GAVURNIK v. HOME PROPERTIES, INC. et al

Filing 22

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE BERLE M. SCHILLER ON 1/3/2017. 1/3/2017 ENTERED AND COPIES E-MAILED.(kp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
BRUCE GAVURNIK,
Plaintiff,
v.
HOME PROPERTIES, L.P., et al.,
Defendants.

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CIVIL ACTION

No. 16–633

MEMORANDUM
Schiller, J.

January 3, 2017

59-year-old Bruce Gavurnik worked as a service technician for Home Properties, L.P.
Gavurnik suffered from a variety of vascular and musculoskeletal conditions affecting his ability
to walk and stand. He requested accommodations to wear special podiatric shoes and to work
only 40 hours per week. Home Properties allowed Gavurnik to wear special shoes, but required
Gavurnik to work overtime as needed. Nine months later, Home Properties fired Gavurnik for
job misconduct. Gavurnik sued Home Properties for discrimination under the Age
Discrimination in Employment Act (“ADEA”), the Americans with Disabilities Act (“ADA”),
and the Pennsylvania Human Relations Act (“PHRA”). He alleges that he was fired because of
his disability and his age, and in retaliation for asking for an accommodation. Home Properties
contends that Gavurnik was not disabled because Gavurnik’s ability to stand and walk was not
substantially limited. Further, Home Properties argues it had legitimate reasons to terminate
Gavurnik unrelated to his age or alleged disability. Home Properties has moved for summary
judgment. Despite Gavurnik’s conditions, the Court concludes that he was not disabled.
Additionally, because Home Properties’s articulated reasons for firing him were not a pretext for
discrimination, the Court will grant Home Properties’s motion.

I.

BACKGROUND
In 2013, Home Properties, a landlord, hired 59-year-old Gavurnik as a service technician

to work at Racquet Club Apartments. (Pl.’s Dep. 25–26; Def.’s Resp. to Interrog. No. 2.)
Racquet Club Apartments sits on 50 acres and consists of 570 units. (Martin Dep. 17.) Service
technicians worked onsite performing maintenance work, responding to residents’ service calls,
and removing snow. (Def.’s Statement of Undisputed Facts Ex. 7.) The technicians were
required to work overtime and be on call, particularly during the winter when snow removal was
a top priority. (Id.) Only one of the service technicians working with Gavurnik was older than
him. (Id. Ex. 30.)
Gavurnik suffered from a series of vascular and musculoskeletal conditions including
Raynaud’s, rheumatoid arthritis, and bunions, which affected his ability to walk and stand. (Pl.’s
Dep. 17.) However, Gavurnik testified that he would walk as far as needed on the job, including
for at least an hour (Pl.’s Dep. 19.) In fact, Gavurnik said he could walk “as a normal person
can.” (Pl.’s Dep. 19.)
Throughout the winter of 2013–14, Racquet Club Apartments received a large amount of
snow and service technicians had to work a lot of overtime. (Martin Dep. 34.) Around the end of
January 2014, Gavurnik requested two accommodations via doctor’s notes for his conditions:
podiatric footwear and no mandatory overtime. (Def.’s Statement of Undisputed Facts Exs. 12,
13.) Home Properties accommodated Gavurnik’s request to wear the specialized shoes. (Pl.’s
Dep. 80.) But Gavurnik claims that his supervisor, Wendy Kind, handed the overtime note back
to him, saying “you take this letter back. I didn’t see this letter.” (Pl.’s Dep. 75.) Gavurnik
continued to work throughout the rest of the winter, earning “meets expectations” in every

