, subsequently checked Magdic‟s email files at Lawson‟s request and, although he did
2

not find a copy of the email Magdic sent to Jespersen, he did find the photograph of her in Magdic‟s computer as well as several other “questionable” items that he described as “a bit sexual in nature.” (ECF 135-9, pp. 24, 25; ECF 135-7, pp. 3, 5, 6). Lawson then reviewed those emails from which she could see that Hodczak, Litvik, and Thomas Everett (“Everett”) were sending emails back and forth, some of which contained the sexually explicit photographs discovered by Katic. Further examination of the email accounts of those individuals revealed that Crossan and David Conrad (“Conrad”) had also sent sexually oriented emails. (ECF 135-9, pp. 10, 26-28; ECF 135-6, pp. 10-12; ECF 135-12, pp. 3-4, 5-7, 8-11). LSS consequently began to monitor the email traffic of Hodczak, Crossan, Magdic, Litvik, Everett and Conrad over the next few days. (ECF 172-6, pp. 31-32; ECF 172-37).
As a result of LSS‟ probe, Lawson, Hennessy, Kevin Brahaney (“Brahaney”), Director of Human Resources, and Mark Weberding (“Weberding”), LSS‟ Vice President of Marketing and Sales, made the decision to preliminarily suspend all six employees and, on Friday, November 2, 2007, each one was called to the Human Resources Department and informed that he was being suspended for violating the company=s EC Policy. (ECF 135-9, pp. 29-31; ECF 135-2, ¶ 13).
During the course of the next week, the process of determining the level of discipline that would ultimately be imposed on each of the suspended employees was made. Lawson and Hennessy testified that the focus was on the nature of the emails, the volume of emails, whether they were sent to others inside the company or outside the company, and whether they were sent to customers or vendors. (ECF 135-9, pp. 13-14; ECF 172-38; ECF 172-16, p. 20). Thereafter, on or about November 8, 2007, plaintiffs were informed that their employment was being terminated
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for the reasons articulated at the time of their suspension. (ECF 1, ¶¶ 20, 34, 48, 61; ECF 11, ¶¶ 20, 34, 48, 61; ECF 21, ¶ 12; ECF 26, ¶ 12; ECF 17, ¶ 7; ECF 27, ¶ 7). Neither Everett nor Conrad, however, was terminated.
Plaintiffs filed the instant complaint on May 13, 2008, which sets forth two claims of disparate treatment under the ADEA, alleging that LSS=s stated reasons for terminating their employment are pretext for age discrimination and that their termination was part of a Asystematic pattern and practice of terminating older employees.@ (ECF 1, ¶¶ 22, 26, 35, 40, 49, 54, 63, 67). On June 16, 2008, plaintiffs moved to voluntarily dismiss the disparate impact claim brought at Count II which was granted by the Court on June 17, 2008.1 (ECF 14).
LSS has now filed a motion for summary judgment arguing that plaintiffs are unable to show that they were terminated because of their age.
B. Standard of Review Summary judgment is warranted only where Athe pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law.@ Fed. R. Civ. P. 56(c). The moving party bears the initial burden of demonstrating to the court that there is an absence of evidence to support the non-moving party=s case. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). See Conoshenti v. Public Service Electric & Gas Company, 364 F.3d 135, 140 (3d Cir. 2004). When the moving party has met this burden, the burden then shifts to the nonmoving party to Aset forth
1It should also be noted that although the complaint was filed as a “Collective Action Complaint” brought on behalf of plaintiffs “and all others similarly situated,” plaintiffs have since advised the Court that they are no longer pursuing such collective claims.
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specific facts showing that there is a genuine issue for trial.@ Fed. R. Civ. P. 56(e) (2). The mere existence of some evidence favoring the non-moving party, however, will not defeat the motion. There must be enough evidence with respect to a particular issue to enable a reasonable jury to find in favor of the non-moving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). See McGreevy v. Stroup, 413 F.3d 359, 363-64 (3d Cir. 2005). In evaluating the evidence at the summary judgment stage, the court must view the facts in the light most favorable to the non-moving party and draw all reasonable inferences in its favor. Matreale v. New Jersey Dept. of Military & Veterans Affairs, 487 F.3d 150, 152 (3d Cir. 2007).
C. Discussion LSS contends that it is entitled to summary judgment on plaintiffs‟ ADEA claims because plaintiffs are unable to point to any evidence that age was determinative factor in its decision to terminate their employment. Where, as here, the plaintiff seeks to prove his or her case through circumstantial evidence, the three-stage shifting burdens of proof developed for employment discrimination cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), applies. Under the McDonnell Douglas framework, the plaintiff has the initial burden of establishing a prima facie case of discrimination which, under the ADEA, requires the plaintiff to demonstrate that: 1) he was a member of the protected age class; 2) that he was qualified to hold the position; 3) that he suffered an adverse employment decision; and 4) that he was replaced by a significantly younger individual. Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 330 (3d Cir. 1995). “Once the plaintiff satisfies these elements, the burden of production shifts to the employer to identify a
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legitimate non-discriminatory reason for the adverse employment action. If the employer articulates such a reason, the burden of production returns to the plaintiff to demonstrate that the employer's proffered rationale was a pretext for age discrimination.” Smith v. City of Allentown, 589 F.3d 684, 689-90 (3d Cir. 2009) (“Smith”). At all times, however, the burden of persuasion remains with the plaintiff. Id.
Here, with the exception of Hodczak, LSS appears to concede that plaintiffs have established a prima facie case of discrimination. Thus, the burden of production shifts to LSS to identify a legitimate, non-discriminatory reason for its employment decisions.
LSS contends that its decision to terminate plaintiffs was based on the fact that plaintiffs, who were all management level employees, had repeatedly sent sexually oriented and pornographic emails through LSS‟ email system to other employees as well as outside third parties which violated LLS‟ EC Policy. Plaintiffs have conceded that LSS‟ articulated reason is age-neutral on its face and, therefore, that LSS has met its burden. As such, the burden shifts back to plaintiffs to establish that LSS‟ proffered reason was pretext for age discrimination. Smith, 589 F.3d at 690.
Plaintiffs may meet this burden by introducing evidence from which a fact finder could either: (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action. Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994) (“Fuentes”).
Moreover, the United States Supreme Court has recently found that “the ordinary meaning of the ADEA's requirement that an employer took adverse action „because of‟ age is that age was
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the „reason‟ that the employer decided to act.” Gross v. FBL Financial Services, Inc., ___ U.S. ___, ___, 129 S. Ct. 2343, 2350 (2009) (“Gross”), citing Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993). See 29 U.S.C. § 623(a)(1) (“It shall be unlawful for an employer … to discharge any individual … because of such individual‟s age”). Thus, in order to demonstrate pretext under Fuentes, it is incumbent upon the plaintiff to demonstrate that age was a determinative factor or “the „but-for‟ cause of the employer's adverse decision;” it is not sufficient to simply show that age was “a motivating factor.” Gross, 129 S. Ct. at 2349. See Smith, 589 F.3d at 691. See also Anderson v. Equitable Resources, Inc., 2009 WL 4730230 at *14 (W.D. Pa. Dec. 4, 2009) (“to show pretext at this stage [plaintiff] must proffer sufficient evidence for a reasonable jury to find that … the Defendant‟s proffered reasons would not have resulted in his termination absent improper consideration of age”).
Here, plaintiffs argue that there is sufficient evidence from which a fact finder could reasonably conclude that that age was more likely than not a determinative factor in their respective terminations thereby demonstrating pretext under the second method articulated in Fuentes.2 Plaintiffs can meet this burden by proving that LSS either: (1) “previously discriminated against [him],” (2) “discriminated against other persons within the [P]laintiff's protected class or within another protected class,” or (3) treated similarly situated individuals outside the protected class more favorably than Plaintiff. Simpson v. Kay Jewelers, 142 F.3d 639, 645 (3d Cir. 1998), citing Fuentes, 32 F.3d at 765. Plaintiffs‟ arguments in this regard will be addressed seriatim.
2 Although LSS also argued that plaintiffs are unable to show pretext under the first Fuentes prong, plaintiffs have not addressed LSS‟ argument in this regard and, thus, have seemingly conceded the issue.
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Plaintiffs first challenge LSS‟ reliance on the EC Policy as a basis for their termination arguing that it was not in effect at the time as evidenced by the fact that the EC Policy was that of Timken, LSS‟ predecessor, and not LSS. Citing to their own testimony, plaintiffs contend that after the sale they were told by Hans Sack (“Sack”), the President and CEO of LSS, that they were no longer subject to Timken‟s rules and that LSS‟ own policies were being formulated. Because there is no evidence that Timken‟s policies had been adopted or that a new handbook had been issued, plaintiffs argue that it was not unreasonable for them to rely upon Sack‟s representations.
Plaintiffs‟ argument is without merit. Indeed, plaintiffs appears to argue that because it was reasonable for them to rely on Sack‟s alleged statements that they were no longer subject to Timken‟s rules and policies, it was somehow permissible to send sexually charged emails using LSS‟ email system. It is simply ridiculous, however, that plaintiffs, who were all management level employees who had been subject to a commonplace policy against sending sexually explicit emails under Timken‟s management, would think that such conduct would be countenanced by LSS simply because it had not yet issued a new handbook formally informing plaintiffs that, under its management, sending sexually explicit emails would not be tolerated. Indeed, sending sexually explicit materials on a work computer would appear to be a legitimate, nondiscriminatory ground for an adverse employment action notwithstanding whether or not a specific policy was in place. See Lugo v. Shinseki, 2010 WL 1993065 at *14 (S.D.N.Y. May 19, 2010). See also Pacenza v. IBM Corp., 2009 WL 890060 at *12 (S.D.N.Y. Apr. 2, 2009), aff'd, 363 Fed. Appx. 128 (2d Cir. Feb. 2, 2010). As such, the fact that there may have been a lapse between policies does not render LSS‟ reason for terminating plaintiffs‟ employment pretextual.
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Plaintiffs next argue that they are able to demonstrate pretext because Carl Dorsch, Robert
Smith and David Conrad, who were all younger employees, also violated the EC Policy and were
treated more favorably. LSS, however, contends that these employees were not similarly situated
to plaintiffs and, therefore, the fact that they may have been treated differently does not serve to
show that plaintiffs were terminated because of their ages.
It is undisputed that “[a] plaintiff alleging employment discrimination may challenge the
employer's proffered explanation by showing „that the employer treated other, similarly situated persons out of his protected class more favorably….‟” Ansell v. Green Acres Contracting Co.,
347 F.3d 515, 521 (3d Cir. 2003), quoting Fuentes, 32 F.3d at 765. In order for employees to be deemed similarly situated, it has been determined that the individuals with whom the plaintiff seeks to compare [her] treatment must have dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it.
Ogden v. Keystone Residence, 226 F. Supp. 2d 588, 603 (M.D. Pa. 2002), quoting Morris v. G.E. Financial Assurance Holdings, 2001 WL 1558039 at *6 (E.D. Pa. Dec. 3, 2001). See Nguyen v. AK Steel Corp., ___ F. Supp. 2d ___, ___, 2010 WL 3398948 at *15 (W.D. Pa. Aug. 25, 2010).
Plaintiffs submit that Carl Dorsch, who was a metallurgical engineer hired by Timken in 1997, was reprimanded twice, once in 1998 and again in 1999, before he was finally terminated in 2003, for accessing pornographic websites on his company computer. (ECF 172-18 through 172-25). Because Dorsch received two warnings before he was terminated for violating company policy, and plaintiffs were terminated without any warnings at all, plaintiffs contend that Dorsch was treated more favorably.
LSS, however, has amply demonstrated that Dorsch was not similarly situated to plaintiffs
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and, thus, is not a proper comparator. Unlike plaintiffs, Dorsch was a nonsupervisory employee and was discharged by LSS‟ predecessor, Timken, five years earlier. Further, the individuals who made the decision to first reprimand and then terminate Dorsch‟s employment were Scott Balliett and Mary Ann Watt, who were not the decision makers in plaintiffs‟ case, and Dorsch was terminated for visiting pornographic websites not for sending sexually explicit emails. (ECF 172-25). Moreover, there is no evidence that Dorsch sent or forwarded the content of the websites to anyone as did plaintiffs. Thus, the fact that Dorsch was 47 years old when he was terminated is of no moment.
Similarly, Robert Smith was not comparably situated. Although Smith was a manager at LSS there is no evidence that he sent sexually explicit emails or, for that matter, any emails at all. Rather, it appears that Smith‟s infraction was to allow a subordinate, Connie Fry, to borrow an LSS‟ digital camera for a “family function” and to subsequently use his computer, which had the necessary software on it, to download the photos she had taken and email them to her home. (ECF 172-6, pp. 12-13). Although the photographs turned out to be pictures of Fry and her husband engaging in various sexual acts, there is no evidence that Smith sent them or knew the content of the photos Fry had downloaded. While plaintiffs categorize Smith‟s explanation of the events as a “tale” woven for his supervisor which even Lawson had doubts about, and suggest that it was actually Smith in the photos with Fry, it appears that it is plaintiffs who have woven the tale. Not only have they utterly failed to provide any support for their insinuation that Smith is in the photographs but review of the record demonstrates that although Lawson had some doubts upon hearing Smith‟s explanation, both Fry and her husband subsequently verified Smith‟s version of events, in fact “duplicated [his] story identically,” which clearly assuaged those doubts. (ECF 172-6, pp. 12-13). Indeed, although noticeably omitted from their argument, plaintiffs
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acknowledge in their counterstatement of facts that Smith‟s story was verified by Fry. (ECF 171, ¶ 130). Thus, not only did Smith not send any sexually explicit emails but he was reprimanded only for allowing an employee to use the company‟s electronic equipment on one occasion. As such, he was not similarly situated to plaintiffs and the fact that he was 46 years old at the time does nothing to further plaintiffs‟ position.
Finally, plaintiffs argue that Conrad, who was 37 years old when he was suspended along with plaintiffs for sending sexually explicit emails, was treated more favorably because he was not terminated. The record demonstrates, however, that although Conrad had been receiving sexually explicit emails for six months, he only sent one email several weeks before his suspension which was sent was to his supervisor, Litvik, at Litvik‟s request.3 Moreover, unlike plaintiffs, Conrad did not send the email from his work computer but did so from his personal computer on personal time. (ECF 172-13, pp. 8, 15-19, 21, 24; ECF 135-5, pp. 18-19, 43-44). Thus, Conrad‟s position and his conduct, which was far less egregious than that of plaintiffs, are easily distinguishable and the fact that he was not terminated does not render LSS‟ proffered explanation for terminating plaintiffs pretext. See (ECF 135-9, pp. 13-14; ECF 172-6, p. 22; ECF 172-16, p. 20; ECF 172-38). Indeed, it is noteworthy that Everett, who had also been suspended for sending sexually explicit emails but, like Conrad, was spared losing his job, was 61 years old at the time. (ECF 135-2, ¶ 13). As such, the favorable treatment of which plaintiffs complain was given to younger employees was also bestowed on at least one person in plaintiffs‟ protected class.4
Plaintiffs also argue that they are able to demonstrate pretext because LSS had subjected
3 Although immaterial to the instant discussion, LSS has represented, and plaintiffs do not appear to dispute, that Conrad only sent one email. Conrad, however, testified that he sent three, albeit in one evening. (ECF 172-13, pp. 49, 53, 56, 82). 4 Even Dorsch and Smith, who plaintiffs claim were treated more favorably, were 47 and 46 years old, respectively, and, thus, are in plaintiffs‟ protected class as well.
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them to discriminatory treatment in the past. To support their argument, plaintiffs, with the exception of Hodczak, have submitted their own deposition testimony in which they complain that Hennessy preferred to surround himself with the younger employees at their weekly supervisory staff meetings, gathering them at the end of the table closest to him and relegating the older supervisors to the far end of the table (ECF 172-1, p. 19); that Litvik and Magdic would routinely be interrupted or talked over during their meetings in an attempt to get rid of older employees and that Hennessy would only listen to the final word of the younger supervisors, making the older supervisors feel useless (ECF 172-1, pp. 20-21, 23; ECF 172-3, p. 5); that when Litvik put Magdic‟s name down as someone who would be able to succeed him in an emergency situation, Hennessy had him put down a younger person‟s name (ECF 172-1, p. 25); that Sack once asked Magdic if he was ready to retire and when Magdic said he was not, Sack said, “[W]ell, it looks like you are ready to retire. You have gray hair and are fat” (ECF 172-3, p. 7); that in 1999, Crossan was removed as a buyer in the purchasing department and transferred to a less desirable position so that “new blood” could be recruited into the department (ECF 172-2, p. 23); and that in 2007, Ron Summerhill who was in his mid-thirties, was recruited from the outside to fill a position as a purchasing manager that had not been posted even though Crossan and another older employee were equally or better qualified (ECF 172-2, pp. 22-23).
Plaintiffs‟ testimony, however, consists largely of their subjective beliefs and conclusions with little, if any, facts to substantiate those opinions. To the extent that plaintiffs have pointed to actual record evidence it does not demonstrate past discrimination and is insufficient to create an inference of pretext. For instance, the fact that Hennessy sat at one end of the table with younger employees and interrupted plaintiffs when they offered comments hardly constitutes discrimination. Moreover, notwithstanding Litvik‟s testimony in this regard, Magdic testified
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that they could sit wherever they wanted to at the meetings and that they usually sat in the same spot. He also allowed that he didn‟t know why he never changed his seat to sit closer to Hennessy and that Litvik only moved once to be “silly” and to upset one of the younger employees. (ECF 181, Exh. 1, pp. 78-80). In addition, plaintiffs have offered no evidence that they were interrupted or ignored because of their age or in an attempt to rid the company of older employees but rather have offered only their own subjective conclusions.
Further, plaintiffs have offered no evidence that Crossan was demoted or was discriminated against when he was moved from the purchasing department in 1999. Indeed, not only have plaintiffs failed to offer any evidence comparing Crossan‟s salaries or positions but Crossan himself testified that he was moved to a supervisory position covering the warehouse. (ECF 172-2, p. 23). His belief that his transfer was to a lesser desirable position designed to force him to retire or leave the company, is not sufficient. Moreover, not only was the decision made eight years earlier by Ron Meyer who had nothing to do with the terminations of plaintiffs‟ but Meyer‟s alleged decision relayed to Crossan by Gene Zurawsky that he wanted “new blood” in the department, is not only hearsay and inadmissible, but is not necessarily the equivalent of “young” blood. It is just as plausible that changes were being made because employees were bored or becoming complacent in their positions. Under these circumstances, no reasonable juror could find Crossan‟s transfer discriminatory.
Nor does the fact that Ron Summerhill was recruited from the outside as a purchasing manager in 2007, evidence past discrimination against Crossan. Although plaintiffs argue that Crossan had equal or better qualifications than Summerhill, they have not submitted any evidence from which it could be determined what criteria LSS was looking for, what Summerhill‟s credentials were, or even what Crossan‟s qualifications were at the time. As such, plaintiffs‟
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suggestion that Crossan was discriminated against is without foundation and amounts to nothing more than a challenge to a business decision of LSS. Such challenges, however, are not sufficient to establish pretext. Atkinson v. Lafayette College, 460 F.3d 447, 451 (3d Cir. 2006), quoting Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108-09 (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]”); Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 332 (3d Cir. 1995), quoting McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 373 (7th Cir. 1992) (“we do not sit as a super-personnel department that reexamines an entity's business decisions. No matter how medieval a firm's practices, no matter how high-handed its decisional process, no matter how mistaken the firm's managers, the ADEA does not interfere”); Fuentes, 32 F.3d at 764 (“the plaintiff cannot simply show that the employer‟s business decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent or competent”).
Finally, neither Hennessy‟s insistence that Litvik list someone younger than Magdic as a potential successor nor Sack‟s inquiry into whether Magdic had any retirement plans provide the requisite evidence to demonstrate that LSS discriminated against plaintiffs in the past. While certainly the words “younger” and “retirement” are evocative, they do not, without more demonstrate age discrimination. Indeed, Sack testified that the age demographics of the work force at LSS is a significant factor and suggested that it is often talked about. He elaborated that in its industry there is a high average age which necessarily means you have “batches of people” retiring so that they have to plan ahead in order to keep the production running (ECF 172-17, p. 18). He also testified that it‟s more of a seniority issue than an age issue since retirements are based on seniority. Id. Sack further testified that the “rolling mill” where Magdic worked was
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reaching a stage where Magdic may not be needed any more and, wanting to place him in another position that would have been more interesting to Magdic and fulfill a need at LSS, wanted to see if Magdic would be interested in taking another assignment. Without divulging the assignment, because he had not yet discussed the idea with Hennessy or personnel, Sack simply asked Magdic whether he had any plans for retirement. (ECF 172-17, pp. 22-23). Absent any evidence that would support a finding that Sack asked Magdic about his retirement and Hennessey instructed Litvik to list a younger person‟s name was designed to discriminate because of age, plaintiffs have failed to meet their burden or create an issue of fact. Plaintiffs have pointed to no such evidence and their mere conclusions that comments of Hennessy and Sack evidence discrimination are insufficient. Plaintiffs have therefore failed to demonstrate that LSS had discriminated against plaintiffs in the past and, thus, have failed to demonstrate that the decision of LSS to terminate plaintiffs‟ employment because they were sending sexually explicit email was pretext for discrimination.
Plaintiffs also argue that they are able to establish pretext as evidenced by the fact that the November 2007 investigation into Jespersen‟s claim of sexual harassment and the subsequent probe into the trail of sexually explicit emails discovered as a result, was a sham. Plaintiffs‟ arguments lack merit.
In essence, plaintiffs‟ first argument is that because Jespersen was a “notoriously difficult” employee, who waited three weeks after Magdic sent her the picture of herself to make a complaint, and because the nature of the picture itself was not particularly egregious so as to fall under the definition of sexual harassment, LSS had no reason to investigate Jespersen‟s complaint in the first instance. Because an investigation nevertheless took place, plaintiffs simply conclude that it was a sham designed to fire Magdic. Plaintiffs also argue that the charade of LSS is further
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evidenced by the fact that Magdic was not given an opportunity to respond to Jespersen‟s accusations in contravention to Timkens‟ sexual harassment policy which requires that a “full investigation” be made into complaints of sexual harassment. See (ECF 172-32).
The difficulty with plaintiffs‟ arguments, however, is that they overlook the fact that Jespersen‟s complaint of sexual harassment was not based solely on the email Magdic sent to her with her picture attached. Rather, Jespersen complained that during the three weeks after she received the email, Magdic made follow-up comments to her such as “I still have your picture,” and “It still looks pretty good,” or “It still looks pretty nice,” and that she felt uncomfortable and intimidated around Magdic and did not want to be alone with him. (ECF 135-9, pp. 18-19; ECF 135-6, pp. 6, 7). Indeed, Lawson testified that Jespersen was very agitated and shaking when she made the complaint. (ECF 135-9, p. 98). Thus, although Magdic only sent one email containing a relatively benign picture of Jespersen, the basis for the sexual harassment inquiry was also based on the subsequent comments Magdic allegedly made to her. Not only does this comport with the sexual harassment policy cited by plaintiffs which states that conduct that creates a hostile work environment is regularly exposed to sexual comments or conduct that makes it difficult for an employee to perform his/her job, but Hennessy testified that these were the very type of comments that they “had been trained to look for and to be concerned about sexual harassment in the workplace.” (ECF 172-33; 135-6, p. 7). LSS therefore not only had a basis to investigate Jespersen‟s complaint but had a responsibility to do so whether or not she was a difficult employee. See Andrews v. City of Philadelphia, 895 F.2d 1469, 1486 (3d Cir. 1990) (finding that Title VII requires an employer to take prompt action). The fact that LSS chose to begin its investigation by verifying whether or not Magdic had, in fact, sent the email to Jespersen as she had alleged by examining Magdic‟s computer is inordinately reasonable and not subject to
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scrutiny by this Court.5 See Atkinson v. Lafayette College, 460 F.3d at 451; Brewer v. Quaker
State Oil Refining Corp., 72 F.3d at 332; Fuentes, 32 F.3d at 764. See also Geddis v. University
of Delaware, 40 Fed. Appx. 650, 653 (3d Cir. 2002) (finding that an inadequate investigation is not
sufficient to show that the plaintiff was terminated for discriminatory reasons).
At that juncture, having stumbled upon the pornographic emails on Magdic‟s computer, it
is abundantly clear that the focus of the investigation turned from Jespersen‟s complaint of sexual
harassment to the exchange of sexually explicit emails amongst LSS employees. (ECF 172-6, p.
36). Thus, the fact that Magdic may not have been asked to respond to Jespersen‟s complaint of
sexual harassment or her allegations that he made harassing comments is immaterial and does not
render LSS‟ investigation or the reasons for initiating it a sham. Moreover, as Lawson testified,
had the pornographic emails not been found, the investigation into Jespersen‟s complaints and
Magdic‟s alleged comments to her would have proceeded giving Magdic the opportunity to
respond and allowing LSS to determine whether Magdic made any comments at all and, if so,
whether they were sufficiently regular and offensive to constitute sexual harassment. (ECF
172-6, p. 36).
Finally, and perhaps most importantly, plaintiffs have offered absolutely no evidence
whatsoever that LSS‟ decision to investigate Jespersen‟s complaint of sexual harassment was
5 Indeed, it is unlikely that plaintiffs would find it a sham if the investigation into Magdic‟s emails had exonerated him. Moreover, Katic‟s testimony that he would have checked Jespersen‟s emails is of little significance. Katic‟s testimony was that LSS decided to investigate “someone‟s” emails to determine if it was a legitimate email and that he was asked to access Magdic‟s computer. (ECF 172-8, pp. 10, 15). Having testified that he did not find the email on Magdic‟s computer (ECF 172-8, p. 10), the inquiry turned to whether or not he had examined Jespersen‟s computer. Katic‟s response was that he had not been asked to do so but that would have been the path that he would have taken. (ECF 172-8, p. 15). This testimony, read in context, suggests only that Katic would have examined Jespersen‟s computer next having been unable to verify the legitimacy of the email from Magdic‟s computer. (ECF 172-8, p. 15). As discussed below, however, the investigation into Jespersen‟s sexual harassment complaint was all but forgotten when the pornographic emails were discovered on Magdic‟s computer. Moreover, how Katic would have conducted the investigation into Jespersen‟s complaint is immaterial.
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designed to rid the company of Magdic, and their self-interested interpretation and embellishment of the evidence that is of record is no substitute.
Similarly, plaintiffs have not pointed to any record evidence to support their argument that LSS‟ subsequent investigation into the exchange of pornographic emails was a sham. Instead, as before, rather than point to any actual evidence from which a fact finder could find in their favor, plaintiffs ask the Court to accept their interpretation of certain facts which has no support in the record.
Plaintiffs contend that pretext can be gleaned from what they categorize as inconsistencies in LSS‟ descriptions of its investigation. The alleged inconsistencies fall into three categories: the emails to which LSS had access when it made the determination to suspend plaintiffs; the factors relied upon by LSS is assessing the appropriate discipline for each of the six employees found to have violated the EC policy; and LSS‟ reasons for terminating plaintiffs.
With respect to the first set of “inconsistencies,” plaintiffs initially argue that Lawson‟s assertion that Katic‟s search of Magdic‟s emails on October 29, 2007, led directly to the discovery of the sexually oriented emails at issue is inconsistent not only with Lawson‟s testimony that Katic reported to her that Magdic regularly cleaned out his emails so that nothing was in his “sent” file but with the fact that, as of October 29, 2010, no sexually oriented materials were in the PST file created by Katic to identify emails unrelated to the manufacturing of steel. (ECF 170, pp. 40-41). Review of the record, however, shows that although Katic did report to Lawson that Magdic‟s “sent” file was “very clean” as though he cleaned it out on a daily basis, plaintiffs have not pointed to any evidence that Katic‟s search was confined to Magdic‟s “sent” file. Indeed, Katic testified that he believed he found the photograph of Jespersen in Magdic‟s “My Documents” file or somewhere else rather obvious. (ECF 172-8, p. 10). Thus, there is nothing inconsistent about
18

