2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-28-2013

Katherine Garges v. The People's Light & Theatre

Precedential or Non-Precedential: Non-Precedential

Docket No. 13-1160

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1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 13-1160

____________

KATHERINE GARGES,

Appellant,

v.

THE PEOPLE’S LIGHT & THEATRE COMPANY; ADRIA 

CHARLES, INDIVIDUALLY; JOHN DAVID CLEMENS, JR., 

INDIVIDUALLY; TERENCE ECHLIN, INDIVIDUALLY

__________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civ. No. 09-cv-02456)

District Judge: Honorable Gene E.K. Pratter

__________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

June 3, 2013

Before: SCIRICA, JORDAN and GREENAWAY, JR., Circuit Judges

(Opinion filed: June 28, 2013)

____________

OPINION

____________

PER CURIAM

Appellant Katherine S. Garges appeals from orders of the District Court

dismissing claims from her original complaint, striking claims from her second amended 
2

complaint, and awarding summary judgment to the defendants. For the following 

reasons, we will affirm.

Garges was employed beginning in 2002 as a telemarketer/sales representative for 

the People’s Light & Theatre Company in Malvern, Pennsylvania.1 She worked 12 to 15 

hours per week and was compensated under a commission system. On the morning of 

July 5, 2007, Garges discovered an error in her paycheck amounting to $250.00. She 

approached Stella Bates, the Theatre’s Business Manager, and that same morning Bates 

provided her with a check for the missing amount. Garges returned to the telemarketing 

room, and emailed the Pennsylvania Department of Labor about the payroll error; she 

then showed Bates the Pennsylvania wage statute. She also left a message for her 

supervisor, Adria Charles, explaining that there had been an error in her pay, that she had 

been given a hard time about it, and that an employer who makes payroll mistakes can 

ultimately be fined under state law for continued payroll errors. 

Terence Echlin, a co-worker, was present that morning, and he called Charles and 

told her that Garges had been disruptive in the telemarketing room. When Garges arrived 

at the Theatre that evening, Charles told her that she needed to speak with her 

immediately. Garges stated that she had a scheduled sales call at 6:00 p.m. and did not 

have time to speak with Charles at the moment. Charles continued to insist, and Garges 

finally said, “I’ll eat your ass if you want me to, but I have to make this phone call first.”

She then proceeded to make the telephone call. Charles told Garges she was fired and 

tried to remove the phone receiver from Garges’ hand. Charles then left to find her

supervisor, Ellen Anderson, and Anderson came to the telemarketing room and told 

 

1

The parties are familiar with the factual circumstances of the claims; our recitation will 

thus be succinct. 
3

Garges she was fired and had to leave. Eventually the police were called and Garges was 

escorted from the building. After Garges left, her sales leads were distributed by Charles 

to other telemarketers. A former telemarketing employee, a male, was hired that evening.

After her termination, Garges filed for unemployment compensation. Her claim 

was initially denied. She appealed, and a hearing was scheduled. No one from the 

Theatre attended the appeal hearing. Garges’ appeal was granted.

On May 29, 2009, and after exhausting her administrative remedies, Garges filed 

suit in the United States District Court for the Eastern District of Pennsylvania, alleging 

that the Theatre discriminated and retaliated against her in violation of Title VII of the 

Civil Rights Act of 1964, 42 U.S.C. § 2000e, the Equal Pay Act of 1963, the Fair Labor 

Standards Act of 1938 (“FLSA”), and the Pennsylvania Human Relations Act (“PHRA”), 

43 Pa. Cons. Stat. Ann. §§ 951 et seq. Charles, Echlin, and another of her co-workers, 

John David Clemens, Jr., also were named as defendants, and Garges included in her 

complaint several claims arising under state and common law, including assault and 

battery, wrongful termination, breach of contract, intentional interference with business 

relations, defamation, and intentional infliction of emotional distress. 

Early in the litigation, the defendants moved to dismiss several of Garges’ claims. 

