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Michael Mckenna; William K. Mckenna; Raymond Carnation v. City of Philadelphia

August 17, 2011


On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Nos. 2-98-cv-05835, 2-99-cv-01163) District Judge: Honorable Mary A. McLaughlin

The opinion of the court was delivered by: Sloviter, Circuit Judge.


Submitted Pursuant to 3rd Cir. LAR 34.1 on July 11, 2011

Argued July 11, 2011

Before: SLOVITER, FUENTES, and VANASKIE, Circuit Judges


In Staub v. Proctor Hosp., 131 S. Ct. 1186, 1189 (2011), the Supreme Court addressed "the circumstances under which an employer may be held liable for employment discrimination based on the discriminatory animus of an employee who influenced, but did not make, the ultimate employment decision." Today we consider, in light of Staub, whether the City of Philadelphia, the employer at issue, has demonstrated that its internal disciplinary review hearing severed the causal connection between a supervisor‟s retaliatory animus and the employer‟s ultimate employment decision to terminate the employee. The procedural posture of this case appears in the margin,*fn1 which disposes of the issues raised in No. 09-3567. We limit this opinion to the issues raised in the City‟s cross-appeal, No. 10-3430.


Ray Carnation, who is Caucasian, worked as a police officer in the Philadelphia Police Department until the City of Philadelphia terminated him in 1999. He filed a Complaint against the City, asserting that it terminated him in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., in retaliation for his opposition to the City‟s racially discriminatory treatment of minority officers.

At trial, the evidence established that Carnation worked in the 7-squad of the 25th District of the Philadelphia Police Department, over which Captain William Colarulo assumed command in 1997. Shortly thereafter, Sergeant John Moroney, who had been one of the rotating supervisors of the 7-squad, was made permanent supervisor.

Carnation testified that there were racial tensions within the 7-squad before Moroney assumed control, and that Carnation brought the problem to Moroney‟s attention. Carnation also complained on numerous occasions to Colarulo about racial tensions in the 7-squad. When things did not change, Carnation told Colarulo that he thought Moroney was condoning racism within the squad by failing to address the issue. Carnation also told Moroney that he was contributing to the problem by failing to take any action.

Carnation claimed that, after making these complaints, he, along with minority officers and other officers who complained of racism, was assigned unassisted duty in dangerous neighborhoods in unpleasant weather conditions, particularly rain and cold. When Carnation reiterated his concern that Moroney was condoning racism, Colarulo told him that if he made an EEOC complaint, Colarulo would make Carnation‟s life "a living nightmare." App. at 2022. Colarulo ordered Carnation to apologize for making the accusations.

Carnation claims that as a result, he suffered extreme anxiety and depression, and was placed on restricted duty out of the 25th District in May 1998. Shortly after his transfer, on the Friday before Memorial Day weekend, Carnation made at least two telephone calls to the 25th District, seeking to speak with Moroney. According to Carnation, Colarulo called him back and exclaimed "[w]ho the fuck do you think you are calling Sgt. Moroney at the District?" App. at 2055. After a brief discussion, Colarulo ordered Carnation to "not call Sgt. Moroney." App. 2054 Carnation testified that he understood Colarulo to mean that he should not attempt to reach Moroney for the rest of that day.

The next day, a Saturday, Carnation called the 25th District and spoke with Moroney about his concerns. On Sunday, Carnation called Colarulo, who was off duty, at around 8:30 in the morning at his shore house. Carnation testified that he called to inform Colarulo that he had reached Moroney and had resolved many of his concerns, but that he still wanted to schedule a meeting among the three of them. Colarulo declined the request, telling Carnation that "he doesn‟t conduct meetings in that fashion." App. at 2030-31. Colarulo thereafter served Carnation with disciplinary papers for his Memorial Day calls.

Colarulo brought, or "preferred," against Carnation two counts of insubordination, based on his purported "refusal to obey proper orders from superior[s]" and "us[e of] profane or insulting language to a superior officer," and one count of neglect of duty, based on his alleged "failure to comply with any commissioner‟s orders, directives, regulations, etc., or any oral or written orders of superiors." App. at 3527-31. Colarulo recommended that the matter be adjudicated by the Police Board of Inquiry ("PBI").

Colarulo testified at trial as to the process for bringing charges against officers in 1998 and 1999. He stated that he would complete an investigation and determine that disciplinary action was warranted. Then, Colarulo would submit the charging papers, also known as "18s,"*fn2 to the charging unit of the PBI via his chain of command. Colarulo "d[id not] know how many signatures would be required," but stated that whatever the method, "eventually it does go to the [PBI]." App. at 2821. ...

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