Magdic‟s clean “sent” file and the discovery of sexually explicit emails on his computer. Moreover, plaintiffs‟ suggestion that, because there are no sexually oriented materials in
Katic‟s PST file as of October 29, 2007, no sexually explicit emails had actually been found on Magdic‟s computer on that date is also without merit. As pointed out by LSS, it has never claimed that all the emails which prompted the investigation or which provided the basis for terminating plaintiffs‟ employment were contained on Katic‟s PST file and plaintiffs have not provided any support for that assumption. Indeed, it is undisputed that Katic was only involved in the investigation for two days before he took leave for the birth of his child and that the probe into plaintiffs emails continued for another three days. (ECF 172-8, pp. 31-2, 72). As well, plaintiffs have acknowledged that LSS watched the email traffic for the week, from the Monday Jespersen made the complaint against Magdic until the Friday plaintiffs were suspended. (ECF 171, ¶ 193). Lawson also testified that during that five day period anywhere from two to six sexually explicit emails were being traded on a daily basis. (ECF 172-6, p. 37). As such, there were clearly more emails available to LSS when it made the decision to terminate plaintiffs than that which appears on Katic‟s PST file and plaintiffs‟ observations concerning LSS‟ use of the emails, see ECF 170, pp. 44-46, which largely compares what was or was not found on Katic‟s PST file does not provide the basis for finding that LSS‟ articulated reasons for terminating plaintiffs‟ employment was pretext.
Plaintiffs also cite to the fact that the emails submitted by LSS to the EEOC, the emails found on the PST file created by Katic, and the emails submitted in conjunction with its motion are not identical. Plaintiffs argue that these differences evidence a “shifting and/or swelling” of the emails relied upon by LSS, many of which, plaintiffs contend, could not have been available to LSS at the time plaintiffs were terminated.
19

Significantly, plaintiffs do not specifically identify which emails could not have been available to LSS when it terminated plaintiffs employment or suggest why they could not have been available other than to point out that some of the emails relied upon by LSS were not sent during the time covered by the investigation. When the emails were sent, however, is immaterial. What is at issue is whether they were found on plaintiffs‟ computers during the course of LSS‟ investigation. Plaintiffs have not pointed to any evidence that the emails submitted to the EEOC or to this Court were not discovered during the week of October 29th to November 2nd, 2007. Indeed, all of the emails submitted, both to the EEOC and to this Court, were sent either on November 2, 2007, or in the preceding weeks or months. See (ECF 135-1; ECF 135-3; ECF 135-4; ECF 135-5; ECF 172-63; ECF 172-64; ECF 172-65; ECF 172-66).
Further, the fact that the emails submitted to the EEOC are different than those submitted here fails to demonstrate pretext. Just as LSS has never suggested that every document it reviewed or relied upon could be found in Katic‟s PST file, there is no evidence that it submitted to the EEOC every document found during its investigation. Indeed, review of LSS‟ position statements submitted to the EEOC show that LSS submitted only “samples” of the emails found on plaintiffs‟ computers. (ECF 172-63, p. 5; ECF 172-64, p. 4; ECF 172-65, p. 5; ECF 172-66, p. 5). Thus, plaintiffs‟ particular observations about the emails submitted by LSS to the EEOC and those submitted here are immaterial.6
Next plaintiffs argue that there are inconsistencies in the evidence regarding the criteria that LSS used to determine what discipline would be imposed on the six suspended employees and
6 Plaintiffs‟ other observation that some of the emails submitted to the EEOC “are not even arguable pornographic” is immaterial as well, as some of the emails found during the investigation were submitted to the EEOC because of their defamatory nature. More importantly, however, the documents LSS submitted to the EEOC, contain a plethora of sexually explicit and pornographic photographs attached to emails sent between October 5, 2007 and November 2, 2007. (ECF 172-63; ECF 172-64; ECF 172-65; ECF 172-66).
20

that these alleged discrepancies could easily support a finding that the process was a mere contrivance. Specifically, plaintiffs cite to Lawson‟s deposition testimony, taken in December of 2009, in which she stated that the factors they considered were: who the emails were sent to; the nature of the emails; the number of emails; whether they were sent to individuals inside the company or outside; and whether they were sent to customers or vendors. (ECF 172-6, pp. 22). Plaintiffs next point to the LSS‟ EEOC submissions in which Daniel DePuydt, Esquire, LSS‟ then in-house counsel, stated that they evaluated to whom the emails were sent; the extent to which the employees actions constituted a misuse of company equipment and time; the creation of a hostile work environment for co-workers; and the presence of defamatory emails. (ECF 172-63, p. 4; ECF 172-64, p. 3; ECF 172-65, p. 4; ECF 172-66, p. 4). In LSS‟ present brief, they have listed the criteria used as follows: whether the employee was in a management position; the quantity and nature of the emails; prior discipline for sending inappropriate emails; whether the conduct occurred during their suspension; and the supervisor/subordinate relationship between Litvik and Conrad; whether the emails were sent during work time using LSS‟ work email address; and whether the emails were sent to personal or business contacts. (ECF 134, p. 8). And lastly, plaintiffs point to a chart that Lawson and Hennessy created during their discussions in which the categories “Sexual Harassment,” “Internal,” “External,” and “Hard Drive” are listed (ECF 172-38). Because these various descriptions of the factors considered are not identical plaintiffs contend that a jury could reasonably find that the factors somehow evolved so as to justify terminating plaintiffs. Plaintiffs‟ argument is unpersuasive.
First, the Court does not find that the various recitations of the factors considered to determine the appropriate discipline are as inconsistent as plaintiffs have suggested. First, it appears clear from the record as a whole that the chart created by Hennessy and Lawson, which
21

plaintiffs agree was created contemporaneously with the events at issue, did not serve to memorialize the many conversations regarding the events in question or the discipline being contemplated but rather was merely a discussion tool. (ECF 172-6, pp. 21-23, 40). Moreover, both Lawson‟s testimony and that of Hennessy, ECF 172-16, pp. 19-20, 26, regarding the criteria they discussed is perfectly consistent with the factors listed on the chart.
Lawson‟s testimony that they considered who the emails were sent to, whether they were sent inside or outside the company or to vendors and customers is certainly consistent with whether they were “Internal” or “External.”7 Moreover, the chart also references that Everett and Conrad sent messages from “home only.” The fact that Lawson, in her deposition, did not include “sexual harassment” and “hard drive” as factors they considered, which occurred over two years after the events in question, does not render her testimony inconsistent. Although plaintiffs have argued that because Magdic was the only person accused of sexual harassment and only Magdic and Hodczak‟s hard drives were examined, these categories are somehow misleading, it does not negate the fact those issues were factors discussed nor does it evidence inconsistencies.
Nor does the Court find Mr. DePuydt‟s description of the factors considered in the position statements sent to the EEOC inconsistent with either Lawson‟s testimony or the chart. Indeed, the position statements reflect that many factors were considered which included, but were not necessarily limited to, to whom the emails were sent; the extent to which the employees‟ actions constituted a misuse of company equipment and time; the creation of a hostile work environment for co-workers; and the presence of defamatory emails. Whether emails were sent internally,
7 Plaintiffs do not dispute that the nature of the emails and the quantity of the emails were factors considered except to note that the email that stood out to Hennessey as having the worst content was sent by Conrad who was not terminated and that Lawson admitted that neither she nor Hennessey assessed how much time was spent sending the emails. Hennessy‟s testimony, however, was that the email sent by Conrad was amongst the most extreme (ECF 172-16, p. 29), and the fact that the amount of time spent sending the emails was not assessed does not negate that the quantity of emails sent was a factor.
22

externally, to vendor or customers, and how many emails were sent is encompassed under how much company time and equipment was misused. The fact that the precise wording was not used in LSS‟ submission to the EEOC does not render the factors as being inconsistent.
Finally, plaintiffs take issue with LSS‟ list of factors set forth in its brief. Of the eight factors listed only two have not been previously mentioned: the fact that Hodczak had previously received a warning from his supervisor about viewing sexually explicit emails and that Crossan had sent a sexually explicit email to Magdic after he had been suspended. Plaintiffs take issue with these criteria because Hodczak denies he had been reprimanded and Crossan denies that he sent the email to Magdic after he had been suspended. Neither of these contentions, however, provides evidence that these factors were not considered or discussed by LSS‟ decision makers or even that they are inconsistent with the other factors listed.8 Under these circumstances, the Court finds that no reasonable jury could conclude that the whole process of determining the appropriate discipline was a mere contrivance in order to get rid of older employees.
Lastly, plaintiffs argue that, despite LSS‟ contention that plaintiffs were fired solely for sending sexually explicit emails, it represented to the EEOC that, in addition to sending the pornographic emails, they also “authored numerous defamatory emails targeting peers and managers at [LSS].”9 (ECF 172-63, p. 5; ECF 172-64, p. 4; ECF 172-65, p. 5). Noting that LSS now seems to have abandoned this alternative justification for terminating their employment, plaintiffs argue that a jury might well find reason to doubt LSS‟ reasons for its employment decisions. The Court disagrees.
8 Interestingly, Hodczak does not deny that his supervisor found him viewing sexually explicit emails and Crossan does not dispute that he sent the email in question to Magdic on the day he was suspended. 9 Contrary to plaintiffs‟ assertion this language does not appear in the position statement filed in response to Crossan‟s EEOC charge. (ECF 172-66, p. 3-6).
23

