Moore v. City of Philadelphia , 461 F.3d 331 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
8-30-2006
Moore v. City of Philadelphia
Precedential or Non-Precedential: Precedential
Docket No. 03-1465
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PRECEDENTIAL
UNITED STATES COURT
OF APPEALS
FOR THE THIRD CIRCUIT
NOS. 03-1465 and 03-1473
* MYRNA MOORE; SHEILA YOUNG;
RAYMOND CARNATION; WILLIAM MCKENNA;
RICHARD SAFFORD
v.
CITY OF PHILADELPHIA;
JOHN MARONEY, 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
Argued April 24, 2006
BEFORE: FUENTES, STAPLETON and
ALARCON,* Circuit Judges
* Hon. Arthur L. Alarcon, Senior United States Circuit Judge
for the Ninth Circuit, sitting by designation.
2
(Opinion Filed: August 30, 2006)
Elliott Schulder
Gregory M. Lipper (Argued)
Covington & Burling
1201 Pennsylvania Avenue, N.W.
Washington, DC 20004
Attorneys for Appellants
Romulo L. Diaz, City Solicitor
Elise M. Bruhl, Deputy City Solicitor, Appeals (Argued)
City of Philadelphis Law Department
1515 Arch Street - 17th Floor
Philadelphia, PA 19102-1595
Attorneys for Appellees
OPINION OF THE COURT
STAPLETON, Circuit Judge:
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.
3
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.1
1
The hierarchy in police departments, in order of rank, is:
rank-and-file officers, corporals, sergeant, lieutenants, and
4
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. Maroney’s Conduct
In October of 1997, Sergeant John Maroney became the
permanent supervisor of the 7-squad. Throughout the fall and
winter of 1997, these plaintiffs witnessed numerous incidents
that indicated that Maroney would exacerbate the racial discord
in the 7-squad.
Michael reported several instances where Maroney made
racially derogatory comments about black officers in front of
him, each time eliciting an objection from Michael. The District
captains.
5
Court summarized:
Sometime in October of 1997, [Michael] heard
Maroney 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 Maroney saw Moore in Michael’s car,
Maroney 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 Maroney 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 Maroney replied, “Well if you don't like
it . . . you want to see how it's like to work with a
nigger.” Maroney then instructed [Michael] to
6
drive the police vehicle back and drop it off . . .
[and then Maroney] drove him back to the
location where Officer Moore was standing and
Maroney 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 Maroney made the comment that “[a
female officer] better watch herself, because these
niggers around here will kill her.” [Michael] told
Sergeant Maroney not to use those words. . . .
Also during the fall or winter of 1997, Sergeant
Maroney 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 Maroney’s attitudes regarding the African-American
officers he supervised. Maroney was one of the supervisors in
the squad from which William and Carnation had transferred in
August 1997. Within a week or two of Maroney taking over the
7-squad in October 1997, William and Carnation relayed
numerous grievances regarding their workplace and fellow
officers to Maroney. 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 Maroney’s conduct as a
7
supervisor. Myrna Moore, a black female officer, told William
that she thought that Maroney 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 Maroney in what he later described
as an effort to “forewarn” Maroney. Maroney replied that
William could “tell that critter to do what she has to do.” App.
at 193. In another incident, William and Maroney heard an
African-American officer’s voice on the police radio, to which
Maroney 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
Maroney and Maroney immediately went into the squad room
where the discussion had occurred. Shortly thereafter, Maroney
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.”
8
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 Maroney,
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 Maroney’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.
9
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 Maroney 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 Maroney.” 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 Maroney’s
expressions about and conduct towards their African-American
colleagues and were concerned that their position was being
held against them by Maroney. In a December 1997 meeting
with Bachmeyer and Maroney, Carnation and William
complained – among other things – that Maroney was treating
black officers unfairly and that they were being treated in the
same manner because they had attempted to resolve problems
between Maroney 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 Maroney’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 Maroney’s comments regarding the
black officers. Among other things, Michael related the incident
10
with Moore in which Maroney ordered him to stand in the rain
with Moore because Michael had challenged Maroney’s
treatment of her. After this discussion, Colarulo took certain
actions regarding the graffiti, including ordering the walls
painted and threatening that future graffiti would be dealt with
through departmental discipline or criminal charges.
On February 5, 1998, Carnation was working outside in
the cold. After asking for relief from coworkers and receiving
none, he walked away from his post to get something to eat and
drink. While he was walking away, Maroney called him on the
radio to request his location. When Carnation explained,
Maroney ordered him back to his post. After returning to his
post for another hour, Carnation told Maroney that he could not
handle it any more and went home. The next day, Carnation
was told to report to Colarulo’s office. Carnation went to the
captain’s office, where Colarulo, Bachmeyer, and Maroney
awaited his arrival:
[Colarulo] started screaming at me saying that I
left my post, and if I keep this behavior up, he’s
going to transfer me to the farthest district from
my house. He can make my life a living
nightmare if I make an EEOC complaint. How
dare I accuse Sergeant Maroney of being unfair to
the black officers and just the whole speil like
that. . . .
[Q: So Captain Colarulo brought up complaints
on behalf of black officers?] He said if I make an
– because I spoke to him prior to this, and he said:
If I make an EEOC – he picked up the phone at
the meeting. He said: If I pick up this phone and
make an EEOC complaint, he goes, I’ll make your
life a living nightmare. This is what he’s saying
to me. And I’m like I don’t know what to do. So
11
I kind of broke down a little bit. . . .
[H]e kept telling me to apologize to Sergeant
Maroney. I’m like, apologize to Sergeant
Maroney[?] Yeah, accusing him of doing
something and something. And I’m like:
Captain, I said, don’t take it from me. Isaid: Talk
to your officers downstairs. I said: Talk to Bruce
Smith [African-American officer] He wouldn’t
talk – I said: Ask him. Don’t take my advice. . .
. And I asked him if I can be transferred. He’s
like: I’m not transferring you. I’ll transfer you to
the farthest district when I feel I want to. He was
dictating me. Then he’s bragging . . . that he
could have me where ever he wants me because
all he has to do is make a phone call.
App. at 914-15. Carnation described Colarulo as warning “in a
loud tone of voice . . . that [Carnation] better have proof that
Sgt. Maroney was harassing certain individuals.” App. at 833-
34. While Maroney remained silent during this meeting,
Carnation described Bachmeyer as having “chimed in a little bit
just stating that I was wrong and I’m creating trouble and things
like that.” App. at 915.
D. Reactions to Complaints
After having initially complained to Maroney, all three
plaintiffs reported that their treatment by Maroney worsened.