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category on his performance evaluation dated February 26, 2014. (Pl.’s Resp. Def.’s Mot. Summ.
J. Ex. K.)
On February 15, 2014, Gavurnik was hospitalized for chest pains and released the same
day for exertional fatigue. (Def.’s Statement of Undisputed Facts Ex. 14.) King requested a
doctor’s note saying that Gavurnik was cleared to return to work, and considered sending him to
a panel doctor for a potential workers’ compensation claim. (King Dep. 73, 81.) Gavurnik
testified that no one at Home Properties made any comment to him about his conditions. (Pl.’s
Dep. 121.)
Starting in April 2014, residents and Gavurnik’s supervisors filed a series of complaints
against him. (Def.’s Statement of Undisputed Facts Exs. 19, 21, 23, 33.) On April 8, 2014,
Gavurnik received an Employee Conversation Letter, an intermediate disciplinary step before
formal disciplinary action, regarding an incident in which he did not call a cleaner necessary to
prepare an apartment for showing. (Id. Ex. 19.) In June 2014, Gavurnik complained to his
regional supervisor, Rob Delong, that the snow blowers were not functioning, going “over the
head” of another of his managers, Steve Martin. (Pl.’s Dep. 94, 99.) On August 8, 2014,
Gavurnik received another Employee Conversation Letter for failing to remove trash and
supplies from a resident’s apartment after a service call. (Def.’s Statement of Undisputed Facts
Ex. 21.) On August 20, 2014, Home Properties issued Gavurnik a formal warning notice for
arguing with a leasing consultant about the emergency status of a service call that potentially
conflicted with a personal appointment. (Id. Ex. 23.) Also in August 2014, Gavurnik allegedly
failed to properly address a leak in an apartment and retained keys to vacant apartments while he
was on vacation, violating company policy. (Id. Ex. 33.)

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Following these complaints, Home Properties fired Gavurnik on September 2, 2014.
(Def.’s Statement of Undisputed Facts Ex. 4.) Later that day, Gavurnik called Home Properties’s
ethics and compliance hotline, claiming that he was fired because of favoritism and his snow
blower complaint to Delong. (Id. Ex. 28.) After Gavurnik was fired, Home Properties hired Luke
Bray, a 28-year-old groundskeeper already working for Racquet Club Apartments, as the new
service technician. (King Dep. 97; Def.’s Statement of Undisputed Facts Ex. 30.)

II.

STANDARD OF REVIEW
Summary judgment is appropriate when the record discloses no genuine issue of material

fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); see
also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). The moving party bears the
burden of showing that the record reveals no genuine issue as to any material fact. Fed. R. Civ.
P. 56(a); Anderson, 477 U.S. at 247. Once the moving party has met its burden, the nonmoving
party must go beyond the pleadings to set forth specific facts in the record showing that there is a
genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585–86
(1986). In reviewing the record, “a court must view the facts in the light most favorable to the
nonmoving party and draw all inferences in that party’s favor.” Armbruster v. Unisys Corp., 32
F.3d 768, 777 (3d Cir. 1994). A court may not consider the credibility or weight of the evidence
in deciding a motion for summary judgment. See Reeves v. Sanderson Plumbing Prods., 530
U.S. 133, 150 (2000); Goodman v. Pa. Tpk. Comm’n, 293 F.3d 655, 665 (3d Cir. 2002).

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III.

DISCUSSION
Gavurnik has sued Home Properties for discrimination under the ADEA, the ADA, and

the PHRA, and for retaliation under the ADEA and the ADA.
A.

Discrimination

Discrimination cases under the ADEA and the ADA are subject to the burden shifting
framework established in McDonnell Douglas Corp. v. Green. 1 411 U.S. 792 (1973); Smith v.
City of Allentown, 589 F.3d 684, 691 (3d Cir. 2009) (applying McDonnell Douglas to an ADEA
claim); Benko v. Portage Area Sch. Dist., 241 F. App’x 842, 845 (3d Cir. 2007) (applying
McDonnell Douglas to an ADA claim). Under the framework, the initial burden of production is
on the plaintiff to show a prima facie case. McDonnell Douglas, 411 U.S. at 802. Once the
plaintiff makes out a prima facie case, the burden shifts to the defendant to “articulate some
legitimate, nondiscriminatory reason for the employee’s rejection.” Id. Finally, the plaintiff is
“afforded a fair opportunity to show that the [defendant’s] stated reason for [plaintiff’s] rejection
was in fact pretext.” Id. at 804.
1.

ADEA
i.