Review of the EEOC position papers filed by LSS as a whole clearly demonstrates that the LSS stated reason for terminating plaintiffs‟ employment was because they had been sending pornographic emails. (ECF 172-63, pp. 4-7; ECF 172-64, pp. 3-5; ECF 172-65, pp. 4-6]. The fact that LSS included information that defamatory emails had also been sent does not alter the basic stated reason. Because no alternative justification for its decisions was proffered by LSS, there is no basis upon which a jury could find a shift in its explanations or have reason to doubt the basic reason LSS has proffered.
Plaintiffs also attempt to demonstrate pretext by taking issue with LSS‟ investigation, arguing that because LSS only examined the “sent” emails, the results were artificial and misleading and that, had LSS conducted a more thorough investigation, they would have found that the conduct for which plaintiffs were fired was commonplace at LSS. To support their position, plaintiffs have proffered the affidavit of W. Scott Ardisson, a certified computer examiner and President and Chief Technical Officer of bit-x-bit, LLC, a computer forensic and electronic discovery consulting firm, who, after examining the emails produced by LSS during discovery in this case, identified nine emails that had been sent and/or received by LSS employees during the relevant time frame which purport to be of the same nature as those sent by plaintiffs. (ECF 172- 22, ¶ 3). Plaintiffs also argue that as a result of Ardisson‟s examination of emails “received” as well as those “sent” it was revealed that over twenty LSS employees were sending non-compliant emails from their LSS accounts. See (ECF 172-22, Exh. A).
Notwithstanding the fact that none of the emails purportedly found by Mr. Ardisson have been produced or identified, the gist of his affidavit and plaintiffs‟ argument is that the investigation conducted by LSS was not extensive enough. As previously discussed, however,
24

the issue is not whether LSS was competent in its investigation or whether they made the right decision, but whether it was motivated by a discriminatory animus. Geddis v. University of Delaware, 40 Fed. Appx. at 653 (allegations of an inadequate investigation are not sufficient to show an employer acted with discriminatory animus); Kariotis v. Navistar Int‟l Trans. Corp., 131 F.3d 672, 677 (7th Cir. 1997) (declining to find pretext based on plaintiffs‟ argument that the defendant was careless in not checking its facts before terminating her). See Atkinson v. Lafayette College, 460 F.3d at 451; Brewer v. Quaker State Oil Refining Corp., 72 F.3d at 332; Fuentes, 32 F.3d at 765. Nothing about Mr. Ardisson‟s criticism of the LSS investigation suggests that it was designed to discriminate. Indeed, the fact that Mr. Ardisson used a different approach at the request and direction of counsel for the plaintiffs and examined “received” emails in addition to “sent” emails does not render the decision of LSS to focus on “sent” emails discriminatory. Indeed, Lawson and Katic testified that they focused on “sent” emails because a person is unable to control what they receive. (ECF 172-6, pp. 19, 48; ECF 172-8, pp. 12, 31). Moreover, neither Ardisson nor plaintiffs have produced any evidence that the emails referenced by Ardisson were sent to or received by plaintiffs during the investigation period, that LSS was aware of them but chose to ignore them, or even that LSS should have found them given the parameters of it‟s investigation. Under these circumstances, Mr. Ardisson‟s affidavit does not provide a basis for finding pretext.
In an effort to support their argument that sending sexually explicit emails was so commonplace at LSS that sending pornographic emails could not be the real reason plaintiffs were terminated, plaintiffs have also submitted a declaration from their attorney, in which he states that 90 % of the email mailboxes searched during discovery in this case contained emails that reflected either a keyword search term or an image that was listed in the parties‟ agreed upon ESI
25

protocol. (ECF 172-68). Plaintiffs‟ argument, however, is misleading. While it may be that 186 of the 206 mailboxes contained a keyword, the vast majority of
the emails which contained a keyword were “false hits.” For instance, as argued by LSS, “balls” was one of the keywords selected by plaintiffs for the protocol. Because LSS manufactures “steel balls,” every email referencing “steel balls” registered as a hit. Those emails, however, do not provide the basis for finding that sending sexually explicit emails was commonplace at LSS. To the contrary, LSS has represented, and plaintiffs do not dispute, that the search of the 206 mailboxes, which contained 400,000 documents, revealed 10,811 documents -- or 2.7% -- that contained either a keyword or an image as defined in the protocol. (ECF 135-10, ¶¶ 2-4). Of those 10,811 documents, all but 859 emails were false hits or otherwise nonexplicit. Id. at ¶¶ 7-9. Thus, out of 400,000 documents reviewed, only .2% contained sexually oriented material which hardly supports a finding that sending sexually explicit emails was commonplace at LSS.
Moreover, the fact that plaintiff‟s counsel has identified certain emails found on the backup server that would have been “connected to” some of the emails sent by plaintiffs in this case is of no moment. Plaintiffs have offered no evidence that those emails were found or should have been found during LSS‟ investigation or that the decision makers in this case were aware of, or should have been aware of the emails which he identified. In fact, it is clear that LSS was not aware of such emails and had no reason to be since they were discovered only as a result of accessing the backup copy of LSS‟ 32.1 GB email server during discovery in this case. The fact that LSS did not engage in such an extensive review of electronically stored information during the investigation is immaterial. See Atkinson v. Lafayette College, 460 F.3d at 451; Brewer v.
26

Quaker State Oil Refining Corp., 72 F.3d at 332; Fuentes, 32 F.3d at 765.10 Finally, plaintiffs argue that they are able to demonstrate that LSS‟ reason for terminating
their employment is pretext for age discrimination because LSS has repeatedly subjected other employees to discriminatory treatment. Plaintiffs base their argument on several remarks made by Sack and Hennessy, a series of age discrimination suits filed against Latrobe Steel in the 90‟s, and their perception that LSS has a pattern of firing older employees and replacing them with younger employees.
Specifically, plaintiffs contend that Sack led a discussion during a 2007 management meeting in which he commented about the need to obtain a younger work force, and that upon seeing a woman, who was in her late fifties, operating a high-lift remarked that “whenever that 60-year-old woman has a Workers‟ Comp injury, I‟m going to fire the person that hired her.” As well, plaintiffs contend that Hennessy stated at a staff meeting that he couldn‟t wait for Steve Sansig and Brian Trice, who were both in their late fifties, to retire so that he could hire some younger people who would have better hand-eye coordination to operate the Mesta press. LSS contends that these are nothing more than stray remarks and are not probative of an intent to discriminate.
As this Court has previously stated, statements or comments by others in the workplace may demonstrate discriminatory intent requiring the court to distinguish between those statements that are truly evidence of the employer's intent and those that are merely “stray remarks.” Lloyd
10 Similarly immaterial is the deposition testimony of Gene Zurawsky who had been the Human Resources Director at LSS up until September 20, 2007. Mr. Zurawsky‟s opinion that the investigation was not handled fairly or consistently and that he didn‟t agree with the decision to terminate plaintiffs is not particularly significant in light of his other testimony that he had no role in the investigation and that he didn‟t know if the emails at issue in past situations were like those being transmitted by plaintiffs. (ECF 172-5, pp. 14, 19, 22). Moreover, while Zurawsky may not have agreed with the decision because there was no precedent for it, he never suggested that age was a factor in LSS‟ decision or even that he believed it was a consideration. (ECF 172-5).
27

v. Washington & Jefferson College, 2007 WL 1575448 at *20 (W.D. Pa. May 30, 2007), aff‟d, 288 Fed. Appx. 786 (3d Cir. 2008), citing Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989). In order to differentiate, the following factors have been utilized: (1) who made the remark, i.e., a decision-maker, a supervisor, or a low-level co-worker; (2) when the remark was made in relation to the employment decision at issue; (3) the content of the remark, i.e., whether a reasonable juror could view the remark as discriminatory; and (4) the context in which the remark was made, i.e., whether it was related to the decision-making process. Id., citing Pronin v. Raffi Custom Photo Lab., Inc., 383 F. Supp. 2d 628, 637-38 (S.D.N.Y. 2005). Further, “stray remarks by decision makers, unrelated to the decision-making process, are rarely given weight, particularly if they are made temporally remote from the date of the decision. Silver v. American Inst. of Certified Public Accountants, 212 Fed. Appx. 82, 85 (3d Cir. 2006), citing Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 545 (3d Cir. 1992).
Here, although Sack and Hennessy are both supervisors and involved in the decision to terminate plaintiffs‟ employment, none of the remarks cited by plaintiffs were made in relation to that decision. Moreover, plaintiffs have not pointed to any evidence from which it can be determined when these comments were made. At best, the evidence shows that Sack‟s comment about needing a younger work force was made during the succession from Timken to LSS which occurred in 2006 and remote in time from the decision to terminate plaintiffs. It is even less clear when Sack allegedly made the remark about firing the person who hired the high-lift operator and the only evidence regarding the comment attributed to Hennessy was that it was made sometime in 2007.
In addition, the evidence reflects that the comment attributed to Sack regarding the need for a younger workforce, if it was made at all, was said during a discussion about age demographics of
28

the work force at LSS. As previously discussed, Sack testified that age demographics was often discussed given the high average age of workers in their industry which necessarily means you have “batches of people” retiring and need to plan ahead in order to keep the production running (ECF 172-17, p. 18). Under these circumstances, a reasonable juror could not find the remark discriminatory. Nor has plaintiff presented any evidence to establish the context in which Hennessy‟s comment was made or from which it could reasonably be concluded that the remark was discriminatory. It is equally plausible that hand-eye coordination, which cannot be disputed to diminish with age, is important in operating a Mesta press and that Sansig and Trice had demonstrated some difficulty in that regard. Under those circumstances, Hennessy‟s comment is not indicative of age bias. As such, the Court finds that the statements cited by plaintiffs as evidencing a discriminatory attitude are nothing more than stray remarks and do not provide the basis for finding pretext.
Nor does the Court find the fact that five age discrimination suits had been filed in 1994 and 1995 against LLS‟ predecessor, Latrobe Steel, probative of LSS‟ reasons for terminating plaintiffs‟ employment in 2007. Not only are the lawsuits cited by plaintiffs too remote in time but not a single decision maker in this case is mentioned in those actions. (ECF 172-45 through ECF 172-49). See Waldron v. SL Industries, Inc., 849 F. Supp. 996, 1008 (D.N.J. 1994), rev‟d on other grounds, 56 F.3d 491 (3d Cir. 1995) (finding that the plaintiff‟s reliance on a prior age discrimination suit filed against the employer‟s parent company five years before plaintiff was terminated was misplaced). Moreover, all five of those lawsuits arise out of a single decision made by Latrobe Steel to implement a reduction in force. (ECF 172-45 through ECF 172-49).
Lastly plaintiffs argue that pretext may be inferred because LSS has a pattern of terminating older employees and replacing them with younger workers. Plaintiffs point to three
29

employees who were either fired or, allegedly, forced to retire. They have not, however, provided any evidence that two of these employees were replaced by anyone at all much less by someone younger. Moreover, the two employees that were terminated were in November of 2002 and October of 2001, five and six years before plaintiffs were fired; plaintiffs have not shared with the Court when the third retired. Further, although in the affidavits submitted by plaintiffs they are careful to include assertions that “the present management of LSS is largely the same” as the management of Timken when the adverse actions allegedly took place, they fall short of identifying who the actual decision makers were. Under these circumstances, plaintiffs have failed to demonstrate that LSS has a pattern of terminating older employees and replacing them with younger employees or that LSS‟ stated reasons for terminating plaintiffs‟ employment is pretextual.
In summary, plaintiffs have failed to demonstrate that “but for” their ages, LSS would not have terminated their employment for sending sexually explicit and pornographic emails. Despite the numerous arguments advanced by plaintiffs, they have attempted to create issues where none exist by making assumptions and offering interpretations of certain occurrences without providing the necessary and appropriate factual support. Moreover, plaintiffs have admitted that they sent the emails in question and cannot dispute that doing so violated the LSS EC Policy. In addition, while not dispositive, it is worth noting that all four plaintiffs were hired by LSS less than one year before they were terminated, at 56, 57, 58 and 59 years of age, and that Hodczak was awarded a promotion only six weeks before the events at issue took place. (ECF 17, ¶ 6; ECF 21, ¶¶ 3-5, 8-10; ECF 26, ¶¶ 3-5; ECF 27, ¶ 6). These facts, coupled with the fact that Everett, who was 61years old at the time and thus older than plaintiffs, was not terminated, simply
30

do not suggest that LSS acted out of a discriminatory animus.11
D. Conclusion For the hereinabove states reasons, Defendant‟s Motion for Summary Judgment (ECF 132) is GRANTED. A separate order follows.

Date: 29 December, 2010
cc: Bruce C. Fox, Esquire Email: bruce.fox@obermayer.com Melissa L. Evans, Esquire Email: melissa.evans@obermayer.com
Thomas S. Giotto, Esquire Email: thomas.giotto@bipc.com Jaime S. Tuite, Esquire Email: Jaime.Tuite@bipc.com Joseph F. Quinn, Esquire Email: joseph.quinn@bipc.com Erin J. McLaughlin, Esquire Email: erin.mclaughlin@bipc.com Mark R. Hornak, Esquire Email: mark.hornak@bipc.com

/s/ Terrence F. McVerry United States District Judge

11 Having found that plaintiffs are unable to meet their burden of demonstrating pretext, the Court need not address the argument of LSS that Hodczak is unable to demonstrate a prima facie case of discrimination in the first instance.
31

 
 Case 2:08-cv-00649-TFM Document 188 Filed 12/29/10 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DOUGLAS M. HODCZAK; JAMES M. )

CROSSMAN; THOMAS J. MAGDIC; )

JOSEPH A. LITVIK, on behalf of

)

themselves and all others similarly

)

situated,

)

Plaintiffs, )

)

vs.

)

)

LATROBE SPECIALTY STEEL

)

COMPANY,

)

Defendant. )

Civil Action No. 08-649 Judge Terrence F. McVerry

ORDER

AND NOW, this 29th day of December, 2010, upon consideration of Defendant’s Motion

for Summary Judgment and for the reasons set forth in the Memorandum Opinion filed

contemporaneously with this Order,

IT IS HEREBY ORDERED, ADJUDGED and DECREED that Defendant’s Motion for

Summary Judgment [ECF 132] is GRANTED.

Further, plaintiffs having represented to the Court that they are no longer pursuing the

collective action claims set forth in the complaint, IT IS FURTHER ORDERED that the

collective action claims brought pursuant to 29 U.S.C. 216 (b) are DISMISSED.

s/ Terrence F. McVerry United States District Judge

Case 2:08-cv-00649-TFM Document 188 Filed 12/29/10 Page 2 of 2
cc: Bruce C. Fox, Esquire Email: bruce.fox@obermayer.com Melissa L. Evans, Esquire Email: melissa.evans@obermayer.com
Thomas S. Giotto, Esquire Email: thomas.giotto@bipc.com Jaime S. Tuite, Esquire Email: Jaime.Tuite@bipc.com Joseph F. Quinn, Esquire Email: joseph.quinn@bipc.com Erin J. McLaughlin, Esquire Email: erin.mclaughlin@bipc.com Mark R. Hornak, Esquire Email: mark.hornak@bipc.com

 
 Case 2:08-cv-00649-TFM Document 189 Filed 12/29/10 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DOUGLAS M. HODCZAK; JAMES M. )

CROSSMAN; THOMAS J. MAGDIC; )

JOSEPH A. LITVIK, on behalf of

)

themselves and all others similarly

)

situated,

)

Plaintiffs, )

)

vs.

)

)

LATROBE SPECIALTY STEEL

)

COMPANY,

)

Defendant. )

Civil Action No. 08-649 Judge Terrence F. McVerry

ORDER

AND NOW, this 29th day of December, 2010, Defendant’s Motion for Summary Judgment

having been granted and the collective action claims brought pursuant to 29 U.S.C. 216 (b)

having been dismissed,

IT IS HEREBY ORDERED that final judgment of this Court is entered pursuant to Rule 58

of the Federal Rules of Civil Procedure is in favor of defendant and against plaintiffs.

s/ Terrence F. McVerry United States District Judge

Case 2:08-cv-00649-TFM Document 189 Filed 12/29/10 Page 2 of 2
cc: Bruce C. Fox, Esquire Email: bruce.fox@obermayer.com Melissa L. Evans, Esquire Email: melissa.evans@obermayer.com
Thomas S. Giotto, Esquire Email: thomas.giotto@bipc.com Jaime S. Tuite, Esquire Email: Jaime.Tuite@bipc.com Joseph F. Quinn, Esquire Email: joseph.quinn@bipc.com Erin J. McLaughlin, Esquire Email: erin.mclaughlin@bipc.com Mark R. Hornak, Esquire Email: mark.hornak@bipc.com

 
 Case 2:08-cv-00649-TFM Document 194 Filed 11/17/11 Page 1 of 2
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________
No. 11-1085 ____________
DOUGLAS M. HODCZAK; JAMES M. CROSSAN; THOMAS J. MAGDIC; and JOSEPH A. LITVIK,
on behalf of themselves and all others similarly situated, Appellants
v.
LATROBE SPECIALTY STEEL COMPANY ____________
On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 2-08-cv-00649)
District Judge: Honorable Terrence F. McVerry ____________
Submitted Pursuant to Third Circuit LAR 34.1(a) October 25, 2011
Before: FISHER, VANASKIE and ROTH, Circuit Judges. ____________
JUDGMENT ____________
This cause came on to be considered on the record from the United States District Court for the Western District of Pennsylvania and was submitted pursuant to Third Circuit LAR 34.1(a) on October 25, 2011. On consideration whereof, it is now hereby
ORDERED and ADJUDGED by this Court that the order of the District Court entered December 29, 2010, be and the same is hereby AFFIRMED. All of the above in accordance with the opinion of this Court.

Case 2:08-cv-00649-TFM Document 194 Filed 11/17/11 Page 2 of 2

Costs taxed against Appellants. ATTEST:

Dated: November 17, 2011

/s/ Marcia M. Waldron Clerk

2

 
 Case 2:08-cv-00649-TFM Document 201 Filed 09/26/12 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DOUGLAS M. HODCZAK, et al. Plaintiffs
v.
LATROBE SPECIALTY STEEL CO. Defendant

) ) ) ) Case No. 2:08-cv-649 ) ) )

TAXATION OF COSTS
On December 29, 2010, summary judgment was granted in favor of the defendant and entered on the docket. A verified Bill of Costs was filed by the defendant and taxing was deferred pending appeal and then until disposition of the Race Tires America, Inc. v. Hoosier Racing Tire, Corp. case. The district court was affirmed on appeal by the United States Court of Appeals for the Third Circuit and the Race Tires case has been decided. Objections were called for by the plaintiffs and none have been filed.
Therefore, after consideration of the Bill of Costs, a review of the record, and discussions with the trial judge, the Clerk makes the following findings:
1. The defendant is the recovering party and is entitled to costs. 2. The costs of duplicating (Schedule A) will be taxed in the reduced amount of $9,539.13 for the E.E.O.C., Pennsylvania Department of Labor & Industry files and duplication costs for papers necessarily obtained for use in case, since there was no objection. The costs for electronic discovery paid to LSS engaged as an e-discovery consultant are disallowed. (See Race Tires America v. Hoosier Racing Tire, 674 F.3d 158 (3rd Cir. 2012). 3. The costs of printing (Schedule B) are allowed, since there was no objection, and will be taxed in the amount of $3,130.35.