In an October 29, 2010 Memorandum, the District Court granted the motion in part. The 

court discussed the sufficiency requirements of Federal Rule of Civil Procedure 12(b)(6),

and reasoned that the assault and battery claim against the Theatre (Claim 21) and the 

ratification of assault and battery, negligent hiring, and negligent supervision claims 

(Claims 22-24) arose out of an employment relationship between Garges and the Theatre

and thus were barred by the Pennsylvania Workers’ Compensation Act’s exclusivity 
4

provision, 77 Pa. Cons. Stat. Ann. § 481(a). See Garges v. People’s Light & Theatre Co., 

2010 WL 4273335, at *3-4 (E.D. Pa. October 29, 2010). These claims were dismissed. 

After reviewing allegations that Clemens often yelled the word “bitch” after an 

unsuccessful sales call, that he made comments hostile to feminism, that Echlin lied with 

the goal of getting Garges fired, and that Echlin heckled Garges and hummed, the District 

Court also dismissed the intentional infliction of emotional distress claim, Claim 28, with 

prejudice against all of the defendants. See id. at *4. The court reasoned that the conduct 

alleged was not “so outrageous in character, and so extreme in degree, as to go beyond all 

possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a 

civilized society.” Id. (citing Hoy v. Angelone, 720 A.2d 745 (Pa. 1998). Garges 

voluntarily withdrew Count 16. Garges, 2010 WL 4273335, at *2 n.4.

After the defendants submitted their answers, Garges filed a first amended 

complaint. The defendants moved to strike it, arguing that it stated no new claims. The 

District Court granted the motion, but allowed Garges to refile an amended complaint. 

Garges then filed a second amended complaint, raising all of the claims she originally set 

forth, including those that were previously dismissed by the court or withdrawn. The 

defendants moved to strike the second amended complaint. In its January 24, 2012 

Memorandum, the District Court granted the motion in part, striking Counts 16, 22, 23, 

and 24 in their entirety and Count 21 as to the Theatre from the second amended 

complaint. Garges v. People’s Light & Theatre, Co., 2012 WL 202828, at *5 (E.D. Pa. 

January 24, 2012). After reviewing Garges’ additional allegations of intentional 

infliction of emotional distress, the District Court determined that Garges still could not 
5

meet the “extreme and outrageous” standard; the court thus ordered that Count 28 also be 

stricken from the second amended complaint. See id.

The defendants submitted their answers and discovery ensued. Garges twice 

moved unsuccessfully for appointment of counsel. The defendants moved for summary 

judgment, Fed. R. Civ. Pro. 56(a). In a Memorandum filed on December 17, 2012, the 

District Court granted summary judgment to the defendants on Garges’ federal claims, 

including her gender discrimination/disparate treatment Title VII claims (Claims 1, 3, 5, 

and 13); her hostile work environment claim (Claim 11); her retaliation claims (Claims 7 

and 25); her mixed motive claim (Claim 9); her Equal Pay Act claim (Claim 15); and her 

Equal Pay/Fair Labor Standards Act claim (Claim 18). See Garges v. People’s Light and 

Theatre, Co., 2012 WL 6592201, at * 14 (E.D. Pa. December 17, 2012). The court 

“decline[d] to exercise supplemental jurisdiction over the remaining claims.” Id.

(emphasis added). The court then issued a separate Order, also dated December 17, 

2012, granting the motion for summary judgment and specifying which claims were 

dismissed with and without prejudice. The order omitted any reference to Claim 27 for 

defamation as having been dismissed without prejudice.

Garges appeals. We have jurisdiction under 28 U.S.C. § 1291. Garges argues in 

her brief that the credibility of the individuals involved in her termination is at issue and 

thus summary judgment was not appropriate, Appellant’s Brief, at 6. Specifically, she 

argues that the proferred reason for her termination – insubordination – was a pretext for 

gender discrimination in that her performance was outstanding and other employees of 

the Theatre had never before been terminated for complaining about their paychecks or 

for using profanity. Garges argues that Charles, who had been Sales Director for only 
6

four months, fired her for conduct that was tolerated under the former Sales Director, and 

that Charles gave no advance warning of any change in Theatre policy relating to the 

telemarketers’ conduct. In additional support of her claim of gender discrimination, 

Garges notes that a male telemarketer was immediately hired upon her termination, 

Clemens and Echlin received more hours than she did, and her sales leads were 

distributed to males after she was terminated. She argues that the District Court erred in 

dismissing her claim for intentional infliction of emotional distress (Claim 28) from the 

original complaint and striking it from the second amended complaint, see id. at 25-27;

that the District Court should not have declined to exercise supplemental jurisdiction over 

her remaining claims, see id. at 27; and that the District Court should have appointed her 

counsel, see id. at 29. Last, if we order a remand, Garges asks that we reassign her case 

to a different district judge, see id. at 30.

2

 Garges has also filed several motions in this 

Court.

We will affirm. We begin with Garges’ contention that she is entitled to a trial on 

her claim that her termination violated Title VII. We review a District Court’s grant of 

summary judgment de novo. Alcoa, Inc. v. United States, 509 F.3d 173, 175 (3d Cir. 

