NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 17-1256

________________

BRUCE GAVURNIK,

Appellant,

v.

HOME PROPERTIES, L.P.;

LIGHTHOUSE MANAGEMENT SERVICES, LLC; 

LSREF4 LIGHTHOUSE CORPORATE ACQUISITIONS, LLC

________________

On Appeal from the United States District Court

For the Eastern District of Pennsylvania

(E.D. Pa. No. 2-16-cv-00633)

District Judge: Honorable Berle M. Schiller

________________

Submitted Under Third Circuit LAR 34.1(a)

September 28, 2017

Before: AMBRO, KRAUSE, Circuit Judges,

and CONTI,* Chief District Judge

(Opinion filed: October 25, 2017)

___________

OPINION**

___________

CONTI, Chief District Judge 

 

*

 Honorable Joy Flowers Conti, Chief Judge of the United States District Court for 

the Western District of Pennsylvania, sitting by designation.

** This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does 

not constitute binding precedent.
2

Appellant Bruce Gavurnik (“Gavurnik”) appeals an Order of the United States 

District Court for the Eastern District of Pennsylvania granting summary judgment on all 

his employment discrimination claims1in favor of Appellees Home Properties, L.P.

(“Home Properties”), Lighthouse Management Services, LLC (“Lighthouse”) and 

LSREF4 Lighthouse Corporate Acquisitions, LLC (collectively with Home Properties and 

Lighthouse, “Employer”). We will affirm.

I.

Gavurnik was fifty-nine years old when he was hired in 2013 as a service technician 

at the Racquet Club Apartments (“RCA”), which was managed by Home Properties.

2

Gavurnik during his employment had a variety of “foot problems.” (A46 ¶ 27; A281 ¶ 27.) 

Home Properties terminated Gavurnik’s employment on September 2, 2014.

Gavurnik’s job description provided that a service technician was responsible for

“extensive snow removal,” the job required “overtime as needed,” and he had to be 

available “to respond to after hours and weekend emergency calls.” (A136-37.) Gavurnik 

acknowledged that it was essential that snow be removed and that it presented a safety 

issue. Snow removal took priority over apartment repairs and making apartments ready for 

 

1 Gavurnik asserted claims under the Age Discrimination in Employment Act, 29 U.S.C. 

§§ 621-634 (“ADEA”), the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 

(“ADA”), and the Pennsylvania Human Relations Act, 43 Pa. Stat. and Cons. Stat. Ann. 

§§ 951-963 (“PHRA”). We interpret the PHRA in accord with the ADEA and ADA where, 

like here, there is nothing in the PHRA's language requiring that we treat it differently. 

Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 567 (3d Cir. 2002). 

2 Because we write for the benefit of parties only, the factual background will be limited to 

matters necessary for the disposition of the appeal. 
3

new tenants. During the winter of 2013-2014, the service technicians were required to work 

a lot of overtime because of many heavy snowfalls. 

According to Gavurnik, in January 2014, he handed Wendy King (“King”), the 

Property Manager at the RAC, a letter from his doctor, which provided that Gavurnik “was 

recommended that he work only his work shift in order to avoid prolonged exposure of 

cold to his feet.” (A200.) Home Properties determined that overtime, “especially in the 

context of removing snow[,]” was an essential function of a service technician, and, 

therefore, it could not accommodate Gavurnik’s request to be relieved of working overtime 

in the cold. (A268.)

On April 8, 2014, Steve Martin (“Martin”), the Service Manager or maintenance 

supervisor for the RCA, issued an Employee Conversation Note (“Conversation Note”)3to 

Gavurnik based upon his failure to follow a directive to schedule a carpet cleaner. Gavurnik 

thought Assistant Service Manager Gil Rivera (“Rivera”), who was forty-five years old at 

the time Gavurnik was fired, called the cleaners. Gavurnik testified that it was not his 

responsibility to call the cleaners and it was possible, but highly doubtful, that he was asked 

to do so. 

In or around June 2014, Gavurnik complained to Rob DeLong (“DeLong”), a 

Regional Property Manager at Home Properties, about snow blowers not properly working. 

Service technicians had shoveled snow up to sixteen hours per day because the snow 

 

3 Home Properties used Conversation Notes to “document conversations, meetings, 

compliments, or concerns related to job performance.” (A232.)
4

blowers were not working. If the snow blowers were working, it “[p]robably” would take 

half the time to shovel the snow. (A394-95.)

On August 8, 2014, Gavurnik was issued a Conversation Note after a resident 

complained that a service technician left a dirty rag, ice cube tray, and rack in her sink and 

did not leave a note about services performed at the apartment. Gavurnik in a closed work 

order reported the services performed at the apartment. He admitted that he may have left 

the items in the sink, did not recall leaving a note, and believed it was Rivera’s 

responsibility to leave the note. 