After William and Carnation first confronted Maroney about
racial problems in the 7-squad, Carnation recalled that they
would not receive lunch breaks and other breaks as other
officers would, that Maroney would discuss their personal lives
in front of other officers and that “the demeanor towards us was
totally different.” App. at 891. William noted that Maroney
would “keep a close eye on my location” and Carnation’s
12
location and that Maroney made derogatory remarks about him.
App. at 942. Michael described that he received less desirable
work assignments after having confronted Maroney about his
use of racial epithets. App. at 1183-84.
After Colarulo threatened Carnation that if he made an
EEOC complaint he would make his life a living nightmare on
February 6, 1998, each of the plaintiffs had their share of
workplace troubles. Within weeks, the McKenna brothers were
both transferred from the 7-squad and all three eventually were
not employed by the police department.
Early in the morning of February 14, 1998, William was
overheard declaring that Maroney “should be shot for what he
does to us, and everybody else, and what he says about us, and
everybody else.” App. at 1312. When William returned to
work later that day, his service weapon was immediately
confiscated and he was assigned to work in the operations room
rather than his normal assignment. Colarulo ordered William to
undergo a psychiatric examination and, after an investigation,
William received a 30-day suspension as a result of the incident.
On February 17, 1998, Colarudo told William that he was being
transferred to the 12th District. William immediately requested
and received restricted duty. On February 20, 1998, William
received a performance evaluation from Maroney in which he
received satisfactory ratings in all categories except for
“relationship with others, effectiveness in dealing with the
public, other employees” where he was deemed unsatisfactory.
App. at 962.
In November of 1998, William’s restricted duty was
cancelled and he was placed on medical leave. He had been on
restricted duty status for seven months at that point. The
Philadelphia Police Department’s policy was to permit only six
months of restricted duty. The department also has a policy of
performing “sick checks” on officers claiming medical leave in
13
which a supervisor comes to the home of an officer who is out
sick and the officer is required to present himself or herself and
sign a form. Between November 1998 and March 1999, the
department performed three sick checks of William. He filed
this lawsuit in early March 1999. Between March 1999 and
May of 1999 the department performed approximately 30 sick
checks – one almost every other day. After he failed five sick
checks, William was dismissed.
After February 1998, Michael McKenna also did not last
long in the 7-squad and also eventually left the police force. As
noted above, early in the morning of February 14, 1998, William
(Michael’s brother) said that Maroney “should be shot.” At
around 6:45 p.m. that day, Michael heard Maroney threaten that
he would “kick [Michael’s] ass” and “kick [William’s] ass.”
App. at 1327. Fifteen minutes later, Michael was assaulted by
a fellow police officer. Michael’s wrist was fractured when he
fell in the course of the assault. In mid-February 1998, Michael
was transferred to the 19th District, without the 30-days required
notice. Colarudo later explained that “[Michael] was detailed
out of the 25th District for his safety, the safety of others, and
the safety of the public.” App. at 1268. The assaulting officer
was not transferred from the 7-squad. On February 20, 1998,
Moroney gave Michael a performance evaluation in which
Michael received satisfactory ratings in all categories except for
“relationship with others, effectiveness in dealing with the
public, other employees,” where he was assessed unsatisfactory.
Michael had never before received an unsatisfactory rating in a
performance evaluation. In fact, he had received
commendations from the department, positive attention in the
news media, and numerous positive letters from citizens praising
his work as a police officer in the 25th District. Maroney
admitted Michael’s record of good community relations when
he wrote in the evaluation that “though you have good rapport
with individuals in your assigned area, you have difficulty
getting along with co-workers and your supervisor.” App. at
14
1421.
In June 1998, Michael filed a private criminal complaint
against the officer that assaulted him, another officer present at
the scene, and Maroney. Police department policy prohibits
officers from filing such complaints, instead opting for a system
where they are handled internally. The District Attorney did not
prosecute the complaint and the internal affairs division
investigated the filing of this complaint in June 1998. Michael
was ultimately discharged by the police force in October of
1999.
Ray Carnation remained at the 7-squad after both
McKenna brothers were transferred from the unit. By mid-
February 1998, both William and Michael had been transferred
from the squad. On March 25, 1998, Maroney failed to give
Carnation a court notice. When Carnation brought this to
Maroney’s attention “he just smiled” and when Carnation
brought this incident to Bachmayer’s attention, no action was
taken. App. at 834. On April 10, 1998, Carnation observed
Maroney talking to several officers and was told after the
meeting to “watch yourself” because Maroney was “out to get
you.” App. at 834.
In May 1998, Carnation requested and was granted
restricted duty at the Police Academy. He also filed an internal
grievance against Maroney, Bachmeyer, and Colarulo. In late
May 1998, Carnation learned that Colarudo stated under oath in
the police board inquiry into the McKenna disciplinary action
that Carnation was not aware of problems between William,
Carnation and Moroney. When Carnation confronted Colarulo
about the statement “he started yelling at me saying it’s none of
my business . . . what was said and what was not said.” App. at
916-17.
On Friday of Memorial Day weekend, 1998, Carnation
15
called Moroney several times to discuss this situation. Moroney
did not take the call. Rather, Carnation received a return call
from Colarulo from his shore house in which Colarulo said:
“who the fuck do you think you are calling him and trying to do
this and trying to do that.” App. at 918. On Saturday, Carnation
called Moroney three or four times, and on the last time he
spoke with Moroney. After Carnation got off of the call, he
called Colarulo at his shore house from the caller identification
stored on his phone. On July 10, 1998, Colarulo personally
served Carnation with disciplinary papers for the Memorial Day
weekend incident. Carnation alleges that these disciplinary
papers included two false statements – first, that Carnation
admitted to knowing he was not supposed to call Moroney and
second, that Carnation threatened another Sergeant that he
would take retribution for what happened to the McKennas and
to him.
During the summer of 1998, Colarulo also intervened in
Carnation’s child custody dispute with the mother of his child.
The mother of his child said that when she first contacted
Colarulo in January of 1998, Colarulo was reluctant to become
involved. However, in the summer of 1998, she received “a
different response” as “she was welcomed to talk to him, as
[Colarulo] indicated to her that he would do anything to help her
and her daughter.” App. at 990. Colarulo pressed the mother
for information about whether Carnation was drinking, did
drugs, or had heard of his recent hospitalization.