2007). Summary judgment is proper where there is no genuine issue of material fact to 

be resolved and the moving party is entitled to judgment as a matter of law. Celotex 

Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party has properly 

supported its motion for summary judgment, the nonmoving party must “do more than 

simply show there is some metaphysical doubt as to the material facts.” Matsushita Elec. 

 

2 Garges raises no specific argument relating to the District Court’s dismissal of Counts 

22, 23, and 24 in their entirety, and Count 21 as to the Theatre on the basis of the 

workers’ compensation act’s exclusivity provision, and thus she has waived this issue. 

See Nagle v. Alspach, 8 F.3d 141, 143 (3d Cir. 1993).
7

Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). The inferences to be drawn from 

the underlying facts must be viewed in the light most favorable to the party opposing the 

motion, see id. at 587, but the nonmoving party may not rest on mere allegations or 

denials of her pleading, Fed. R. Civ. Pro. 56(e)(2). See also Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 256 (1986). 

We conclude that summary judgment was proper because there was an insufficient 

evidentiary basis on which a reasonable jury could find in Garges’ favor on any of the 

claims over which the District Court exercised jurisdiction. Matsushita Elec. Indus. Co., 

475 U.S. at 586-87; Anderson, 477 U.S. at 249-50. Assuming arguendo that Garges 

made out a prima facie case for gender discrimination, there was no triable issue because 

Garges did not show that the Theatre’s reason for terminating her – insubordination – was 

a pretext for discrimination, Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 

248, 253 (1981) (if plaintiff establishes prima facie case of discrimination, burden shifts 

to employer to articulate legitimate nondiscriminatory reason for its actions), or provide 

other evidence of discrimination, St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 509-

11 (1993).

To survive a motion for summary judgment, a plaintiff may prevail either by 

discrediting the employer’s proffered reasons or by showing that discrimination was 

more likely than not a motivating or determinative cause of the adverse employment 

action. See Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994). “To discredit the 

employer’s proffered reason ... the plaintiff cannot simply show that the employer’s 

decision was wrong or mistaken.... Rather, the non-moving plaintiff must demonstrate 

such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the 
8

employer’s proffered legitimate reasons for its action that a reasonable factfinder could 

rationally find them “unworthy of credence.” Id. at 765. A plaintiff may support an 

assertion that an invidious discriminatory reason was more likely than not a motivating 

cause by showing that “the employer has treated more favorably similarly situated 

persons not within the protected class.” Jones v. School Dist. of Philadelphia, 198 F.3d 

403, 413 (3d Cir. 1999).

The District Court reasoned, and we agree, that Garges did not show weakness or 

implausibility in the Theatre’s proffered reason for terminating her such that a reasonable 

jury could find in her favor. Not only did Garges direct a vulgarity personally at Charles, 

she also refused to comply with a directive that she meet immediately with Charles. 

Garges’ contention that other telemarketers, like Clemens, frequently lost their tempers 

and used profane language and were not fired does not convince us that a trial is 

warranted in her case, because there is no evidence to show that Clemens or anyone else 

ever directed their offensive comments or behavior at a supervisor personally, or that they 

refused to comply with a supervisor’s order. Garges’ contention that Charles gave no 

advance warning of any change in Theatre policy relating to the telemarketers’ conduct is 

similarly unpersuasive because Garges’ did not show or even allege that the Sales 

Director who preceded Charles tolerated vulgarities directed at her personally or tolerated 

refusals to comply with her orders. Garges argues that profanity was used regularly in 

the Theatre by both men and women and that she was terminated for a one-time use of a 

profanity, but she offered no evidence to show that another telemarketer directed a 

vulgarity personally at a supervisor and/or patently refused to follow a supervisor’s 

directive and was not fired. In addition, Garges did not offer evidence to show that a 
9

male employee complained about his paycheck but was not fired. Thus, she was not 

similarly situated to any other Theatre employee in being terminated for her misconduct.

Garges’ additional evidence that the Theatre hired males before and after her 

termination, and that her leads were given to males after her termination, does not show 

that summary judgment was improper. The summary judgment record shows, among 

many other things noted by the District Court, that eleven new telemarketing employees 

were hired between April and August of 2007, six of whom were women, and no specific 

person was hired to replace Garges. Moreover, her assertion that Clemens and Echlin 

had better working conditions than she did is insufficient because she never asked to 

telework, and when she asked for extra hours she was given them. She also did not show 

that sales leads were handed out improperly on the basis of gender. The redistribution of 

her leads to some males immediately after she was fired is insufficient to cast doubt on 

the Theatre’s proffered reason for the firing given that the immediate redistribution of 

leads was standard practice at the Theatre, and three experienced female employees 

“were all on vacation that night. . . .” Appellant’s Brief, at 15.

