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McKenna v. City of Philadelphia

July 20, 2010


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




I. FACTUAL BACKGROUND.. . . . . . . . . . . . . . . . . . . . 3

A. The Underlying Events Giving Rise to the Litigation................... 4

B. The History of the Litigation.. . . . . . . . . . . . 9

II. ANALYSIS......................... 21

A. The Plaintiffs' Post-Judgment Motion .. . . . . . . 21

1. The Exclusion of William and Michael McKenna's Terminations . . . . . . . . . . . . 22

2. The Imposition of Title VII's Statutory Cap on Damages and the

Denial of Plaintiffs' Request to

Mold the Verdict and/or add a PHRA Claim................... 27

3. The Limited Post-Verdict Discovery Concerning Raymond Carnation's Tax Returns .................. 32

4. The Failure to Enter Final Judgment for William and Michael McKenna After the Jury Verdict . . . . . . . . . . . . 37

5. The Calculation of Raymond Carnation's Back Pay ................... 40

6. The Issuance of a Stay of Execution of Judgment without a Bond . . . . . . . . . . 48

B. The Defendant's Post-Judgment Motions . . . . . . . 51

1. The Motion for Judgment as a Matter of Law .................... 52

a. Michael McKenna's Claims Relating to his Assault.............. 53

b. Raymond Carnation's Claims Relating to his Custody Dispute .. . . . . . . . . 59

c. Raymond Carnation's Claims Relating to his Termination .. . . . . . . . . . . 63

2. The Motion for a New Trial . . . . . . . . . . 76

a. New Trial Based on the Misconduct of the Plaintiffs' Counsel, the Plaintiffs, and the Plaintiffs' Spouses ................. 77

(1) References to Non-Triable

Issues ............... 78

(a) References By Counsel to Non-Triable Issues .. . . . . . 79

(b) References By Plaintiffs and Their Spouses to Non-Triable Issues .. . . . . . 89

(2) Disrespectful Conduct by the Plaintiffs and their Counsel and References at Closing to A Few Good Men and to The "C word" ............ 93

(3) Whether the Misconduct Warrants a New Trial ............. 99

b. New Trial on the Ground that the Verdict Was Against the Weight of the Evidence ............... 106


This is a civil rights action brought against the City of Philadelphia police department by three former Philadelphia police officers, William McKenna, Michael McKenna, and Raymond Carnation. The three plaintiffs, although not African-American themselves, allege that they suffered actionable retaliation for opposing racially-discriminatory treatment of African-American officers in their district.

After lengthy pre-trial proceedings, the Court held an eight-day jury trial in May 2008 on the plaintiffs' claims for retaliation under Title VII, 42 U.S.C. § 2000e, et seq. The jury found in favor of all three plaintiffs and awarded non-pecuniary damages in the amount of $2,000,000 for Raymond Carnation, $3,000,000 for William McKenna, and $5,000,000 for Michael McKenna. After a subsequent evidentiary hearing, the Court awarded plaintiff Raymond Carnation back pay in the amount of $208,781. The City successfully moved to limit the jury verdict to $300,000 for each plaintiff under Title VII's statutory cap on non-pecuniary damages, 42 U.S.C. § 1981a(b)(3). The Court entered a final judgment on July 24, 2009, awarding each plaintiff $300,000 in non-pecuniary damages and awarding Raymond Carnation $208,781 in back pay and $46,560 in pre-judgment interest on his back pay award.

Both the City and the plaintiffs filed timely post-trial motions. The City has filed a motion for the entry of judgment in its favor on several claims by Raymond Carnation and Michael McKenna, which the City contends, if granted, will require vacating Carnation's back pay award and awarding a new trial on damages for these two plaintiffs' remaining claims. The City also moves for a new trial as to all plaintiffs on the ground that the jury verdict in their favor was the result of passion and prejudice caused by alleged misconduct by the plaintiffs and their counsel during trial and on the ground that the verdict was against the weight of the evidence. In the alternative, the City seeks a remittitur.

The plaintiffs filed a post-trial motion entitled a "motion for judgment as a matter of law and a new trial on equitable relief and judgment of entried [sic] jury verdict award under the Pennsylvania Human Relations Act." Although styled as a motion for judgment as a matter of law and for a new trial, the substance of the motion is more in the nature of a motion for reconsideration because it challenges a number of the Court's pre- and post-trial rulings. The plaintiffs challenge the Court's pre-trial orders excluding the terminations of Michael and William McKenna from the issues to be tried and its post-trial order applying Title VII's statutory cap to the jury verdict. The plaintiffs also challenge the Court's calculation of Raymond Carnation's back pay and its decision to stay the execution of the judgment without bond.

