HORVATH v. URBAN REDEVELOPMENT AUTHORITY OF PITTSBURGH

Filing 51

MEMORANDUM AND ORDER. Defendant's Motion for Summary Judgment (Doc. 37 ) is GRANTED regarding Plaintiff's claims of retaliation under Title VII and the PHRA; Defendant's Motion (Doc. 46 ) to strike Plaintiff's responses to summ ary judgment is DENIED AS MOOT; and the Court declines to exercise supplemental jurisdiction over her state-whistleblower claim. The Court, having finally adjudicated all claims properly before it, will issue a separate judgment order pursuant to Federal Rule of Civil Procedure 58. Signed by Judge Cathy Bissoon on 3/29/17. (dcd)

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

MARY M. HORVATH,
Plaintiff,

v.

URBAN REDEVELOPMENT AUTHORITY
OF PITTSBURGH,

Defendant.

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Civil Action No. 15-668

Judge Cathy Bissoon

MEMORANDUM AND ORDER
I. MEMORANDUM
This matter is before the Court upon a Motion for Summary Judgment (Doc. 37) filed by
Defendant Urban Redevelopment Authority of Pittsburgh (“URA”). For the reasons that follow,
URA’s Motion will be granted.
BACKGROUND
Plaintiff Mary M. Horvath (“Horvath”) was hired by URA as an Accounting Manager on
January 7, 2008. Compl. (Doc. 1) at ¶¶ 5, 12. Following a promotion in November 2008,
Horvath served as URA’s Assistant Director of Finance until her termination on March 25, 2015.
Id. At the time of her termination, her immediate supervisor was Tom Short (“Short”).
Def.’s Stmt. of Facts (Doc. 39) at ¶ 5. Horvath, Short and the rest of the finance department
ultimately reported to Robert Rubinstein, URA’s Acting Executive Director. Id. at ¶ 6.
On July 2, 2012, Horvath commenced legal proceedings with the Pittsburgh Commission
on Human Relations (“PCHR”) claiming that she was being paid a substantially lower salary
than her male counterparts. Id. at ¶ 35. Horvath and URA settled her PCHR claim in

December 2014. Id. ¶ 37. Horvath received the proceeds from that settlement in January 2015.
Horvath Depo. (Doc. 40-1) at 244.
Horvath continued to perform her job responsibilities during the pendency of her PCHR
claim. Def.’s Stmt. of Facts ¶ 38. In late 2014, URA’s outside auditor, Maher Duessel CPAs,
began performing an annual financial audit for the 2014 calendar year. Id. at ¶ 39. At various
times between December 2014 and March 2015, Horvath complained to Maher Duessel and
Short about perceived billing improprieties and instances of allegedly mishandled funds.
Id. at ¶¶41-44, 47-49. These allegations form the basis for Horvath’s Pennsylvania
Whistleblower Law claim. Compl. ¶¶ 57-66.
On March 25, 2015, Rubinstein terminated Horvath’s employment with URA.
Def.’s Stmt. of Facts ¶ 87; Termination Letter (Doc. 45-8) at 1-2. By letter, Rubinstein informed
Horvath that there were three reasons for her termination: she had “intentionally interfered with
the URA’s administration of its FMLA policy” as it applied to another employee who had
requested and been granted an FMLA-qualifying leave of absence; she had “unnecessarily,
and without authority, inject[ed] herself into another personnel situation having absolutely
nothing to do with [her] job responsibilities” involving an investigation into the unauthorized
printing of another employee’s paystubs; and she had been the subject of “consistent complaints
from various departments regarding [her] uncooperative and unprofessional attitude.”
Termination Letter (Doc. 45-8) at 1.1