The same day, a resident in apartment M-23 reported a leak in the dining room and 

that the carpet was wet. Gavurnik responded to the complaint and discovered the leak was 

coming from an adjacent apartment, i.e., apartment M-21. Gavurnik and George Livingood 

(“Livingood”), a service technician who was forty-six years old at the time Gavurnik was 

fired, fixed the problem in apartment M-21. Gavurnik did not repair the wet carpet in 

apartment M-23. According to him, Livingood or he may have received a service ticket for 

apartment M-23. Gavurnik believed Livingood was supposed to follow up with apartment 

M-23 because Gavurnik was going on vacation. Livingood did not receive a service ticket 

for apartment M-23. On August 25, 2014, the resident in apartment M-23 reported that 

there was water in the dining room on the floor. Livingood did not receive a Conversation 

Note and was not disciplined for the wet carpet in M-23. 

On August 17, 2014, leasing consultant Lynn Sannelli (“Sannelli”) received a call 

from a resident who was upset because his dryer was not working. Sannelli contacted 

Gavurnik because he was the service technician on call. Gavurnik went to the apartment 
5

fifteen minutes after receiving Sannelli’s telephone call. Sannelli told Martin and King that 

Gavurnik argued with her and at first refused to respond to the call. Gavurnik received a 

written warning dated August 20, 2014, about the events of August 17, 2014.

On or about August 29, 2014, King and Kassandra Reed (“Reed”), Home 

Properties’ Manager of Employee Relations and Recruitment, discussed how to handle 

Gavurnik’s performance issues. Reed reviewed Gavurnik’s discipline history and prior 

Conversation Notes. On September 2, 2014, Reed sent an email to King advising her that

they could fire Gavurnik for “poor performance.” (A258.) Martin and Rivera met with 

Gavurnik to fire him. King testified that she was not involved in the decision to fire

employees, and Martin could not recall in the last five years whether he fired a service 

technician or recommended that a service technician be fired.

Gavurnik testified that other service technicians, e.g., Livingood, received favorable 

treatment because they were “friendlier with [Martin],” (A121) and Martin showed 

favoritism to Rivera because they “had a history together” (A122-23.) Gavurnik did not 

“hang out with the guys” or receive favoritism from King or Martin. (A122.)

II.4

Gavurnik appealed the District Court’s order granting summary judgment in favor 

of the Employer on all his claims, i.e., his claims for retaliation and disparate treatment 

 

4 The District Court had jurisdiction over this case pursuant to 28 U.S.C. § 1331. We have 

jurisdiction over this case pursuant to 28 U.S.C. § 1291. We employ a plenary review over 

a District Court’s grant of summary judgment. Santini v. Fuentes, 795 F.3d 410, 416 (3d 

Cir. 2015). Summary judgment is appropriate if the record shows there is no genuine 

dispute with respect to any material fact and the movant is entitled to judgment as a matter 

of law. FED. R. CIV. P. 56(a).
6

under the ADA, ADEA, and PHRA, and his claims for failure to accommodate and engage 

in the interactive process under the ADA and PHRA. Gavurnik raised six issues on appeal. 

To the extent errors were made by the District Court, they were harmless because Gavurnik

failed to adduce sufficient evidence of pretext or that he could have been reasonably

accommodated. 

A. Gavurnik Failed to Show Pretext

We apply the burden-shifting analysis set forth in McDonnell Douglas Corp. v. 

Green, 411 U.S. 792 (1973), to ADA and ADEA claims for disparate treatment and 

retaliation where there is no direct evidence of discrimination.

5 Gavurnik must first 

establish a prima facie case. Smith v. City of Allentown, 589 F.3d 684, 691 (3d Cir. 2009). 

The burden of production then shifts to Home Properties to articulate a legitimate, 

nondiscriminatory reason for its adverse employment decision. Id. The burden shifts back 

to Gavurnik to prove that reason was a pretext for discrimination. Id. A plaintiff may prove 

pretext by producing evidence that: 

1) casts sufficient doubt upon each of the legitimate reasons proffered by the 

defendant so that a factfinder could reasonably conclude that each reason was 

a fabrication; or 2) allows the factfinder to infer that discrimination [or 

retaliation] was more likely than not a motivating or determinative cause of 

the adverse employment action.

Fuentes v. Perskie, 32 F.3d 759, 762 (3d Cir. 1994).