Case 2:08-cv-00649-TFM Document 201 Filed 09/26/12 Page 2 of 2
4. The costs of deposition and deposition transcripts (Schedule C) are allowed, since there was no objection, and will be taxed in the amount of $9,130.40.
5. The witness fee (Schedule D) is allowed and taxed in the amount of $64.00. Therefore, costs are taxed this 26th day of September, 2012 in the amount of $21,863.88 in favor of the defendant and against the plaintiffs, and are included in the judgment. You are advised that any determination of costs by the clerk may be reviewed by the Court upon motion served within seven days thereafter, under Rule 54(d) of the Federal Rules of Civil Procedure.
s/R.V. Barth, Jr. Robert V. Barth, Jr.
Clerk of Court
cc: counsel

 
 Case 2:08-cv-00649-TFM Document 199-2 Filed 12/21/11 Page 1 of 8
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________
No. 11-1085 ____________
DOUGLAS M. HODCZAK; JAMES M. CROSSAN; THOMAS J. MAGDIC; and JOSEPH A. LITVIK,
on behalf of themselves and all others similarly situated, Appellants
v.
LATROBE SPECIALTY STEEL COMPANY ____________
On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 2-08-cv-00649)
District Judge: Honorable Terrence F. McVerry ____________
Submitted Pursuant to Third Circuit LAR 34.1(a) October 25, 2011
Before: FISHER, VANASKIE and ROTH, Circuit Judges.
(Filed: November 17, 2011) ____________
OPINION OF THE COURT ____________
FISHER, Circuit Judge.
Douglas Hodczak, James Crossan, Thomas Magdic, and Joseph Litvik
(collectively, “Appellants”) appeal from an order of the District Court granting Latrobe

Case 2:08-cv-00649-TFM Document 199-2 Filed 12/21/11 Page 2 of 8
Specialty Steel Company’s (“LSS”) motion for summary judgment. For the reasons stated below, we will affirm.
I. We write exclusively for the parties, who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis. Appellants were all hired by one of LSS’s predecessors, Latrobe Steel Company, between 1969 and 1979. In 2006, Watermill Group and Hicks Holdings acquired the company and renamed it Latrobe Specialty Steel. At the time of the acquisition, Appellants initially chose to retire, but were subsequently offered and accepted employment with LSS. In October 2007, during the course of an investigation into a sexual harassment complaint against Magdic, LSS discovered that Appellants, as well as two other employees, Thomas Everett and David Conrad, regularly exchanged emails containing sexually explicit photographs. LSS’s Electronic Communications Policy (“EC Policy”) expressly prohibits employees from sending such materials. As such, LSS executives decided to preliminarily suspend all six employees pending further inquiry. In deciding the appropriate level of discipline for each employee, LSS considered the nature and volume of the emails exchanged, whether they were sent to individuals inside or outside the company, and whether they were sent to customers or vendors. Approximately one
2

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week after they were suspended, Appellants were informed that their employment was being terminated. Neither Everett nor Conrad was terminated. At the time they were fired, Appellants were all in their late fifties or early sixties.
Appellants subsequently filed suit in the U.S. District Court for the Western District of Pennsylvania, alleging that LSS discriminated against them because of their age, in violation of the Age Discrimination in Employment Act (“ADEA”), 20 U.S.C. §§ 621 et seq. On December 29, 2010, the District Court granted summary judgment in favor of LSS, concluding that Appellants had failed to demonstrate that “but for” their ages, LSS would not have terminated their employment.
II. The District Court had jurisdiction under 28 U.S.C. § 1331. We exercise appellate jurisdiction pursuant to 28 U.S.C. § 1291. We review the District Court’s grant of summary judgment de novo, and apply “the same standard that guides our district courts.” Dee v. Borough of Dunmore, 549 F.3d 225, 229 (3d Cir. 2008) (citation omitted). Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. (citing Fed. R. Civ. P. 56(c)).
III. We must analyze Appellants’ ADEA claims under the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Keller v. Orix
3

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Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir. 1997). Under McDonnell Douglas, the plaintiff bears the burden of establishing a prima facie case of discrimination under the ADEA. Smith v. City of Allentown, 589 F.3d 684, 689 (3d Cir. 2009). This requires proof that: (1) the plaintiff was a member of the protected age class; (2) he suffered an adverse employment decision; (3) he was qualified to hold the position; and (4) he was replaced by a significantly younger employee. Id. With the exception of Hodczak, LSS concedes that Appellants have established a prima facie case of discrimination. If the plaintiff meets this burden, “the burden of production shifts to the employer to identify a legitimate non-discriminatory reason for the adverse employment action.” Id. at 690 (citation omitted). Here, LSS asserts that its decision to terminate Appellants’ employment was based on their violation of the EC Policy. Because this justification is not discriminatory on its face, the burden of production shifts back to Appellants “to demonstrate that the employer’s proffered rationale was a pretext for age discrimination.” Id. (citation omitted). “Throughout this burden-shifting exercise, the burden of persuasion, including the burden of proving but for causation . . . remains on the employee.” Id. at 691 (internal marks and citations omitted).
A plaintiff can show that the employer’s proffered justification was pretextual, and thus that age discrimination was the but-for cause of the adverse employment decision, by establishing that the employer “previously discriminated against her, that the employer has discriminated against other persons within the plaintiff’s protected class or within
4

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another protected class, or that the employer has treated more favorably similarly situated persons not within the protected class.” Simpson v. Kay Jewelers, 142 F.3d 639, 645 (3d Cir. 1998) (citing Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994)). In conducting our inquiry, we do not look at each incident in isolation; rather, we examine the “overall [employment] scenario.” Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1083 (3d Cir. 1996) (citation omitted). In this case, when we view the evidence in the light most favorable to Appellants, we do not believe that a reasonable jury could find that Appellants would not have been fired but for their ages. Given the conduct in which Appellants engaged and the lack of sufficient evidence suggesting an atmosphere of age discrimination at LSS, there is no basis for a finding that LSS’s proffered rationale was a pretext for age discrimination. See Simpson, 142 F.3d at 645.
Appellants first contend that they are able to demonstrate pretext because LSS discriminated against them in the past. They allege that the following incidents are representative of a corporate culture of age bias at LSS: (1) after asking Magdic if he was ready to retire, LSS’s CEO Hans Sack said, “it looks like you are ready to retire. You have gray hair and are fat”; (2) Crossan was transferred to a different position because LSS wanted “new blood” in the department; (3) at a 2007 management meeting, Sack mentioned the need to recruit a “younger workforce”; (4) older supervisors sat at one end of the table during meetings and were routinely interrupted when they tried to
5

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speak while Dan Hennessy, LSS’s Vice President of Manufacturing, welcomed the advice of younger employees.
When considering whether remarks are probative of discrimination, we consider the speaker’s position in the organization, the content and purpose of the statement, and the “temporal connection between the statement and the challenged employment action.” Ryder v. Westinghouse Elec. Corp., 128 F.3d 128, 133 (3d Cir. 1997). Here, although several of the statements were made by LSS executives, they were temporally remote from the decision to discharge Appellants, and completely unrelated to the investigation regarding Appellants’ violation of the EC Policy. Thus, the comments qualify as “stray remarks” and are entitled to minimal weight. See Ezold v. Wolf, Block, Schorr & SolisCohen, 983 F.2d 509, 545 (3d Cir. 1992). Appellants’ argument regarding seating at meetings rings hollow because, as they admit, they chose their seats. Moreover, the fact that LSS decided to look outside the company to fill a vacancy, rather than promote from within, is not evidence of age discrimination. See Keller, 130 F.3d at 1108-09 (“The question is not whether the employer made the best, or even a sound, business decision; it is whether the real reason is discrimination.” (internal marks and citation omitted)). We thus agree with the District Court that Appellants’ proffered evidence of LSS’s past discrimination lacks serious probative value.
We similarly concur with the District Court’s assessment of the comparator evidence offered by Appellants. It is well established that a plaintiff alleging
6

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employment discrimination may establish pretext by showing “that the employer treated other, similarly situated persons not of his protected class more favorably.” Fuentes, 32 F.3d at 765. Here, however, the persons identified by Appellants are not similarly situated. Carl Dorsch is not similarly situated to Appellants because, although he accessed pornographic websites on his work computer, he was a non-supervisory employee and he did not send the content to anyone else. Likewise, Robert Smith is not similarly situated to Appellants because there is no evidence that Smith actually sent sexually explicit emails. Finally, although he was also suspended for violating the EC Policy, Conrad is not similarly situated to Appellants because he sent only one email and did so from his personal computer. In contrast, Appellants exchanged sexually explicit emails on nearly a daily basis. Thus, the fact that these employees, who were all younger than Appellants, were not immediately fired, does not establish pretext. It is also worth noting that Everett, who was older than Appellants, violated the EC Policy, but his employment was not terminated.
We do not find any of Appellants’ other arguments persuasive. The fact that the EC Policy was not in effect when some of the emails were sent is irrelevant; Appellants cannot seriously contend that they thought it was acceptable to send sexually explicit emails simply because there was no policy expressly prohibiting it. Furthermore, there is no evidence in the record to support Appellants’ contention that LSS’s investigation of the sexual harassment complaint against Magdic was a “sham.” Appellants also offer the
7

Case 2:08-cv-00649-TFM Document 199-2 Filed 12/21/11 Page 8 of 8 misleading argument that sending sexually explicit emails was so commonplace at LSS that it could not have been the real reason for their termination. As the District Court explained, although 90 percent of email boxes searched during discovery included an email that contained a keyword search term, most of the emails identified were “false hits.” In reality, only a small percentage of the emails searched contained sexually explicit materials. Finally, we reject Appellants’ argument that the District Court improperly resolved inconsistencies in the record in favor of LSS. To the extent that inconsistencies actually existed, they were largely immaterial.
IV. For the foregoing reasons, we will affirm the order of the District Court.
8

 
 Case: 2:08-cv-649 As of: 10/02/2012 09:43 PM EDT 1 of 20
U.S. District Court Western District of Pennsylvania (Pittsburgh) CIVIL DOCKET FOR CASE #: 2:08−cv−00649−TFM

CLOSED

HODCZAK et al v. LATROBE SPECIALTY STEEL COMPANY Assigned to: Terrence F. McVerry Case in other court: Third Circuit, 11−01085 Cause: 29:621 Job Discrimination (Age)
Plaintiff

Date Filed: 05/13/2008 Date Terminated: 12/29/2010 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

DOUGLAS M. HODCZAK

represented by Bruce C. Fox Obermayer Rebmann Maxwell &Hippel LLP One Mellon Center 500 Grant Street Suite 5240 Pittsburgh, PA 15219−2502 (412) 566−1500 Fax: (412) 566−1508 Email: bruce.fox@obermayer.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Melissa L. Evans Jackson Lewis LLP One PPG Place, 28th Floor Pittsburgh, PA 15222 (412) 232−0404 Fax: (412) 232−3441 Email: melissa.evans@jacksonlewis.com TERMINATED: 11/28/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rudy A. Fabian 1623 Shady Ave. Pittsburgh, PA 15217 412.401.2641 Email: rudyfabian@verizon.net TERMINATED: 10/15/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff JAMES M. CROSSAN

represented by Bruce C. Fox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Melissa L. Evans (See above for address) TERMINATED: 11/28/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rudy A. Fabian (See above for address) TERMINATED: 10/15/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:08-cv-649 As of: 10/02/2012 09:43 PM EDT 2 of 20

Plaintiff THOMAS J. MAGDIC AND
Plaintiff JOSEPH A. LITVIK on behalf of themselves and all others similarly situated

represented by Bruce C. Fox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melissa L. Evans (See above for address) TERMINATED: 11/28/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rudy A. Fabian (See above for address) TERMINATED: 10/15/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bruce C. Fox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melissa L. Evans (See above for address) TERMINATED: 11/28/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rudy A. Fabian (See above for address) TERMINATED: 10/15/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
LATROBE SPECIALTY STEEL COMPANY

represented by Mark R. Hornak Buchanan Ingersoll Rooney 301 Grant Street One Oxford Centre, 20th Floor Pittsburgh, PA 15219 (412) 562−8859 Email: mark.hornak@bipc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas S. Giotto Buchanan Ingersoll &Rooney PC One Oxford Centre 20th Floor Pittsburgh, PA 15219 392−2068 Email: thomas.giotto@bipc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erin J. McLaughlin Buchanan Ingersoll &Rooney 301 Grant Street

Case: 2:08-cv-649 As of: 10/02/2012 09:43 PM EDT 3 of 20
One Oxford Centre, 20th Floor Pittsburgh, PA 15219 (412) 392−2090 Email: erin.mclaughlin@bipc.com ATTORNEY TO BE NOTICED
Jaime S. Tuite Buchanan Ingersoll &Rooney 301 Grant Street One Oxford Centre, 20th Floor Pittsburgh, PA 15219 (412) 562−8419 Fax: (412) 562−1041 Email: Jaime.Tuite@bipc.com ATTORNEY TO BE NOTICED
Joseph F. Quinn Buchanan Ingersoll &Rooney PC One Oxford Centre 20th Floor Pittsburgh, PA 15219 392−2168 Fax: 392−2128 Email: joseph.quinn@bipc.com ATTORNEY TO BE NOTICED

Date Filed 05/13/2008
05/13/2008 05/16/2008 05/16/2008 05/16/2008 05/19/2008
05/19/2008 05/19/2008
05/20/2008 05/20/2008 06/04/2008

# Docket Text
1 COMPLAINT against LATROBE SPECIALTY STEEL COMPANY ( Filing fee $ 350 receipt number 891699), filed by DOUGLAS M. HODCZAK, JAMES M. CROSSAN, THOMAS J. MAGDIC, JOSEPH A. LITVIK. (Attachments: # 1 Civil Cover Sheet, # 2 Summons) (jsp) (Entered: 05/14/2008)
Summons Issued as to LATROBE SPECIALTY STEEL COMPANY. (jsp) (Entered: 05/14/2008)
2 NOTICE of Appearance by Thomas S. Giotto on behalf of LATROBE SPECIALTY STEEL COMPANY (Giotto, Thomas) (Entered: 05/16/2008)
3 NOTICE of Appearance by Joseph F. Quinn on behalf of LATROBE SPECIALTY STEEL COMPANY (Quinn, Joseph) (Entered: 05/16/2008)
4 NOTICE of Appearance by Jaime S. Tuite on behalf of LATROBE SPECIALTY STEEL COMPANY (Tuite, Jaime) (Entered: 05/16/2008)
5 SUMMONS/Return of Service Returned Executed by DOUGLAS M. HODCZAK, JAMES M. CROSSAN, THOMAS J. MAGDIC, JOSEPH A. LITVIK. LATROBE SPECIALTY STEEL COMPANY served on 5/15/2008, answer due 6/4/2008. (Fox, Bruce) (Entered: 05/19/2008)
6 NOTICE of Appearance by Bruce C. Fox on behalf of DOUGLAS M. HODCZAK, JAMES M. CROSSAN, THOMAS J. MAGDIC, JOSEPH A. LITVIK (Fox, Bruce) (Entered: 05/19/2008)
7 Errata re 6 Notice of Appearance of Rudy A. Fabian, Esquire by DOUGLAS M. HODCZAK, JAMES M. CROSSAN, THOMAS J. MAGDIC, JOSEPH A. LITVIK. Reason for Correction: Filed Notice of Appearance Under Wrong Attorney Login. (Fabian, Rudy) (Entered: 05/19/2008)
8 ORDER OF RECUSAL. Judge Joy Flowers Conti recused. Signed by Judge Joy Flowers Conti on 5/19/08. (smc ) (Entered: 05/20/2008)
Judge Amy Reynolds Hay added. (mjl) (Entered: 05/20/2008)
ORDER that counsel of record has until 6/18/2008 to complete and file a consent to proceed before a magistrate judge form which is available on the court's website. Signed by Magistrate Judge Amy Reynolds Hay on 6/4/2008. Text−only entry; no

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06/04/2008
06/04/2008 06/04/2008 06/04/2008 06/12/2008 06/16/2008 06/16/2008 06/16/2008
06/17/2008 06/17/2008 06/30/2008 06/30/2008 06/30/2008 06/30/2008 06/30/2008 06/30/2008

PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (dgg) (Entered: 06/04/2008)
9 PARTIAL MOTION to Dismiss re 1 Complaint by LATROBE SPECIALTY STEEL COMPANY. (Attachments: # 1 Exhibit A − EEOC Charge filed by Doug Hodczak, # 2 Exhibit B − EEOC Charged filed by James M. Crossan, # 3 Exhibit C − EEOC Charge Filed by Thomas J. Magdic, # 4 Exhibit D − EEOC Charge Filed by Joseph A. Litvik, # 5 Proposed Order Granting Partial Motion to Dismiss) (Giotto, Thomas) Modified text and removed duplicative attachment description on 6/5/2008. (jsp) (Entered: 06/04/2008)
10 BRIEF in Support re 9 Partial Motion to Dismiss, filed by LATROBE SPECIALTY STEEL COMPANY. (Giotto, Thomas) Modified text on 6/5/2008. (jsp) (Entered: 06/04/2008)
11 ANSWER to 1 Complaint by LATROBE SPECIALTY STEEL COMPANY. (Giotto, Thomas) (Entered: 06/04/2008)
12 Disclosure Statement identifying None as corporate parent by LATROBE SPECIALTY STEEL COMPANY. (Giotto, Thomas) Modified text re: corporate parent information on 6/5/2008. (jsp) (Entered: 06/04/2008)
13 DISTRICT JUDGE OPTION by DOUGLAS M. HODCZAK, JAMES M. CROSSAN, THOMAS J. MAGDIC, JOSEPH A. LITVIK to have this case randomly assigned to a U.S. District Judge. (Fabian, Rudy) (Entered: 06/12/2008)
Judge Amy Reynolds Hay no longer assigned to case. (mjl) (Entered: 06/16/2008)
Judge Terrence F. McVerry and Amy Reynolds Hay added. (mjl) (Entered: 06/16/2008)
14 MOTION to Dismiss Count II of Plaintiffs' 1 Complaint (Voluntarily) by DOUGLAS M. HODCZAK, JAMES M. CROSSAN, THOMAS J. MAGDIC, JOSEPH A. LITVIK. Motions referred to Amy Reynolds Hay. (Attachments: # 1 Proposed Order) (Fox, Bruce) Modified on 6/17/2008 document linkage corrected. Documeent linked to document 1 . (ksa) (Entered: 06/16/2008)
ORDER granting 14 Motion to Dismiss Count II of Plaintiffs' Complaint. Signed by Magistrate Judge Amy Reynolds Hay on 6/17/2008.Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (dgg) (Entered: 06/17/2008)
CLERK'S OFFICE QUALITY CONTROL MESSAGE re 14 Motion to Dismiss. ERROR: Document incorrectly linked. CORRECTION: Linked to appropriate document. This message is for informational purposes only. (ksa) (Entered: 06/17/2008)
15 MOTION for Summary Judgment on all Collective Action Claims by LATROBE SPECIALTY STEEL COMPANY. Motions referred to Amy Reynolds Hay. (Attachments: # 1 Proposed Order) (Giotto, Thomas) (Entered: 06/30/2008)
16 BRIEF in Support re 15 Motion for Summary Judgment on all Collective Action Claims filed by LATROBE SPECIALTY STEEL COMPANY. (Giotto, Thomas) (Entered: 06/30/2008)
17 CONCISE STATEMENT OF MATERIAL FACTS re 15 Motion for Summary Judgment, by LATROBE SPECIALTY STEEL COMPANY. (Giotto, Thomas) (Entered: 06/30/2008)
18 Appendix to 15 Motion for Summary Judgment by LATROBE SPECIALTY STEEL COMPANY. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E) (Giotto, Thomas) (Entered: 06/30/2008)
19 MOTION for Summary Judgment on all of Plaintiff Hodczak's Claims by LATROBE SPECIALTY STEEL COMPANY. Motions referred to Amy Reynolds Hay. (Attachments: # 1 Proposed Order) (Giotto, Thomas) (Entered: 06/30/2008)
20 BRIEF in Support re 19 Motion for Summary Judgment on all of Plaintiff Hodczak's Claims filed by LATROBE SPECIALTY STEEL COMPANY. (Giotto,