The parties vigorously dispute the circumstances surrounding Horvath’s alleged interference
with her co-worker’s FMLA leave and the paystub investigation. These factual disputes,
however, are immaterial to the Court’s resolution of the instant Motion.
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ANALYSIS
Horvath first alleges that she was terminated in retaliation for filing a disparate pay claim
with the PCHR in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000 et seq.
(“Title VII”), and the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq. (“PHRA”).2
To state a prima facie case of retaliation, a plaintiff must show that: (1) she engaged in a
protected activity; (2) she suffered an adverse employment action; and (3) there was a causal
connection between the participation in the protected activity and the adverse action. Moore v.
City of Philadelphia, 461 F.3d 331, 340-41 (3d Cir. 2006). The United States Supreme Court has
emphasized that Title VII retaliation claims ultimately must be proven according to “traditional
principles of but-for causation.” Univ. of Texas Southwestern Medical Center v.
Nassar, -- U.S. --, 133 S. Ct. 2517, 2533 (2013). However, in the context of a plaintiff’s burden
at the prima facie stage, the Third Circuit Court of Appeals recently clarified that a plaintiff must
only produce evidence “sufficient to raise the inference that her protected activity was the likely
reason for the adverse employment action.” Carvalho-Grevious v. Delaware State University,
-- F.3d --, 2017 WL 1055567, at *6 (3d Cir. Mar. 21, 2017) (quoting source omitted) (emphasis
in original). As explained by the Court:
[T]he Supreme Court has made clear that “Title VII retaliation claims
must be proved according to traditional principles of but-for causation.”
[Nassar, 133 at 2533]. Understanding the retaliation[-]plaintiff’s
ultimate burden, we turn to the question of whether that burden differs at
the prima facie stage of the case. We hold that it does. See Marra v.
Phila. Hous. Auth., 497 F.3d 286, 302 (3d Cir. 2007) (“In assessing
causation, we are mindful of the procedural posture of the case.”); see
also Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279 n.5 (3d
Cir. 2000) (“[T]he relative evidentiary impact of [causal evidence] may
vary depending upon the stage of the McDonnell Douglas proof analysis
and the procedural circumstance,” i.e., if proffered to satisfy a plaintiff’s
Because “the proper analysis under Title VII and the [PHRA] is identical,” the Court’s analysis
applies equally to both claims. Weston v. Pennsylvania, 251 F.3d 420, 425 n.3 (3d Cir. 2001).
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prima facie case for the purpose of summary judgment or if proffered to
reverse a verdict). Consistent with our precedent, a plaintiff alleging
retaliation has a lesser causal burden at the prima facie stage. See e.g.,
Doe v. C.A.R.S. Prot. Plus, Inc., 527 F.3d 358, 365 (3d Cir. 2008)
(“[T]he prima facie requirement for making a Title VII claim ‘is not
onerous’ and poses ‘a burden easily met.’” (quoting Texas Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 1089, 67 L.Ed.2d 207
(1981))).
Some circuits have found, albeit without much in the way of explanation,
that a plaintiff must prove but-for causation as part of the prima facie
case of retaliation. See EEOC v. Ford Motor Co., 782 F.3d 753, 770
(6th Cir. 2015) (en banc); Ward v. Jewell, 772 F.3d 1199, 1203 (10th Cir.
2014). We decline now to heighten the plaintiff’s prima facie burden to
meet her ultimate burden of persuasion. That is because we agree with
the Fourth Circuit that to do so
would be tantamount to eliminating the McDonnell Douglas
framework in retaliation cases . . . . If plaintiffs can prove
but-for causation at the prima facie stage, they will
necessarily be able to satisfy their ultimate burden of
persuasion without proceeding through the pretext analysis.
Had the Nassar Court intended to retire McDonnell Douglas
and set aside 40 years of precedent, it would have spoken
plainly and clearly to that effect.
Foster, 787 F.3d at 251. We conclude that at the prima facie stage the
plaintiff must produce evidence “sufficient to raise the inference that her
protected activity was the likely reason for the adverse [employment]
action.” Kachmar v. SunGard Data Systems, Inc., 109 F.3d 173, 177
(3d Cir. 1997) (emphasis added) (internal quotation marks omitted).
Id. at *5-6.
Consistent with this principle, Horvath cannot survive summary judgment unless she can
produce evidence from which a reasonable factfinder could conclude that her PCHR action was
the likely reason for her termination. A careful examination of the record reveals that she has
failed to satisfy even this relatively light burden.
Horvath first contends that the amount of time between her protected activity and her
ultimate termination is highly suggestive of retaliation. It is well-established that the temporal
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proximity between a protected activity and an adverse employment action may provide some
inference of a causal connection where the proximity is “unusually suggestive of retaliatory
motive.” Shaner v. Synthes, 204 F.3d 494, 505 (3d Cir. 2000). However, Horvath filed her
unequal pay claim in July 2012, almost three years prior to her termination. Courts have
routinely found causation lacking in situations where far shorter temporal-gaps separated the
protected activity from the adverse employment action. See, e.g., C.M. v. Bd. of Educ., 128 F.
App’x 876, 883 (3d Cir. 2005) (finding that a three month gap between protected activity and
adverse employment action was too broad to support causation); Williams v. Phila. Hous. Auth.
Police Dep’t, 380 F.3d 751, 760-61 (3d Cir. 2004) (two month gap did not support inference of
causation); Yeager v. UPMC Horizon, 698 F. Supp. 2d 523, 50 (W.D. Pa. 2010) (seven month
gap suggested lack of causation).
Horvath attempts to bridge this gap by suggesting that her protected activity was the
ultimate receipt of the settlement funds from her PCHR action in January 2015. Pl.’s Brief in
Opp. (Doc. 50-1) at 8-9. Horvath cites no authority to support this novel proposition, and this
Court’s independent research has not produced any. To the contrary, “[t]he relevant date for [a]
plaintiff’s protected activity is the filing date” rather than “the date the lawsuit was settled.”
Hansen v. Alta Ski Lifts Co., 141 F.3d 1184, at *3 n.2 (10th Cir. 1998). Moreover, even if
Horvath was correct, the two-and-a-half month gap between her receipt of the settlement funds
and her termination is still not unusually suggestive of causation. Williams, 380 F.3d at 760-61
(two month gap insufficient to suggest causation).
Where the temporal proximity is not unusually suggestive, “a court may consider whether
the record evidence, as a whole, is sufficient to raise an inference of causation.” Kahan v.
Slippery Rock Univ. of Pennsylvania, 50 F. Supp.3d 667, 701 (W.D. Pa. 2014). Such evidence