For similar reasons, summary judgment was proper on Garges’ hostile work 

environment claim under Title VII. Garges claimed that, in addition to his frequent use 

of the word “bitch,” Clemens also once asked her if she preferred to be “on top.” Both 

Clemens and Echlin made negative comments about women’s issues, both men were 

privy to certain information about proposed improvements in the Theatre’s commissions 

policy, and Echlin hummed, and she was heckled. The District Court reasoned, and we 

agree, that the gender discrimination alleged was neither pervasive nor severe. See

Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-23 (1993) (to make out claim for hostile 
10

work environment discriminatory conduct alleged must be pervasive and severe). Much 

of the gender-related behavior involved one-time comments, and the heckling, humming, 

and privileged access to information did not involve gender. Clemens’ frequent use of 

the word “bitch” was directed at “rude” customers, and, in any event, Garges did not 

allege that her work performance was detrimentally affected by this behavior. See id.

(prima facie case requires showing that discriminatory conduct unreasonably interfered 

with plaintiff’s work). In addition, Garges did not show that either Clemens or Echlin 

was a supervisor, or that the Theatre neglected its duty to take remedial action where such 

action was required. See Huston v. Proctor & Gamble Paper Products Corp., 568 F.3d 

100, 104 (3d Cir. 2009) (employer liability for co-worker harassment exists only if 

employer failed to provide reasonable avenue for complaint or if employer knew or 

should have known of harassment and failed to take prompt and appropriate remedial 

action).

Summary judgment was proper on all of Garges’ retaliation claims. She claimed 

that her termination was in retaliation for complaining about payroll errors, complaining 

about the Theatre’s unequal distribution of sales leads, and complaining about Clemens’ 

use of the word “bitch,” and that these are protected activities under Title VII and the 

other federal statutes. This argument fails because, as explained, the Theatre had a 

legitimate reason for terminating Garges and thus she cannot show the required causal 

connection between her complaints, whether or not they are protected, and her 

termination. See Farrell v. Planters Life Savers Co., 206 F.3d 271, 279 (3d Cir. 2000)

(retaliation claim requires proof of causation). Summary judgment also was proper on 

Garges’ Title VII “mixed motive” claim. A “mixed motive” claim is made out where a
11

plaintiff shows that gender was a motivating factor in her termination, even though other 

factors also motivated the termination. 42 U.S.C. § 2000e–2(m). The plaintiff is not 

required to present direct evidence of discrimination in order to proceed; circumstantial 

evidence is sufficient. See Desert Palace, Inc. v. Costa, 539 U.S. 90, 99-100 (2003). 

Here, Garges offered no direct or circumstantial evidence that her gender was a 

motivating factor in her termination. Summary judgment was proper on Garges’ Equal 

Pay Act claim because the summary judgment record showed that all telemarketing 

employees, regardless of gender, were paid based on the same commission formula. See

Stanziale v. Jargowsky, 200 F.3d 101, 107 (3d Cir. 2000) (plaintiff must show that 

employees of opposite sex were paid more for same job).

Garges has argued that the defendants intentionally caused her emotional distress 

in connection with her termination and that Claim 28, both as stated in her original 

complaint and as supplemented in her second amended complaint, should not have been 

dismissed. The District Court dismissed this claim early in the litigation upon the 

defendants’ motion. We agree with the District Court that Claim 28 did not satisfy Rule 

12(b)(6). To survive a motion to dismiss, the claim must allege facts that, if true, “give 

rise to an entitlement to relief,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557 

(2007). The District Court held in October, 2010 that the conduct alleged in the original 

complaint concerning Garges’ termination, and the events leading up to it, was not 

outrageous or extreme, and could not provide a basis for damages under Hoy, 720 A.2d at 

753-54 (to recover damages, plaintiff must allege conduct that is “so outrageous in 

character, and so extreme in degree, as to go beyond all possible bounds of decency, and 

to be regarded as atrocious, and utterly intolerable in a civilized society.”). We agree. 
12

The conduct alleged concerning the termination and the events leading up to it was 

unexceptional. Even the allegations in the second amended complaint – that the Theatre 

told Garges’ relatives that she was suicidal and mentally ill, and that the defendants tried 

to destroy her reputation and career, and/or drive her to suicide – are not extreme enough

to make out a claim for intentional infliction of emotional distress, and thus the District 

Court properly struck Claim 28 from the second amended complaint when Garges tried to 

reintroduce it.

