                                                             NOT PRECEDENTIAL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



                                           1
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.
                                               2
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

                                              3
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



                                              4
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

                                              5
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).
                                              6
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

                                             7
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

                                             8
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

                                              9
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

                                             10
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.

                                             11
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

                                             12
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

                                              13
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.
                                              14
