Charles Brennan v. City of Philadelphia

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 20-2512
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CHARLES BRENNAN,
Appellant
v.
CITY OF PHILADELPHIA; MAYOR JAMES F. KENNEY;
CHRISTINE DERENICK-LOPEZ; JANE SLUSSER
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-18-cv-01417)
District Judge: Honorable Jan E. DuBois
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Argued on March 24, 2021
Before: HARDIMAN, GREENAWAY, JR., and BIBAS, Circuit Judges.
(Filed: May 19, 2021)
Jeremy M. Cerutti [argued]
Karpf, Karpf & Cerutti, P.C.
3331 Street Road
Two Greenwood Square, Suite 128
Bensalem, PA 19020
Attorney for Appellant
Kelly Diffily [argued]
City of Philadelphia Law Department
1515 Arch Street, 17th Floor
Philadelphia, PA 19102-1595
Attorney for Appellees

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___________
OPINION
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HARDIMAN, Circuit Judge.
Charles Brennan appeals the District Court’s summary judgment in favor of the
City of Philadelphia and three individuals. We will affirm.
I
Brennan worked for the City in various law enforcement capacities for about thirty
years. After some time in the private sector, he returned to government service in 2016
as the City’s Chief Information Officer. On January 12, 2018, Brennan was fired. Soon
after, he sued the City and his supervisor, Christine Derenick-Lopez. He also sued Mayor
James Kenney and the Mayor’s Chief of Staff, Jane Slusser. Brennan alleged he was fired
in retaliation for objecting to the City’s unlawful racial hiring practices and for blowing
the whistle on wasteful City spending. The District Court rejected Brennan’s claims. It
held his race-based claim failed because he did not show the City’s legitimate reason for
firing him was pretextual and his whistleblower claim failed to show causation.
Brennan raises two arguments on appeal. He argues the District Court erred in
entering summary judgment on his retaliation claims under (1) Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e-2; 42 U.S.C. § 1981; the Pennsylvania Human
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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Relations Act, 43 PA. CONS. STAT. § 951 et seq.; and the Philadelphia Fair Practices
Ordinance, Phila. Code § 9-1101 et seq.; and (2) the Pennsylvania Whistleblower Law,
43 PA. CONS. STAT. § 1421 et seq. We address each argument in turn.
II1
Brennan claims he was terminated in retaliation for his complaints that the City
discriminated by hiring based on race. Appellees says they fired Brennan because he
opposed his supervisor after he made inappropriate comments in public while
representing the City. The District Court assumed that Brennan had established a prima
facie case of retaliation. Appellees proffered a legitimate nonretaliatory reason for
Brennan’s termination. So the question presented here is whether the Court erred in
finding no pretext.
To prove pretext, Brennan must do more than “simply show that the employer’s
decision was wrong or mistaken.” Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994).
Instead, he must show there is “a genuine issue of fact as to whether the employer’s
proffered reasons were not its true reasons,” which can be done by pointing to
“weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions” that
allow a reasonable factfinder to find the City’s reasons “unworthy of credence.” Krouse
v. Am. Sterilizer Co., 126 F.3d 494, 504 (3d Cir. 1997) (citations and quotations omitted).
1 The District Court had jurisdiction over Brennan’s federal law claims under 28 U.S.C.
§ 1331 and his state law claims under § 1367. We have jurisdiction under 28 U.S.C.
§ 1291 as the District Court’s order granting summary judgment was a final decision. We
exercise plenary review over the District Court’s summary judgment and view all
evidence and draw all inferences in Brennan’s favor. Shelton v. Univ. of Med. &
Dentistry of N.J., 223 F.3d 220, 224 (3d Cir. 2000).

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We agree with the District Court that Brennan did not carry his burden at the Rule 56
stage.
Brennan claims “similarly situated persons” were not fired. See Fuentes, 32 F.3d
at 765. He points to Derenick-Lopez and Nolan Atkinson—two senior-level City
employees who made inappropriate and insensitive comments—and Brian Abernathy,
who allegedly violated City policy by disclosing information about prisoners to federal
immigration officers. We agree with the District Court that they are not valid comparators
because none was “directly comparable to [the plaintiff] in all material respects.” In re
Tribune Media Co., 902 F.3d 384, 403 (3d Cir. 2018) (quoting Patterson v. Avery
Dennison Corp., 281 F.3d 676, 680 (7th Cir. 2002)).
First, Atkinson and Brennan had different supervisors. See id. (requiring a
comparator to have “dealt with the same supervisor” and “engaged in the same conduct”
(quoting Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992))). Second, the
record shows Atkinson’s behavior improved after Derenick-Lopez relayed Brennan’s
complaints to Atkinson’s supervisor. In contrast, the record reflects no improvement, or
even any attempt at improvement, in Brennan’s communication style. Third, and most
importantly, there is no indication that Atkinson was insubordinate or oppositional
toward his supervisor. Appellees’ stated reason for firing Brennan was based not only on
his inappropriate comments, but also on his poor response to Derenick-Lopez’s request
that he attend sensitivity training. So pointing to other employees, like Atkinson, who
made inappropriate comments but improved in response to a supervisor’s counsel cannot
prove pretext.

