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BROGAN v. LA SALLE UNIVERSITY

October 14, 1999

JOSEPH
v.
BROGAN, PH.D. V. LA SALLE UNIVERSITY, ET AL.



The opinion of the court was delivered by: Dalzell, District Judge.

MEMORANDUM

After the close of discovery, defendants moved for summary judgment and Brogan has responded. For the reasons set forth below, we will grant summary judgment as to Count I of the Complaint, comprising Brogan's Title VII and § 1983 claims, and will also dismiss his related state law claims, contained in Counts II-V, pursuant to 28 U.S.C. § 1367(c).

I. Facts

The facts necessary to dispose of the motion are largely undisputed. Dr. Brogan became a faculty member at LaSalle University in 1978, and earned tenure as an Assistant Professor of Political Science in 1993. On July 1, 1995, he was appointed Chair of the political science department,*fn2 with his term as Chair to end on June 30, 1999. On May 30, 1997, Brogan received a letter from Provost Joseph Kane informing him that he was being terminated as Chair of the political science department, effective a month later. Provost Kane stated that the reason for the termination was Brogan's refusal to respond to, or cooperate in the investigation of, allegations of discrimination that Mary Ellen Balchunis-Harris, a member of the political science faculty,*fn3 had made against Brogan.

Balchunis-Harris had joined the political science faculty in 1991. The collegial relationship between Balchunis-Harris and Brogan evidently was strained almost from the outset,*fn4 and in December, 1995, shortly after Brogan's appointment as Chair, Barbara Millard, Dean of the School of the Arts and Sciences, conducted a mediation between Brogan and Balchunis-Harris.*fn5 In the Fall of 1996, Balchunis-Harris was due for tenure review, and on October 15, 1996, Brogan informed Balchunis-Harris that the political science department had voted not to recommend her for either tenure or promotion.*fn6 That same day, Balchunis-Harris wrote a letter to Provost Joseph Kane stating that both Brogan and Ken Hill, the former political science department Chair, were biased against her;*fn7 Balchunis-Harris requested a review of the tenure recommendation decision and the process by which it was reached.

Balchunis-Harris's allegations sparked a protracted inquiry. She had several meetings with members of the administration, which included Dean Millard, Provost Kane, and Rose Lee Pauline, the University's affirmative action officer. Balchunis-Harris also supplied the administration with at least three additional memoranda, the last dated December 16, 1996, detailing the alleged discrimination and harassment as it had occurred since her 1991 hiring.*fn8 Although Brogan was informed by Provost Kane in early November, 1996 that Balchunis-Harris's tenure process had been suspended because of concerns she had voiced about the process, he was not informed that there was an investigation into his treatment of her.*fn9

Because Brogan's claims of invidious discrimination are largely predicated upon a heavily documented record, it is necessary for us now to canvass much of the correspondence between Brogan and the LaSalle administration during the period in question.

On January 14, 1997, Provost Kane first informed Brogan that there was indeed an investigation in progress as a result of the allegations regarding Brogan's sexual discrimination. Kane asked Brogan to meet with him and Dean Millard in order to discuss those claims. On January 21, 1997, Brogan sent a letter to Kane setting forth his understanding of the chronology of the events in Balchunis-Harris's tenure process that had led to the January 14 phone call. In his letter, Brogan requested that before any meeting he be provided with copies of all the materials that Balchunis-Harris had submitted. In this initial communication, Brogan also expressed two concerns with the procedures being used: first, he was concerned that the allegation of bias was not being addressed through the "bias" procedures provided for in the tenure review process;*fn10 second, he was concerned that if Balchunis-Harris's claims were in fact of "discrimination," then the University's official grievance procedure (which he felt was the appropriate mechanism for addressing such a claim) was not being used. Less than a week later, Provost Kane sent Brogan most of Balchunis-Harris's documentation. The Provost also stated in his January 27 letter that the school was not employing the tenure process "bias" procedure because the claim was that sexual discrimination had tainted the tenure review process, and went on to say that the University had mandated the investigation and that Brogan's full cooperation was required.

On February 3, Provost Kane, Dean Millard, and Brogan met to discuss the allegations. During this meeting, Brogan refused to make specific responses to Balchunis-Harris's claims, though there was discussion of the materials Balchunis-Harris had submitted, as well as of the nature of the claims against Brogan and his concerns about the investigative process. The next day, Provost Kane sent a letter to Rose Lee Pauline, Assistant Vice-President for Business Affairs and the University's affirmative action officer, describing the meeting and reporting, inter alia, that Brogan had concerns about the process.