With respect to the issue of supplemental jurisdiction, Garges has asked us to 

require the District Court to address and decide her remaining state claims. The appellees 

agree that the District Court should have exercised jurisdiction over Garges’ 

Pennsylvania Human Relations Act claims (Claims 2, 4, 6, 8, 10, 12, 14 and 26) because 

they are governed by the same legal standards that apply to Garges’ Title VII claims, see

Huston, 568 F.3d at 104 n.2 (Title VII and PHRA claims analyzed under same standard), 

and because the facts asserted in support of them are identical to the facts asserted in 

support of the Title VII claims. See Appellees’ Brief, at 52-53. The appellees agree with 

the District Court’s decision not to exercise jurisdiction over Garges’ other remaining 

state and common law claims: Claim 17 for wrongful termination, Claim 19 for breach of

contract, Claim 20 against Clemens and Echlin for intentional interference with business 

relations, Claim 21 for assault and battery against Charles, and Claim 27 for defamation. 

See id. at 53.

We conclude that the District Court did not err in declining to exercise 

supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a) over the remaining state and 

common law claims, including the PHRA claims. “In enacting section 1367, Congress 
13

intended to enhance a district court’s ability to gain jurisdiction over pendent claims and 

parties while providing those courts with the discretion to decline to exercise 

supplemental jurisdiction in several express circumstances.” De Asencio v. Tyson Foods, 

Inc., 342 F.3d 301, 308 (3d Cir. 2003). Importantly, pendent jurisdiction is a doctrine of 

discretion. See id. (citing United Mine Worker of America v. Gibbs, 383 U.S. 715, 726

(1966)). A district court may decline to exercise supplemental jurisdiction where it “has 

dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). 

Here, the District Court dismissed all of the remaining state and common law claims after 

awarding summary judgment to the defendants on all of the federal claims over which it 

had original jurisdiction. Clearly, the District Court’s determination not to exercise 

pendent jurisdiction over Garges’ claims for wrongful termination, breach of contract, 

intentional interference with business relations, assault and battery against Charles, and 

defamation was not an abuse of discretion because the legal standards that apply to these 

claims differ from the standards that apply to Garges’ federal claims. As to the other 

claims, we note that other district courts have retained jurisdiction over PHRA claims in 

similar circumstances, cf. Borough of West Mifflin v. Lancaster, 45 F.3d 780, 788 (3d 

Cir. 1995) (considerations of judicial economy, convenience, and fairness to parties may 

provide affirmative justification for exercising pendent jurisdiction), but the appellees 

have cited no authority that requires a district court to do so.

For the foregoing reasons, we will affirm the orders of the District Court 

dismissing claims from the original complaint, striking claims from the second amended 

complaint, and awarding summary judgment to the defendants. The orders of the District 

Court denying Garges’ motions for appointment of counsel also are affirmed. See
14

Tabron v. Grace, 6 F.3d 147, 158 (3d Cir. 1993) (counsel not warranted where pro se 

litigant has skills necessary to handle her case). Garges’ motions “to correct a clerical 

error” are denied with respect to Claim 28 because it was dismissed early in the litigation 

with prejudice.

3

 The motions are granted to the extent that she seeks to modify the 

District Court’s December 17, 2012 Order to include that Claim 27 (for defamation) was 

dismissed without prejudice. The omission of Claim 27 from the list of claims that were 

dismissed without prejudice appears to have been an oversight that we may correct 

without the formality of a correction by the District Court. See In re: U.S. Healthcare, 

Inc., 193 F.3d 151, 158 n.2 (3d Cir. 1999). Garges’ motion to supplement the district 

court record with her June 15, 2009 letter is denied.4

 

3

The District Court stated in its December 17, 2012 Memorandum that it would decline 

to exercise supplemental jurisdiction over the “remaining” state law claims, Garges, 2012 

WL 6592201, at *14. Claim 28 was not one of the “remaining” claims, as that term is 

commonly understood.

4

Federal Rule of Appellate Procedure 10(e)(2)(C) allows the court of appeals to correct 

inadvertent omissions from the record where “anything material to either party is 

omitted.” Although the District Court construed the June 15, 2009 letter as a request for 

recusal under 28 U.S.C. § 455(a) and denied it, Garges has not challenged that order on 

appeal nor has she argued in her brief that the court’s decision not to recuse was in error; 

rather, she asks only that her case be reassigned to a different district judge if we decide 

to remand. Accordingly, the letter is not material to her appeal.