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06/30/2008 06/30/2008 07/01/2008 08/01/2008 08/01/2008 08/01/2008 08/01/2008 08/01/2008 08/08/2008 08/11/2008
08/12/2008 08/12/2008 08/12/2008

Thomas) (Entered: 06/30/2008)
21 CONCISE STATEMENT OF MATERIAL FACTS re 19 Motion for Summary Judgment, by LATROBE SPECIALTY STEEL COMPANY. (Giotto, Thomas) (Entered: 06/30/2008)
22 Appendix to 19 Motion for Summary Judgment by LATROBE SPECIALTY STEEL COMPANY. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C) (Giotto, Thomas) (Entered: 06/30/2008)
23 ORDER that plaintiffs shall file their Responses re 19 Motion for Summary Judgment, 15 Motion for Summary Judgment by 8/1/2008. Further that all responses shall comply with Local Rule 56.1. Signed by Magistrate Judge Amy Reynolds Hay on 7/1/2008. (dgg) (Entered: 07/01/2008)
24 BRIEF in Opposition re 19 Motion for Summary Judgment on All of Plaintiff Hodczak's Claims filed by DOUGLAS M. HODCZAK, JAMES M. CROSSAN, THOMAS J. MAGDIC, JOSEPH A. LITVIK. (Fox, Bruce) (Entered: 08/01/2008)
25 BRIEF in Opposition re 15 Motion for Summary Judgment on All Collective Action Claims filed by DOUGLAS M. HODCZAK, JAMES M. CROSSAN, THOMAS J. MAGDIC, JOSEPH A. LITVIK. (Fox, Bruce) (Entered: 08/01/2008)
26 COUNTER STATEMENT OF FACTS in Opposition to Defendant's 19 Motion for Summary Judgment on All of Plaintiff Hodczak's Claims 21 Concise Statement of Material Facts, by DOUGLAS M. HODCZAK, JAMES M. CROSSAN, THOMAS J. MAGDIC, JOSEPH A. LITVIK. (Fox, Bruce) Modified on 8/4/2008. (jsp) (Entered: 08/01/2008)
27 COUNTER STATEMENT OF FACTS in Opposition to Defendant's 15 Motion for Summary Judgment on All Collective Action Claims 17 Concise Statement of Material Facts, by DOUGLAS M. HODCZAK, JAMES M. CROSSAN, THOMAS J. MAGDIC, JOSEPH A. LITVIK. (Fox, Bruce) Modified on 8/4/2008. (jsp) (Entered: 08/01/2008)
28 Appendix to 25 Brief in Opposition to Motion, 26 Counter Statement of Facts, 27 Counter Statement of Facts, 24 Brief in Opposition to Motion by DOUGLAS M. HODCZAK, JAMES M. CROSSAN, THOMAS J. MAGDIC, JOSEPH A. LITVIK. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F) (Fox, Bruce) (Entered: 08/01/2008)
29 MOTION for Extension of Time to File Class Certification Motion by DOUGLAS M. HODCZAK, JAMES M. CROSSAN, THOMAS J. MAGDIC, JOSEPH A. LITVIK. Motion(s) referred to Amy Reynolds Hay. (Attachment: # 1 Proposed Order) (Fox, Bruce) (Entered: 08/08/2008)
30 Errata re 22 Appendix to Motion for Summary Judgment by LATROBE SPECIALTY STEEL COMPANY. Reason for Correction: Information contained in certain documents attached needed to be redacted. (Attachments: # 1 Exhibit A − Affidavit S Lawton, # 2 Exhibit B − Affidavit of M Weberding, # 3 Exhibit C − Affidavit of C Stroud) (Quinn, Joseph) Error: Document removed from public view as filer and signature do not match. Modified on 8/12/2008. (jsp) (Entered: 08/11/2008)
31 ORDER granting 29 Plaintiffs' Motion for Extension of Time to File Class Certification Motion. Further that the period for Plaintiffs to file said certification motion is extended indefinitely beyond the 90−day period set forth in W.D.Pa LR 23.1, pending further order of this Court. Signed by Magistrate Judge Amy Reynolds Hay on 8/11/2008. (dgg) (Entered: 08/12/2008)
CLERK'S OFFICE QUALITY CONTROL MESSAGE re 30 Errata, ERROR: Signature on document (Giotto) and filer (Quinn) do not match. CORRECTION: Attorney advised of signature requirements. Attorney to resubmit the document using the Errata event.Filer should link the Errata to Document 30 . This message is for informational purposes only. (jsp) (Entered: 08/12/2008)
32 MOTION for Leave to File Reply Briefs by LATROBE SPECIALTY STEEL COMPANY. Motion(s) referred to Amy Reynolds Hay. (Attachments: # 1 Exhibit

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08/13/2008
08/13/2008 08/15/2008 08/15/2008 08/15/2008 08/15/2008 08/22/2008
08/28/2008 08/28/2008 08/28/2008 08/28/2008
08/28/2008 08/28/2008 08/29/2008

A − Defendant's Reply to Plaintiff's Opposition to Defendant's Motion for Summary Judgment, # 2 Exhibit B − Defendant's Reply to Plaintiffs' Opposition to Defendant's Motion for Summary Judgment as to Plaintiff Hodczak, # 3 Proposed Order Granting Motion for Leave to File) (Giotto, Thomas) (Entered: 08/12/2008)
33 ORDER granting 32 Defendant Latrobe Specialty Steel Company's Motion for Leave to File Reply Briefs in Support of its Motions for Summary Judgment and for other good cause shown and the Briefs attached as Exhibit A and Exhibit B to said Motion are hereby deemed filed. Signed by Magistrate Judge Amy Reynolds Hay on 8/13/2008. (dgg) Modified on 8/14/2008. (jsp, ) (Entered: 08/13/2008)
34 NOTICE of Appearance by Erin J. McLaughlin on behalf of LATROBE SPECIALTY STEEL COMPANY (McLaughlin, Erin) (Entered: 08/13/2008)
35 REPLY BRIEF by LATROBE SPECIALTY STEEL COMPANY re 25 Brief in Opposition to Motion filed by LATROBE SPECIALTY STEEL COMPANY. (jsp) (Entered: 08/15/2008)
36 REPLY BRIEF re 24 Brief in Opposition to Motion filed by LATROBE SPECIALTY STEEL COMPANY. (jsp) Text modified on 8/18/2008. (ept) (Entered: 08/15/2008)
37 RESPONSE to Plaintiff's Statement of Facts Regarding Collection Action Claims to 27 Counter Statement of Facts, filed by LATROBE SPECIALTY STEEL COMPANY. (Quinn, Joseph) (Entered: 08/15/2008)
38 RESPONSE to Plaintiffs' Statement of Facts Regarding All of Plaintiff Hodczak's Claims to 26 Counter Statement of Facts, filed by LATROBE SPECIALTY STEEL COMPANY. (Quinn, Joseph) (Entered: 08/15/2008)
39 NOTICE that instant civil action has been designated for placement into the United States District Court's Alternative Dispute Resolution program. Parties are directed to fully complete the required 26(f) report, which includes the stipulation of selecting an ADR process. Counsel for plaintiff (or in the case of a removal action, counsel for removing defendant) shall make service of the notice on all parties. (dgg) (Entered: 08/22/2008)
40 MOTION for Leave to File Sur−Reply Briefs by DOUGLAS M. HODCZAK, JAMES M. CROSSAN, THOMAS J. MAGDIC, JOSEPH A. LITVIK. Motion(s) referred to Amy Reynolds Hay. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Proposed Order) (Fabian, Rudy) (Entered: 08/28/2008)
41 MOTION to Dismiss or Continue re 19 Motion for Summary Judgment by DOUGLAS M. HODCZAK, JAMES M. CROSSAN, THOMAS J. MAGDIC, JOSEPH A. LITVIK. Motion(s) referred to Amy Reynolds Hay. (Attachments: # 1 Exhibit A, # 2 Proposed Order) (Fabian, Rudy) (Entered: 08/28/2008)
42 MOTION to Dismiss or Continue re 15 Motion for Summary Judgment by DOUGLAS M. HODCZAK, JAMES M. CROSSAN, THOMAS J. MAGDIC, JOSEPH A. LITVIK. Motion(s) referred to Amy Reynolds Hay. (Attachments: # 1 Exhibit A, # 2 Proposed Order) (Fabian, Rudy) (Entered: 08/28/2008)
43 MOTION for Leave to Supplement the Record by DOUGLAS M. HODCZAK, JAMES M. CROSSAN, THOMAS J. MAGDIC, JOSEPH A. LITVIK. Motion(s) referred to Amy Reynolds Hay. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Proposed Order) (Fabian, Rudy) Modified on 8/29/2008. (jsp) (Entered: 08/28/2008)
w/ 41 MOTION to Continue by DOUGLAS M. HODCZAK, JAMES M. CROSSAN, THOMAS J. MAGDIC, JOSEPH A. LITVIK. Motion(s) referred to Amy Reynolds Hay. (jsp) (Entered: 08/29/2008)
w/ 42 MOTION to Continue by DOUGLAS M. HODCZAK, JAMES M. CROSSAN, THOMAS J. MAGDIC, JOSEPH A. LITVIK. Motion(s) referred to Amy Reynolds Hay. (jsp) (Entered: 08/29/2008)
CLERK'S OFFICE QUALITY CONTROL MESSAGE re 41 Motion to Deny, 42 Motion to Deny, ERROR: MULTIPLE Relief Motion Filed as One Relief.

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09/03/2008 09/03/2008 09/03/2008 09/08/2008 09/08/2008 09/08/2008 09/08/2008 09/08/2008 09/12/2008 09/16/2008 09/16/2008 09/16/2008 12/09/2008

CORRECTION: Attorney advised in future that Motions of this nature are to be filed using the Motion Event and clicking on all the reliefs sought in said motion. Clerk of Court docketed Motions to Continue. This message is for informational purposes only. (jsp) (Entered: 08/29/2008)
44 ORDER that Defendant shall file Responses re 41 &42 Motions to Deny or continue Defendant's Motion for Summary Judgment by 9/16/2008. Signed by Magistrate Judge Amy Reynolds Hay on 9/2/2008. (dgg) (Entered: 09/03/2008)
45 ORDER granting 40 Plaintiff's Motion for Leave to File sur−reply briefs and the briefs attached as Exhibit A and Exhibit B to said motion may be filed by Plaintiffs by 9/10/2008. Signed by Magistrate Judge Amy Reynolds Hay on 9/2/2008. (dgg) (Entered: 09/03/2008)
46 ORDER granting 43 Plaintiff's Motion for Leave to Supplement the Record and plaintiffs are to file three affidavits attached to the motion by 9/10/2008. Signed by Magistrate Judge Amy Reynolds Hay on 9/2/2008. (dgg) Modified on 9/4/2008. (jsp) (Entered: 09/03/2008)
47 Sur−Reply Brief in Opposition to Defendant's Motion for Summary Judgment on All of Hodczak's Claims 36 Reply to Response to Motion, filed by DOUGLAS M. HODCZAK, JAMES M. CROSSAN, THOMAS J. MAGDIC, JOSEPH A. LITVIK. (Fabian, Rudy) (Entered: 09/08/2008)
48 Sur−Reply Brief in Opposition to Defendant's Motion for Summary Judgment on All of Collective Action Claims 35 Reply Brief, filed by DOUGLAS M. HODCZAK, JAMES M. CROSSAN, THOMAS J. MAGDIC, JOSEPH A. LITVIK. (Fabian, Rudy) (Entered: 09/08/2008)
49 AFFIDAVIT re 25 Brief in Opposition to Motion, 24 Brief in Opposition to Motion by DOUGLAS M. HODCZAK, JAMES M. CROSSAN, THOMAS J. MAGDIC, JOSEPH A. LITVIK Affiant: Douglas M. Hodczak. (Fabian, Rudy) (Entered: 09/08/2008)
50 AFFIDAVIT re 25 Brief in Opposition to Motion, 24 Brief in Opposition to Motion by DOUGLAS M. HODCZAK, JAMES M. CROSSAN, THOMAS J. MAGDIC, JOSEPH A. LITVIK Affiant: Joseph A. Litvik. (Fabian, Rudy) (Entered: 09/08/2008)
51 AFFIDAVIT re 25 Brief in Opposition to Motion, 24 Brief in Opposition to Motion by DOUGLAS M. HODCZAK, JAMES M. CROSSAN, THOMAS J. MAGDIC, JOSEPH A. LITVIK Affiant: Thomas J. Magdic. (Fabian, Rudy) (Entered: 09/08/2008)
52 MOTION for Leave to File Excess Pages for Oppositions to Plaintiffs' 41 , 42 Motions to Continue or Deny Summary Judgment by LATROBE SPECIALTY STEEL COMPANY. Motion(s) referred to Amy Reynolds Hay. (Attachment: # 1 Proposed Order) (Giotto, Thomas) Modified on 9/15/2008. (jsp) (Entered: 09/12/2008)
53 ORDER granting 52 Motion for Leave to File Excess Pages for oppositions to Plaintiffs' Motions to Continue or Deny Summary Judgment and Defendant is permitted to file opposition briefs that are each six (6) pages in length or shorter. Signed by Magistrate Judge Amy Reynolds Hay on 9/15/2008. (dgg) (Entered: 09/16/2008)
54 BRIEF in Opposition re 41 Motion to Dismiss, w/ 41 Motion to Continue Summary Judgment as to Plaintiff Hodczak's Claims filed by LATROBE SPECIALTY STEEL COMPANY. (Giotto, Thomas) Modified on 9/17/2008. (jsp) (Entered: 09/16/2008)
55 BRIEF in Opposition re 42 Motion to Dismiss, w/ 42 Motion to Continue Motion on Collective Action Claims filed by LATROBE SPECIALTY STEEL COMPANY. (Attachment: # 1 Exhibit A) (Giotto, Thomas) Modified on 9/17/2008. (jsp) (Entered: 09/16/2008)
56 REPORT of Rule 26(f) Planning Meeting. (Giotto, Thomas) (Entered: 12/09/2008)

Case: 2:08-cv-649 As of: 10/02/2012 09:43 PM EDT 8 of 20

01/23/2009
02/09/2009 02/10/2009 02/18/2009 02/24/2009 02/26/2009 02/26/2009 03/09/2009 03/09/2009
03/19/2009 03/26/2009 03/31/2009 03/31/2009

57 REPORT AND RECOMMENDATION that Plaintiff's motion to deny summary judgment pursuant to Fed.R.Civ.P. 56(f) on all of Plaintiff Hodczak's claims 41 be granted; that defendant's motion for summary judgment on all of plaintiff Hodczak's claims 19 , in fact, be denied; that defendant's motion for summaryjudgment on all collective action claims 15 be treated as a motion to dismiss and be granted; and that plaintiff's motion to deny defendant's motion for summary judgment pursuant to Rule 56(f) on all collective action claims 42 be denied. Objections to RRdue by 2/9/2009. Signed by Magistrate Judge Amy Reynolds Hay on 1/23/2009. (dgg) (Entered: 01/23/2009)
58 OBJECTIONS to 57 Report and Recommendation filed by DOUGLAS M. HODCZAK, JAMES M. CROSSAN. (Fox, Bruce) (Entered: 02/09/2009)
59 Errata re 57 Report and Recommendation, 58 Objections to Report and Recommendation by DOUGLAS M. HODCZAK, JAMES M. CROSSAN, THOMAS J. MAGDIC, JOSEPH A. LITVIK. Reason for Correction: Incorrectly Linked to Parties. (Fox, Bruce) (Entered: 02/10/2009)
60 BRIEF in Opposition to 59 Errata, 58 Objections to Report and Recommendation, filed by LATROBE SPECIALTY STEEL COMPANY. (Giotto, Thomas) (Entered: 02/18/2009)
61 MOTION for Leave to File Reply Brief Objecting to Report and Recommendation by DOUGLAS M. HODCZAK, JAMES M. CROSSAN, THOMAS J. MAGDIC, JOSEPH A. LITVIK. Motion(s) referred to Amy Reynolds Hay. (Attachments: # 1 Exhibit Reply Brief Objecting to Report and Recommendation, # 2 Proposed Order) (Fox, Bruce) (Entered: 02/24/2009)
62 ORDER granting 61 Motion for Leave to File reply brief objecting to Report and Recommendation. Plaintiff's reply brief is due within five days of the date of this order or by 3/2/2009. Signed by Magistrate Judge Amy Reynolds Hay on 2/25/2009. (dgg) (Entered: 02/26/2009)
63 REPLY BRIEF by DOUGLAS M. HODCZAK, JAMES M. CROSSAN, THOMAS J. MAGDIC, JOSEPH A. LITVIK Objecting to 57 Report and Recommendation,, filed by DOUGLAS M. HODCZAK, JAMES M. CROSSAN, THOMAS J. MAGDIC, JOSEPH A. LITVIK. (Fox, Bruce) Modified on 2/27/2009. (jsp) (Entered: 02/26/2009)
ORDER that Part II.c.2. re 57 Report and Recommendation is VACATED. Signed by Magistrate Judge Amy Reynolds Hay on 3/9/2009. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (dgg) (Entered: 03/09/2009)
64 REPORT AND RECOMMENDATION that plaintiffs' motion to deny summary judgment pursuant to Fed.R.Civ.P.56(f)on all collective action claims 15 be granted, and that defendant's motion for summary judgment on all collective action claims 42 , in fact, be denied. Objections to RRdue by 3/19/2009. Response to objections due 3/26/2009. Signed by Magistrate Judge Amy Reynolds Hay on 3/9/2009. (dgg) (Entered: 03/09/2009)
65 OBJECTIONS to 64 Report and Recommendation filed by LATROBE SPECIALTY STEEL COMPANY. (Attachments: # 1 Exhibit A Authoritative Opinion) (Giotto, Thomas) (Entered: 03/19/2009)
66 RESPONSE to 65 Objections to Report and Recommendation, 64 Report and Recommendation, filed by DOUGLAS M. HODCZAK, JAMES M. CROSSAN, THOMAS J. MAGDIC, JOSEPH A. LITVIK. (Fabian, Rudy) (Entered: 03/26/2009)
67 ORDER adopting as the Opinion of the District Court the 64 Report and Recommendation of March 9, 2009. Plaintiffs' motion to deny summary judgment on all Collective Action Claims 42 is GRANTED and Defendant's Motion for Summary Judgment on all Collective Actions 15 is DENIED. Signed by Judge Terrence F. McVerry on 03/31/09. (bsc) (Entered: 03/31/2009)
68 ORDER adopting in part 57 Report and Recommendations. Plaintiffs' motion to deny summary judgment on all of plaintiff Hodczak's claims 41 is GRANTED and

