                                               NOT PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT


                      No. 17-3236



                   ROGER KNIGHT,
                          Appellant

                           v.


     SLIPPERY ROCK UNIVERSITY, a unit of the
     STATE SYSTEM OF HIGHER EDUCATION



     On Appeal from the United States District Court
        for the Western District of Pennsylvania
          (District Court No.: 2:15-cv-01520)
        District Judge: Honorable Cathy Bissoon



      Submitted under Third Circuit L.A.R. 34.1(a)
                   on July 13, 2018


          (Opinion filed: November 28, 2018)


Before: SHWARTZ, ROTH, and RENDELL, Circuit Judges
                                      O P I N I O N*


RENDELL, Circuit Judge:

       Roger Knight appeals from the District Court’s entry of summary judgment in

favor of Slippery Rock University and denial of his motion for summary judgment on his

discrimination claim. He contends that the University retaliated against him for engaging

in protected activity when, after separate federal discrimination claims were filed against

the University, he accessed multiple employees’ personal computer files. The District

Court held that he was not engaged in a protected activity and that, because he failed to

demonstrate that the University’s legitimate basis for termination—violation of the

computer access policy—was pretextual under the McDonnell Douglas test, this claim

could not succeed. We will affirm.

                                   I. BACKGROUND

       A. Facts

       Roger Knight was employed by Slippery Rock University (“the University”) from

1997 until his termination in March 2014. Knight held various positions within the

University’s police department before becoming Parking Manager in 2012.

       In late 2011, two employees of the Slippery Rock Police Department, Caitlin

Corrigan and Koah Pentz, filed EEOC Charges of Discrimination against the University,

alleging that Knight discriminated and retaliated against them. Corrigan alleged


       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
                                             2
discrimination on the basis of her sex, while Pentz alleged discrimination on the basis of

his Native American heritage and religious beliefs. Both filed complaints in federal

court. In January 2013, the University’s internal legal counsel sent Knight letters

instructing him to preserve and maintain all information he had in his possession,

custody, or control relating to the Corrigan and Pentz lawsuits. Knight received letters

again in December 2013 reminding him of his ongoing obligations regarding the

litigation holds.

       Between June 2012 and January 2014, he accessed a number of individual

computer files belonging to Officers Corrigan, Pentz, Frank Davis, and Assistant Chief of

Police Windy Stafford. These individual files, saved on the University’s server, are only

accessible to administrators. Knight’s account had administrator rights and permissions.

Knight stated that he accessed these files because he was “told to provide information

that would help [the University] win this case.” A. 325. He further claimed that he

accessed the files of Officer Davis and Assistant Chief Stafford for the purpose of

looking for documents to bolster the University’s defense. He believed that he “was

going to be [the University’s] best witness as to defending [the Corrigan lawsuit.]” A.

327 (second alteration in original).

       In October 2013, Knight showed his supervisor, Chief Simmons, a document

prepared by Corrigan addressed to Simmons regarding Knight’s alleged harassment.

When Simmons was unsuccessful in determining how Knight had accessed the file, the

University retained Bit-x-Bit, a third-party forensics expert, to investigate how Knight

gained access. In January 2014, while the investigation was ongoing, Knight was

                                             3
suspended with pay. The next month, Bit-x-Bit issued a report detailing which files

Knight had accessed and when, when his permissions were created, and recommending

limiting Knight’s access and creating an administrator rights policy. Several days later,

at the request of the University, Bit-x-Bit issued a second report that did not contain the

recommendations regarding Knight. The report noted that Knight accessed documents

including texts of emails Corrigan sent to her attorney and to Chief Simmons, and a

document with a file name “Attorney,” appearing to contain communication between

Corrigan and her attorney.

       In February 2014, the University held two pre-disciplinary conferences. At the

first conference, the University asked Knight to turn over all the documents he had

accessed. Knight refused, but turned over some documents after the conference. At the

second pre-disciplinary conference Knight provided additional documents. Knight was

terminated on March 6, 2014.

