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Moore v. City of Philadelphia

August 30, 2006; as amended September 13, 2006

*MYRNA MOORE; SHEILA YOUNG; RAYMOND CARNATION; WILLIAM MCKENNA; RICHARD SAFFORD
v.
CITY OF PHILADELPHIA; JOHN MORONEY, SGT.; FRANK BACHMEYER, LT.; WILLIAM COLARULO, CAPT.; CULLEN, LT.; WILSON, LT.; FRANK HOGAN, LT.; DAVID HOGAN, LT.; FRANK MACH, SGT.; JOHN HEWITT, SGT.; JOSEPH JACKSON, SGT. RAYMOND CARNATION; WILLIAM MCKENNA, APPELLANTS IN NO. 03-1465 * (AMENDED PER CLERK'S 4/14/03 ORDER)
MICHAEL MCKENNA APPELLANT IN NO. 03-1473
v.
CITY OF PHILADELPHIA; HOGAN, LT.; CULLEN, LT.; WILSON, LT.; MORONEY, SGT.; FRANK BACHMEYER, LT.; WILLIAM COLARULO, CAPT.; JOSEPH O'CONNOR, INSPECTOR; FRANK MACK; JOSEPH JACKSON; JOHN HEWITT



On Appeal From the United States District Court For the Eastern District of Pennsylvania (D.C. Civil Action Nos. 99-cv-01163 and 98-cv-05835) District Judge: Hon. Mary A. McLaughlin.

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

PRECEDENTIAL

Argued April 24, 2006

BEFORE: FUENTES, STAPLETON and ALARCON,*fn1 Circuit Judges.

OPINION OF THE COURT

Michael McKenna, William McKenna, and Raymond Carnation are all former police officers who worked in the 7-squad of the 25th District of the Philadelphia Police Department.

All three officers are white. They claim that their supervisors violated their right under Title VII to be free from retaliation for opposing racial discrimination in the workplace. The District Court granted summary judgment in favor of their employer. Accordingly, in the course of our review, we will view the record in the light most favorable to the plaintiffs. We will reverse as we find that these three police officers have raised triable issues as to whether they suffered unlawful retaliation.

I.

A. Background

In August 1997, Captain William Colarulo took the helm of the 25th District of the Philadelphia Police Department and assumed command of the 7-squad within that district. At that time, Michael McKenna (hereinafter "Michael") was a beat officer in the 7-squad. In August of 1997, Michael's brother, William McKenna (hereinafter "William") and Raymond Carnation (hereinafter "Carnation") were transferred to the 7-squad from another squad within the 25th District.

When Colarulo assumed control, the 25th District -- "the Badlands" -- was known for having one of the highest violent crime rates in Philadelphia. To respond to the crime rates in the area, Colarulo set up barricades in certain neighborhoods that required a constant presence of beat officers in the 7-squad. The 7-squad did not have a regular sergeant supervisor at that time.*fn2 Various beat officers took advantage of this lack of supervision by not patrolling their beat properly and failing to man those barricades.

William and Carnation were partners on their beat. From the moment they arrived at the 7-squad in August 1997, the two complained of various forms of harassment by fellow officers -- e.g. not getting courtesy rides from other officers, not having access to radios on their shift, other officers interfering with their radio communication . . . etc. Also, William and Carnation interacted with several African-American officers on the 7-squad, answering work-related questions and socializing with them in the office. Apparently, this was not the norm in the 7-squad. One of these African-American officers told William that the other white officers in the 7-squad did not speak with her. William and Carnation also heard complaints about tense race relations at the squad from other black officers.

B. Moroney's Conduct

In October of 1997, Sergeant John Moroney became the permanent supervisor of the 7-squad. Throughout the fall and winter of 1997, these plaintiffs witnessed numerous incidents that indicated that Moroney would exacerbate the racial discord in the 7-squad.

Michael reported several instances where Moroney made racially derogatory comments about black officers in front of him, each time eliciting an objection from Michael. The District Court summarized:

Sometime in October of 1997, [Michael] heard Moroney say "I'm going to get that nigger Safford." [Michael] said, "Please do not use any words like that in my presence. I don't want people to think you are talking to me about something like that." . . .

[Michael], while on duty, approached Myrna Moore, an African-American officer [in the 7-squad] who was . . . standing outside by herself in the rain. She told [Michael] that she had been told to stand at that location. [Michael] told her that she was supposed to be . . . [working with him to patrol] the area in the car, not on foot. . . . [When Sergeant Moroney saw Moore in Michael's car, Moroney asked Michael, not in Moore's presence]: "What's the nigger doing in the car?" [Michael] responded, "Sarge, I told you once before about this. Don't use that in front of me again." Sergeant Moroney told [Michael] that Officer Moore was being punished. [Michael] said "Being punished? Since when does the Police Department punish people by keeping them out in a dangerous area by themselves? She could get killed like that. That's somebody's mom, and not just that, it's somebody's daughter." To which Sergeant Moroney replied, "Well if you don't like it . . . you want to see how it's like to work with a nigger." Moroney then instructed [Michael] to drive the police vehicle back and drop it off . . . [and then Moroney] drove him back to the location where Officer Moore was standing and Moroney told the plaintiff to stand there with Moore and not to move from that location. . . .