 

5 Capps v. Modelez Global, LLC, 847 F.3d 144, 156 n.12 (3d Cir. 2017) (retaliation under 

the ADA); Fasold v. Justice, 409 F.3d 178, 188 (3d Cir. 2005) (retaliation under the 

ADEA); Walton v. Mental Health Ass’n of Se. Pa., 168 F.3d 661, 667-68 (3d Cir. 1999) 

(disparate treatment under the ADA); Keller v. Orix Credit All., Inc., 130 F.3d 1101, 1108 

(3d Cir. 1997) (disparate treatment under the ADEA).
7

Here, even assuming that Gavurnik could establish a prima facie case,6 he did not

produce evidence sufficient for a reasonable jury to find Home Properties’ reason for his 

discharge, i.e., poor performance based upon the four documented performance-related 

issues, was a pretext for discrimination or retaliation.

1. Evidence Casting Doubt on the Legitimate, Nondiscriminatory Reason

Gavurnik “cannot simply show that the employer's decision was wrong or 

mistaken.” Id. at 765. He must show that he was fired based upon his age, disability, or 

protected activity by “demonstrat[ing] such weaknesses, implausibilities, inconsistencies, 

incoherencies, or contradictions” in Home Properties’ reasoning that a reasonable jury

could find it “‘unworthy of credence.’” Id. (quoting Ezold v. Wolf, Block, Schorr and SolisCohen, 983 F.2d 509, 531 (3d Cir. 1992)). “[H]e must show...that the employer's proffered 

reason...was so plainly wrong that it cannot have been the employer's real reason.” Keller 

v. Orix Credit All., 130 F.3d 1101, 1109 (3d Cir. 1997). The District Court correctly held

that Gavurnik failed to satisfy this burden.

Gavurnik was issued a Conversation Note dated April 8, 2014, because Martin 

concluded he did not follow instructions to schedule a carpet cleaner and prepare an 

apartment for a showing. Gavurnik argues that other service technicians did not receive a 

Conversation Note for the slow turnaround of apartments. Gavurnik, however, did not 

present evidence for a reasonable jury to find that Martin’s reasoning was inconsistent, i.e., 

 

6 The parties do not dispute the Employer satisfied its burden of production to show that 

Home Properties had a legitimate, nondiscriminatory reason for firing him. 
8

that Martin failed to issue a similarly situated service technician a Conversation Note for 

failing to follow instructions, which led to the slow turnaround of an apartment.

With respect to the Conversation Note dated August 8, 2014, Martin determined 

that Gavurnik failed to remove the items from the sink and leave a note about the services 

performed in the apartment. Gavurnik did not present any evidence to dispute that: (a) he 

was responsible at least in part for the apartment; (b) he left the items in the sink; or (c) he 

failed to leave a note about the services performed.7 Martin’s determination was, therefore, 

not so plainly wrong that it is unworthy of credence. 

Gavurnik argues that the written warning dated August 20, 2014, lacks credibility, 

but he does not deny that Sannelli told Martin and King that he (Gavurnik) argued with her 

and initially refused to respond to the call. The evidence, therefore, is insufficient for a 

reasonable jury to find that this incident is a cover-up for discrimination. 

Gavurnik argues that the Resident Complaint dated August 25, 2014, could not 

serve as a legitimate basis for his firing because he was not responsible for apartment M23. Yet he does not dispute that he responded to the Resident Complaint dated August 8, 

2014, and he did not adduce evidence sufficient for a reasonable jury to find that King and 

Martin knew he was going on vacation and Livingood was to clean the carpet. Even if

Gavurnik is correct that the Resident Complaints dated August 8, 2014 and August 25, 

 

7 Gavurnik attacks Martin’s credibility on the basis that Martin testified that he took a 

picture of the items left in the sink and showed it to King, but King testified that she never 

saw the picture. Gavurnik does not deny that he left those items in the sink or failed to 

leave a report. The inconsistency between Martin’s and King’s testimonies, therefore, is

not a sufficient basis upon which a reasonable jury could find pretext.
9

2014, were unrelated, the evidence is insufficient for a reasonable jury to find that King 

and Martin’s understanding of those events was so plainly wrong that it was a pretext for 

discrimination.

8

2. Evidence From Which to Infer that Discrimination was More Likely than not 

a Motivating or Determinative Cause of the Adverse Employment Action

Evidence that an employee similarly situated to the plaintiff, i.e., his or her 

comparator, received more favorable treatment may be evidence of pretext. Fuentes, 32 

F.3d at 765. Gavurnik argues Rivera and Livingood are his comparators.

9 The undisputed 

evidence shows, however, that Rivera and Livingood were not similarly situated to 

Gavurnik. 