       In its termination letter, the University identified several reasons for Knight’s

discharge. First, the University said that Knight violated its computer-use policy 1 “by

failing to act responsibly, use good judgment and exercise civility, and understand the

appropriate use of assigned IT resources.” A. 461. In addition, Knight’s “unauthorized

access of folders for other Officers was . . . for [his] own personal gain.” Id. Moreover,


1
  The University’s Acceptable Use Policy states that “[u]sers are expected to act
responsibly.” A. 514. It prohibits “[u]nauthorized use of another user’s account” and
“[a]ttempting to gain or gaining unauthorized access to . . . the files of another user.” A.
516. It also prohibits “[u]tilizing university IT resources for purposes other than . . .
university employment activities or university communications” and states that “IT
resources cannot be used for personal or financial gain.” A. 517.
                                              4
Knight had to take affirmative steps and separately log in using his administrator access

to view the information that he did. Lastly, Knight did not fully cooperate with the

investigation, as he did not turn over all information and documents in his possession.

       B. Procedural History

       A few months after he was fired, Knight filed a charge against the University with

the Equal Employment Opportunity Commission (“EEOC”). The EEOC dismissed

Knight’s charge.

       Knight filed his present lawsuit in the United States District Court for the Western

District of Pennsylvania on November 19, 2015, alleging that he was terminated in

retaliation for his participation in the investigation into the complaints by Officers

Corrigan and Pentz, in violation of the Civil Rights Act of 1964.

       After discovery, Knight and the University each filed motions for summary

judgment. The District Court issued an order granting the University’s motion for

summary judgment and denying Knight’s motion for summary judgment.

       The District Court analyzed the parties’ submissions using the three-step

McDonnell Douglas burden-shifting approach. This three-part test requires (1) the

plaintiff to state a prima facie case of discrimination or retaliation; (2) the burden then

shifts to the employer to advance a legitimate, non-discriminatory reason for the adverse

employment action; and (3) the plaintiff is afforded an opportunity to show that the

employer’s proffered reason is pretextual. McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802-04 (1973). The District Court granted the University’s motion under step one of

the test, because it found that Knight had not engaged in a protected activity, and thus

                                              5
failed to state a prima facie case of discrimination or retaliation. The Court noted that our

precedent requires an employee participating in a proceeding against an employer’s

activity to hold an objectively reasonable good-faith belief that the activity he opposes is

unlawful under Title VII in order to be afforded protection. Given that Knight did not

oppose the discrimination, nor contend that he or the University did anything wrong, the

District Court held Knight could not have had a good faith belief that the underlying

employer conduct was unlawful.

       While the Court granted the University’s summary judgment motion under step

one, it nonetheless addressed steps two and three. The District Court found that under

step two, the University had offered a legitimate, non-retaliatory reason for terminating

Knight. Specifically, the Court found that the University consistently pointed to Knight’s

violation of the computer-use policy as the reason for terminating Knight, and that this

was a legitimate basis for terminating him. Moreover, under the third step of McDonnell

Douglas, the District Court held that Knight had failed to demonstrate that the

University’s legitimate reason was merely a pretext for discrimination.

       This appeal followed.

                                     II. DISCUSSION

       The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have

jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over a grant of

summary judgment. Coolspring Stone Supply, Inc. v. Am. States Life Ins. Co., 10 F.3d

144, 146 (3d Cir. 1993). We apply the same standard as the District Court did. Blair v.

Scott Specialty Gases, 283 F.3d 595, 602–03 (3d Cir. 2002). Summary judgment is

                                              6
appropriate where “there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “An issue is genuine only

if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-

moving party, and a factual dispute is material only if it might affect the outcome of the

suit under governing law.” Kaucher v. Cty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006)

(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

       Title VII of the Civil Rights Act of 1964 prohibits an employer from retaliating

against an employee “because he has opposed any practice made an unlawful

employment practice by this subchapter, or because he has made a charge, testified,

assisted, or participated in any manner in an investigation, proceeding, or hearing under

this subchapter.” 42 U.S.C. § 2000e-3(a).