E. Litigation
On April 29, 1998, Michael, William, Carnation, and
three African-American officers from the 7-squad filed a
complaint with the Pennsylvania Human Relations Commission
and the EEOC. On November 4, 1998, Michael filed a civil
rights lawsuit against the City of Philadelphia and various
individual defendants. On March 5, 1999, William and
16
Carnation – along with the three African-American officers –
filed a separate lawsuit against the City of Philadelphia and
various individual defendants. The City of Philadelphia settled
the discrimination claims brought by the three African-
American plaintiffs. Following consolidated discovery, the
District Court granted summary judgment in favor of the
defendants in Michael’s lawsuit and William and Carnation’s
lawsuit.2
II.
The District Court had jurisdiction under 28 U.S.C. §
1331 and we have jurisdiction under 28 U.S.C. § 1291. Where
the District Court grants summary judgment, “[o]ur review is
plenary, and we view the facts in the light most favorable to” the
non-moving party. Jensen v. Potter, 435 F.3d 444, 448 (3d Cir.
2006). “If a reasonable jury could find for” the party against
whom summary judgment was granted “we must reverse.” Id.Title VII provides:
It shall be an unlawful employment practice for an
employer to discriminate against any of his
employees . . . because he has opposed any
practice made an unlawful employment practice
by this subchapter, or because he has made a
charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing
under this subchapter.
2
While the plaintiffs’ supervisors are before us as appellees,
they make no argument in support of the judgment in their favor
which is independent of the grounds for affirmance advanced by
the City. Accordingly, we will address only issues relating to
the Title VII liability of the City.
17
42 U.S.C. § 2000e-3(a). To establish a prima facie case of
retaliation under Title VII, a plaintiff must tender evidence that:
“(1) she engaged in activity protected by Title VII; (2) the
employer took an adverse employment action against her; and
(3) there was a causal connection between her participation in
the protected activity and the adverse employment action.”
Nelson v. Upsala Coll., 51 F.3d 383, 386 (3d Cir. 1995).
With respect to “protected activity,” the anti-retaliation
provision of Title VII protects those who participate in certain
Title VII proceedings (the “participation clause”) and those who
oppose discrimination made unlawful by Title VII (the
“opposition clause”). Slagle v. County of Clarion, 435 F.3d 262,
266 (3d Cir. 2006). Whether the employee opposes, or
participates in a proceeding against, the employer’s activity, the
employee must hold an objectively reasonable belief, in good
faith, that the activity they oppose is unlawful under Title VII.
Clark County v. Breeden, 532 U.S. 268, 271 (2001) (per curiam)
(rejecting retaliation claim where “[n]o reasonable person could
have believed that” the underlying incident complained about
“violated Title VII's standard” for unlawful discrimination);
Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1085 (3d
Cir. 1996) (retaliation plaintiff must “act[] under a good faith,
reasonable belief that a violation existed”). Moreover, the
employee’s “opposition” to unlawful discrimination must not be
equivocal. Barber v. CSX Distribution Servs., 68 F.3d 694, 702
(3d Cir. 1995).
As for the second element of the prima facie case, the
Supreme Court recently clarified what plaintiffs must show to
make out retaliation claims under Title VII. See Burlington N.
& Sante Fe Ry. Co. v. White, 126 S.Ct. 2405 (2006). Until
recently, we required those claiming unlawful retaliation under
Title VII – like those claiming discrimination made unlawful by
that provision – to show an “adverse employment action” that
“alters the employee's compensation, terms, conditions, or
18
privileges of employment, deprives him or her of employment
opportunities, or adversely affects his or her status as an
employee.” Robinson v. City of Pittsburgh, 120 F.3d 1286,
1300 (3d Cir. 1997) (internal quotation marks omitted).
Employees claiming retaliation by workplace harassment,
therefore, were required to show retaliatory harassment that was
“severe or pervasive enough to create a hostile work
environment” that would violate the anti-discrimination
provision of Title VII in order to violate Title VII’s protection
from retaliation. Jensen v. Potter, 435 F.3d 444, 449 (3d Cir.
2006).
In Burlington Northern, decided after the District Court’s
opinion in this case, the Supreme Court disagreed with a
formulation like the one we adopted in Robinson and Jensen.
126 S.Ct. at 2410 (citing Robinson, 120 F.3d at 1300, as an
example of this standard). It found that the discrimination and
retaliation provisions of Title VII have different statutory
language and different purposes, and accordingly, “that the anti-
retaliation provision, unlike the substantive provision, is not
limited to discriminatory actions that affect the terms and
conditions of employment.” Id. at 2412-13. Because the
discrimination and retaliation provisions “are not coterminous,”
the Court concluded that “[t]he scope of the anti-retaliation
provision extends beyond workplace-related or employment-
related retaliatory acts and harm.” Id. at 2414. Consistent with
this view, the Court held that a plaintiff claiming retaliation
under Title VII must show that a reasonable employee would
have found the alleged retaliatory actions “materially adverse”
in that they “well might have dissuaded a reasonable worker
from making or supporting a charge of discrimination.” Id. at
2415.
To establish the third element of the prima facie case, as
clarified in Burlington Northern, a plaintiff must show a causal
connection between the plaintiff’s opposition to, or participation
19
in proceedings against, unlawful discrimination and an action
that might have dissuaded a reasonable worker from making or
supporting a charge of discrimination. “Many may suffer . . .
harassment at work, but if the reason for that harassment is one
that is not proscribed by Title VII, it follows that Title VII
provides no relief.” Jensen v. Potter, 435 F.3d 444, 449 (3d Cir.
2006). This third element “identif[ies] what harassment, if any,
a reasonable jury could link to a retaliatory animus.” Id. at 449-
50. “The ultimate question in any retaliation case is an intent to
retaliate vel non.” Id. at 449 n.2.
If the employee establishes this prima facie case of
retaliation, the familiar McDonnell Douglas approach applies in
which “the burden shifts to the employer to advance a
legitimate, non-retaliatory reason” for its conduct and, if it does
so, “the plaintiff must be able to convince the factfinder both
that the employer’s proffered explanation was false, and that
retaliation was the real reason for the adverse employment
action.” Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500-01 (3d
Cir. 1997). To survive a motion for summary judgment in the
employer’s favor, a plaintiff must produce some evidence from
which a jury could reasonably reach these conclusions. Fuentes
v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994).
Contrary to the conclusion of the District Court, under
this governing law, the fact that the plaintiffs are white is not a
“threshold problem” for their retaliation claims. While white
workers may be unable to successfully complain under the anti-
discrimination provision of Title VII solely because they are
required to work in an environment hostile to blacks,3 if they
became the victims of “materially adverse actions” because they
3
See Childress v. City of Richmond, 134 F.3d 1205 (4th Cir.
1998) (en banc); see also Caver v. City of Trenton, 420 F.3d 243(3d Cir. 2005).
20
reasonably perceived that environment as violative of Title VII
and objected, they have a valid retaliation claim. See 42 U.S.C.