For the reasons that follow, the Court will deny the parties' motions.


To place the issues raised in the parties' post- judgment motions in context, it is necessary to give a summary of the events that gave rise to this case and the procedural history of the subsequent litigation. In describing the factual background of the plaintiffs' claims, the Court has done so in the light most favorable to the plaintiffs as the verdict winners. Where the factual background discusses events not addressed at trial, the Court has cited to the earlier opinion of the court of appeals in this case, Moore v. City of Philadelphia, 461 F.3d 331 (3d Cir. 2006).

A. The Underlying Events Giving Rise to the Litigation

In the late 1990's, plaintiffs William McKenna, Michael McKenna, and Raymond Carnation were Philadelphia police officers assigned to the 7-squad of the 25th District of the Philadelphia Police Department. The 25th District encompassed a high-crime area in North Philadelphia colloquially referred to as the "the Badlands." Michael McKenna was assigned to the 7-squad after his 1996 graduation from the Philadelphia Police Academy. Raymond Carnation and William McKenna, who is Michael's brother, were transferred to the 7-squad in July or August 1997. 5/6/08 N.T. at 15, 18-19, 24-25, 244-46; 5/7/08 N.T. at 159-60.

As of late August 1997, command of the 25th District was assigned to Captain William Colarulo. Upon taking over, Captain Colarulo began saturation details within the district in an attempt to disrupt drug dealing. These measures included erecting manned street barricades to interdict non-residents from entering neighborhoods to buy drugs. In October 1997, Sergeant John Moroney, who had been one of the rotating supervisors of the 7-squad, was made permanent supervisor. 5/5/08 N.T. at 37; 5/6/08 N.T. at 32-33, 59, 250.

Both before and after he became permanent supervisor, Sergeant Moroney made racially derogatory statements and took racially discriminatory actions in the plaintiffs' presence. In one of these incidents, Michael McKenna, while driving in his patrol car, came upon an African-American officer, Myrna Moore, who was standing in the rain. McKenna told Moore that she was supposed to be working with him and to get in his car and out of the rain. Sergeant Moroney then arrived at the location and, using a racial epithet, asked why Moore was in McKenna's car. Moroney then ordered McKenna to leave Moore, return his car to the station, and then return to Moore's post to join her in the rain. 5/6/08 N.T. 249-52; 5/7/08 N.T. at 21-26, 162-68.

In another incident, William McKenna who, along with Raymond Carnation, had been complaining to Moroney about racial problems in the 7-squad, told Moroney of a conversation he had had with an African-American officer, Carla Wilson. McKenna told Moroney that Wilson had said that she thought Moroney was treating her unfairly. Moroney responded that McKenna could "tell that critter to do what she has to do if she has a problem." 5/6/08 N.T. at 43-45.

In the fall and winter of 1997, the plaintiffs were also subjected to harassment from their co-workers. Michael McKenna had told Moroney about a scheme among fellow officers to inflate overtime hours. William McKenna and Raymond Carnation had also made several complaints to Moroney concerning the conduct of fellow officers. After these communications, officers began referring to the three plaintiffs as "snitches" and "rats," and graffiti referring to them as such was written on the walls of the station bathroom. The word "rat" was also written on William McKenna's time sheet. 5/6/08 N.T. at 44-50, 257-60; 5/7/08 N.T. at 70-71.

Beginning in October 1997, the three plaintiffs spoke to their superiors, including Captain Colarulo and Lieutenant Frank Bachmayer, about racial tensions in the 25th District. By December 1997, all three plaintiffs had complained to their superiors about Sergeant Moroney's racially insensitive language and behavior. On February 6, 1998, Raymond Carnation was called into Captain Colarulo's office to discuss the fact that he had left his post and gone home without permission the day before. At that meeting, Captain Colarulo threatened to make Carnation's life a "living nightmare" if he made an EEOC complaint and ordered him to apologize for making accusations against Sergeant Moroney. 5/6/08 N.T. at 44-47; 5/7/08 N.T. at 166-68, 175-77.

A little over a week later, on February 14, 1998, William McKenna made a comment while at the station that he hoped Sergeant Moroney "would get shot." In response to the comment, later that day, William McKenna's service weapon was confiscated, and he was assigned to restricted duty and ordered to undergo a psychiatric evaluation. That same evening, Michael McKenna overheard Sergeant Moroney saying that he would kick his and his brother's ass. Fifteen minutes later, Michael McKenna was assaulted by another officer and injured his wrist when he fell during the assault. 5/6/08 N.T. at 64-73; 5/7/08 N.T. at 30-38, 43-44.