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may include “evidence of ongoing 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. (citing Farrell v. Planters
Lifesavers Co., 206 F.3d 271, 280 (3d Cir. 2000)). Although Horvath points to two incidents
that she believes support an inference of discriminatory animus, the evidence of record,
even when considered in a light most favorable to Horvath, does not support her claim.
First, Horvath contends that “Rubinstein himself admitted that Plaintiff’s charge of
discrimination was an issue in his treatment of Plaintiff.” Pl.’s Brief in Opp. at 9. Although she
characterizes this as evidence of discrimination, the record reveals a more benign explanation.
On February 4, 2014, Rubinstein sent an email to several URA directors cautioning them that
directives issued by their superiors are expected to be carried out and that there would be
consequences to failing to do so. Rubinstein Depo. (Doc. 40-2) at 96-97; Rubinstein Email
(Doc. 45-9) at 4. Rubinstein explained that the purpose behind the directive was to address an
issue of subordination involving Horvath, but that he “didn’t want to single her out” because of
her pending discrimination claim. Id. at 97. Consequently, he phrased the email as a
“blanket directive to be communicated to everybody” at the director-level within the
organization. Id. As explained by Rubinstein:
[T]o be honest – I don’t know if I should be saying this, but to be honest,
it was during the time when we had an open EEOC [with Horvath].
I didn’t want any directive specific to Ms. Horvath to be construed as a
retaliatory action, so I chose to be more diplomatic about how to deliver
a message.
Id. at 97-98. Rubinstein later testified that he frequently “erred . . . on doing nothing and letting
things pass” with respect to disciplinary issues involving Horvath because he “was extra cautious
of trying not to undertake any action that would be perceived as an aggressive action or
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retaliatory action” in the wake of her discrimination claim. Id. at 120. Rather than providing
evidence of discriminatory animus, Rubinstein’s behavior indicates that he took his Title VII
obligations seriously and carefully sought to avoid any behavior that might be construed as
retaliation. Indeed, Rubinstein testified that he believed that “[e]mployees have a right to file
what they believe to be valid claims” of discrimination and that such filings are “proper actions
to air those out” and determine the ultimate validity of the claims. Id. at 120.
Horvath next observes that a third-party auditor from Maher Duessel once discussed
Horvath’s discrimination charge and settlement with her supervisor, Short, in connection with
the agency’s 2015 audit. Pl.’s Brief in Opp. at 9. The auditor, Kristen Dening, testified that her
inquiry about Horvath’s lawsuit was a routine part of her audit. Dening Depo. (Doc. 40-6)
at 108-10, 112. It is unclear how this inquiry bears any relation to Horvath’s allegations that
Rubinstein harbored discriminatory animus towards her as the result of her discrimination
charge. Dening, as an independent auditor, had no role in the decision to discharge Horvath,
and there is nothing in the record to suggest that her inquiry was improper or that it involved
Rubinstein. Horvath’s attempt to characterize an independent third party’s inquiry as evidence
of the “troubling . . . culture at the URA and of Robert Rubinstein” is too illogical and attenuated
to support any inference of discriminatory animus.
Finally, Horvath contends that there are inconsistencies in URA’s articulated reasons for
her termination that support the inference of retaliatory animus. At the time of her termination,
URA indicated that there were three reasons for her discharge: her interference with a coemployee’s FMLA rights; her interference with an investigation into an incident involving a coemployee’s paystub; and general complaints about her uncooperative attitude and interpersonal
conflicts with co-workers. Termination Letter (Doc. 45-8) at 1. Horvath contends that URA