§ 2000e-3(a) (making it unlawful to discriminate against an
employee who “has opposed any practice made an unlawful
employment practice by this subchapter” or “has made a charge,
testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this subchapter”); 2
EEOC Compliance Manual §8, p. 8-2 (1998) available at
http://www.eeoc.gov/policy/docs/retal.pdf (as visited Aug. 1,
2006) (“A charging party who alleges retaliation under Title VII
. . . need not also allege that he was treated differently because
of race, religion, sex, national origin, age, or disability.”). See
also Burlington N. & Sante Fe Ry. Co., 126 S.Ct. at 2412.
(“The substantive [anti-discrimination] provision seeks to
prevent injury to individuals based on who they are, i.e., their
status. The anti-retaliation provision seeks to prevent harm to
individuals based on what they do, i.e., their conduct.”). That is
precisely what these plaintiffs claim here. Title VII’s whistle-
blower protection is not limited to those who blow the whistle
on their own mistreatment or on the mistreatment of their own
race, sex, or other protected class.
III.
We will reverse the District Court’s grant of summary
judgment because we conclude that the plaintiffs have raised
genuine issues of material fact about whether the defendants
have violated Title VII’s anti-retaliation provisions.
A. Employee Opposition to Unlawful Discrimination
By late-December 1997 there is evidence from which a
factfinder could reasonably find that all three plaintiffs had
made clear to Maroney, Bachmeyer and Colarulo that they
objected to Maroney’s remarks and treatment of African-
American officers. While the plaintiffs had not yet “participated
in” a Title VII proceeding, they had “opposed” unlawful
21
discrimination by expressing their criticism of their supervisor’s
conduct to their supervisor and up the chain of command.
“Opposition” to discrimination can take the form of
“informal protests of discriminatory employment practices,
including making complaints to management.” Curay-Cramer
v. Ursuline Acad. of Wilmington, Del., Inc., 450 F.3d 130, 135
(3d Cir. 2006). To determine if retaliation plaintiffs sufficiently
“opposed” discrimination, “we look to the message being
conveyed rather than the means of conveyance.” Id.Carnation and William complained to Bachmeyer –
Maroney’s supervisor – in front of Maroney that Maroney was
treating black officers less favorably than white officers. They
relayed specific stories to evince Maroney’s derogatory
comments about black officers such as the “critter” comment
and complained that they were being treated in the same manner
because they had attempted to resolve problems between
Maroney and the black officers. In late December 1997,
Michael also met with Bachmeyer and later with both
Bachmeyer and Colarulo to relay concerns, including concerns
about Maroney’s treatment of black officers. He, too, relayed
specific instances – such as the order to stand outside in the rain
with Moore after having challenged Maroney’s treatment of her.
There was nothing vague or equivocal about the plaintiffs’
criticism of Maroney – these plaintiffs opposed Maroney’s
supervision of the black officers on the squad and they
complained both to him and to his supervisors.4
4
The defendants argue that these complaints about
discrimination were obscured by numerous complaints about
various managerial issues unrelated to racial issues. This does
not affect our analysis of whether the plaintiffs engaged in
protected conduct. Opposition to discrimination does not need
to stand separate and apart from any other criticism of
22
Furthermore, the fact that these plaintiffs had made their
opposition to unlawful discrimination clear to their superiors
was plainly revealed around a month later. We find it difficult
to imagine a Title VII plaintiff producing stronger evidence of
retaliatory animus than Carnation’s account of his conversation
with Colarulo on February 6, 1998. On that date, the captain of
Carnation’s district called him into his office – in the presence
of Carnation’s sergeant and lieutenant – on an unrelated matter
and expressly threatened Carnation with retaliation if he filed an
EEOC complaint about Maroney’s treatment of black officers.
Carnation recalled that Colarulo declared that he would “make
my life a living nightmare if I make an EEOC complaint” and
asked “How dare I accuse Sergeant Maroney of being unfair to
the black officers?” A reasonable factfinder could conclude that
Colarulo’s comments revealed that the plaintiffs’ supervisors
viewed the plaintiffs as having allied with black officers, wanted
to suppress or undermine any discrimination lawsuits that might
arise, and were willing to take action against the plaintiffs for
having complained in the first place and in order to keep their
complaints from going any further. Given that William and
Michael were so closely associated with Carnation, a factfinder
could reasonably infer that this threat was not specific to
Carnation.5 Colarulo essentially announced a policy, in front of
management in order to be entitled to protection under the anti-
retaliation provision. As discussed infra, a factfinder could find
that the employer’s actions were a response to complaints about
racial issues, rather than the other complaints.
5
It is undisputed that Michael did not make Colarulo’s
“make your life a living nightmare” statement to Carnation part
of the record in his case before the District Court. On appeal,
Michael argues that district courts are “entitled to take judicial
notice of the facts of [a] decision” in related litigation. See
Angelico v. Lehigh Valley Hosp., Inc., 184 F.3d 268, 278 n. 7
(3d Cir. 1999). This proposition does not support his asking this
23
the supervisors who could carry it out, to silence the voices that
had opposed Maroney’s conduct. The message was clear –
opposition to Maroney’s racial discrimination needed to stop,
and Colarulo was going to make it stop by silencing these
officers rather than by disciplining or removing Maroney.
This conversation is significant to our analysis of both the
first and third prong of the prima facie case the plaintiffs must
satisfy. The conversation makes clear that Colarulo perceived
that the plaintiffs had engaged in protected conduct when they
had complained about Maroney’s treatment of black workers.
See Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 565 (3d Cir.
Court to reverse a District Court judgment based on facts not
tendered to the District Court. Michael is essentially asking us
to reverse the District Court for failing to take judicial notice of
facts sua sponte. We normally do not consider facts outside of
the District Court record, Clark v. K-Mart Corp., 979 F.2d 965,
967 (3d Cir. 1992) (en banc), because the “proper function of a
court of appeals is to review the decision below on the basis of
the record that was before the district court.” Fassett v. Delta
Kappa Epsilon (New York), 807 F.2d 1150, 1165 (3d Cir. 1986).
In fact, Michael would not have had to employ judicial notice to
place this evidence before the District Court. This conversation
was produced in consolidated discovery and available for him
cite in his opposition to the defendant’s motion for summary
judgment. He did not do so, and we may not consider this
evidence in his appeal.
Given that retaliatory animus is often difficult to prove,
omitting this evidence is curious; but we find that it is not fatal.
As discussed below, on the evidence in the record, a reasonable
jury could conclude that actions taken against Michael were
prompted by his opposition to Maroney’s discriminatory
management without reference to Colarulo’s express vow to
retaliate.
