United States District Court, E.D. Pennsylvania
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
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.)
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
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 category on
his performance evaluation dated February 26, 2014.
(Pl.'s Resp. Def.'s Mot. Summ. J. Ex. K.)
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.
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.)
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.)
STANDARD OF REVIEW
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).
has sued Home Properties for discrimination under the ADEA,
the ADA, and the PHRA, and for retaliation under the ADEA and
cases under the ADEA and the ADA are subject to the burden
shifting framework established in McDonnell Douglas Corp.
v. Green.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.” I ...