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“simply abandoned the third reason” for her termination in the course of this lawsuit. Pl.’s Brief
in Opp. at 12. This is inaccurate. Rubinstein testified that Horvath was the subject of frequent
complaints from her subordinates and co-workers as the result of her combative attitude,
attempts to manage by intimidation and her inability to follow directives from her superiors.
Rubinstein Depo. at 93-95. Short corroborated this testimony, stating that he “periodically”
received complaints about Horvath from her employees throughout the duration of her
employment. Short Depo. (Doc. 40-3) at 104-05. Although Rubinstein acknowledged that those
complaints were not, in and of themselves, sufficient to warrant her termination, he testified that
they were considered in conjunction with the other two incidents in the course of reaching the
decision to terminate Horvath’s employment. Rubinstein Depo. at 124. There is nothing
inconsistent about an employer’s representation that minor incidents that would not
independently support an employee’s termination might nevertheless be considered in
conjunction with more egregious allegations of misconduct.
In short, Horvath’s allegation of discriminatory animus is unsupported by either temporal
proximity or the record as a whole. Because Horvath has failed to adduce evidence of a causal
connection between her protected activity and her discharge, summary judgment is appropriate.
Carvalho-Grevious, 2017 WL 1055567, at *7 (affirming summary judgment on the issue of
causation where plaintiff failed to produce evidence from which a reasonable factfinder could
determine that her engagement in a protected activity was the likely reason for her termination).
Having determined that summary judgment is appropriate with respect to Horvath’s only
federal claim, the Court must determine whether to exercise supplemental jurisdiction over her
Pennsylvania Whistleblower Law claim. “Federal courts are of limited jurisdiction, and may
only decide cases consistent with the authority afforded by the Constitution or statutes of the

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United States.” Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 378 (1994).
Thus, “[w]hen the claims over which a district court has original jurisdiction are resolved before
trial, the district court must decline to decide the pendent state claims unless considerations of
judicial economy, convenience, and fairness to the parties provide an affirmative justification for
doing so.” Neelu Pal v. Jersey City Med. Ctr., -- F. App’x --, 2016 WL 3774060, at *4 n.6
(3d Cir. July 15, 2016) (emphasis in original) (internal quotation marks and citations omitted).
This principle applies during all pretrial stages of the litigation. See Yue Yu v. McGrath, 597 F.
App’x 62, 68 (3d Cir. 2014) (affirming the district court’s decision to dismiss “all of the
remaining state and common law claims after awarding summary judgment to [d]efendants on all
of the federal claims over which it had original jurisdiction”); Dougherty v. A.O. Smith Corp.,
2014 WL 4447293, at *1 (D. Del. Sept. 8, 2014) (“Where the federal head of jurisdiction has
vanished from the case, and there has been no substantial commitment of judicial resources to
the nonfederal claims, it is . . . akin to making the tail wag the dog for the [d]istrict [c]ourt to
retain jurisdiction”) (citation to quoted source omitted).
As Horvath’s remaining Pennsylvania Whistleblower claim is entirely grounded in state
law, the Court will decline to exercise supplemental jurisdiction over that claim. Id. at 68;
see also 28 U.S.C. § 1367(c)(3) (permitting a district court to decline to exercise supplemental
jurisdiction where it has “dismissed all claims over which it has original jurisdiction”).
The record does not suggest the existence of any type of “extraordinary circumstances” that
might justify the continued exercise of jurisdiction over claims that are entirely grounded in state
law. N.J. D.E.P. v. Gloucester Envtl. Mgmt. Servs., Inc., 719 F. Supp. 325, 334-35, 337 (D. N.J.
1989) (once claim against federal officer is dismissed, “extraordinary circumstances”
are required to justify continued exercise of jurisdiction) (citation to quoted sources omitted).

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Consequently, Horvath’s Pennsylvania Whistleblower Law claim will be dismissed, without
prejudice to her refiling the same in state court.
Consistent with the foregoing, the Court hereby enters the following:
II. ORDER
Defendant’s Motion for Summary Judgment (Doc. 37) is GRANTED regarding
Plaintiff’s claims of retaliation under Title VII and the PHRA;3 and the Court declines to
exercise supplemental jurisdiction over her state-whistleblower claim. The Court, having finally
adjudicated all claims properly before it, will issue a separate judgment order pursuant to Federal
Rule of Civil Procedure 58.
IT IS SO ORDERED.

March 29, 2017

s/ Cathy Bissoon
Cathy Bissoon
United States District Judge

cc (via ECF email notification):
All counsel of record

In light of this conclusion, Defendant’s Motion (Doc. 46) to strike Plaintiff’s responses to
summary judgment is DENIED AS MOOT.
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