Prima Facie Case

In order to establish a prima facie case of age discrimination under the ADEA, the
plaintiff must allege four factors: “(1) he is over forty, (2) he is qualified for the position in
question, (3) he suffered from an adverse employment decision, and (4) his replacement was
sufficiently younger to permit a reasonable inference of age discrimination.” Ptasznik v. Univ. of
Pa., 523 F. App’x 156, 159 (3d Cir. 2013). Factors 1, 3, and 4 are not in dispute. Gavurnik was

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Courts use the same standard to address PHRA claims as they do ADA claims. Taylor v.
Phoenixville Sch. Distr., 184 F.3d 296, 306 (3d Cir. 1999).
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59 years old, was fired, 2 and was replaced by a 28-year-old service technician. 3 Home Properties
disputes whether Gavurnik was qualified to be a service technician given that overtime is an
essential function of the job.
Home Properties argues that Gavurnik is not qualified to be a service technician because
his requested accommodation—no overtime—eliminates an essential function of the job. An
individual is “qualified” if, “with or without reasonable accommodation, [the individual] can
perform the essential functions of the employment position that such individual holds or desires.”
42 U.S.C. § 12111(8). “Essential functions” refers to the “fundamental job duties of the
employment position,” not “the marginal functions of the position.” 29 C.F.R. § 1630.2(n)(1). A
function is essential if “the reason the position exists is to perform that function.”
§ 1630.2(n)(2)(i). The relevant regulation looks to evidence of the employer’s judgment, written
job description, consequences of not performing the function, and current work experience of
incumbents to determine if a function is essential. § 1630.2(n)(3). “Whether a function is

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Termination is an adverse employment decision. Erdman v. Nationwide Ins. Co., 582 F.3d 500,
510 (3d Cir. 2009). Gavurnik argues Home Properties did not engage in the “interactive
process,” which also constitutes an adverse employment decision. Williams v. Phila. Hous. Auth.
Police Dep’t, 380 F.3d 751, 771 (3d Cir. 2004). Because the parties do not contest that Home
Properties fired Gavurnik, the Court need not address the interactive process claim.
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Home Properties cites a Fourth Circuit case, Proud v. Stone, for the proposition that where the
same manager is involved in the hiring and firing of the plaintiff within a relatively short period
of time, courts should not draw an inference of age discrimination. 945 F.2d 796, 798 (4th Cir.
1991). The Third Circuit expressly declined to follow Proud, instead relying on the Equal
Employment Opportunity Commission’s argument as amicus that those circumstances should
merely be evidence a party can point to in convincing a fact-finder. Waldron v. SL Indus., 56
F.3d 491, 496 n.6 (3d Cir. 1995) (noting the potential scenario where an older employee is hired,
kept for a short period of time while a younger employee is groomed for the position, and the
older employee is later fired solely because of age).
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essential is evaluated on a case-by-case basis . . . .” Davis v. Fla. Power & Light Co., 205 F.3d
1301, 1305 (11th Cir. 2000).
The Third Circuit has not decided whether overtime can be an essential job function. But
in Smith v. Burlington County, the District of New Jersey held that overtime could be an essential
function. Smith v. Burlington Cty., Civ. A. No. 02–5581, 2004 U.S. Dist. LEXIS 18032, at *11
(D.N.J. July 27, 2004). The Smith Court cited the First, Eight, and Eleventh Circuits, all of which
found that overtime could be an essential function, depending on the factual situation of the job.
Id. (citing Davis, 205 F.3d at 1305–06; Kellogg v. Union Pac. R.R., 233 F.3d 1083, 1087–88 (8th
Cir. 2000); Tardie v. Rehab. Hosp., 168 F.3d 538, 544 (1st Cir. 1999)).
The Court concludes that mandatory overtime for snow removal is an essential function
of service technicians at Home Properties. Overtime is listed in the job description. (Def.’s
Statement of Disputed Facts Ex. 7.) Supervisors highlighted the importance of overtime, both in
general and in Gavurnik’s interview. (King Certification; Martin Dep. 62–63) Gavurnik himself
acknowledged that working overtime to remove snow was important because the snow posed a
safety risk. (Pl.’s Dep. 31.)
There remains a factual dispute, however, as to whether Gavurnik is “qualified.” While it
is undisputed that Gavurnik asked for an accommodation to not work overtime, simply because
he asked for the accommodation does not mean he is unable to work overtime. Home Properties
denied Gavurnik’s request around the end of January 2014, and Gavurnik continued to work
after that date. The record is silent as to whether Gavurnik had to work overtime after his
accommodation was denied. The winter of 2013–14 saw a lot of snow and a lot of overtime
hours worked, yet Gavurnik continued to meet expectations in every category of his performance
evaluation. Construing the facts in a light most favorable to the non-moving party, the inference
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is that Gavurnik continued to work overtime during and after January 2014 without the
accommodation. Therefore, for the purposes of this motion, Gavurnik was qualified to work as a
service technician and has made out a prima facie case.
ii.