24
2002) (“[Employee’s] perception theory of illegal retaliation –
that he was fired because Mercy thought that he was engaged in
protected activity, even if he actually was not – presents a valid
legal claim. . . . [I]t does not matter whether the factual basis for
the employer's discriminatory animus was correct and that, so
long as the employer's specific intent was discriminatory, the
retaliation is actionable.”). As discussed below, this evidence
would also support a finding that certain actions taken against
the plaintiffs were animated by a retaliatory motive rather than
some other reason.
We also conclude that the plaintiffs opposed conduct that
a reasonable person could believe violated Title VII’s standard
for unlawful discrimination. As we have noted, retaliation
plaintiffs must “act[] under a good faith, reasonable belief that
a violation existed.” Aman v. Cort Furniture Rental Corp., 85
F.3d 1074, 1085 (3d Cir. 1996). However, a victim of
retaliation “need not prove the merits of the underlying
discrimination complaint” in order to seek redress. Id. We need
only determine whether a reasonable person in these officers’
circumstances could conclude that black officers in the 7-squad
were suffering discrimination made unlawful by Title VII.
The treatment of African-American officers in the 7-
squad observed by these plaintiffs easily meets this standard.
These plaintiffs witnessed their direct supervisor repeatedly use
derogatory racial epithets about black police officers. Their
supervisor’s racial epithets were accompanied with his directly
linking his attitudes towards black officers with his managerial
decisions – e.g., leaving the black female officer on the street on
her own to “punish” her, “sick checking” one black officer late
at night, and saying he was “going to get” one black officer. He
expressed dismay that other managers did not share his views of
black officers and did not manifest those views in their decision-
making, asking aloud why his colleagues in management
continued to hire black officers since they are “stupid as sin.”
25
When the plaintiffs objected to his comments, he did not relent
and, in one instance, put Michael in the rain with a black officer
Moroney claimed to be punishing after Michael stood up for her
so that Michael would “see how it’s like to work with a nigger.”
Maroney, thus, persistently used racially-charged epithets in a
manner that would support an inference that he was actively
discriminating against black officers in the workplace. In
addition, William and Carnation report hearing from black
officers themselves that they were mistreated. One African-
American officer told William that Maroney was “blatantly a
racist” because of the disparate manner in which Maroney
assigned shifts to black and white officers and another black
officer told Carnation he was “fed up” and “hopeless” about the
way Maroney was treating black officers. App. at 298, 613.
This case is not comparable to an employee claiming retaliation
for having opposed unlawful discrimination by complaining to
supervisors about a single instance in which a co-worker made
a sexually explicit joke. See Clark County v. Breeden, 532 U.S.
268, 271 (2001) (per curiam). The evidence of unlawful
discrimination in this case is far more substantial.
We do not agree with the District Court’s conclusion that,
while plaintiffs’ evidence would support a finding that their
supervisors used racial epithets out of the presence of black
officers, it would not support an inference that the black officers
themselves experienced discriminatory treatment. In addition to
the fact that there is direct evidence of racial discrimination
against blacks, as we have explained, we note as well that
evidence of unlawful discrimination may be direct or indirect,
and may manifest itself in the presence of the victims or behind
their backs.6 As soon as a witness of such conduct reasonably
6
If a white supervisor told white employees that he fired
someone because he was black or harassed someone because she
was female, it would not matter that this comment was made
26
believes unlawful discrimination has occurred, the anti-
retaliatory provisions will protect their opposition to it. They
are not required to collect enough evidence of discrimination to
put the discrimination case before a jury before they blow the
whistle.
B. Employer Reaction to Opposition to Discrimination
Having found these plaintiffs to have tendered evidence
supporting the proposition that they opposed reasonably
perceived unlawful discrimination, we now turn to the issues
presented by the second and third elements of plaintiffs’ prima
facie case and by the final step in the McDonnell Douglas
analysis. We must determine – for each individual officer –
whether the supervisors in this case reacted to that opposition by
taking “materially adverse” actions that “well might have
dissuaded a reasonable worker from making or supporting a
charge of discrimination.” Burlington N. & Sante Fe Ry. Co. v.
White, 126 S.Ct. 2405, 2415 (2006). In evaluating whether
actions are materially adverse, we must remain mindful that “it
is important to separate significant from trivial harms” because
“[a]n employee's decision to report discriminatory behavior
cannot immunize that employee from those petty slights or
minor annoyances that often take place at work and that all
employees experience.” Id. See also Jensen, 435 F.3d at 451
outside of earshot of the victim or that the employee did not
actually witness the firing or the harassment. Contrary to the
view of the District Court, racial epithets of which the targets
were not aware may very well form the basis for a reasonable
belief that discrimination has occurred or was occurring,
depending on the circumstances. When offered for the purpose
of showing what the employee reasonably believed, the
employee’s account of the supervisor’s statement would not be
hearsay. F. R. Evid. 803(3).
27
(“[Title VII] does not mandate a happy workplace.”).
Furthermore, we must “identify what [materially adverse
actions] . . . a reasonable jury could link to a retaliatory animus”
for each individual officer. See Jensen, 435 F.3d at 449-50.
Finally, we must determine if the plaintiffs tendered sufficient
evidence to overcome the non-retaliatory explanation offered by
their employer. Krouse, 126 F.3d at 500-01. These
determinations depend on the “totality of the circumstances,”
Jensen, 435 F.3d at 452, as “[a] play cannot be understood on
the basis of some of its scenes but only on its entire
performance, and similarly, a discrimination analysis must
concentrate not on individual incidents, but on the overall
scenario.” Andrews v. City of Phila., 895 F.2d 1469, 1484 (3d
Cir. 1990).
1. William McKenna
A reasonable jury could conclude that William’s
supervisors took actions against him that might well dissuade a
reasonable worker from filing or supporting a charge of
discrimination. On February 14, 1998, nine days after Colarulo
promised to make Carnation’s life a “living nightmare” if he
filed an EEOC complaint, William was disciplined for
commenting that Maroney “should be shot for what he does to
us, and everybody else, and what he says about us, and
everybody else.” App. at 1312. The plaintiffs insist that
William’s comment was a casual one not intended literally. The
defendants disagree, but we take the facts in the light most
favorable to the plaintiffs at this stage in the litigation. A
factfinder, we believe, could reasonably conclude that the
discipline William received – 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 25th District – was an overreaction and inappropriately
severe discipline. Given Colarulo’s threat on February 6, 1998,
28
a reasonable jury could further conclude that this inappropriately
severe discipline was caused by retaliatory animus.