At a different time in the fall or winter of 1997, Sergeant Moroney made the comment that "[a female officer] better watch herself, because these niggers around here will kill her." [Michael] told Sergeant Moroney not to use those words. . . .

Also during the fall or winter of 1997, Sergeant Moroney stated, in [Michael's] presence, "why are they hiring these niggers?" . . . [Michael] responded, "Sarge, you know how I am when you talk like that. I'm asking you to stop."

App. at 17-19.

William and Carnation also witnessed incidents that revealed Moroney's attitudes regarding the African-American officers he supervised. Moroney was one of the supervisors in the squad from which William and Carnation had transferred in August 1997. Within a week or two of Moroney taking over the 7-squad in October 1997, William and Carnation relayed numerous grievances regarding their workplace and fellow officers to Moroney. During those initial conversations, they told him about "racial problems" within the 7-squad. After those initial conversations, they heard various complaints from African-American officers about Moroney's conduct as a supervisor. Myrna Moore, a black female officer, told William that she thought that Moroney was "blatantly a racist" and that he assigned her white counterparts to work in the building while she had to work outside in the cold. App. at 298. William relayed that conversation to Moroney in what he later described as an effort to "forewarn" Moroney. Moroney replied that William could "tell that critter to do what she has to do." App. at 193. In another incident, William and Moroney heard an African-American officer's voice on the police radio, to which Moroney commented: "Why do they continue in hiring these niggers? They are stupid as sin." App. at 156. William responded: "I don't appreciate that. You're held to a higher standard than I am." Id. Carnation observed Moroney being rude to black officers, not socializing with them as he did with white officers, bragging about "sick checking" one black officer late at night, making jokes about black officers being "stupid" or "slow," and ridiculing a black officer for being hospitalized after choking on a chicken bone. App. at 891-92.

At the same time, other workplace tensions began to develop for the plaintiffs in this case. In late 1997, Michael overheard five or six colleagues in the 7-squad discussing how to get more overtime by having each officer say they were involved in a drug arrest so that each would be called into court. Michael immediately reported this "piling-on" scheme to Moroney and Moroney immediately went into the squad room where the discussion had occurred. Shortly thereafter, Moroney imposed a rule there would be no more than two officers allowed to participate in a drug arrest. A few days after this incident, Michael saw graffiti on the walls of the bathroom that included his name and words like "rat," "asshole," and "snitch."

The word "rat" was written on Michael's time sheets and other paperwork.

At some point after William and Carnation reported the numerous problems they had with fellow officers to Moroney, the other officers began to refer to Carnation and William as "rat" and "snitch" over the radio and make "rat noises" in front of them. In December 1997 or January 1998, the bathroom was covered in graffiti referring to Carnation and William as "rats," "snitches," and "pussies," and noted that the two officers "belong in a rat hole." The words "rat #1" was written on William's January 1998 time sheet.

C. Complaining About Moroney's Conduct

In October 1997, William and Carnation first raised concerns about racial tensions in the squad to their superiors. In that month, William and Carnation were shot at while on their beat. The suspects were apprehended by other police officers within a minute and a half. Five minutes after the shooting William and Carnation were relieved so that they could give a statement as to what had happened. Their temporary sergeant supervisor recommended commendation for their role in the shooting. Within a week of the shooting, they had a meeting with Captain Colarulo and Lieutenant Frank Bachmeyer to express concern that they did not receive back-up after the shooting quickly because "we felt that it was the blacks were being singled out . . . and because of our association with the black officers, we weren't getting the backup, like, we would have been, if I guess, we didn't associate with them." App. at 274.

In November 1997, William and Carnation slipped a note under Colarulo's door requesting a meeting to discuss why the request for commendation in connection with the shooting had been denied. They requested that Moroney attend the meeting, but he did not do so. William and Carnation discussed with Colarulo various concerns they had about the operation of the 7-squad, including that "there was certain black officer[s] that were having problems with Sergeant Moroney." App. at 629. At that point, they were simply reporting the situation to supervisors.

However, in subsequent meetings with their superiors, all three plaintiffs made clear that they opposed Moroney's expressions about and conduct towards their African-American colleagues and were concerned that their position was being held against them by Moroney. In a December 1997 meeting with Bachmeyer and Moroney, Carnation and William complained -- among other things -- that Moroney was treating black officers unfairly and that they were being treated in the same manner because they had attempted to resolve problems between Moroney and the black officers.

In late December 1997, Michael also met with Bachmeyer and told him about the situation regarding the graffiti in the bathroom in which he was named as a rat and a snitch and relayed his concern about Moroney's persistent use of the term "nigger" to refer to black officers. Bachmeyer suggested that he report this information to Colarulo. Michael met with Bachmeyer and Colarulo and relayed his concerns about the graffiti and about Moroney's comments regarding the black officers. Among other things, Michael related the incident with Moore in which Moroney ordered him to stand in the rain with Moore because Michael had challenged Moroney's treatment of her. After this discussion, Colarulo took certain ...


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