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Derenick-Lopez is a poor comparator for similar reasons. Brennan and Derenick-
Lopez have different supervisors. While Brennan complained that she used profanity in
the workplace, that conduct differs from Brennan’s comment that his female employees
own more shoes than his male employees and his implication that attendees at a City-
sponsored conference could not afford the food catered by the City. Brennan’s comments
were made in public and his supervisor and several coworkers believed they reflected
poorly upon the City. And Brennan neither reported Derenick-Lopez to her supervisor
nor claimed that Derenick-Lopez was ever insubordinate.
Abernathy also fails as a comparator. Violating City policy by disclosing
information to federal immigration officials has nothing to do with making inappropriate
comments when representing the City or being insubordinate to one’s supervisor.
Another weakness in Brennan’s comparator argument is that other department
heads complained that the City was hiring based on race and there is no evidence those
complainants were disciplined or fired. That others complained but suffered no adverse
employment action undermines Brennan’s argument that he was fired for those
complaints.
Brennan’s alternative arguments also fail to show pretext. The temporal proximity
between his final complaint about the City’s hiring practices and his termination—over a
month—is not “unduly suggestive,” especially where, as here, the employer’s proffered
legitimate reason for termination fits neatly into this timeframe. See Thomas v. Town of
Hammonton, 351 F.3d 108, 114 (3d Cir. 2003) (finding a three-week gap, “in the context
of the record as a whole,” insufficient to prove causation). The pattern of antagonism

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between Brennan and Derenick-Lopez does little to prove pretext when Brennan admits
the two had a cordial relationship after his final complaint and for several weeks before
he was fired. Cf. Robinson v. Se. Pa. Transp. Auth., Red Arrow Div., 982 F.2d 892, 895
(3d Cir. 1993) (affirming finding of causation when pattern of antagonism “continued
until [the employee’s] discharge”). Brennan’s reading of Slusser’s deposition
testimony—that she admitted he was fired for complaining about racial discrimination—
is an unreasonable and untenable one since Slusser immediately clarified that Brennan
was fired for his oppositional attitude toward Derenick-Lopez after she asked him to
attend sensitivity training. Nor do we find the severance package offer to Brennan
sufficient to show pretext because the record suggests such offers are not unusual for the
City.
Finally, Brennan argues that issues of material fact remain in dispute. He denies
some of the inappropriate comments attributed to him, he says he never refused to attend
sensitivity training, and he claims his interpersonal conflicts with co-workers were
overblown. We agree with the District Court that those disputes are immaterial.
First, whether or not Brennan made all the comments attributed to him, he admits
to some of them and the record shows all of them were reported to Derenick-Lopez.
When evaluating pretext, the veracity of the complaints is less significant than whether
the employer acted on them in good faith. See Fuentes, 32 F.3d at 766–67 (“[T]he
question is whether [the supervisor] believed [co-worker] criticisms to be accurate and
actually relied upon them.”). Brennan has offered no evidence suggesting Derenick-
Lopez responded to reports about Brennan’s comments in bad faith or that she had reason

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to disbelieve the City employees who reported to her. Second, the record shows Brennan
refused to attend sensitivity training unless Derenick-Lopez ordered him to do so, which
matches Appellees’ version of events. And third, Appellees have repeatedly said Brennan
was fired for his comments and insubordination; a fleeting reference to Brennan’s
interpersonal conflicts with his staff does not create a genuine dispute of material fact.
III
We next address Brennan’s claim under the Pennsylvania Whistleblower Law,
which, as relevant here, protects employees who report wrongdoing or waste by their
employers. 43 PA. CONS. STAT. § 1423. Brennan claims he was fired for making three
qualifying reports: one for the “rigged” public bidding process for police body cameras,
one for the City’s contract with Comcast, and another for the City’s racial hiring
practices.
The District Court granted summary judgment after concluding Brennan failed to
show his reports caused his termination. The Whistleblower Law requires “concrete facts
or surrounding circumstances that the report of wrongdoing or waste led to the plaintiff’s
dismissal, such as” a “specific direction” not to file the report or threats made to chill the
filing of reports. Golaschevsky v. Pa., Dep’t of Env’t Prot., 720 A.2d 757, 759 (Pa. 1998)
(cleaned up) (quoting Gray v. Hafer, 651 A.2d 221, 225 (Pa. Commw. Ct. 1994)).
We agree with the District Court. For essentially the same reasons Brennan fails to
show pretext on his first set of claims, he fails to establish causation for his whistleblower
claim. Brennan again points to temporal proximity and antagonism with Derenick-Lopez,

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but those allegations fall short of the “concrete facts” required under Pennsylvania law.
Golaschevsky, 720 A.2d at 759.
* * *
For the reasons stated above, we will affirm the District Court’s summary
judgment.

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