Gavurnik and Rivera, a supervisor, held different positions, and Martin instructed 

Gavurnik—and not Rivera—to call the carpet cleaner in April 2014. While Gavurnik and 

Livingood were both service technicians who reported to Martin, they did not engage in 

 

8 Gavurnik argues that Reed, King, and Martin denied making the decision to terminate his 

employment, which is sufficient evidence for a reasonable jury to infer pretext. Gavurnik 

in support of this argument cites Sabbrese v. Lowe’s Home Centers, Inc., 320 F.Supp.2d 

311, 326 (W.D. Pa. 2004), and Roehrig v. W.G. Tomko, Inc., Civ. Action No. 15-146, 

2016 WL 2755177, at *3 (W.D. Pa. May 12, 2016). In each decision, the district court 

concluded that the employer’s failure to identify who made the decision to terminate the 

plaintiff was one piece of evidence, among others, that supported the finding of pretext. 

Here, because Gavurnik did not dispute the factual bases of the events in issue, the evidence 

that King, Martin, and Reed denied making the decision to fire him cannot standing alone 

be sufficient for a reasonable jury to render a verdict in his favor. 

9 A comparator may be a member of the protected class. Barber v. CSX Distrib. Servs., 68 

F.3d 694, 699 (3d Cir. 1995). The relevant inquiry is whether the comparator is 

“sufficiently younger” than the plaintiff to permit an inference of age discrimination. Id.

The fifteen-year age gap between Gavurnik and Rivera and fourteen-year age gap between 

Gavurnik and Livingood are sufficient to show that they were sufficiently younger than 

Gavurnik. Id. at 699. 
10

sufficiently similar conduct to support an inference of age discrimination. Gavurnik

responded to the Resident Complaint dated August 8, 2014, and there is no evidence that 

King and Martin were aware of any reason to believe that Livingood was responsible for 

cleaning the carpet in apartment M-23. Home Properties’ treatment of Rivera or Livingood, 

therefore, does not support a finding of pretext in this case.

10

B. Gavurnik Failed to Show a Reasonable Accommodation was Possible

To establish a prima facie case under the ADA for failure to accommodate or engage 

in the interactive process, a plaintiff must show, among other things, that he or she “could 

have been reasonably accommodated.” Capps, 847 F.3d at 157; Williams v. Phila. Hous. 

Auth. Police Dep’t, 380 F.3d 751, 772 (3d Cir. 2004). Here, Gavurnik did not present

evidence sufficient for a reasonable jury to find that a reasonable accommodation was 

possible.

Gavurnik argues he requested a reasonable accommodation when he provided King 

with the letter from his doctor advising that he be excused from working overtime in the 

cold. Under the ADA, overtime may be considered an essential function of a job. Tjernagel 

v. Gates Corp., 533 F.3d 666, 673 (8th Cir. 2008); Davis v. Fla. Pwr. & Light Co., 205 

F.3d 1301, 1306 (11th Cir. 2000). An employer is not required to modify or eliminate an 

 

10 Even if Rivera and Livingood were proper comparators, Gavurnik testified that King and 

Martin showed favoritism to Rivera and Livingood because they were friends. 

Employment decisions based upon friendship do not constitute discrimination. Platner v. 

Cash & Thomas Contractors, Inc., 908 F.2d 902, 905 (11th Cir. 1990); Benzies v. Illinois 

Dep’t of Mental Health and Developmental Disabilities, 810 F.2d 146, 148 (7th Cir. 1987). 
11

essential function of a job to accommodate its disabled employee. Walton v. Mental Health 

Ass'n. of Se. Pa., 168 F.3d 661, 671 (3d Cir. 1999). 

Here, the undisputed evidence shows that working overtime was a “fundamental”

duty of a service technician and not a “marginal function[]...of the position.” 29 C.F.R. § 

1630.2(n). King considered overtime, especially with respect to snow removal, an essential 

function of a service technician. The job description provided that overtime was required 

and the employee “[m]ust be physically able to perform extensive snow removal.” (A136.) 

Snow presented a safety issue, and snow removal was prioritized over other functions of 

the job. Based upon the foregoing, overtime was an essential function of a service 

technician, and, therefore, Gavurnik’s request to be excused from working overtime was 

not a request for a reasonable accommodation.

Gavurnik also did not adduce evidence sufficient for a reasonable jury to find that

fixing the snow blowers would have reasonably accommodated him. The undisputed 

evidence shows that the use of properly functioning snow blowers would cut in half the 

time it took to remove snow, and there were times—even with properly functioning snow 

blowers—that the service technicians would have been exposed to the cold for eight hours.

There is no evidence about how long Gavurnik could be exposed to the cold, i.e., whether 

he could be exposed to the cold for at least eight hours. A reasonable jury, therefore, could 

not determine whether a reasonable accommodation was possible. 

IV.

For the foregoing reasons, we will affirm the Order of the District Court granting

the Employer’s motion for summary judgment.