We also conclude that, while William’s supervisors may
have had a legitimate non-retaliatory reason for imposing some
discipline, the final step of the McDonnell Douglass test is
satisfied with regard to the disciplinary actions they in fact took
against William. Even though disciplining an officer for
workplace infractions would normally be a strong legitimate
reason to overcome, the unusually strong evidence of retaliatory
animus in this case – Colarulo’s “living nightmare” threat –
would allow a factfinder to reasonably conclude that William’s
supervisors went beyond legitimate discipline and were actually
motivated by retaliatory animus. It would not be unreasonable
for a jury to conclude that a supervisor who had explicitly
threatened that he planned to quash complaints about racial
discrimination might have seized on one of the complainers’
first workplace violations and punished this violation more
severely than he would have otherwise.
2. Michael McKenna
We also conclude that Michael has tendered triable issues
of fact as to whether his supervisors retaliated against him for
his opposition to discrimination. Michael opposed Maroney’s
treatment of black officers from the moment Maroney arrived in
October of 1997 and raised his criticisms to Maroney and to
Maroney’s supervisors in December 1997. In mid-February
1998, Michael was threatened, assaulted and transferred from
the 25th District. There is evidence from which a factfinder
could reasonably conclude that this series of events was caused
by retaliatory animus.
Prior to the arrival of Maroney, Michael received various
commendations and attention for his work as a police officer at
the 7-squad. After Maroney’s arrival, he lodged complaints to
29
Maroney, Bachmeyer and Colarulo about his co-workers’
conduct with regard to the piling-on scheme and the ensuing
graffiti and with regard to Maroney’s conduct as a supervisor
toward black officers. His supervisors responded to the “snitch”
graffiti by instituting policies and enforcing them. By contrast,
Michael’s criticism of Maroney’s conduct toward black officers
went unaddressed by all of his supervisors. The only reaction
from his supervisors was Maroney assigning him to stand in the
rain with black officer he was “punishing” so that Michael could
“see how it's like to work with a nigger.” In addition, Michael
claims that Maroney treated him differently than other officers
because of his complaints – testimony the factfinder would be
entitled to believe. When Michael’s brother made his comment
on February 14, 1998, that Maroney “should be shot,” Michael
was swiftly removed from the 25th District. Michael overheard
Maroney threaten to “kick [Michael’s] ass” and “kick
[William’s] ass.” Fifteen minutes later a fellow officer assaulted
him.7 After this incident, Colarulo transferred Michael from the
7
It is true that a fellow officer assaulted Michael, rather than
Mahoney himself. “When coworkers are the perpetrators [of
retaliatory harassment], the plaintiff must prove employer
liability using traditional agency principles.” Jenson, 435 F.3d
at 452. Plaintiffs often establish liability by showing
supervisory negligence – that “management knew or should
have known about the harassment, but failed to take prompt and
adequate remedial action.” Id. at 453 (internal quotation marks
omitted). For the assault, however, the link here is not so
tenuous because there is evidence to suggest that Mahoney
openly endorsed the assault to a squad that already deeply
disliked the victim and the assault occurred 15 minutes later. A
jury could reasonably conclude that Michael’s supervisor
instigated the assault.
The defendants do not directly question imposing liability
for the assault based on Maroney’s threat. Instead, they point to
30
25th District for “his safety, the safety of others, and the safety
of the public.” App. at 1268. The officer who assaulted
Michael and the supervisor that threatened him were not
removed. In fact, the supervisor that threatened him gave
Michael an unsatisfactory performance evaluation for not
getting along with his supervisors – the first unsatisfactory
evaluation in Michael’s career. A reasonable jury could
conclude from these facts that the threat, the assault, and the
decision to transfer Michael was motivated by a desire to silence
Michael’s vocal opposition to unlawful discrimination in the 7-
squad. So, too, could a factfinder reasonably conclude that
Michael’s protection served as convenient pretext to silence this
critic.
Michael argues that a jury could consider his transfer to
be a materially adverse action and we agree. As we have
explained, the Supreme Court has now clarified that where
unlawful retaliation is claimed, the plaintiff need only show that
an action is “materially adverse” in that it “well might have
dissuaded a reasonable worker from making or supporting a
charge of discrimination.” Burlington N. & Sante Fe Ry. Co.,
126 S.Ct. at 2415. In Burlington Northern, the Court applied
this test to find that a reassignment of a worker to a position
with the same job description, but with less desirable duties, was
a materially adverse action. Id. at 2416 (“Almost every job
category involves some responsibilities and duties that are less
desirable than others. Common sense suggests that one good
way to discourage an employee . . . from bringing discrimination
certain admissions made by Michael as foreclosing imposing
liability for the assault or transfer. See Br. Appellee at 41, 43.
We do not find the statements defendants identify, when read in
context and in the light most favorable to Michael, to be
conclusive.
31
charges would be to insist that she spend more time performing
the more arduous duties and less time performing those that are
easier or more agreeable.”). Michael introduced newspaper
articles, commendations, and letters from citizens praising his
work as a police officer in the 25th District. Maroney
recognized Michael’s reputation within the community in his
evaluation, where he admitted that Michael had established good
relations with the individuals in his assigned area. We find that
a reasonable jury could conclude that a lateral transfer from the
district where a police officer had earned goodwill and built
positive relations with the community over time is the kind of
action that might dissuade a police officer from making or
supporting a charge of unlawful discrimination within his squad.
As in William’s case, we find that the evidence of
retaliatory animus in this case would allow Michael to overcome
non-retaliatory reasons proffered by the defendants for these
actions. A jury could well conclude that these actions were
more likely than not taken for retaliatory reasons. The evidence
of retaliatory animus – without Colarulo’s “living nightmare”
threat8 – is not as strong as in William’s case. However, the
reason offered by Michael’s employer for his transfer is also not
as strong as in William’s case. Colarudo explained that
“[Michael] was detailed out of the 25th District for his safety,
the safety of others, and the safety of the public.” App. at 1268.
However, given Maroney’s threat “to kick Michael’s ass” and
the fact that neither the officer who assaulted Michael nor the
supervisor who threatened the assault was transferred or
otherwise disciplined, a jury could reasonably disbelieve this
proffered reason.
C. Raymond Carnation
8
See footnote 5, infra.
32
Raymond Carnation has also produced evidence from
which a factfinder could reasonably conclude that his
supervisors at the 7-squad engaged in a pattern of harassment
against him to retaliate for his opposition to discrimination.
Within two weeks of Colarulo’s threat to make Carnation’s life
a living nightmare, Colarulo had separated Carnation from his
two allies in the squad – a squad of officers that had previously
identified him as a “rat” and “snitch” along with William and
Michael. Carnation subsequently recalled numerous incidents
of harassment – not receiving a court notice from Maroney
without explanation, being told Maroney was “out to get” him.