Case: 2:08-cv-649 As of: 10/02/2012 09:43 PM EDT 9 of 20

04/23/2009 04/23/2009 04/28/2009 04/28/2009 04/29/2009 06/10/2009 06/10/2009 06/11/2009 06/11/2009
06/16/2009 06/29/2009 07/02/2009

defendant's motion for summary judgment on all of plaintiff Hodczak's claims 19 is DENIED. Signed by Judge Terrence F. McVerry on 03/31/09. (bsc) (Entered: 03/31/2009)
69 ORDER AMENDING 68 Order adopting 57 Report and Recommendation and GRANTING Plaintiff's motion to deny summary judgment on all of Plaintiff Hodczak's claims and DENYING Defendant's motion for summary judgment on all of Plaintiff Hodczak's claims. Signed by Judge Terrence F. McVerry on 4/23/2009. (bb) (Entered: 04/23/2009)
70 ORDER AMENDING 67 Order adopting 64 Report and Recommendation GRANTING Plaintiffs' motion to deny summary judgment on all collective action claims and DENYING Defendant's motion for summary judgment on all collective action claims. Signed by Judge Terrence F. McVerry on 4/23/2009. (bb) (Entered: 04/23/2009)
71 MOTION for Judgment on the Pleadings Limiting Temporal Scope of Plaintiffs' Claims by LATROBE SPECIALTY STEEL COMPANY. Motion(s) referred to Amy Reynolds Hay. (Attachments: # 1 Proposed Order) (Giotto, Thomas) (Entered: 04/28/2009)
72 BRIEF in Support re 71 Motion for Judgment on the Pleadings Limiting Temporal Scope of Plaintiffs' Claims filed by LATROBE SPECIALTY STEEL COMPANY. (Attachments: # 1 Exhibit A − February 27, 2009 Order of Court of Judge Arthur J. Schwab) (Giotto, Thomas) (Entered: 04/28/2009)
73 ORDER that Plaintiffs' Response re 71 Motion for Judgment on the Pleadings Limiting Temporal Scope of Plaintiffs' Claims due by 5/29/2009. Signed by Magistrate Judge Amy Reynolds Hay on 4/29/2009. (dgg) (Entered: 04/29/2009)
74 NOTICE of Non−Opposition by DOUGLAS M. HODCZAK, JAMES M. CROSSAN, THOMAS J. MAGDIC, JOSEPH A. LITVIK re 71 Motion for Judgment on the Pleadings, 72 Brief in Support of Motion. (Fabian, Rudy) Modified on 6/11/2009. ERROR: Wrong event selected. Document removed from public view and redocketed correctly. (ksa) (Entered: 06/10/2009)
75 RESPONSE to Motion re 71 Motion for Judgment on the Pleadings filed by DOUGLAS M. HODCZAK, JAMES M. CROSSAN, THOMAS J. MAGDIC, JOSEPH A. LITVIK. "Document previously filed electronically" (ksa) (Entered: 06/11/2009)
CLERK'S OFFICE QUALITY CONTROL MESSAGE re 74 Notice (Other). ERROR: Wrong event selected. CORRECTION: Re−docketed as Response to Motion. This message is for informational purposes only. (ksa) (Entered: 06/11/2009)
76 ORDER granting 71 Motion for Judgment on the Pleadings Limiting Temporal Scope of Plaintiffs Claims. The motion is GRANTED to the extent that this action shall not include any claims under the Age Discrimination in Employment Act, as amended, on behalf of any Plaintiff, that accrued before May 17, 2007. Signed by Judge Terrence F. McVerry on 6/11/2009. (kly) Modified on 6/12/2009. (tt) (Entered: 06/11/2009)
77 INITIAL LOCAL RULE 16.1 SCHEDULING CONFERENCE: Case Management Conference set for 7/16/2009 at 10:00 AM before Chief U.S. Magistrate Judge Amy Reynolds Hay. Rule 26 Meeting Report due by 7/9/2009. Signed by Chief U.S. Magistrate Judge Amy Reynolds Hay on 6/16/2009. (dgg) (Entered: 06/16/2009)
78 MOTION to Continue Case Management Conference by LATROBE SPECIALTY STEEL COMPANY. Motion(s) referred to Amy Reynolds Hay. (Attachments: # 1 Proposed Order) (Giotto, Thomas) (Entered: 06/29/2009)
79 ORDER granting 78 Motion to Continue Case Management Conference. Case Management Conference is rescheduled for 7/20/2009 09:00 AM before Chief U.S. Magistrate Judge Amy Reynolds Hay. Signed by Chief U.S. Magistrate Judge Amy Reynolds Hay on 7/2/2009. (dgg) (Entered: 07/02/2009)

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07/23/2009 07/24/2009 07/28/2009
07/28/2009
08/07/2009 08/07/2009 08/17/2009 08/21/2009 08/25/2009 08/26/2009 08/27/2009 08/28/2009

80 NOTICE of Appearance by Mark R. Hornak on behalf of LATROBE SPECIALTY STEEL COMPANY. (Hornak, Mark) (Entered: 07/23/2009)
81 STIPULATION selecting ADR process by DOUGLAS M. HODCZAK, JAMES M. CROSSAN, THOMAS J. MAGDIC, JOSEPH A. LITVIK, LATROBE SPECIALTY STEEL COMPANY (Giotto, Thomas) (Entered: 07/24/2009)
82 Minute Entry for initial case management conference held before Chief U.S. Magistrate Judge Amy Reynolds Hay on 7/24/2009. Outcome: 1. As concerns ESI and the search of.pst files, the Defendant is to search all 200.pst files rather than the 27.pst files it proposed. 2. The parties have agreed to Mediation and anticipate concluding that process by end of August beginning of September, depending upon the length of time the search of.pst file involves and the availability of the selected Mediator. 3. Defendant has leave to file a motion regarding confidentiality of e−mails and anticipates doing so during the week of 8/3/2009. Plaintiff's response to said motion will be due ten days after the filing date of the motion. 4. Case management deadlines were discussed and a Case Management Order will issue separately. (Court Reporter: none) (dgg) (Entered: 07/28/2009)
83 CASE MANAGEMENT ORDER: Amended Pleadings or Joinder of Parties due by 1/27/2010. Discovery due by 2/26/2010. The parties shall complete the ADR process they selected by 9/15/2009. Participation in the ADR process does not stay discovery. Mid−discovery status conference set for 11/17/2009 at 9:00 A.M. in Conference Room 9295, 9th Floor, U.S. Post Office &Courthouse, 700 Grant Street, Pittsburgh, PA. Motions for Summary Judgment due by 3/29/2010. Responses to Summary Judgment Motions due by 4/28/2010 Post−Discovery Status/Settlement Conference set for 3/2/2010 at 09:00 AM in the same Room # mentioned above before Chief U.S. Magistrate Judge Amy Reynolds Hay. Signed by Chief U.S. Magistrate Judge Amy Reynolds Hay on 7/28/2009. (dgg) (Entered: 07/28/2009)
84 MOTION for Protective Order by LATROBE SPECIALTY STEEL COMPANY. Motion(s) referred to Amy Reynolds Hay. (Attachments: # 1 Exhibit A, # 2 Proposed Order) (Hornak, Mark) (Entered: 08/07/2009)
85 BRIEF in Support re 84 Motion for Protective Order filed by LATROBE SPECIALTY STEEL COMPANY. (Hornak, Mark) (Entered: 08/07/2009)
86 BRIEF in Opposition re 84 Motion for Protective Order filed by DOUGLAS M. HODCZAK, JAMES M. CROSSAN, THOMAS J. MAGDIC, JOSEPH A. LITVIK. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C) (Fabian, Rudy) (Entered: 08/17/2009)
87 Notice of ADR proceeding: The litigants are advised that at the conclusion of the ADR process they must submit a completed questionnaire to the Clerk of Courts. The questionnaire is available on the Court's website at www.pawd.uscourts.gov and click on the ADR icon. Mediation Conference set for 9/17/2009 10:00 AM (Kushner, Louis) (Entered: 08/21/2009)
88 MOTION for Leave to File Reply Brief in Support of Its Motion for a Protective Order by LATROBE SPECIALTY STEEL COMPANY. Motion(s) referred to Amy Reynolds Hay. (Attachments: # 1 Exhibit A − Def's Reply Brief in Support of Its Motion for a Protective Order, # 2 Proposed Order) (Hornak, Mark) (Entered: 08/25/2009)
89 RESPONSE to Motion re 88 Motion for Leave to File, filed by DOUGLAS M. HODCZAK, JAMES M. CROSSAN, THOMAS J. MAGDIC, JOSEPH A. LITVIK. (Fabian, Rudy) (Entered: 08/26/2009)
90 ORDER granting 88 Motion for Leave to File Reply Brief in Support of Motion for a Protective Order and the Brief attached as Exhibit A to said Motion is hereby deemed filed. Signed by Chief U.S. Magistrate Judge Amy Reynolds Hay on 8/26/2009. (dgg) (Entered: 08/27/2009)
91 MOTION for Leave to File Surreply Brief in Opposition to Motion for Protective Order by DOUGLAS M. HODCZAK, JAMES M. CROSSAN, THOMAS J. MAGDIC, JOSEPH A. LITVIK. Motion(s) referred to Amy Reynolds Hay. (Attachments: # 1 Exhibit Surreply Brief in Opposition, # 2 Proposed Order)

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09/10/2009 09/18/2009
11/02/2009 11/02/2009 11/19/2009
01/18/2010 01/18/2010
01/19/2010 01/19/2010 01/19/2010 01/26/2010 01/27/2010

(Fabian, Rudy) (Entered: 08/28/2009)
92 ORDER granting 91 Motion for Leave to File surreply brief in opposition to Defendant's Motion for Protective Order and the brief is attached as Exhibit A is deemed filed. Signed by Chief U.S. Magistrate Judge Amy Reynolds Hay on 9/10/2009. (dgg) (Entered: 09/10/2009)
93 REPORT of Mediation: Case has not been resolved. Mediation Continued The parties are reminded of their obligation to complete the ADR questionnaire and return same to the Clerk of Court within 5 days of the conclusion of the ADR process. The questionnaire can be accessed at www.pawd.uscourts.gov. Click on the ADR icon. Mediation session was held on 9/17/2009. (Kushner, Louis) (Entered: 09/18/2009)
94 MEMORANDUM ORDER granting 84 Motion for Protective Order. Signed by Chief U.S. Magistrate Judge Amy Reynolds Hay on 10/30/2009. (dgg) (Entered: 11/02/2009)
95 PROTECTIVE ORDER Signed by Chief U.S. Magistrate Judge Amy Reynolds Hay on 10/30/2009. (dgg) (Entered: 11/02/2009)
96 Minute Entry for Mid−Discovery Status Conference held before Chief U.S. Magistrate Judge Amy Reynolds Hay on 11/17/2009. Outcome: 1. Discovery is in progress. Plaintiffs will provide Defendant with their proposal for "Phase II" of discovery. If Plaintiffs are not satisfied with Defendant's response to their proposal, they may by−pass the Court's usual procedure of a telephone conference on discovery disputes and file a motion/memorandum, not to exceed 5 pages. Defendant's response, not to exceed 5 pages, will be due 7 business days after the filing date of Plaintiffs' motion/memorandum. (Court Reporter: none) (dgg) (Entered: 11/19/2009)
97 MOTION for Leave to File Under Seal Exhibit to Plaintiffs' 98 Motion to Compel Production of Hans Sack's Hard Drive and Defendant's Digital Camera by JAMES M. CROSSAN, DOUGLAS M. HODCZAK, JOSEPH A. LITVIK, THOMAS J. MAGDIC. Motion(s) referred to Amy Reynolds Hay. (Attachment: # 1 Proposed Order) (Fox, Bruce) Modified on 1/19/2010 (jsp). (Entered: 01/18/2010)
98 MOTION to Compel Production of Hans Sack's Hard Drive and Defendant's Digital Camera by JAMES M. CROSSAN, DOUGLAS M. HODCZAK, JOSEPH A. LITVIK, THOMAS J. MAGDIC. Motion(s) referred to Amy Reynolds Hay. (Attachments: # 1 Proposed Order, # 2 Discovery Dispute Certificate, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10 Exhibit H, # 11 Exhibit I, # 12 Exhibit J, # 13 Exhibit K, # 14 Exhibit L, # 15 Exhibit M, # 16 Exhibit N, # 17 Exhibit O, # 18 Exhibit P, # 19 Exhibit Q, # 20 Exhibit R) (Fabian, Rudy) (Entered: 01/18/2010)
99 ORDER granting 97 Motion for Leave to File Under Seal Exhibit to Plaintiffs' Motion to Compel Production of Han Sack's Hard Drive and Defendant's Digital Camera. Further ordered that Plaintiffs are given leave to file Exhibit 1 to Plaintiffs' Motion under seal and shall do so by 1/22/2010. Signed by Chief U.S. Magistrate Judge Amy Reynolds Hay on 1/19/2010. (dgg) (Entered: 01/19/2010)
100 ORDER that Defendant's Response re 98 Motion to Compel Production of Hans Sack's Hard Drive and Defendant's Digital Camera is due by 1/28/2010. Signed by Chief U.S. Magistrate Judge Amy Reynolds Hay on 1/19/2010. (dgg) (Entered: 01/19/2010)
101 SEALED DOCUMENT by JAMES M. CROSSAN, DOUGLAS M. HODCZAK, JOSEPH A. LITVIK, THOMAS J. MAGDIC. (jsp) (Entered: 01/20/2010)
102 MOTION for Extension of Time to Complete Discovery by JAMES M. CROSSAN, DOUGLAS M. HODCZAK, JOSEPH A. LITVIK, THOMAS J. MAGDIC. Motion(s) referred to Amy Reynolds Hay. (Attachments: # 1 Proposed Order) (Fabian, Rudy) (Entered: 01/26/2010)
103 MOTION for Leave to File Brief in Excess of Page Limitations by LATROBE SPECIALTY STEEL COMPANY. Motion(s) referred to Amy Reynolds Hay. (Attachments: # 1 Proposed Order) (McLaughlin, Erin) (Entered: 01/27/2010)

Case: 2:08-cv-649 As of: 10/02/2012 09:43 PM EDT 12 of 20

01/28/2010
01/28/2010 01/28/2010 01/29/2010 02/03/2010 02/03/2010 02/05/2010
02/05/2010 02/08/2010 02/09/2010
02/11/2010 02/19/2010 02/19/2010
03/02/2010

104 ORDER granting 103 Motion for Leave to File reply brief in excess of page limitations filed by Defendant Latrobe Specialty Steel Company. Latrobe Specialty Steel Company may file a brief not in excess of eleven (11) pages in response to Plaintiffs' Motion to Compel Production of Hans Sack's Hard Drive and Defendant's Digital Camera. Signed by Chief U.S. Magistrate Judge Amy Reynolds Hay on 1/28/2010. (dgg) (Entered: 01/28/2010)
105 Consent MOTION for Leave to File Under Seal Exhibits to Defendant's Brief in Opposition to Plaintiff's Motion to Compel by LATROBE SPECIALTY STEEL COMPANY. Motion(s) referred to Amy Reynolds Hay. (Attachments: # 1 Proposed Order) (McLaughlin, Erin) (Entered: 01/28/2010)
106 RESPONSE to Motion re 98 Motion to Compel, filed by LATROBE SPECIALTY STEEL COMPANY. (Attachments: # 1 Exhibit Reclamere Verification, # 2 Exhibit Fabian Letters, # 3 Exhibit Ditto Letter, # 4 Exhibit Interrogatory Answer No. 2, # 5 Exhibit Lawson Affidavit) (Tuite, Jaime) (Entered: 01/28/2010)
107 REPLY to Motion re 102 Motion for Extension of Time to Complete Discovery filed by LATROBE SPECIALTY STEEL COMPANY. (Attachment: # 1 Proposed Order) (Tuite, Jaime) Modified on 2/1/2010 (jsp). (Entered: 01/29/2010)
108 ORDER granting 105 Motion for Leave to File Exhibits under Seal to Defendant's Brief in Opposition to Plaintiffs' Motion to Compel. Signed by Chief U.S. Magistrate Judge Amy Reynolds Hay on 2/2/2010. (dgg) (Entered: 02/03/2010)
109 SEALED DOCUMENT by LATROBE SPECIALTY STEEL COMPANY. (Attachments: # 1 Exhibit E, # 2 Exhibit G, # 3 Exhibit H, # 4 Exhibit I) (jsp) (Entered: 02/03/2010)
110 ORDER granting in part and denying in part 102 Motion for Extension of Time to Complete Discovery. The motion is granted to the extent that discovery is extended until 3/26/2010 and said extension is limited to Plaintiffs taking the deposition of Mr. Sack and one other deponent set forth in Rule 30(a)(2) of the Federal Rules of Civil Procedure, and to Defendant taking the deposition of Plaintiffs Hodczak, Magdic, and up to and including two (2) other deponents. the motion is denied in all other respects. Signed by Chief U.S. Magistrate Judge Amy Reynolds Hay on 2/4/2010. (dgg) Modified on 2/8/2010 (jsp). (Entered: 02/05/2010)
111 MEMORANDUM ORDER denying 98 Motion to Compel Production of Hans Sack's Hard Drive and Defendant's Digital Camera. Signed by Chief U.S. Magistrate Judge Amy Reynolds Hay on 2/4/2010. (dgg) (Entered: 02/05/2010)
Discovery due by 3/26/2010. (jsp) (Entered: 02/08/2010)
ORDER, Post−Discovery Conference reset for 4/1/2010 09:30 AM in Room 9280 before Chief Magistrate Judge Amy Reynolds Hay; Motions for Summary Judgment due by 4/29/2010; Responses to Motions for Summary Judgment due by 5/29/2010. Signed by Chief Magistrate Judge Amy Reynolds Hay on 2/9/2010. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (bb) (Entered: 02/09/2010)
Response to Summary Judgment due by 5/29/2010 (jsp) (Entered: 02/11/2010)
112 OBJECTIONS to 111 Order on Motion to Compel by JAMES M. CROSSAN, DOUGLAS M. HODCZAK, JOSEPH A. LITVIK, THOMAS J. MAGDIC. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G) (Fox, Bruce) (Entered: 02/19/2010)
113 MOTION for Leave to File Under Seal, Exhibits to Plaintiffs Objection Pursuant to Fed.R.Civ.P. 72(a) to Memorandum Order Denying Plaintiffs Motion to Compel Production of Hans Sacks Hard Drive and Defendants Digital Camera by JAMES M. CROSSAN, DOUGLAS M. HODCZAK, JOSEPH A. LITVIK, THOMAS J. MAGDIC. Motion(s) referred to Amy Reynolds Hay. (Attachments: # 1 Proposed Order) (Fox, Bruce) (Entered: 02/19/2010)
114 ORDER granting 113 Plaintiffs' Motion for Leave to File Exhibits Under Seal. Signed by Judge Terrence F. McVerry on 3/2/10. (cdb) (Entered: 03/02/2010)