By May 1998, all three plaintiffs were no longer assigned to the 25th District; in the next year, all three would leave the police department. By March 5, 1998, William McKenna was transferred from the 25th District to the police academy where he was placed on limited duty. In mid-February 1998, Michael McKenna was transferred to the 19th District. Carnation remained in the 25th District until May 1998, when he was granted restricted duty and assigned to the police academy. 5/6/08 N.T. at 74-76; 5/7/08 N.T. at 54, 180, 187.

In July 1998, Michael McKenna filed a private criminal complaint against the officer who assaulted him, a witnessing officer, and Sergeant Moroney. Filing such a complaint instead of resorting to internal disciplinary procedures was against police policy and McKenna was investigated by Internal Affairs. Michael McKenna was ultimately discharged from the police department in October 1999. 5/7/08 N.T. at 69; Moore, 461 F.3d at 339.

William McKenna was on restricted duty after February 1998. Pursuant to a Philadelphia police policy that allowed such duty to last no longer than six months, McKenna's restricted duty was cancelled in November 1998 and he was placed on medical leave. While on medical leave, McKenna was subject to "sick checks," in which supervisors would visit his house and confirm he was there. McKenna was subjected to at least one sick check in November 1998 and more frequent sick checks in January, February, and March of 1999. McKenna was dismissed in May 1999 for failing such checks. 5/6/08 N.T. at 74-81, 88-89, 98-99. 184; Moore, 461 F.3d at 338-399.

Carnation had been transferred to restricted duty at the police academy in May 1998. Shortly after his transfer, on the Friday before Memorial Day weekend, he placed several calls to the 25th District, seeking to speak to Sergeant Moroney. He was ordered to stop calling by Captain Colarulo, but understood the order to require him only to stop calling that day. The next day, Saturday, Carnation called the 25th District again and spoke to Moroney. On Sunday morning of Memorial Day weekend, Carnation called Captain Colarulo, who was off-duty and at his shore house, to speak with him about Moroney. In July 1998, Carnation was served with disciplinary papers for his Memorial Day telephone calls. 5/7/08 N.T. at 180-86, 207-12.

Also in the summer of 1998, Colarulo became involved in a custody dispute involving Carnation. Robin Kelly, the mother of Carnation's daughter, contacted Colarulo sometime in June or July 1998 seeking his help with on-going problems with Carnation. Although Carnation was no longer under Colarulo's command, Colarulo had Kelly transported to the 25th District where he interviewed her and then had her transported to another district to report Carnation's behavior to detectives. 5/8/10 N.T. 179-83.

Carnation was terminated from the police department on March 12, 1999, as a result of the charges brought against him by Captain Colarulo arising from his telephone calls over Memorial Day 1998. 5/7/08 N.T. at 194-95, 214-15.

B. The History of the Litigation

On April 29, 1998, the McKennas and Carnation and three African-American officers, including Myrna Moore, filed a complaint with the Pennsylvania Human Relations Commission and the Equal Employment Opportunity Commission, alleging racially-motivated discrimination and retaliation in the department. The McKennas and Carnation alleged that they had suffered racially-motivated harassment and discrimination because they had opposed discrimination against their African-American co-workers.

In November 1998, Michael McKenna filed Case No. 98-5835 in this Court, bringing claims against the City of Philadelphia under Title VII and claims against the City and since-dismissed individual defendants for retaliation under 42 U.S.C. § 1981 and invasion of privacy under 42 U.S.C. § 1983. In March 1999, William McKenna, Carnation, and the three African- American officers filed a separate suit, Case No. 99-1163. This suit brought claims against the City for retaliation under Title VII and claims against the City and since-dismissed individual defendants for retaliation and discrimination under § 1981 and deprivation of procedural and substantive due process under § 1983. The two cases were consolidated for discovery on May 4, 2000.*fn1

In May, 2001, the three African-American plaintiffs in Case No. 99-1163 voluntarily dismissed their claims against all defendants. Also in May 2001, William McKenna moved to amend his complaint to add a claim for wrongful discharge under 42 U.S.C. §§ 1981 and 1983. This motion was denied.

In September 2002, the defendants moved for summary judgment on all claims against them. On January 17, 2003, after Michael McKenna, William McKenna, and Raymond Carnation had voluntarily dismissed their § 1981 claims and their claims against certain individual defendants, this Court granted summary judgment against them on the remaining claims. All three plaintiffs appealed.