On February 10, Brogan sent a letter to Provost Kane and Dean Millard presenting a chronology of the events that had happened, to his understanding, since October 15. In this letter, Brogan summarized his view of the February 3 meeting where he had presented a list of his concerns,*fn11 and requested that: (1) Balchunis-Harris's tenure process be reopened, (2) the investigation against him be ceased, and (3) there be no disclosure by the administration that there were claims of sexual discrimination made against him. Brogan also reiterated his request for additional documentation regarding the claims.

On the same day,*fn12 Provost Kane provided to Brogan additional documentation, and stated in his letter that Brogan would get the same time to respond to the allegations that Balchunis-Harris had received to submit her claims. The Provost reiterated that Brogan had to provide responses to the allegations and that he must follow the investigative procedure the University mandated. Brogan responded to Kane's letter the next day. Brogan again voiced his concern that the official grievance procedure*fn13 was not being followed. Brogan also said that he believed Kane was trying to intimidate him with veiled threats of punishment if he did not cooperate with the investigation, and raised questions about the merits of some of Balchunis-Harris's claims.

On February 18, Provost Kane responded to Brogan,*fn14 noting that there was no ongoing investigation of Brogan per se, but rather an effort to understand what Balchunis-Harris's allegations were about and "to follow through" on them. In his February 26 letter, Brogan mentioned to Kane*fn15 that he was and had been willing to respond to Balchunis-Harris's allegations through the tenure and promotion process, and that his primary concern was about due process. Brogan also stated that he was requesting that the American Association of University Professors (AAUP) review the matter, and that further meetings would have to await AAUP action.

On March 4, 1997, Provost Kane responded to say that while Brogan was welcome to get an AAUP opinion, there could be no further delay in handling the matter and that the University had already been prejudiced by Brogan's delay in meeting with Kane and Dean Millard. Kane's letter set a meeting for March 14, and warned that Brogan's failure to meet at that time could result in charges of insubordination as well as risk Kane's reaching a conclusion about the allegations without hearing any contrary evidence from Brogan.

On March 10, Norma Schulman, Associate Secretary of the AAUP, wrote to Provost Kane expressing, inter alia, the AAUP's concerns for the integrity of the tenure and promotion process*fn16 and for due process for faculty members under investigation. The March 14 meeting was canceled due to Provost Kane's illness, and on March 16 Brogan wrote to Kane asking that there be a final attempt at mediation and that he allow an AAUP representative to be present at the meeting.

On March 31, a meeting was at last convened among Brogan, Provost Kane, Dean Millard, and Robert K. Moore, an AAUP representative. At the meeting, Brogan reiterated his opposition to the process being used, and refused to provide specific responses to the allegations despite Kane's renewed direction that he should do so.

On May 1, 1997, LaSalle's President Joseph F. Burke informed Balchunis-Harris that she had been granted tenure at LaSalle, a decision that bypassed the faculty Tenure and Promotion committee, and which the President did on his own prerogative.*fn17

On May 30, Provost Kane sent two letters to Brogan. One letter stated that because Brogan had offered no evidence contrary to Balchunis-Harris's claims, Kane had to conclude that Balchunis-Harris had, in fact, been held to a higher standard than other faculty members. Kane noted that the evidence did not clearly show that sex was the motivator, but he mentioned that Balchunis-Harris was the lone female faculty member in the department.*fn18 The letter went on to warn Brogan to avoid any such behavior in the future and to remind him to keep the matter confidential, and that violation of either condition could result in discipline. The second letter terminated Brogan's appointment as Chair of the political science department based on his refusal to cooperate with his supervisors' requests during the investigation of Balchunis-Harris's claims.

On the same day, Provost Kane and Dean Millard wrote to Balchunis-Harris and informed her that (1) the investigation of her allegations had been delayed due to Brogan's unwillingness to cooperate, (2) there had been a finding that Brogan had held her to a higher standard, and (3) there had been a finding that Brogan's holding her to a higher standard had contributed to fostering a hostile work environment. The letter reported that there had been no finding that Brogan's actions were motivated by sex, although it did note that Balchunis-Harris was the only female faculty member in the department.*fn19

Before he received either of Provost Kane's May 30 letters, Brogan on June 2 wrote to President Burke, Provost Kane, Dean Millard, and other members of the LaSalle administration. Copies of the letter were also sent to the executive committee of the Board of Trustees. In this letter, Brogan rehearsed his views of the procedural and factual history of the matter, and argued that the claimed unusual treatment of Balchunis-Harris's allegations stemmed from the fact that the accusations were made by a woman against a man and therefore constituted sexual discrimination against him. Brogan further stated that the letter should be considered to be a formal grievance application against ...


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