Case: 2:08-cv-649 As of: 10/02/2012 09:43 PM EDT 13 of 20

03/04/2010 03/05/2010 03/09/2010
03/12/2010 03/15/2010 03/19/2010 03/19/2010
03/19/2010
03/24/2010 03/24/2010 03/26/2010

115 SEALED DOCUMENT by JAMES M. CROSSAN, DOUGLAS M. HODCZAK, JOSEPH A. LITVIK, THOMAS J. MAGDIC (Attachments: # 1 Exhibit A, # 2 Exhibit B) (jsp) (Entered: 03/04/2010)
116 BRIEF in Opposition to 112 Objections, filed by LATROBE SPECIALTY STEEL COMPANY. (Attachments: # 1 Exhibit A − LSS's Brief in Opposition to Motion to Compel, # 2 Exhibit B − Relevant portion of Lawson Deposition) (McLaughlin, Erin) (Entered: 03/05/2010)
117 MEMORANDUM OPINION AND ORDER re 112 PLAINTIFFS' OBJECTION Pursuant to Fed.R.Civ.P. 72(A) to Memorandum Order Denying Plaintiffs' Motion toCompel Production of Hans Sacts's Hard Drive and Defendant's Digital Camera filed by DOUGLAS M. HODCZAK, THOMAS J. MAGDIC, JAMES M. CROSSAN, JOSEPH A. LITVIK. Plaintiffs' objections are denied. Signed by Judge Terrence F. McVerry on 3/9/2010. (cdb) Modified on 3/10/2010 (jsp). (Entered: 03/09/2010)
118 MOTION for Leave to Take Additional Depositions and, MOTION for Extension of Time to Complete Discovery by JAMES M. CROSSAN, DOUGLAS M. HODCZAK, JOSEPH A. LITVIK, THOMAS J. MAGDIC. Motion(s) referred to Amy Reynolds Hay. (Attachments: # 1 Proposed Order) (Fox, Bruce) (Entered: 03/12/2010)
ORDER Response/Briefing Schedule re 118 Motion for Leave to Take Additional Depositions, Motion for Extension of Time to Complete Discovery: Response to Motion due by 3/19/2010. Signed by Judge Amy Reynolds Hay on 3/15/2010. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (bb) Modified on 3/16/2010. (jsp) (Entered: 03/15/2010)
119 MOTION for Leave to File Under Seal Exhibits to Defendant's 118 Opposition to Plaintiff's Expedited Motion for Leave to Take Additional Depositions and to Extend the Discovery Deadline by LATROBE SPECIALTY STEEL COMPANY. Motion(s) referred to Amy Reynolds Hay. (Attachment: # 1 Proposed Order) (McLaughlin, Erin) Modified on 3/23/2010. (jsp) (Entered: 03/19/2010)
120 OPPOSITION re 118 Motion for Leave to File Under Seal, Motion for Extension of Time to Complete Discovery, filed by LATROBE SPECIALTY STEEL COMPANY. (Attachments: # 1 Exhibit A − Relevant Portions Deposition Transcript of R Furr and E Thomson, # 2 Exhibit B − Relevant Portions Deposition Transcript of Thomas J Magdic, # 3 Exhibit C − Plaintiffs' Initial Disclosures, # 4 Exhibit D − Relevant Portions Transcript of Susan Lawson) (McLaughlin, Erin) Modified on 3/23/2010. (jsp) (Entered: 03/19/2010)
121 Errata re 120 Opposition to Motion, by LATROBE SPECIALTY STEEL COMPANY. Reason for Correction: Editing Error in Original Document. (Attachments: # 1 Exhibit A − Relevant Portions Deposition Transcript of R Furr and E Thomson, # 2 Exhibit B − Relevant Portions Deposition Transcipt of Thomas J Magdic, # 3 Exhibit C − Plaintiffs' Initial Disclosures, # 4 Exhibit D − Relevant Portions Deposition Transcript of Susan Lawson) (McLaughlin, Erin) Modified on 3/23/2010. (jsp) (Entered: 03/19/2010)
122 MEMORANDUM ORDER denying 118 Motion for leave to take additional depositions; denying as moot 118 Motion for Extension of Time to Complete Discovery. Signed by Chief U.S. Magistrate Judge Amy Reynolds Hay on 3/23/2010. (dgg) (Entered: 03/24/2010)
123 ORDER granting 119 Motion for Leave to File Exhibits Under Seal filed by Defendant Latrobe Specialty Steel Company to Defendant's opposition to Plaintiff's expedited motion for leave to take additional depositions and to extend the discovery deadline. Further ordered that Latrobe Specialty Steel Company is given leave to file Exhibits B and D to their opposition under seal. Signed by Chief U.S. Magistrate Judge Amy Reynolds Hay on 3/23/2010. (dgg) (Entered: 03/24/2010)
124 SEALED DOCUMENT by LATROBE SPECIALTY STEEL COMPANY (Attachments: # 1 Exhibit, # 2 Exhibit) (jsp) (Entered: 03/26/2010)

Case: 2:08-cv-649 As of: 10/02/2012 09:43 PM EDT 14 of 20

03/30/2010
04/06/2010
04/07/2010 04/09/2010 04/12/2010 04/28/2010 05/05/2010 05/05/2010 05/06/2010 05/10/2010
05/11/2010 05/11/2010

ORDER − the Post−Discovery Status/Settlement Conference set for 4/1/2010 at 9:30 A.M. will be conducted by telephone. Chambers Staff shall initiate the telephone call. Signed by Chief U.S. Magistrate Judge Amy Reynolds Hay on 3/30/2010. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (dgg) (Entered: 03/30/2010)
125 Minute Entry for Post−Discovery Status Conference held before Chief U.S. Magistrate Judge Amy Reynolds Hay on 4/1/2010. Outcome: 1. Defendant anticipates filing for summary judgment; Plaintiffs may cross−file. Deadlines remain as previously set, i.e., motions are due by 4/29/2010, and responses are due by 5/29/2010. 2. Plaintiffs' oral request for reconsideration of their motion for leave to take additional depositions, in this instance only the deposition of Melanie Jesperson was requested, was denied inasmuch as Plaintiffs offered no new relevant facts or arguments. (Court Reporter: none) (dgg) (Entered: 04/06/2010)
126 OBJECTIONS to 122 Order on Motion for Leave to Take Additional Complaint, Order on Motion for Extension of Time to Complete Discovery by JAMES M. CROSSAN, DOUGLAS M. HODCZAK, JOSEPH A. LITVIK, THOMAS J. MAGDIC. (Attachments: # 1 Exhibit A) (Fabian, Rudy) Modified on 4/8/2010. (jsp) (Entered: 04/07/2010)
127 BRIEF in Opposition to 236 Objections to 122 Order, Response/Briefing Schedule 118 MOTION for Leave to Take Additional Depositions, 118 MOTION for Extension of Time to Complete Discovery, filed by LATROBE SPECIALTY STEEL COMPANY. (Tuite, Jaime) Modified on 4/12/2010. (jsp) (Entered: 04/09/2010)
128 ORDER overuling and dismissing 126 Objections, filed by DOUGLAS M. HODCZAK, THOMAS J. MAGDIC, JAMES M. CROSSAN, JOSEPH A. LITVIK. Signed by Judge Terrence F. McVerry on 4/12/2010. (kly) (Entered: 04/12/2010)
129 MOTION for Extension of Time to File Summary Judgment by LATROBE SPECIALTY STEEL COMPANY. Motion(s) referred to Amy Reynolds Hay. (Attachments: # 1 Proposed Order) (McLaughlin, Erin) (Entered: 04/28/2010)
130 ORDER granting 129 Motion for Extension of Time to File Motion for Summary Judgment. Defendant Summary Judgment due by 5/6/2010. Plaintiff's Response to Summary Judgment Motion due by 6/7/2010. Signed by Chief U.S. Magistrate Judge Amy Reynolds Hay on 5/4/2010. (dgg) (Entered: 05/05/2010)
131 MOTION for Leave to File Under Seal Defendant's Documents Supporting Its Motion for Summary Judgment by LATROBE SPECIALTY STEEL COMPANY. Motion(s) referred to Amy Reynolds Hay. (Attachment: # 1 Proposed Order) (McLaughlin, Erin) Modified on 5/6/2010. (jsp) (Entered: 05/05/2010)
132 MOTION for Summary Judgment by LATROBE SPECIALTY STEEL COMPANY. Motion(s) referred to Amy Reynolds Hay. (Attachments: # 1 Proposed Order) (Hornak, Mark) (Entered: 05/06/2010)
133 ORDER granting 131 Motion for Leave to File under seal exhibits to Defendants documents supporting Motion for Summary Judgment. I tis further ordered that Latrobe Specialty Steel Company is given leave to file its Brief in Support of Summary Judgment, its Statement of Facts, and its Appendix UNDER SEAL. Signed by Chief U.S. Magistrate Judge Amy Reynolds Hay on 5/10/2010. (dgg) (Entered: 05/10/2010)
134 SEALED DOCUMENT (Brief in Support of 132 Motion for Summary Judgment) by LATROBE SPECIALTY STEEL COMPANY. (jsp) (Entered: 05/12/2010)
135 SEALED DOCUMENT (Appendix in Support of 132 Motion for Summary Judgment) by LATROBE SPECIALTY STEEL COMPANY. (Attachments: # 1 Exhibit A Hodczak Deposition, # 2 Exhibit B Lawson Affidavit, # 3 Exhibit C Crossan Deposition, # 4 Exhibit D Magdic Deposition, # 5 Exhibit E Litvik Deposition, # 6 Exhibit F Hennessey Deposition, # 7 Exhibit G Katic Deposition, # 8 Exhibit H Sack Deposition, # 9 Exhibit I Lawson Deposition, # 10 Exhibit J McLaughlin Affidavit, # 11 Exhibit K Responses, # 12 Exhibit L Weberding

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05/11/2010 05/27/2010 05/27/2010
05/28/2010 06/04/2010
06/08/2010 06/09/2010 06/15/2010 06/22/2010
06/22/2010 06/23/2010

Deposition) (jsp) (Entered: 05/12/2010)
136 SEALED DOCUMENT (Statement of Material Facts) by LATROBE SPECIALTY STEEL COMPANY. (jsp) (Entered: 05/12/2010)
137 MOTION to Exclude Testimony of and Evidence from LSS' Director of Legal Affairs−Gene F. Zurawsky by LATROBE SPECIALTY STEEL COMPANY. Motion(s) referred to Amy Reynolds Hay. (Attachment: # 1 Proposed Order) (McLaughlin, Erin) Modified on 5/28/2010. (jsp) (Entered: 05/27/2010)
138 BRIEF in Support re 137 Motion to Exclude Testimony of and Evidence from LSS' Director of Legal Affairs− Gene F. Zurawsky filed by LATROBE SPECIALTY STEEL COMPANY. (Attachments: # 1 Exhibit A − Zurawsky Deposition, # 2 Exhibit B − Lawson Verification, # 3 Exhibit C − Sack Deposition, # 4 Exhibit D − Hennessy Verification, # 5 Exhibit E − Mikus Verification, # 6 Exhibit F − Crossan Discovery Responses, # 7 Exhibit G − Crossan Deposition, # 8 Exhibit H − Plaintiffs' Second Set of Interrogatories and Request for Production of Documents, # 9 Exhibit I − Lawson Deposition) (McLaughlin, Erin) Modified on 5/28/2010. (jsp) (Entered: 05/27/2010)
139 Unopposed MOTION for Extension of Time to File Response/Reply as to 132 MOTION for Summary Judgment by JAMES M. CROSSAN, DOUGLAS M. HODCZAK, JOSEPH A. LITVIK, THOMAS J. MAGDIC. Motion(s) referred to Amy Reynolds Hay. (Attachments: # 1 Proposed Order) (Fabian, Rudy) (Entered: 05/28/2010)
140 ORDER granting 139 Motion for Extension of Time to File Response re: Defendant's Motion for Summary Judgment. Plaintiff must file their Opposition to Defendant's Motion for Summary Judgment no later than 14 days after the date of this Court's Order ruling on Defendant's Motion to Exclude Testimony of and Evidence from LSS' Director of Legal Affairs − Gene F. Zurawsky. Signed by Chief U.S. Magistrate Judge Amy Reynolds Hay on 6/4/2010. (dgg) (Entered: 06/04/2010)
141 MOTION for Leave to File Under Seal Brief in Opposition and Supporting Documents to Defendant's Motion to Exclude Evidence by JAMES M. CROSSAN, DOUGLAS M. HODCZAK, JOSEPH A. LITVIK, THOMAS J. MAGDIC. Motion(s) referred to Amy Reynolds Hay. (Attachment: # 1 Proposed Order) (Fox, Bruce) Modified on 6/9/2010. (jsp) (Entered: 06/08/2010)
142 MOTION for Leave to File Brief Exceeding Page Limit by JAMES M. CROSSAN, DOUGLAS M. HODCZAK, JOSEPH A. LITVIK, THOMAS J. MAGDIC. Motion(s) referred to Amy Reynolds Hay. (Attachments: # 1 Proposed Order) (Fabian, Rudy) (Entered: 06/09/2010)
143 MOTION for Leave to File Reply Brief in Support of its 137 Motion to Exclude Testimony of and Evidence from LSS' Director of Legal Affairs − Gene F. Zurawsky by LATROBE SPECIALTY STEEL COMPANY. Motion(s) referred to Amy Reynolds Hay. (Attachment: # 1 Proposed Order) (McLaughlin, Erin) Modified on 6/16/2010. (jsp) (Entered: 06/15/2010)
ORDER denying without prejudice to refiling 141 Motion for Leave to File Brief Under Seal setting forth the reasons plaintiffs want to file their brief under seal; denying without prejudice to refiling 142 Motion for Leave to File Brief Exceeding Page Limit setting forth the reasons plaintiffs require their brief to exceed the page limit. Signed by Chief Magistrate Judge Amy Reynolds Hay on 6/22/2010. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (bb) (Entered: 06/22/2010)
ORDER denying as premature 143 Motion for Leave to File Reply Brief in Support of its Motion to Exclude Testimony as no responsive brief has yet been filed. Signed by Chief Magistrate Judge Amy Reynolds Hay on 6/22/2010. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (bb) (Entered: 06/22/2010)
144 MOTION for Leave to File Brief and Supporting Exhibits in Opposition to Defendant's Motion to Exclude Evidence, Under Seal by JAMES M. CROSSAN,

Case: 2:08-cv-649 As of: 10/02/2012 09:43 PM EDT 16 of 20

06/23/2010 06/24/2010
06/25/2010
06/28/2010 07/01/2010 07/01/2010 07/01/2010 07/01/2010
07/01/2010 07/07/2010 07/16/2010

DOUGLAS M. HODCZAK, JOSEPH A. LITVIK, THOMAS J. MAGDIC. Motion(s) referred to Amy Reynolds Hay. (Attachments: # 1 Proposed Order) (Fabian, Rudy) (Entered: 06/23/2010)
145 MOTION for Leave to File Brief Exceeding Page Limit by JAMES M. CROSSAN, DOUGLAS M. HODCZAK, JOSEPH A. LITVIK, THOMAS J. MAGDIC. Motion(s) referred to Amy Reynolds Hay. (Attachments: # 1 Proposed Order) (Fabian, Rudy) (Entered: 06/23/2010)
146 MOTION In Support of Plaintiffs' Motion for Leave to File Under Seal re 144 MOTION for Leave to File Brief and Supporting Exhibits in Opposition to Defendant's Motion to Exclude Evidence, Under Seal filed by DOUGLAS M. HODCZAK, THOMAS J. MAGDIC, JAMES M. CROSSAN, JOSEPH A. LITVIK by LATROBE SPECIALTY STEEL COMPANY. Motion(s) referred to Amy Reynolds Hay. (McLaughlin, Erin) (Entered: 06/24/2010)
CLERK'S OFFICE QUALITY CONTROL MESSAGE re 146 Motion in Support of Plaintiffs' Motion for Leave to File Under Seal. ERROR: Proposed Order was not attached. CORRECTION: Attorney is advised to file a proposed order by using the Proposed Order event and linking it to the document in question. This message is for informational purposes only. (ksa) Modified on 6/28/2010. (tt) (Entered: 06/25/2010)
147 Proposed Order re 146 Concurring Motion in Support of Plaintiffs' Motion for Leave to File Under Seal by LATROBE SPECIALTY STEEL COMPANY. (McLaughlin, Erin) Modified on 6/29/2010. (jsp) (Entered: 06/28/2010)
148 ORDER granting 144 Motion for Leave to File brief and supporting exhibits in opposition to Defendant's motion to exclude evidence, under seal. To be filed by 7/2/2010. Signed by Chief U.S. Magistrate Judge Amy Reynolds Hay on 7/1/2010. (dgg) (Entered: 07/01/2010)
ORDER dismissing as moot 146 Motion for leave to file under seal. Signed by Chief U.S. Magistrate Judge Amy Reynolds Hay on 7/1/2010. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (dgg) (Entered: 07/01/2010)
149 ORDER granting 145 Motion for Leave to File brief exceeding page limit. To be filed by 7/2/2010. Signed by Chief U.S. Magistrate Judge Amy Reynolds Hay on 7/1/2010. (dgg) (Entered: 07/01/2010)
150 SEALED DOCUMENT by JAMES M. CROSSAN, DOUGLAS M. HODCZAK, JOSEPH A. LITVIK, THOMAS J. MAGDIC (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W) (jsp) (Entered: 07/01/2010)
151 MOTION for Leave to File a Reply Brief in support of LSS' 137 Motion to Exclude Testimony of and Evidence from LSS' Director of Legal Affairs Gene F. Zurawsky by LATROBE SPECIALTY STEEL COMPANY. Motion(s) referred to Amy Reynolds Hay. (Attachment: # 1 Proposed Order) (McLaughlin, Erin) Modified on 7/2/2010. (jsp) (Entered: 07/01/2010)
152 ORDER granting 151 Motion for Leave to File reply brief in support of motion to exclude testimony of and evidence from LSS' Director of Legal Affairs − Gene F. Zurawsky. Defendant has seven business days from the date of this order to file its reply brief. Signed by Chief U.S. Magistrate Judge Amy Reynolds Hay on 7/7/2010. (dgg) Modified on 7/8/2010. (jsp) (Entered: 07/07/2010)
153 REPLY in support of 137 Motion to Exclude Testimony of and Evidence from LSS' Director of Legal Affairs−Gene F. Zurawsky filed by LATROBE SPECIALTY STEEL COMPANY. (Attachments: # 1 Exhibit A − Susan Lawson Verification, # 2 Exhibit B − Zurawsky Deposition Excerpt) (McLaughlin, Erin) Text modified on 7/19/2010. (ept) (Entered: 07/16/2010)

