Third Circuit Decides First Cat’s Paw Case Post-Staub
On August 17, 2011, the Court of Appeals for the Third Circuit rendered its decision in McKenna v. City of Philadelphia, the first significant cat’s paw theory case out of the Third Circuit since the United States Supreme Court’s March 2011 decision in Staub v. Proctor Hospital, which was the subject of a previous Employment Law Alert post. The Staub decision addressed the circumstances under which an employer can be held liable for the discriminatory or retaliatory animus of a nondecisionmaker – often referred to as the “cat’s paw” theory. The primary issue in McKenna was whether an intervening act between the alleged retaliatory conduct and the employee’s termination – a hearing before a neutral board – was sufficiently independent to break any causal link between the allegedly retaliatory act and the employment action. Based upon the underlying facts of this particular case, the Court determined that it was not.
Plaintiff Raymond Carnation was one of three police officers who alleged that they were retaliated against for complaining about racial tension within their 7-member squad. Carnation was vocal about his concerns, raising them with both the squad supervisor, Moroney, and the squad commander, Colarulo. Carnation claimed that he suffered various consequences as a result of his complaints, including an assignment to unassisted duty in a dangerous part of the City and a threat by Colarulo that he would make his life a “living nightmare” if he filed an EEOC Charge. As a result of depression and anxiety caused by this treatment, Carnation was put on restricted duty outside of the District in which he had been working. While on restricted duty, and although he had been specifically told not to do so by Colarulo, Carnation contacted Moroney over Memorial Day weekend to once again voice his concerns and then contacted Colarulo at his home while off duty to report the outcome of the discussion with Moroney. Colarulo subsequently brought various disciplinary charges against Carnation for the Memorial Day calls.
The charges resulted in a hearing before the Police Board of Inquiry (PBI), a three-member adjudication unit designed to hear evidence and decide whether the officer is guilty of the charges and, if so, to make sanction recommendations. Carnation and the City were represented by counsel at the PBI hearing and testimony was offered by both sides. The PBI found Carnation guilty of the charged lodged by Colarulo and even added an additional charge, on its own. The PBI recommended termination and the decision was ultimately made by the Police Commission to terminate Carnation’s employment.
Following a jury trial on Carnation’s retaliation claim, the jury entered a verdict in Carnation’s favor. The City’s motion for judgment as a matter or law and/or notwithstanding the verdict was denied by the District Court, which held that “because the events of [Memorial Day] weekend formed the grounds for the disciplinary charges against [Carnation] and the proceedings before the PBI, a reasonable jury could find that Colarulo’s animus played a substantial role in the ultimate decision by the PBI to recommend Carnation’s termination.” An appeal followed.
The Third Circuit affirmed the District Court’s denial of the City’s motion for reconsideration. First, the Court recognized that “the correct test of employer liability was one of proximate cause,” a pronouncement made by the Supreme Court in Staub. According to the Third Circuit, “proximate cause requires only ‘some direct relation between the injury asserted and the injurious conduct alleged,’ and excludes only those ‘link[s] that are too remote, purely contingent, or indirect.’” Importantly, Carnation was able to establish, and the jury concluded, that Colarulo harbored retaliatory animus toward Carnation. Thus, the City bore the burden of proving that the PBI proceedings severed the relationship between Colarulo’s animus and Carnation’s termination by showing that the termination decision was “for reasons unrelated to Colarulo’s original biased action.”
The City’s downfall, it seems, was its failure to introduce evidence at trial explaining the PBI’s hearing process, including who testified and whether witnesses were cross-examined. Instead, the City relied largely on the recommendation of the PBI and the testimony of Colarulo. Moreover, there was no evidence introduced at trial concerning what the Commissioner, the ultimate decision-maker, saw or considered when making the termination decision. Because “[a]ll the evidence demonstrate[d] [was] that Colarulo retaliated against Carnation by referring the [charges] against him, the PBI affirmed those charges, and the Commissioner then terminated Carnation,” the Third Circuit concluded that a reasonable jury could find that Colarulo’s animus was the proximate cause of the termination decision. Even the addition of a new charge by the PBI did not break the causal link.
Implications for Employers
The McKenna decision certainly provides guidance to employers on how the Third Circuit and courts within the Third Circuit will evaluate cat’s paw cases. It is also reasonable to conclude that this decision turned on the specific procedural posture and underlying facts. The case came to the Third Circuit following denial of a post-jury trial motion for judgment notwithstanding the verdict and therefore, both the District Court and the Third Circuit were bound by the stringent standards applicable to that type of motion.
Moreover, the Court mentioned several times that the trial court record lacked evidence to show the sanctity and independence of the PBI proceedings and to show the rationale for the Commissioner’s ultimate decision to terminate. This, coupled with the fact that Colarulo’s charges against Carnation were directly tied to Carnation’s race-based complaints, made it difficult for the City to sever the causal relationship.
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