. . . etc. Moreover, the record is susceptible of the interpretation
that Carnation was falsely disciplined for attempting to contact
his supervisors on Memorial Day weekend and that Colarulo
thereafter became involved in Carnation’s custody battle with
the mother of his child. We believe a reasonable jury might well
conclude that this pattern of harassment might dissuade a
reasonable worker from bringing or supporting a charge of
discrimination. As in William’s case, we further find that the
unusually strong evidence of retaliatory animus – Colarulo’s
direct threat to Carnation – would allow a factfinder to conclude
that retaliatory animus was more likely than not the motivating
reasons for Carnation’s supervisor’s actions and, thus, that he
survives the final step of the McDonnell Douglas test.
V.
By finding that each plaintiff has tendered triable issues
as to whether they suffered unlawful retaliation, we do not mean
to suggest that every action for which the plaintiffs have sought
to recover in their lawsuits is actionable under Title VII. These
plaintiffs have cast their net wide, including many workplace
wrongs for which Title VII may not provide relief. As noted
above, “[m]any may suffer . . . harassment at work, but if the
reason for that harassment is one that is not proscribed by Title
VII, it follows that Title VII provides no relief.” Jensen v.
33
Potter, 435 F.3d 444, 449 (3d Cir. 2006). The prima facie case
serves “to identify what harassment, if any, a reasonable jury
could link to a retaliatory animus.” Id. at 449-50.
A. Co-worker Harassment
All three plaintiffs sought to recover for harassment
visited upon the plaintiffs by co-workers. We agree with the
District Court insofar as it held that Title VII does not provide
liability for this conduct on this record. An employer may be
liable under Title VII for retaliatory harassment perpetrated by
an employee’s co-workers only if the prima facie case is
satisfied and if there is a basis for employer liability for the co-
worker’s conduct. Jensen, 435 F.3d at 449. “When coworkers
are the perpetrators [of the harassment], the plaintiff must prove
employer liability using traditional agency principles.” Id. at
452. There is such a basis for liability where supervisors “knew
or should have known about the [co-worker] harassment, but
failed to take prompt and adequate remedial action” to stop the
abuse. Id. at 453.
In this case, the nature of the harassment visited by co-
workers on the plaintiffs cannot be reasonably linked to a
retaliatory animus; in fact, the timing and the nature of the abuse
forecloses this conclusion. The plaintiffs were called “rats” and
“snitches.” Michael was called these names immediately after
he reported the “piling on” scheme to Maroney. William and
Carnation were called these names after they relayed numerous
complaints about fellow officers to Maroney and supervisors
took some actions in response – rationing radios and cars,
instructing officers not to interfere with radio traffic, taking
action against graffiti . . . etc. Far from supporting an inference
that they were being “rats” or “snitches” for allying with
African-American officers, the facts of this case depict three
officers who were harassed by co-workers because of their
perceived allegiance to a racist manager, not their opposition to
34
him. For William and Carnation, the nature of their early
complaints also suggests an initial allegiance to Maroney.
William described initially “trying to forewarn [Maroney]
about” a fellow officer calling him a racist and Carnation
described his role in reporting problems to Maroney as a
“middle man.” App. at 310, 898. Most important, during the
period in which they were called “rats” and “snitches,” the
plaintiffs identify no evidence from which a factfinder could
infer that their co-workers were aware that they had complained
about racial tensions at the squad or about Maroney’s treatment
of black officers. This record reveals no link between the
actions taken by the plaintiffs’ co-workers and the requisite
intent to retaliate for opposing discrimination made unlawful by
Title VII.
The plaintiffs argue their supervisors retaliated against
them by acquiescing in the harassment they were receiving from
co-workers; that management’s acquiescence was retaliatory,
even if the harassment was not. They argue that if “a particular
worker has a nervous condition or hearing problem that makes
him miserable when exposed to music for extended periods” the
employer could be found to retaliate “by exploiting this
vulnerability, moving him from a quiet office to one where
Muzak plays constantly.” See Washington v. Ill. Dep’t of
Revenue, 420 F.3d 658, 662 (7th Cir. 2005). We agree that an
employer may be liable if management “knew or should have
known about the [co-worker] harassment, but failed to take
prompt and adequate remedial action,” see Jensen, 435 F.3d at
453, and the satisfaction of the elements of the prima facie case
permits the inference that management’s failure to intervene was
caused by retaliatory intent. Id. at 449 n.2. But this record does
not support a reasonable conclusion that the plaintiffs’
supervisors failed to take adequate remedial action in response
to the “rat” and “snitch” graffiti and comments. While “[a]n
effective remedy – one that stops the harassment – is adequate
per se . . . [e]ven if not effective, an employer's remedial
35
measure is nonetheless adequate if ‘reasonably calculated’ to
end the harassment.” Id. at 453 (internal citations omitted). The
defendants list numerous policies that Maroney, Colarulo, and
Bachmeyer enacted and enforced to deal with the plaintiffs
being described as “rats” and “snitches” by other officers over
the radio, on paperwork, and in bathroom graffiti. Br. Appellee
at 45. On this record, the supervisors’ responses to co-worker
abuse identified by the defendants, and not directly disputed by
the plaintiffs, appear to be “reasonably calculated to end the
harassment” and thus, the supervisors could not be reasonably
faulted for failing to protect plaintiffs as a means of retaliating
against them.
B. Pre-December 1997 Conduct: William and Carnation
For William and Carnation, to the extent that they
complain of decisions by their supervisors prior to December
1997, the record reveals no triable issue of fact under Title VII.
William and Carnation’s complaints prior to December 1997 are
not clear enough to sustain a finding that they were “opposing”
unlawful discrimination. As earlier noted, “opposition” to
unlawful discrimination cannot be equivocal. See Barber, 68
F.3d at 702. In their early conversations with supervisors,
William and Carnation describe merely reporting the existence
of racial problems. William described his first conversations
with Maroney as “trying to forewarn him about” a fellow officer
calling him a racist. App. at 310. Carnation described their first
meetings with Maroney as follows:
What I said was just that Carla and Bruce feel like
your not talking to them. They’re not getting a
fair deal. Things like that. We didn’t argue. I
didn’t say anything that he’s right or wrong. And
that’s basically what it was. I was just trying to
be the middle man just to resolve this.