Case: 2:08-cv-649 As of: 10/02/2012 09:43 PM EDT 17 of 20

07/22/2010
07/26/2010 07/26/2010 08/10/2010 08/23/2010 08/23/2010 08/24/2010 08/27/2010 08/31/2010 08/31/2010 09/02/2010 09/09/2010 09/13/2010

154 MOTION for Leave to File Sur−Reply Brief in Opposition to Defendant's Motion to Exclude Evidence by JAMES M. CROSSAN, DOUGLAS M. HODCZAK, JOSEPH A. LITVIK, THOMAS J. MAGDIC. Motion(s) referred to Amy Reynolds Hay. (Attachments: # 1 Proposed Order, # 2Proposed Sur−Reply Brief in Opposition to Defendant's Motion to Exclude Evidence, # 3 Exhibit A to Plaintiffs' Sur−Reply Brief in Opposition to Defendant's Motion to Exclude Evidence) (Fabian, Rudy) Modified on 7/23/2010. (jsp) (Entered: 07/22/2010)
155 ORDER granting 154 Motion for Leave to File sur−reply in opposition to Defendant's Motion to Exclude Evidence. FURTHER that Plaintiffs' surreply brief and Exhibit A submitted by plaintiffs in conjunction with their motion shall be filed by the Clerk of Court. Signed by Chief U.S. Magistrate Judge Amy Reynolds Hay on 7/26/2010. (dgg) (Entered: 07/26/2010)
156 Sur−Reply Brief in Opposition to 137 Motion to Exclude Evidence, filed by JAMES M. CROSSAN, DOUGLAS M. HODCZAK, JOSEPH A. LITVIK, THOMAS J. MAGDIC. (Attachment: # 1 Exhibit A) (jsp) (Entered: 07/27/2010)
157 MEMORANDUM ORDER denying 137 Motion to Exclude Testimony and Evidence from LLS' Director of Legal Affairs − Gene F. Zurawsky. Signed by Chief U.S. Magistrate Judge Amy Reynolds Hay on 8/10/2010. (dgg) (Entered: 08/10/2010)
158 MOTION for Leave to File Brief, Statement of Facts and Appendix in Opposition to Defendant's Motion for Summary Judgment, Under Seal by JAMES M. CROSSAN, DOUGLAS M. HODCZAK, JOSEPH A. LITVIK, THOMAS J. MAGDIC. Motion(s) referred to Amy Reynolds Hay. (Attachments: # 1 Proposed Order) (Fabian, Rudy) (Entered: 08/23/2010)
159 MOTION for Leave to File Brief Exceeding Page Limit as to Brief in Opposition to Defendant's Motion for Summary Judgment by JAMES M. CROSSAN, DOUGLAS M. HODCZAK, JOSEPH A. LITVIK, THOMAS J. MAGDIC. Motion(s) referred to Amy Reynolds Hay. (Attachments: # 1 Proposed Order) (Fabian, Rudy) (Entered: 08/23/2010)
160 OBJECTIONS to 157 Order on 137 Motion to Exclude Testimony and Evidence by LATROBE SPECIALTY STEEL COMPANY. (Attachment: # 1 Exhibit A − Position Description) (McLaughlin, Erin) Modified on 8/25/2010. (jsp) (Entered: 08/24/2010)
TEXT ORDER Response/Briefing Schedule re 160 Objections to Magistrate Judge's Memorandum Order Dates August 10, 2010. Response to Motion due by 9/2/2010. Signed by Judge Terrence F. McVerry on 8/27/2010. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (kly) (Entered: 08/27/2010)
161 ORDER granting 159 Motion for Leave to File brief which exceeds twenty−five page limit in opposition to Defendant's Motion for Summary Judgment. Signed by Chief U.S. Magistrate Judge Amy Reynolds Hay on 8/30/2010. (dgg) (Entered: 08/31/2010)
162 ORDER granting 158 Motion for Leave to File Brief, Statement of Facts and Appendix in Opposition to Defendant's Motion for Summary Judgment, Under Seal. Signed by Chief U.S. Magistrate Judge Amy Reynolds Hay on 8/30/2010. (dgg) (Entered: 08/31/2010)
163 RESPONSE to 160 Objections to 157 Order on 137 Motion to Exclude Testimony and Evidence, filed by JAMES M. CROSSAN, DOUGLAS M. HODCZAK, JOSEPH A. LITVIK, THOMAS J. MAGDIC. (Fox, Bruce) Modified on 9/3/2010. (jsp) (Entered: 09/02/2010)
164 REPLY BRIEF by LATROBE SPECIALTY STEEL COMPANY in support re 160 Objections filed by LATROBE SPECIALTY STEEL COMPANY. (McLaughlin, Erin) Modified on 9/10/2010. (jsp) (Entered: 09/09/2010)
165 Sur−Reply Brief in Opposition to Defendant's 160 Objections to Magistrate Judge's 157 Memorandum Order Dated August 10, 2010 filed by JAMES M. CROSSAN, DOUGLAS M. HODCZAK, JOSEPH A. LITVIK, THOMAS J. MAGDIC. (Fox,

Case: 2:08-cv-649 As of: 10/02/2012 09:43 PM EDT 18 of 20

09/13/2010
09/20/2010 10/05/2010 10/15/2010 10/20/2010 10/20/2010 10/20/2010
10/21/2010 10/22/2010 10/22/2010

Bruce) Modified on 9/14/2010. (jsp ) Document removed from public view. Motion for Leave to File Sur−Reply Brief filed at Document 166 . Modified on 9/15/2010 (jsp). (Entered: 09/13/2010)
166 MOTION for Leave to File Sur−Reply Brief in Opposition to Defenant's Motion to Exclude Evidence by JAMES M. CROSSAN, DOUGLAS M. HODCZAK, JOSEPH A. LITVIK, THOMAS J. MAGDIC. Reason for Correction: Seeking Court to Grant Leave to File Surreply. (Attachments: # 1 Proposed Order, # 2 Surreply in Opposition to Defendant's Objections to Magistrate Judge's Memorandum Order Dated August 10, 2010) (Fox, Bruce) Modified on 9/15/2010 as document should have been filed as a motion. (jsp). (Entered: 09/13/2010)
167 ORDER granting 166 Motion for Leave to File Surreply in Opposition to Defendant's 160 Objections to Magistrate Judge's 157 Memorandum Order dated August 10, 2010. Signed by Judge Terrence F. McVerry on 9/20/2010. (kly) Modified on 9/21/2010 (jsp). (Entered: 09/20/2010)
168 MEMORANDUM ORDER denying Defendant's Objections to Magistrate Judge's ruling 160 , as explained therein. Signed by Judge Terrence F. McVerry on 10−5−10. (mh, ) (Entered: 10/05/2010)
169 NOTICE of Substitution of Attorney Appearance by Bruce C. Fox on behalf of JAMES M. CROSSAN, DOUGLAS M. HODCZAK, JOSEPH A. LITVIK, THOMAS J. MAGDIC. Attorney Rudy A. Fabian terminated. (Fox, Bruce) (Entered: 10/15/2010)
170 SEALED DOCUMENT (Brief in Opposition to Deft's Motion for Summary Judgment) by JAMES M. CROSSAN, DOUGLAS M. HODCZAK, JOSEPH A. LITVIK, THOMAS J. MAGDIC (tt) (Entered: 10/20/2010)
171 SEALED DOCUMENT (Responsive Concise Statement of Material Facts in Opposition to deft's Motion for Summary Judgment) by JAMES M. CROSSAN, DOUGLAS M. HODCZAK, JOSEPH A. LITVIK, THOMAS J. MAGDIC. (tt) (Entered: 10/20/2010)
172 SEALED DOCUMENT (Appendix in Support) by JAMES M. CROSSAN, DOUGLAS M. HODCZAK, JOSEPH A. LITVIK, THOMAS J. MAGDIC (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40, # 41 Exhibit 41, # 42 Exhibit 42, # 43 Exhibit 43, # 44 Exhibit 44, # 45 Exhibit 45, # 46 Exhibit 46, # 47 Exhibit 47, # 48 Exhibit 48, # 49 Exhibit 49, # 50 Exhibit 50, # 51 Exhibit 51, # 52 Exhibit 52, # 53 Exhibit 53, # 54 Exhibit 54, # 55 Exhibit 55, # 56 Exhibit 56, # 57 Exhibit 57, # 58 Exhibit 58, # 59 Exhibit 59, # 60 Exhibit 60, # 61 Exhibit 61, # 62 Exhibit 62, # 63 Exhibit 63, # 64 Exhibit 64, # 65 Exhibit 65, # 66 Exhibit 66, # 67 Exhibit 68 1 of 2, # 68 Exhibit 68 2 of 2) (No Exhibit 67 on Disk) (tt) (Entered: 10/20/2010)
173 MOTION for Extension of Time to File a Reply Brief by LATROBE SPECIALTY STEEL COMPANY. Motion(s) referred to Amy Reynolds Hay. (Attachment: # 1 Proposed Order) (McLaughlin, Erin) Modified on 10/22/2010. (jsp) (Entered: 10/21/2010)
174 RESPONSE IN OPPOSITION to 173 Motion for Extension of Time to File Response/Reply, filed by DOUGLAS M. HODCZAK. (Attachments: # 1 Proposed Order) (Fox, Bruce) (Entered: 10/22/2010)
175 ORDER granting 173 Motion for Extension of Time to File Response/Reply re 132 MOTION for Summary Judgment. Replies due by 11/16/2010. Signed by Judge Terrence F. McVerry on 10/22/2010. (kly) (Entered: 10/22/2010)

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10/28/2010 11/01/2010
11/12/2010 11/12/2010 11/15/2010 11/15/2010 11/16/2010 11/16/2010 11/26/2010
11/26/2010
11/29/2010 11/29/2010 12/29/2010 12/29/2010 12/29/2010 01/10/2011

176 NOTICE of Appearance by Melissa L. Evans on behalf of JAMES M. CROSSAN, DOUGLAS M. HODCZAK, JOSEPH A. LITVIK, THOMAS J. MAGDIC. (Evans, Melissa) (Entered: 10/28/2010)
ORDER REFERRING CASE BACK to Judge Terrence F. McVerry. Signed by Chief Judge Gary L. Lancaster on 11/1/2010. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (dgg) (Entered: 11/01/2010)
177 MOTION for Leave to File Under Seal by LATROBE SPECIALTY STEEL COMPANY. (Attachments: # 1 Proposed Order) (McLaughlin, Erin) (Entered: 11/12/2010)
178 MOTION for Leave to File Excess Pages by LATROBE SPECIALTY STEEL COMPANY. (Attachments: # 1 Proposed Order) (McLaughlin, Erin) (Entered: 11/12/2010)
179 ORDER granting 177 Motion for Leave to File Documents Under Seal. Signed by Judge Terrence F. McVerry on 11/15/2010. (kly) (Entered: 11/15/2010)
180 ORDER granting 178 Motion for Leave to File Excess Pages. Signed by Judge Terrence F. McVerry on 11/15/2010. (kly) (Entered: 11/15/2010)
181 SEALED DOCUMENT by LATROBE SPECIALTY STEEL COMPANY (Attachment: # 1 Exhibit A) (jsp) Modified on 11/18/2010. (jsp, ) (Entered: 11/17/2010)
182 SEALED DOCUMENT by LATROBE SPECIALTY STEEL COMPANY (Attachment: # 1 Exhibit A) (jsp) Modified on 11/18/2010. (jsp, ) (Entered: 11/17/2010)
183 MOTION for Leave to File Brief Exceeding Page Limit as to Surreply Brief in Opposition to Defendant's Motion for Summary Judgment by JAMES M. CROSSAN, DOUGLAS M. HODCZAK, JOSEPH A. LITVIK, THOMAS J. MAGDIC. (Attachments: # 1 Proposed Order) (Fox, Bruce) (Entered: 11/26/2010)
184 MOTION for Leave to File Surreply Brief in Opposition to Motion for Summary Judgment by JAMES M. CROSSAN, DOUGLAS M. HODCZAK, JOSEPH A. LITVIK, THOMAS J. MAGDIC. (Attachments: # 1 Proposed Order, # 2 Surreply Brief in Opposition to Motion for Summary Judgment) (Fox, Bruce) (Entered: 11/26/2010)
185 ORDER granting 183 Motion for Leave to File Brief Exceeding Page Limit as to Surreply Brief in Opposition to Defendant's Motion for Summary Judgment. Signed by Judge Terrence F. McVerry on 11/29/2010. (kly) (Entered: 11/29/2010)
186 ORDER granting 184 Motion for Leave to File Surreply Brief in Opposition to Motion for Summary Judgment. Signed by Judge Terrence F. McVerry on 11/29/2010. (kly) (Entered: 11/29/2010)
187 MEMORANDUM AND OPINION re 132 MOTION for Summary Judgment by LATROBE SPECIALTY STEEL COMPANY. Signed by Judge Terrence F. McVerry on 12/29/2010. (kly) (Entered: 12/29/2010)
188 ORDER granting 132 Motion for Summary Judgment filed by LATROBE SPECIALTY STEEL COMPANY. Signed by Judge Terrence F. McVerry on 12/29/2010. (kly) (Entered: 12/29/2010)
189 JUDGMENT in favor of LATROBE SPECIALTY STEEL COMPANY against DOUGLAS M. HODCZAK, et al. Signed by Judge Terrence F. McVerry on 12/29/2010. (kly) (Entered: 12/29/2010)
190 NOTICE OF APPEAL as to 188 Order by JAMES M. CROSSAN, DOUGLAS M. HODCZAK, JOSEPH A. LITVIK, THOMAS J. MAGDIC. Filing fee $455, receipt number 0315−1832985. Motion for IFP N/A. Certificate of Appealability N/A. Court Reporter(s): N/A. The Clerk's Office hereby certifies the record and the docket sheet available through ECF to be the certified list in lieu of the record and/or the certified copy of the docket entries. The Transcript Purchase Order form will NOT be mailed to the parties. The form is available on the Court's internet site.

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01/13/2011 01/20/2011 11/17/2011
11/23/2011 11/28/2011 12/01/2011
12/07/2011 12/21/2011
05/24/2012 09/26/2012

(Fox, Bruce) (Entered: 01/10/2011)
192 BILL OF COSTS by LATROBE SPECIALTY STEEL COMPANY in the amount of $35,988.88 against Plaintiffs. (McLaughlin, Erin) (Entered: 01/13/2011)
193 CLERK'S NOTICE to Attorney McLaughlin advising no action will be taken re 192 Bill of Costs pending disposition of 190 Notice of Appeal to the Third Circuit Court of Appeals. (jsp) (Entered: 01/20/2011)
194 JUDGMENT OF USCA as to 190 Notice of Appeal, filed by DOUGLAS M. HODCZAK, THOMAS J. MAGDIC, JAMES M. CROSSAN, JOSEPH A. LITVIK Affirming judgment/order of the district court. Mandate will follow. (tmk3) (Entered: 11/17/2011)
195 MOTION to Withdraw the Appearance of Melissa L. Evans, Esquire by JAMES M. CROSSAN, DOUGLAS M. HODCZAK, JOSEPH A. LITVIK, THOMAS J. MAGDIC. (Attachments: # 1 Proposed Order) (Fox, Bruce) (Entered: 11/23/2011)
196 ORDER granting 195 Motion to Withdraw. Signed by Judge Terrence F. McVerry on 11/28/2011. (kly) (Entered: 11/28/2011)
197 NOTICE that US Court of Appeals has affirmed District Court Judgment and requesting Clerk Tax Costs as stated in 192 Bill of Costs by LATROBE SPECIALTY STEEL COMPANY. (McLaughlin, Erin) Modified on 12/2/2011. (jsp, ) (Entered: 12/01/2011)
198 NOTICE by Clerk of Court to counsel re 192 Bill of Costs, advising Taxation of Costs will be deferred until disposition of appeal in 2:07−cv−01294, 2011 WL 1748620, (W.D. Pa. May 6, 2011.) (jsp) (Entered: 12/07/2011)
199 MANDATE of USCA as to 190 Notice of Appeal, filed by DOUGLAS M. HODCZAK, THOMAS J. MAGDIC, JAMES M. CROSSAN, JOSEPH A. LITVIK, Affirming judgment/order of the district court. Costs taxed against Appellants in the amount of $80.85. (Attachments: # 1 mandate letter, # 2 opinion) (tmk3) Modified on 1/5/2012. (tt) (Entered: 12/21/2011)
200 Letter from the Clerk of Court calling for objections to the Bill of Costs. Objections to Bill of Costs due by 6/13/2012. (jsp) (Entered: 05/24/2012)
201 Costs Taxed in amount of $21,863.88 against Douglas M. Hodczak, James M. Crossan, Thomas J. Magdic, Joseph A. Litvik, Plaintiffs; in favor of Latrobe Specialty Steel Company, Defendant. (jsp) Modified on 9/27/2012. (jsp) (Entered: 09/26/2012)