This lawsuit followed.*fn22
II. Sex Discrimination Claims
Brogan alleges that but for his being a man, the
"investigation/removal/retaliation by the University in violation
of 42 U.S.C. § 2000e would not have occurred," Compl. at ¶ 29.
A. Legal Standard*fn23
Title VII of the Civil Rights Act of 1964 states that "[i]t
shall be an unlawful employment practice for an employer to fail
or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual . . . because of such
individual's race, color, religion, sex, or national origin."
42 U.S.C. § 2000e-2(a)(1) (1994).
Both parties agree, and we concur, that this case constitutes
an "indirect" claim of sex discrimination requiring analysis
under the framework articulated in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)
and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248,
253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Under this familiar
framework, a plaintiff must first establish a prima facie case
of discrimination; if the plaintiff successfully does so, the
burden of production shifts to the defendant, who is required to
articulate a legitimate, nondiscriminatory reason for the
challenged employment action. See Burdine, 450 U.S. at 253-54,
101 S.Ct. 1089. Once such a legitimate, nondiscriminatory reason
is proffered, the plaintiff must point to evidence that
discredits the claimed nondiscriminatory reason or that shows
beyond a preponderance of the evidence that the employer's action
had a discriminatory motivating cause. See Sheridan v. E.I.
DuPont de Nemours & Co., 100 F.3d 1061, 1067 (3d Cir. 1996)
(citing Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)).
B. Brogan's Prima Facie Case
In order to establish a prima facie case of discriminatory
discharge, a plaintiff must show that (1) he is a member of a
protected class;*fn24 (2) he was qualified for
the position; and (3) he was discharged under circumstances that
give rise to an inference of unlawful discrimination. See
Waldron v. SL Indus., Inc., 56 F.3d 491, 494 (3d Cir.
1995).*fn25 A primary purpose of the prima facie case is to
"eliminate the most obvious, lawful reasons for the defendant's
action," Pivirotto, 191 F.3d 344, 352 (citing Burdine, 450
U.S. at 253-54, 101 S.Ct. 1089), and "[t]he central focus . . .
is always whether the employer is treating some people less
favorably than others because of their race, color, religion,
sex, or national origin." Pivirotto, 191 F.3d 344, 352 (quoting
Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct.
2943, 57 L.Ed.2d 957 (1978)) (internal quotation marks omitted).
Defendants do not dispute that Brogan meets the first two
elements for a prima facie case.*fn26 Defendants do, however,
deny that Brogan has met the third element for a prima facie
case, and, as detailed below, we agree.
While Brogan supports his allegation of sex discrimination with
evidence of a number of defendants' acts, none of these, either
alone or together, would support an inference of impermissible
discrimination against him by reason of his sex. For instance,
Brogan argues that he was found guilty of sex discrimination
solely because he was a man and the complainant was a woman,
see Pl.'s Mem. at 30. Brogan bases this contention primarily on
the statement contained in Provost Kane's letter of May 30, 1997
that "[o]n the other hand, the fact is that Dr. Balchunis-Harris
is the only female member of the Department." Even assuming that
Brogan was in fact "found guilty" of such "discrimination",*fn27
as he claims, this does not lead to an inference of sex
discrimination against him. Balchunis-Harris was indeed the
only woman under Brogan's supervision in the department, and the
investigation found that she was treated differently than the
other (male) members. Thus, the remark that Balchunis-Harris was
the only woman in the department would support a claim that she
had been the victim of discrimination whether the putative
discriminator (here Brogan) was a man or a woman. As the Supreme
Court has recently held, "nothing in Title VII necessarily bars a
claim of discrimination `because of . . . sex' merely because the
plaintiff and the defendant . . . are of the same sex." Oncale,
118 S.Ct. at 1001-02, 118 S.Ct. 998.*fn28
A second aspect of Brogan's argument is based upon the
allegedly deficient nature of Balchunis-Harris's claims.*fn29
While this argument may show a poor investigation, there is
nowhere in Balchunis-Harris's claims the slightest evidence or
inference that the behavior of the administration was prompted by
the fact that Brogan is a man. To the extent that these claims
show that the administration gave a very generous reading to
Balchunis-Harris's possibly dubious claims, this shows at the
most that the administration deferred to a female making claims
of sexual discrimination, not that any subsequent action against
Brogan was in any way motivated by the fact that he was a man.
Brogan also points to Provost Kane's deposition statement that
there was a "old boy's network" as an indication that Brogan was
targeted because of his sex. See Pl.'s Mem. at 31; Pl.'s
Supplemental Resp. at 3. The context of this statement, however,
bars any inference of such discrimination:
Q [from plaintiff's counsel]: Now, with regard to Dr.
