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McKenna v. City of Philadelphia

July 7, 2009


The opinion of the court was delivered by: McLaughlin, J.


This is a civil rights action brought by three Philadelphia police officers, William McKenna, Michael McKenna, and Raymond Carnation ("Carnation"), against the City of Philadelphia. The plaintiffs, who are white, allege that they suffered retaliation from the City of Philadelphia police department after they complained about racially-discriminatory treatment of African-American officers and filed claims of retaliation and discrimination.

The case was initially filed as two separate actions, one by Michael McKenna, the other by William McKenna, Raymond Carnation, and other, since-dismissed plaintiffs. By agreement of the parties, the two actions were consolidated for discovery and then for trial.

The Court held an eight-day jury trial on the plaintiffs' claims in May 2008. The claims submitted to the jury were the plaintiffs' claims of retaliation under Title VII, 42 U.S.C. § 2000e, et seq. Plaintiff Raymond Carnation also had equitable claims for front and back pay which were not submitted to the jury.*fn1

The jury reached a verdict in favor of all three plaintiffs and found damages in the amount of $2,000,000 for Raymond Carnation, $3,000,000 for William McKenna, and $5,000,000 for Michael McKenna. The City of Philadelphia has moved to apply Title VII's statutory cap on damages, 42 U.S.C. § 1981a(b)(3), to the verdict, and the plaintiffs have moved to avoid the statutory cap by molding the verdict to award damages under the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. § 951 et seq. Both motions remain pending.

The Court held a hearing on Raymond Carnation's equitable claims for front and back pay on May 18, 2009. In this Memorandum, the Court now decides Carnation's equitable claims. The Court finds that Carnation is entitled to $208,781 in back pay for the period from his termination in March 12, 1999, through August 30, 2005, the date that Carnation became completely disabled and the date that he stopped all efforts to look for work and effectively withdrew from the workforce. The Court finds that Carnation's disability and his withdrawal from the workforce serve to cut off his right to back pay as of that date. The Court declines to award front pay.


A. Police Department Salary and Benefits

Raymond Carnation was terminated from the Philadelphia police department on March 12, 1999. The parties have stipulated to the yearly gross salary, benefits, and city pension benefits that Carnation would have earned had he continued as a Philadelphia police officer from March 12, 1999, through the end of 2009. See Stipulation (Docket No. 239 in Case No. 99-1163, hereinafter "Stipulation"). The Court accepts and adopts these stipulated figures, embodied in Defendant's Equity Exhibit ("Def. Eq. Ex.") 13, by reference in its findings of fact. These figures show that Carnation would have earned $57,270 in 1999 in gross salary, benefits, and city pension benefits, which would have risen steadily over time to $83,702 in 2009.

B. Carnation's Unused Sick/Vacation/Holiday Time

Raymond Carnation received sick time, vacation time, and paid holidays as a Philadelphia police officer. Under department procedures, such time, with some restrictions, could be "banked" to be used later. When an officer leaves the police department, the City buys back the officer's unused "banked" sick time or vacation time. Up to 2,499 hours of sick time can be bought at 50% of hourly pay; above 2,500 hours the payment is 60%. For vacation time a maximum of 70 days or 560 hours, plus four days or 32 hours of administrative leave will be purchased. Holidays cannot be banked beyond a year. If an officer has banked time beyond the amount that can be paid back, it is possible for the officer to use any excess immediately before his effective retirement date. 5/18/09 Tr. at 51-52, 55, 60, 111-14. 152; Def. Trial Ex. 616.

When Carnation was terminated he had 152 hours (19 days) of unused vacation, 64 hours (8 days) of unused holidays and a negative balance of 39 hours (4 days, 6 hours) of sick time, showing he was overdrawn by that amount. Carnation was paid for the net amount of his unused time, amounting to 22 days, one hour. 5/18/09 Tr. at 153-54.

Carnation prepared an estimate of the sick time, holiday time, and overtime that he would have accrued through 2020. Carnation contends that he would have banked all of this time and would have been paid for it when he left the City's employ. 5/18/09 Tr. at 82-83.

C. Carnation's Pre- and Post-Termination Employment While

Raymond Carnation was still employed by the police department, before his March 12, 1999, termination, he had a second job working as a night manager for a Doubletree hotel for one night a week. Carnation began working this second job in November of 1998. He worked at Doubletree one eight-hour shift a week for $12.00 an hour, for a total of $96.00 a week. Carnation arranged his work at Doubletree to accommodate his police work. His employment at Doubletree was known to the police department, and was the subject of a complaint and an internal affairs investigation, but he was never asked to give up the second job. 5/18/09 Tr. at 29-30, 41, 85-86; 1/21/09 Carnation Dep. at 18-20; Def. Trial Ex. 82; Def. Trial Ex. 582.

Carnation's employment at Doubletree was "secondary" employment; his primary employment was with the police department. Secondary employment by a Philadelphia police officer requires department approval. 5/18/09 Tr. at 83, 133. After being terminated from the police department, Carnation held a series of jobs from 1999 through 2005. One of Carnation's contentions in his request for back pay is that his earnings from the jobs he held after being terminated from the police department should not be deducted from any back pay award, because Carnation alleges he could have held these jobs as secondary employment while working full-time as a Philadelphia police officer.