       Applying the McDonnell Douglas burden-shifting approach, the District Court

determined that Knight did not state a prima facie claim of retaliation, and that even if he

had, he failed to demonstrate that the University’s legitimate, non-discriminatory reason

for terminating his employment was pretextual. We see no reason to disturb the District

Court’s well-reasoned ruling. Although the District Court thoughtfully analyzed each

step of the McDonnell Douglas framework, we will affirm on a narrower basis.

       Even if we assume Knight had engaged in protected activity, Knight has failed to

show that the University’s proffered legitimate and non-discriminatory reasons for his

discharge were pretextual. To preclude summary judgment at this third stage, a “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)

                                              7
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). The employee “must show[] not merely that the employer’s proffered reason

was wrong, but that it was so plainly wrong that it cannot have been the employer’s real

reason.” Keller v. Orix Credit All. Inc. 130 F.3d 1101, 1109 (3d Cir. 1997) (en banc).

       Knight does not meet this burden. Under the first prong, Knight argues that the

University’s termination letter contained numerous inaccuracies and was inconsistent

with related testimony. In particular, he avers that the University stated that he had to

separately log in to access the files, but Lynne Motyl, who wrote the letter, later testified

in unemployment compensation proceedings that this was not true. In addition, Knight

contends that in contrast to the letter’s statement that he accessed the files “for personal

gain,” Motyl later admitted she was unaware of any personal gain Knight received.

Lastly, Knight argues that he had access to the files by virtue of his administrative role,

and thus it is unclear whether he violated the University’s policies.

       These inconsistencies are immaterial and do not approach a showing that the

University’s reason for his discharge “was so plainly wrong that it cannot have been the

employer’s real reason.” Keller, 130 F.3d at 1109. “The plaintiff’s evidence, if it relates

to the credibility of the employer’s proffered justification, ‘must demonstrate such

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

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

rationally find them unworthy of credence.’” Burton v. Teleflex Inc., 707 F.3d 417, 427



                                              8
(3d Cir. 2013) (quoting Fuentes, 32 F.3d at 765) (emphasis added and internal quotation

marks omitted). Knight has not made such a demonstration.

       For instance, although Motyl testified that she was unaware of any improper

financial gain resulting from Knight’s access to the files, she repeatedly testified as to the

personal gain to which the letter referred. See, e.g., A. 150 (“He wanted to win so

basically he was providing documents or looking at documents [so] that he could protect

himself and potentially the university.”); A. 153 (“He was preparing a case to protect

himself because these complainants had filed previous complaints against him

personally.”). Further, Knight conflates his ability to access the files with the University’s

authorizing him to access the files. See A. 516 (prohibiting “gaining unauthorized access

to . . . the files of another user”). As the District Court correctly noted, “nothing Plaintiff

has identified would lead a reasonable factfinder to question that Plaintiff was fired for

inappropriately accessing the files of other officers.” A. 659.

       Under the second prong, Knight attempts to establish pretext by showing that

similarly situated persons, not in the protected class, were treated more favorably. See

Fuentes, 32 F.3d at 765. In support, he cites the fact that Motyl conceded the similarity

of Knight’s actions to those of two other employees, a janitor and Chief Simmons, who

obtained physical files from co-workers’ desks. Neither the janitor nor Chief Simmons

was terminated. Knight contends that the janitor and Chief Simmons were similarly

situated, and the only difference is that Knight was engaged in a protected activity. But

the undisputed evidence does not support this assertion.



                                               9
       Knight’s termination for violating computer-use policy is unlike taking papers

from a desk. A janitor’s level of responsibilities and accountability regarding University

resources does not compare to Knight’s administrative position as Parking Manager.

Moreover, Chief Simmons acted on the advice of counsel and HR when accessing the

files, whereas Knight concedes that he accessed the files on his own and without

instruction or consultation. Knight is therefore not similarly situated to the janitor and

Chief Simmons.

       On the undisputed record, a reasonable jury could not find a discriminatory

purpose to be more likely than not the reason for Knight’s termination. Because Knight

has not established a genuine issue of material fact, the University was entitled to

summary judgment.

                                   III. CONCLUSION

       For the foregoing reasons, we will affirm the District Court’s judgment and order.




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