Nathans [another political science faculty member],
how was Dr. Nathans treated better than Dr.
A [from Provost Kane]: Again, you would have to talk
to Barbara [Dean Millard] about this, but he was —
there was an old boy's network. They had been there
forever and she was this new kid on the block who
came with a very different view of the world. They
were the power structure. This happens. It happens in
other departments. It's not unique to them.
Kane Dep. (Pl.'s Ex. 20) at 224. Under subsequent questioning,
Provost Kane stated that sex discrimination, though possibly part
of the "old boy's network," was "not the bottom line." Id.
Dean Millard, for her part, stated that women had experienced
difficulties as LaSalle transitioned from being an all-male
institution to a co-ed one, and that women who enter into areas
of the university where women "had not existed before" tend to be
"isolated." Millard Dep. (Pl.'s Ex. 21) at 100. While both
these sets of statements might suggest that a claim of
discrimination by a woman like Balchunis-Harris at LaSalle would
be taken seriously, neither would lead to a reasonable inference
that Brogan was targeted for investigation or terminated as Chair
because of his sex. More particularly, neither set of statements
would support a reasonable inference that had Brogan been a
woman, the process would have in any way taken a different
Brogan's argument at bottom seems to be that LaSalle's
administration was spring-loaded against men accused of sex
discrimination. The record here at most supports the inference
that LaSalle has done no more than what Congress itself did in
1964 when it recognized the pre-Oncale reality that women were
participants as men in the American workplace. It would be odd
indeed to turn this perception of the truth back on itself to
render LaSalle's approach to women's sex discrimination claims
violative of Title VII.*fn30
Brogan also rests his prima facie case on the contention that
while Balchunis-Harris's claims of sexual discrimination were
made the subject of an investigation, Brogan's own grievance of
sexual discrimination on the part of the administration was
ignored.*fn31 See Pl.'s Mem. at 32; Pl.'s Supplemental Resp.
at 4. In the first place, Brogan and Balchunis-Harris were not
remotely in similar situations. Balchunis-Harris was a junior
faculty member undergoing tenure review, while Brogan was a
senior tenured faculty member and department Chair.*fn32
Moreover, the nature of the complaints was different in kind:
Balchunis-Harris's initial complaint, in her letter of October
15, 1996, contained specific allegations as to two particular
faculty members, while Brogan's complaint was a more general
procedural complaint directed at a large number of administration
officials.*fn33 Therefore, the fact that the claims were dealt
with in different ways (if indeed they were), cannot reasonably
lead to an inference that the different sexes of the complainants
played any part in Brogan's drama.
We therefore conclude that Brogan has failed to show that
LaSalle's actions can on this record be reasonably inferred to
have a sexually discriminatory purpose against him because he is
a man, and he therefore has failed to make a prima facie case
of discrimination under Title VII.
C. Plaintiff's Claim of Pretext
Even if we were to find that Brogan had made out a prima
facie case, his Title VII claim still would not survive summary
judgment because he has not demonstrated that defendants'
articulated legitimate, nondiscriminatory reasons for its actions
are merely pretextual for invidious discrimination.
As discussed above, once a plaintiff has made out a prima
facie case, the burden of production passes to the defendant to
articulate a legitimate, nondiscriminatory reason for the action.
Once this is done, it is up to the plaintiff to either discredit
the proffered reason or to show that the employer's action had a
discriminatory motivating cause. See Sheridan, 100 F.3d at
Here, in conducting the investigation of Brogan, defendants
articulated as their reason that Balchunis-Harris had made
allegations against him. Further, in terminating Brogan's
appointment as political science department chair, defendants
gave as their reason that Brogan had failed to cooperate with the
ongoing investigation of Balchunis-Harris's claims, despite
direction that he do so from his supervisors, Provost Kane and
Dean Millard. See Defs.' Mem. at 20-21. These reasons are both
legitimate and nondiscriminatory in that they are independent of
Our Court of Appeals has held that:
[T]o defeat summary judgment when the defendant
answers the plaintiff's prima
facie case with legitimate, non-discriminatory
reasons for its action, the plaintiff must point to
some evidence, direct or circumstantial, from which a
factfinder could reasonably either (1) disbelieve the
employer's articulated legitimate reasons; or (2)
believe that an invidious discriminatory reason was
more likely than not a motivating or determinative
cause of the employer's action.
Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994). Thus, a
plaintiff can either discredit the articulated reason through
circumstantial or direct evidence, or show that discrimination
was more likely than not a motivating or determinative cause of
the employment action. See id. This means that the plaintiff
must produce evidence that would allow a factfinder reasonably to
infer that the defendants' proffered explanations were either a
post hoc fabrication