Here's our first published opinion addressing the recently-decided Staub v. Proctor Hosp., 131 S. Ct. 1186 (2011), in the context of a fully-tried case. The Third Circuit holds in this Title VII case that the district court did not err in denying judgment as a matter of law for the city. It concludes that the jury could have found that the plaintiff's Police Board of Inquiry hearings (which led to his termination) did not break the chain of causation from the retaliatory write-up that commenced the disciplinary process.
McKenna v. City of Philadelphia, No. 09-3567 (3d Cir. Aug. 17, 2011): This appeal was from the trial of a case previously considered by the Third Circuit (Moore v. City of Philadelphia, 461 F.3d 331, 98 FEP 1378 (3d Cir. 2006), reversing summary judgment). The panel summarizes the proceedings below:
"This case came to trial as a Title VII claim filed by three terminated police officers, William McKenna, his brother Michael McKenna, and Raymond Carnation, each of whom alleged that they were disciplined in retaliation for protesting the discriminatory treatment afforded their African American colleagues. Their cases were consolidated for discovery and trial.
"The jury found in favor of the plaintiffs, specifically that William McKenna proved that the discipline he received resulting from the comment that 'Sergeant Moroney should be shot in the head' was retaliatory, that the number of sick checks William received was retaliatory, and awarded him $3,000,000 in damages; that Michael proved that the pattern of conduct against him was retaliatory, and awarded him $5,000,000; and that Raymond Carnation proved that the pattern of conduct directed against him was retaliatory and awarded him $2,000,000."
These amounts were then capped under 42 U.S.C. § 1981a(b)(3).
Officer Carnation, whose retaliation claim was challenged on appeal, presented the following record:
"Carnation claimed that, after making these complaints [of race discrimination], 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, [his commanding officer, Captain] 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."
After angry words were exchanged, Colarulo wrote Carnation up for discipline:
"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')."
PBI is "a three-person panel that listens to the evidence and then decides the proper sanction" to recommend. PBE adjudicated the counts and recommended Carnation's dismissal from the force, which the Commissioner then imposed. The jury awarded Carnation damages for the retaliatory termination.
Pending decision on this appeal, the Supreme Court released Staub, holding that under the Uniformed Services Employment and Reemployment Rights Act (USERRA), discrimination could be held a "motivating" factor if it was the proximate cause of the final adverse decision against the employee. The Supreme Court observed that the same "motivating" factor standard is found in Title VII, 42 U.S.C. § 2000e-2(m).
The city requested a remand of the case to allow the district court judge to decide whether the jury charge was in error under the Staub standard and warranted a new trial. But the Third Circuit affirms the judgment. It holds that any variation in the phrasing of the jury charge in retrospect was harmless as a matter of law:
"The instructions to the jury incorporated the concept of proximate cause. Based on these instructions, the jury concluded that Colarulo's animus caused Carnation's termination, notwithstanding the intervening hearing before the PBI. The jury could not have reached a different decision as a matter of law, even if it had been instructed in accordance with Staub. As explained, there was no evidence to support a conclusion that the hearing before the PBI was an intervening superseding cause of Carnation's termination."
The court thus upheld the jury's verdict.