On August 13, 2006, the United States Court of Appeals for the Third Circuit issued an opinion reversing the grant of summary judgment as to the plaintiffs' Title VII retaliation claims: Moore v. City of Philadelphia, 461 F.3d 331 (3d Cir. 2006). The decision found that the plaintiffs had presented sufficient evidence to create a genuine issue of material fact as to whether they had suffered unlawful retaliation under Title VII and remanded the case for further proceedings.

After remand, the plaintiffs moved to amend their complaints in various ways to add claims concerning their terminations. The plaintiffs moved to add § 1983 first amendment retaliation claims, which would encompass their terminations, to be brought against individual defendants named in the plaintiffs' initial complaints, but subsequently dismissed. In the alternative, the plaintiffs argued that, even if permission to amend their claims was denied, they should still be permitted to receive damages for their termination as part of their recovery on their existing claims. In addition, plaintiff William McKenna moved for reconsideration of the Court's 2001 Order denying him leave to amend his complaint to file claims for wrongful termination under § 1981 and § 1983.

The Court denied the motion in a Memorandum and Order of May 15, 2007. After reviewing the procedural history, the briefing on appeal, and the Moore decision, the Court interpreted Moore as remanding only the plaintiffs' claims for retaliation under Title VII against the City, but not the claims remaining against the individual defendants, which were brought under other statutes. The Court also determined that the plaintiffs' terminations had not been a part of the plaintiffs' case prior to the appeal and so were not part of the case after remand. The Court then denied the plaintiffs leave to amend, finding that any wrongful termination claims asserted against the individual defendants would be time-barred and that amendments to add such claims against the City, while not time-barred, should be denied on grounds of undue delay and prejudice. The Court also denied William McKenna's request for reconsideration of its 2001 Order.*fn2

The plaintiffs then filed an "omnibus" motion seeking alternatively to have the Court reconsider its May 15, 2007, ruling, to have the Court certify the issue for interlocutory appeal, or to have the Court stay the case so that the plaintiffs could file a writ of mandamus. As part of their motion, the plaintiffs noted for the first time that Raymond Carnation's termination -- but not that of William or Michael McKenna -- was specifically mentioned in the applicable complaint as one of the retaliatory actions taken by the defendants. In an order entered November 28, 2007, the Court granted reconsideration as to plaintiff Raymond Carnation's claims for wrongful termination, allowing him to seek to recover for his termination as part of his existing claims. The Court denied reconsideration of all other aspects of its May 15, 2007, Memorandum and Order, and denied the plaintiffs' motion to certify that order for interlocutory appeal or stay the case pending the filing of a writ of mandamus.

The plaintiffs filed a second motion for reconsideration on December 7, 2007, asking the Court to reconsider its ruling that William and Michael McKenna's terminations were not already a part of their claims. The Court denied this motion on December 12, 2007, and, after a conference with the parties and with their consent, the Court consolidated both cases for trial and set a trial date for March 10, 2008.

The plaintiffs filed a petition for writ of mandamus and a motion for stay with the United States Court of Appeals for the Third Circuit on December 21, 2007, challenging the exclusion of the McKennas' terminations as issues for trial. In January 2008, the parties jointly moved before this Court for a stay of the trial date because of the pending mandamus petition, stating that the parties had been engaged in good-faith settlement negotiations, but could not productively discuss settlement until it was known whether William and Michael McKenna's terminations would be part of the case to be tried. On January 29, 2008, the court of appeals denied the motions for a writ of mandamus and a stay, and the Court rescheduled trial for May 2008.

In pre-trial motions, the plaintiffs and defendants disagreed about what issues had been remanded to this Court after the appellate reversal of summary judgment and remained in the case. After reviewing the parties' arguments and the appellate opinion, the Court set out in an order the issues that it found to have been remanded by the court of appeals and which were to be tried to the jury:

. . . the questions for trial will be whether the following events were caused by the defendant's unlawful retaliation against the specific plaintiff.

1. William McKenna

(a) The discipline William McKenna received in and after February 1998 resulting from the comment that "Sergeant Moroney should be shot . . ..": having his weapon stripped from him; having his duties changed; being ordered to undergo a psychiatric evaluation; receiving a negative performance evaluation; receiving a 30-day suspension, and being transferred from the 25 District. Moore, 461 F.3d at 346.

(b) The allegedly excessive number of sick checks William McKenna received after he filed this lawsuit on March 5, 1999. Id. at 352.