After Raymond Carnation was terminated from the Philadelphia police department, he continued to work at Doubletree for another four months, until July 1999, when Doubletree terminated his employment. The record before the Court does not show how many hours a week Carnation worked at Doubletree after he was terminated from the police department, or why Carnation was terminated from Doubletree. 5/18/09 Tr. at 41; 1/21/09 Carnation Dep. at 18-20.

After he stopped working for Doubletree, Carnation worked at Credit Card Center for approximately nine months. He worked in shipping and loading. He worked eight hour days, five days a week. The record before the Court does not establish whether Carnation's shifts at Credit Card Center were flexible or fixed; Carnation's testimony on this point was inconsistent.

Carnation left his employment at Credit Card Center because the company went bankrupt. 5/18/09 Tr. at 31-32, 41.

Carnation next worked at Prebelli Industries, a manufacturing company, where he worked cutting machine parts. He worked 40 hours a week, but his hours were flexible. Carnation started work there in August 2001, but quit after two weeks. Carnation stopped working at Prebelli because of his depression and because he was unable to focus and worried about injuring himself on the job. 5/18/09 Tr. at 33, 42, 84-85.

Carnation also worked at Tate & Kirlin, a bill collecting firm in 2001. Carnation worked there for only one month. He stopped going to work because of his depression. The Court lacks sufficient basis to make a finding as to whether Carnation's working hours at Tate & Kirlin were flexible or fixed because Carnation's testimony on this issue was inconsistent. 5/18/09 Tr. at 32, 41, 85.

Carnation worked at a company called East Coast Sign from November 2001 through February 11, 2002. Carnation presented no testimony about the length of his work week or the flexibility of his hours at East Coast Sign. Carnation left his employment at East Coast Sign because he was laid off. 5/18/09 Tr. at 86.

Carnation was employed at Temple University Hospital beginning in April 2002 through August of 2005. He worked as an orderly, transporting patients. He did shift work, and had some flexibility in arranging his shifts. At the beginning of his employment with Temple he worked varying shifts, but later changed to working only days. By the end of his employment at Temple, Carnation was working three days a week, 7:00 a.m. to 3:00 p.m. Carnation was terminated by Temple because he repeatedly did not report to work as scheduled. 5/18/09 Tr. at 36-37, 42, 86-87.

The parties have stipulated to the amounts earned by Carnation from 1999 through the present as the amounts shown on his tax returns. Def. Eq. Ex. 1.*fn2

D. Carnation's Failure to Look for Work after 2005

After being terminated from Temple in August 2005, Carnation has had no other employment. Since August 2005, Carnation has not submitted any employment applications to any employer or had any interviews for employment of any kind. Since being terminated from the police department, he has never looked for police work. 5/18/09 Tr. at 5/18/09 Tr. at 42, 49, 87-88.

Carnation believes his failure to look for work is a symptom of his depression, which caused him to lose motivation and to become unable to seek employment. 5/18/09 Tr. at 42, 87-89.

E. Carnation's Depression and Worker's Compensation and Social Security Disability Payments

Carnation was diagnosed with depression in 1996. He was being treated for depression and taking anti-depression medication when he was terminated from the police department. Carnation has testified that he continues to suffer from depression to the present day. 5/18/09 Tr. at 49-50, 89-90, 101.

Raymond Carnation received worker's compensation after he left the police department. In order to obtain worker's compensation, Carnation had to hire an attorney and pursue an appeal. Carnation paid his attorney 20% of his worker's compensation award. The parties have stipulated to the amounts of worker's compensation benefits paid to Carnation, as shown on Defendant's Equity Exhibit 2. Carnation was paid benefits from 1999 through the end of 2008, and has not received benefits after December 31, 2008. Carnation will not be required to repay any worker's compensation benefits which are offset from any equitable award in this action. Stipulation; 5/18/09 Tr. at 50, 60-61.

Carnation was awarded Social Security disability benefits in September 29, 2008. The Social Security Administration's ("SSA's") ruling that awarded benefits found that Carnation became disabled as of August 30, 2005. In the letter awarding Carnation benefits, the SSA states that going to work can affect an applicant's benefits but that "special rules" can allow the SSA to continue cash benefits and health insurance even if an applicant begins working. 5/18/09 Tr. at 90-94; Def. Eq. Ex. 11.

F. Carnation's Conviction for Marijuana Possession

Carnation was arrested in Delaware on September 3, 2000, for possession of marijuana. He was convicted on April 3, 2001, in the Court of Common Pleas of New Castle, Delaware, of knowingly possessing marijuana, a Schedule I controlled substance under Delaware law, which pursuant to 11 Del. Code § 4206(b) is a class B misdemeanor that is punishable by up to 6 months incarceration and a fine of $1,500. The transcript of his trial shows the amount of marijuana he was accused of possessing to be one cigarette of 0.76 grams. The City first learned of Carnation's arrest and conviction on January 21, 2002, when he testified to it at his deposition in this action. Stipulation; Def. Eq. Ex. 3; Def. Eq. Ex. 9.

Carnation blames his use of marijuana and his subsequent arrest on the fact that he was depressed and had stopped taking his anti-depressant medication. Carnation testified that he never used marijuana while a police officer and would never have done so had he not been terminated from the police department. 5/18/09 Tr. at 66-67. As discussed in more detail in the Court's conclusions of law, the Court finds that Carnation's use of marijuana was caused by his depression.

Before his arrest, Carnation had stopped taking his anti-depression medication and stopped seeing his doctor. Carnation could no longer afford treatment because he did not have medical insurance while his worker's ...

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