Legitimate Nondiscriminatory Reason and Pretext

The defendant’s burden of producing a legitimate, nondiscriminatory reason is “relatively
light” and the proffered reasons do not have to be the actual cause of the negative employment
action. Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). Once the employer has proffered a
legitimate reason for the adverse employment decision, the plaintiff must point to evidence that
either: (1) casts doubt on the employer’s “articulated legitimate reasons” or (2) demonstrates that
“an invidious discriminatory reason was more likely than not a motivating or determinative
cause of the employer’s action.” Id. at 764.
In order to cast doubt on the employer’s reasons, a plaintiff must demonstrate “such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s
proffered legitimate reasons for its action that a reasonable factfinder could rationally find them
unworthy of credence.” Id. Courts should not inquire into whether the employer’s decision was
“wise, shrewd, prudent, or competent.” Id. This prong focuses on the articulated reasons
themselves, as opposed to the employer’s conduct with regard to other employees.
A plaintiff can also demonstrate pretext by pointing “to evidence with sufficient
probative force that a factfinder could conclude by a preponderance of the evidence that age was
a motivating or determinative factor in the employment decision.” Simpson v. Kay Jewelers, 142
F.3d 639, 644–45 (3d Cir. 1998) (citing Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1111
(3d Cir. 1997)). Examples of such evidence include “showing that the employer has previously
discriminated against the plaintiff, that the employer has discriminated against members of the
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plaintiff’s protected class or another protected class, or that similarly situated people not within
plaintiff’s class were treated more favorably.” Peake v. Pa. State Police, 644 F. App’x 148, 153
(3d Cir. 2016) (emphasis added).
Home Properties points to the series of complaints directed at Gavurnik’s work
performance as the reasons for his termination. These constitute legitimate, non-discriminatory
reasons for termination.
Gavurnik attempts to cast doubt on the disciplinary measures by claiming that the
incidents were not individually sufficient to terminate him. This is the wrong inquiry. Because
courts do not judge the prudence of an employer’s business decision, the degree of an infraction
and whether it rises to a level that justifies terminating an employee is irrelevant. Gavurnik
points to no evidence that the articulated reasons were, for instance, mutually exclusive or
incoherent. Without evidence of inconsistencies of Home Properties’s proffered reasons,
Gavurnik fails to undermine Home Properties’s rationale.
Nor can Gavurnik point to evidence that age was the motivating factor in Home
Properties’s decision to fire him. Gavurnik identifies fellow service technicians Gil Rivera and
George Livingwood as two similarly situated employees that were involved in two incidents with
Gavurnik yet were not disciplined. (Pl.’s Mem. in Opp’n to Def.’s Mot. for Summ. J. 7–9.)
Rivera and Livingwood, however, were 45 and 46, respectively. (Def.’s Statement of Undisputed
Facts Ex. 30.) Because both of the comparators Gavurnik identifies were also in the protected
class, Gavurnik cannot meet his burden. In fact, the only service technician not in the protected
class while Gavurnik was employed by Home Properties was Kiran Clarey, but Gavurnik points
to no evidence that Clarey was treated differently. (Id.) Therefore, Gavurnik cannot make out a
claim for discrimination under the ADEA.
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2.