2. Michael McKenna

(a) Being forced to stand in the rain along with Officer Myrna Moore sometime in the fall or winter of 1997, and other retaliatory treatment by Sgt. Moroney. Id. at 335, 347.

(b) The alleged assault by a fellow police officer in February 1998 after Sgt. Moroney allegedly threatened to "kick [Michael's] ass." Id. at 347.

(c) The lateral transfer Michael McKenna received in February 1998 after his alleged assault. Id.

3. Raymond Carnation

(a) The pattern of alleged harassment directed against Carnation beginning in February 1998, including the fact that he was kept in the 7th Squad after both McKennas were transferred out. Id. at 348-49.

(b) The discipline Carnation received for attempting to contact his supervisors over the Memorial Day weekend of 1998. Id.

(c) Captain Colarulo's involvement in Carnation's custody dispute with the mother of Carnation's child during the summer of 1998. Id.

(d) His termination from the Police Department. See Order of November 27, 2007 (Docket No. 125 in [Case No] 99-1163).

Order of May 1, 2008 (Docket No. 131 in Case 98-5835; No. 150 in Case No. 99-1163).

In a separate order, also issued on May 1, 2008, the Court ruled on many of the parties' motions in limine. In that second May 1 Order, the Court stated that, because the parties had not agreed to submit the issue of Raymond Carnation's equitable remedies including the availability of front and back pay to the jury, that issue would be decided in a separate proceeding, and no evidence about Carnation's damages would be admissible at trial.

The Court held a jury trial in this matter from May 5 through May 14, 2008. At the charge conference, held with counsel on the second-to-last day of the trial, the plaintiffs moved to amend their complaints to add § 1983 claims based on the First and Fourteenth Amendment and to include Title VII disparate treatment and hostile work environment claims. The Court denied the plaintiffs' motion. 5/13/08 Tr. at 224-225. The instructions given to the jury included only one claim for each plaintiff under "a federal Civil Rights Statute," a retaliation claim under Title VII. 5/14/08 Tr. at 168.

On May 14, 2008, after approximately two and a half hours of deliberation, the jury returned a verdict in favor of all three plaintiffs and awarded compensatory damages in the amount of $2,000,000 for Raymond Carnation, $3,000,000 for William McKenna, and $5,000,000 for Michael McKenna. After the verdict, the Court stated on-the-record that it would not enter an immediate judgment on the verdict because the parties anticipated filing motions on the applicability of Title VII's statutory cap and the availability of front and back pay damages for Raymond Carnation. 5/14/08 Tr. at 220-21.

After the verdict, the parties filed a flurry of motions. The plaintiffs filed a motion for entry of judgment and a petition for attorneys fees. The Court denied these motions without prejudice to the plaintiffs' right to reassert them after proceedings on Carnation's equitable damages. The plaintiffs also filed a motion to add Michael and William McKenna's terminations to the case, styled as a motion to amend the complaint to conform to the evidence at trial or, in the alternative, as a motion for reconsideration. The Court denied this motion, again reaffirming its earlier rulings that the McKennas' terminations had not been part of the case as pled or tried. The City filed a motion to dismiss Carnation's claim on judicial estoppel grounds for failing to list his claim against the City in a 2003 bankruptcy filing, which the Court denied. The plaintiffs also filed a motion to "allocate, mold and/or allow" the jury verdict to be awarded for a violation of the Pennsylvania Human Rights Act, which would avoid Title VII's statutory cap. The Court did not immediately decide this motion.

After a telephone conference with counsel, the Court permitted limited discovery on the issue of plaintiff Carnation's front and back pay. This discovery proved protracted, with both parties filing motions to compel discovery and for sanctions, each accusing the other of dilatory conduct. The Court denied the requests for sanctions but ordered Carnation to produce all relevant tax records in his possession and to provide authorizations to allow the City to obtain from the IRS those records that Carnation had not retained. The Court also allowed the City to depose Carnation and for the plaintiffs to depose Deputy Commissioner Jack Gaitens, who was proffered by the City to give evidence relevant to its after-acquired evidence defense concerning Carnation's post-termination conviction for marijuana, which the City contended should cut off Carnation's entitlement to back pay. As part of its motion practice, the plaintiffs moved, among other relief, for the recusal of the undersigned and for the certification of the Court's order permitting discovery for interlocutory appeal. The Court denied these requests.

On February 3, 2009, the plaintiffs filed a request to schedule a trial date, stating that all discovery on the issue of Carnation's equitable damages was complete. After receiving the City's confirmation that discovery was complete, the Court set a schedule for pre-hearing motions and a pre-hearing ...

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