36
App. at 898. In October and November of 1997, William and
Carnation’s reports about racial problems in the squad to
Bachmeyer and Colarulo seem similarly neutral. If litigants
claim to be retaliated against for having opposed discrimination,
they must have stood in opposition to it – not just objectively
reported its existence or attempted to serve as an intermediary.9
While Colarulo’s comments are revealing about management’s
view of the plaintiffs in February of 1998 and perhaps earlier
than that, a jury could not reasonably infer that Colarulo formed
those opinions when William and Carnation were merely
reporting the existence of a problem.
C. Post-February 1998 Conduct: William
In addition to the treatment he received from his
supervisors at the 7-squad, William also argues that two other
actions taken by the Philadelphia Police Department were
unlawful retaliation – the cancellation of his restricted duty on
November 4, 1998 and the constant sick checks he endured in
March through May of 1999. For both, William relies on the
timing of these actions as allowing a reasonable jury to infer that
they were motivated by retaliatory animus. As of February 17,
1998, William was transferred to another district and there is no
evidence that Colarulo continued to play a role in supervising
William. A factfinder could not reasonably impute Colarulo’s
expression of retaliatory intent to the entire police department.10
Thus, for subsequent actions taken against William to be
actionable, there must be an independent basis for the inference
9
The same cannot be said of Michael, who sparred with
Maroney at every turn from the moment Maroney arrived in
October of 1997.
10
To the extent that Michael sought redress for certain
actions taken against him after he transferred from the 25th
District, we find that the argument fails for similar reasons.
37
of retaliatory animus. To the extent that William relies upon the
brevity of the time periods between the protected activity and
alleged retaliatory actions to prove causation, see Fasold v.
Justice, 409 F.3d 178, 190 (3d Cir. 2005) (“[W]hen only a short
period of time separates an aggrieved employee’s protected
conduct and an adverse employment decision, such temporal
proximity may provide an evidentiary basis from which an
inference of retaliation can be drawn.”), he will have to show as
well that the decision maker had knowledge of the protected
activity, see Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir.
1989) ([Plaintiff] demonstrated the causal link between the two
by the circumstance that the discharge followed rapidly, only
two days later, upon [defendant’s] receipt of notice of
[plaintiff’s] EEOC claim.”) (emphasis added).
William points out that he was removed from restricted
duty on November 4, 1998, the very day that his brother,
Michael, filed a civil rights lawsuit against the police
department. Filing a civil rights lawsuit is clearly protected
conduct under Title VII, and in the circumstances of this case,
retaliating against William for Michael’s lawsuit might well be
actionable.11 William, however, points to no evidence to show
11
William asks us to “revisit” the holding of Fogleman v.
Mercy Hosp., Inc., 283 F.3d 561, 568 (3d Cir. 2002) to the
extent that the case stands for the proposition that Title VII’s
anti-retaliation provision does not bar actions taken against the
family members of an employee who engages in protected
activity. Br. Appellant at 43-44. There is no reason to confront
this issue. That case confronted the issue of whether Title VII
“make[s] actionable retaliation against someone who has not
himself engaged in protected conduct.” Fogleman, 283 F.3d at
568. In this case, Michael and William are not just brothers.
They are co-whistle blowers. They both engaged in protected
conduct. Both filed an EEOC complaint together in April – a
38
that the police department was aware of Michael’s lawsuit prior
to taking this action. It is not reasonable for a factfinder to infer
that an employer’s reaction was motivated by an intent to
retaliate for conduct of which the employer’s decision maker
was not aware. Nor is it a fair inference that the decision maker
that cancelled William’s restricted duty was aware of Michael’s
lawsuit based merely on the filing date.
William also claims that the Police Department retaliated
against him by abusively subjecting him to “sick checks” when
he was on medical leave. William received three sick checks in
his first five months of medical leave. In the two months after
he filed his federal lawsuit, he was subjected to over 30 sick
checks – approximately one every other day until he was
eventually dismissed for failing sick checks. Here, we find that
“temporal proximity may provide an evidentiary basis from
which an inference of retaliation can be drawn” by the
factfinder. See Fasold, 409 F.3d at 190. The defendants do not
dispute that the Police Department would have been aware of
William’s publicized filing of the lawsuit on March 5, 1999.
The striking difference in the application of the sick-check
policy before and after the date William filed his lawsuit would
support an inference that it was caused by retaliatory animus.
See Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503 (3d Cir.
1997) (“[T]he timing of the alleged retaliatory action must be
‘unusually suggestive’ of retaliatory motive before a causal link
will be inferred.”). In addition, enforcing the sick check policy
so vigorously would allow a jury to conclude that the disparate
fact mentioned in Michael’s complaint filed on November 4,
1998. William was a likely witness for Michael at trial. We do
not need to revisit the holding of Fogleman to find that an
employer cannot retaliate against one whistle-blower by taking
actions against an ally who is blowing the whistle on the same
conduct.
39
application of this policy “well might have dissuaded a
reasonable worker from making or supporting a charge of
discrimination.” Burlington N. & Sante Fe Ry. Co., 126 S.Ct. at
2415. Finally, the disparate application of this policy is
sufficiently suggestive of retaliatory animus, that we find that a
factfinder could reasonably disbelieve the government’s
proffered legitimate, non-retaliatory reason for the sick-checks
and reasonably believe that retaliatory animus motivated the
disparate application of the sick-check policy.12
VI.
These three police officers have sought to recover for a
long, unpleasant experience working at the Philadelphia Police
Department. We find that a jury might well believe that their
supervisors made their lives the “living nightmare” one
supervisor promised as payment for opposing unlawful
discrimination. It is true enough that only a portion of that
nightmare can be attributed to a desire to retaliate against them
and that only a portion of their experience is redressable by Title
VII. These officers have claimed many wrongs by many foes
for many reasons. But this cannot obscure the fact that a jury
12
The defendants offer as a non-retaliatory reason for the
sick checks the departmental policy directing that sick checks be
made of officers on medical leave. This does not explain the
application of this policy – specifically, the sudden increase in
regularity of sick checks after William filed his lawsuit. Nor
does William’s failures of sick checks evince a pattern that may
explain this increase. William failed sick checks on 11/9/98,
2/3/99, and 2/4/99. This does not explain why the department
would start performing sick checks once every other day starting
in March, 1999, soon after William filed his lawsuit. A jury
could reasonably disbelieve this proffered explanation.
The defendants also argue that this issue was waived.
We disagree. See App. at 862-63.
40
might properly conclude that some of those wrongs by some of
those foes were intended to silence the plaintiffs from
identifying and opposing unlawful discrimination in the
Philadelphia Police Department. Because these plaintiffs have
shown genuine issues of material fact as to whether they
suffered retaliation made unlawful by Title VII, we will reverse
the District Court’s blanket grant of summary judgment and
remand for proceedings consistent with this opinion.
41