ADA

In order to establish a prima facie case for disability discrimination under the ADA, the
plaintiff must show: “(1) he is a disabled person within the meaning of the ADA; (2) he is
otherwise qualified to perform the essential functions of the job, with or without reasonable
accommodations by the employer; and (3) he has suffered an otherwise adverse employment
decision as a result of discrimination." Taylor v. Phoenixville Sch. Distr., 184 F.3d 296, 306 (3d
Cir. 1999).
i.

Disabled

According to the ADA, “disability” means “a physical or mental impairment that
substantially limits one or more major life activities,” having “a record of such an impairment,”
or “being regarded as having such an impairment.” 42 U.S.C. § 12102(1). “Major life activities”
include walking and standing. § 12102(2)(A). “Substantially limits” “shall be construed broadly
in favor of expansive coverage” and “is not meant to be a demanding standard.” 29 C.F.R. §
1630.2(j)(1)(i). The disability must “limit[] the ability of an individual to perform a major life
activity as compared to most people in the general population.” § 1630.2(j)(1)(ii).
Gavurnik is not disabled under the ADA. Gavurnik testified that he can walk “as a
normal person can” and for more than an hour at a time. See Palish v. K&K RX Servs., L.P., Civ.
A. No. 13–4092, 2014 U.S. Dist. LEXIS 80606, at *22 (E.D. Pa. June 12, 2014) (underscoring
the fact that the plaintiff testified that “he was able to do the amount of standing required by his
position” in finding the plaintiff was not disabled). In addition, Gavurnik received “meets
expectations” on his performance evaluations after a long winter requiring extended hours of
snow removal. Simply because Gavurnik suffered from a series of conditions that may have
affected his ability to walk and stand is not sufficient to qualify as a disability. Under the ADA,
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the EEOC’s interpretive guidelines expressly require a deficiency compared to the ability of
members of the general population. § 1630.2(j)(1)(ii). Gavurnik’s testimony and performance
evaluations are the only evidence of Gavurnik’s ability in relation to others and both demonstrate
that his walking and standing are not substantially impaired. Because that evidence remains
uncontroverted, Gavurnik is not disabled under the ADA.
ii.

“Regarded As”

Gavurnik also argues that Home Properties discriminated against him because it regarded
him as disabled. See 42 U.S.C. § 12102(1)(C). Under this definition, the plaintiff need not
actually have an impairment limiting a major life activity. § 12102(3)(A). The focus is on the
employer’s “reactions [to] and perceptions [of]” its employees. Kelly v. Drexel Univ., 94 F.3d
102, 109 (3d Cir. 1996). But “the mere fact that an employer is aware of an employee’s
impairment is insufficient to demonstrate either that the employer regarded the employee as
disabled or that that perception caused the adverse employment action.” Id. Moreover,
“[r]equiring an employee to ‘submit a medical release and be cleared by [her] physician’ is not
evidence that an employer regards the employee as disabled.” Parker v. Port Auth., 90 F. App’x
600, 604 (3d Cir. 2004) (quoting Somers v. City of Minneapolis, 245 F.3d 782, 788 (8th Cir.
2001)).
The only evidence before the court that Home Properties could have regarded Gavurnik
as disabled is Gavurnik’s hospitalization for chest pains and the accompanying work release note
request. Under Kelly, these two facts are not legally sufficient to maintain Gavurnik’s claim
because they only speak to an awareness of Gavurnik’s hospitalization. Gavurnik himself dispels
any further question by testifying that Home Properties employees did not make remarks about

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his conditions. Therefore, Gavurnik is not regarded as disabled under the ADA and his ADA
discrimination claim fails.
B.

Retaliation

In the absence of direct evidence of an adverse employment decision based on protected
activity, retaliation claims revert to the McDonnell Douglas framework. LaRochelle v. Wilmac
Corp., Civ. A. No. 12–5567, 2016 U.S. Dist. LEXIS 133135, at *82 (E.D. Pa. Sept. 27, 2016).
The prima facie case for retaliation under the ADEA and ADA are the same: Plaintiff must show
“(1) [he] was engaged in protected activities; (2) the employer took an adverse employment
action after or contemporaneous with the employee’s protected activity; and (3) a causal link
exists between the employee’s protected activity and the employer’s adverse action.” Ptasznik,
523 F. App’x at 160 (quoting Glanzman v. Metro. Mgmt. Corp., 391 F.3d 506, 515–16 (3d Cir.
2004)); see also LaRochelle, 2016 U.S. Dist. LEXIS at *82. The second prong is not in dispute.
1.

ADEA

Protected activities under the ADEA include “formal charges of discrimination as well as
informal protests of discriminatory employment practices.” Barber v. CSX Distrib. Servs., 68
F.3d 694, 702 (3d Cir. 1995) (internal quotation marks omitted). Protected conduct does not,
however, include mere complaints “about unfair treatment” that fail to reference “a protected
characteristic as the basis for the unfair treatment.” Kier v. F. Lackland & Sons, LLC, 72 F. Supp.
3d 597, 616 (E.D. Pa. 2014). Rather, the alleged discrimination must be regarding age, the
characteristic protected by the ADEA. Barber, 68 F.3d at 702.
In order to satisfy prong one of an ADEA retaliation claim, Gavurnik’s protected activity
must reference age. Neither of Gavurnik’s requests for accommodations referred to his age; they
both concerned disability. Further, there is no evidence that Gavurnik’s complaint to Delong
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about snow blowers mentioned age in any way. Gavurnik did not engage in any protected
activity under the ADEA and thus fails to make out a prima facie case.
2.

ADA

The ADA states that “[n]o person shall discriminate against any individual because such
individual has opposed any act or practice made unlawful by this Act . . . .” 42 U.S.C.
§ 12203(a). Because the retaliation clause applies to “any individual,” the plaintiff does not have
to show that he is in fact disabled under the ADA. See Krouse v. Am. Sterilizer Co., 126 F.3d
494, 502 (3d Cir. 1997). The ADA protects the right to request an accommodation, even for
individuals who are not disabled. See Shellenberger v. Summit Bancorp, 318 F.3d 183, 191 (3d
Cir. 2003).
In order to satisfy the third prong of the prima facie case for retaliation under the ADA,
plaintiff must show a “causal link” between the protected activity and the adverse employment
decision. LeBoon v. Lancaster Jewish Cmty. Cty. Ass’n, 503 F.3d 217, 232 (3d Cir. 2007). Courts
look to “a broad array of evidence” to determine causation, including “temporal proximity,”
“intervening antagonism or retaliatory animus, inconsistencies in the employer’s articulated
reasons for terminating the employee, or any other evidence in the record sufficient to support
the inference of retaliatory animus.” Id. “[A] gap of three months between the protected activity
and the adverse action, without more, cannot create an inference of causation and defeat
summary judgment.” Id. at 233.
Even though the Court concluded that Gavurnik was not disabled under the ADA,
Gavurnik is still afforded protection from retaliation under the ADA. It is undisputed that
Gavurnik requested an accommodation to wear special shoes that alleviated some of his
conditions, which constitutes protected activity. However, there is no causal nexus between the
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protected activity and the termination decision. At least eight months elapsed between the
accommodation request and Gavurnik’s firing, significantly longer than the three months at issue
in LeBoon. 503 F.3d at 233. There is also no other evidence in the record that suggests
Gavurnik’s termination was in retaliation for the requested accommodation. To the contrary:
Gavurnik did not face any comments about his conditions from anyone at Home Properties, and
Gavurnik’s complaint to Delong was about snow blowers, not his conditions. Gavurnik testified
that the complaint to Delong was the only basis for his retaliation claim. (Pl.’s Dep. 94.) Given
there was no other protected activity in closer temporal proximity to his firing and no other
evidence suggesting a causal nexus between the activity and the firing, Gavurnik’s retaliation
claim under the ADA fails to establish a prima facie case.

IV.

CONCLUSION
For the foregoing reasons, Defendant’s motion for summary judgment is granted. An

Order consistent with this Memorandum will be docketed separately.

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