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The extent to which the U.S. Supreme Court’s Burlington Northern v. White decision has changed the law of retaliation claims under Title VII is apparent in the 3rd U.S. Circuit Court of Appeals’ recent decision in Moore v. City of Philadelphia. Moore touches on virtually every aspect of retaliation law and will likely serve as a template for such claims in the 3rd Circuit for years to come. Philadelphia Police Officers Michael McKenna, William McKenna and Raymond Carnation were Philadelphia police officers working in the so-called “7-squad” of the 25th District – an area sometimes referred to as “the Badlands.” Although the squad was racially mixed, severe racial tension resulted when William McKenna and Carnation transferred into the squad in August 1997 (Michael McKenna was already assigned to the squad at that time). The McKennas (who are brothers) and Carnation are Caucasian. The racial divide in the squad was exacerbated when Sergeant John Moroney became the squad’s permanent supervisor in October 1997, working under Captain William Colarulo. Moroney repeatedly made racially derogatory remarks and used the most offensive of racial epithets. Michael McKenna testified during discovery that he repeatedly told Moroney that he was offended by his racial language and repeatedly asked him to stop. In following the police department’s hierarchy, William McKenna and Carnation spoke to Colarulo in November 1997 and reported on the racial tension on the squad. The court made a point of noting that at this time, the officers “were simply reporting the situation to supervisors.” Subsequently, however, all three officers expressed to Moroney’s supervisors that they opposed his behavior toward their African-American colleagues and that they were concerned that they were being retaliated against by Moroney for their positions. The evidence was that nothing changed as a result of these complaints. Retaliatory Conduct In February 1998, Carnation was denied relief while manning an outside post. He subsequently told Moroney that he “could not handle it anymore” and went home. The next day, Carnation was called to his captain’s office and, according to his testimony, Colarulo told him that “he can make my life a living nightmare if I make any EOC complaint.” Furthermore, Carnation was ordered to apologize to Moroney. A few days later, William McKenna was overheard stating, “Moroney should be shot for what he does to us and everybody else . . . .” Later that day, William’s service weapon was confiscated. Ultimately, he was reassigned within the squad, suspended for 30 days and ordered to undergo a psychiatric examination. Within a week, William was transferred to a different district and received a less-than satisfactory rating on a performance evaluation. Shortly after William’s “Moroney should be shot” comment, his brother, Michael, heard Moroney threaten to “kick Michael’s ass.” Fifteen minutes later, Michael was assaulted by a fellow officer that resulted in a broken wrist. Within days, Michael was also transferred from the 25th District and was also given a less-than-satisfactory performance evaluation. Carnation remained with the 7-squad for a few more months before requesting a transfer to the Police Academy. He also filed an internal grievance against Moroney and Moroney’s supervisors. During the summer of 1998, Colarulo intervened in Carnation’s child custody dispute on behalf of Carnation’s ex-wife. It was noted that the captain had previously refused to involve himself in this matter. William McKenna and Carnation, along with three African-American officers, filed a lawsuit against the city of Philadelphia and various individual defendants in March 1999 (Michael had previously filed a separate action). At that time, William was on medical leave. The Police Department had a policy to “sick check” officers on medical leave by visiting them at their home and requiring that they be present and to sign a form. In the months preceding William’s lawsuit, he was sick checked three times. In the two months following William’s lawsuit, he was sick checked 30 times and after failing five of the sick checks, was dismissed from the department. ‘Opposition’ Found The lawsuits of Michael and William McKenna and Carnation were consolidated and the district court granted summary judgment in favor of the defendants on their retaliation claim. Significantly, this decision was rendered before the U.S. Supreme Court’s Burlington Northern decision. On appeal, the 3rd Circuit noted that its retaliation standard of requiring an “adverse employment action” that “alters the employee’s compensation, terms, conditions, or privileges of employment” had been changed by Burlington Northern. The Burlington Northern standard was recognized as requiring a plaintiff to show that “a reasonable employee would have found the alleged retaliatory actions materially adverse, in that they might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Furthermore, in order to establish the prima facie case, as clarified by Burlington Northern, a plaintiff must “identify what harassment if any, a reasonable jury could link to a retaliatory animus.” Moore found that all three officers had “opposed” unlawful discrimination as defined by Title VII. The court noted that while the officers complained about many aspects of their supervision that were not racially related, “opposition to discrimination does not need to stand separate and apart from any other criticism of management in order to be entitled to protection under the anti-retaliation provision.” The court also emphasized that in order to state a claim for retaliation, the complaining employees need only have a “good faith, reasonable belief that a violation existed.” As such, there was no need for the court to determine whether, in fact, African-American officers in the 7-squad were suffering discrimination as defined by Title VII. ‘Materially Adverse’ Actions The court then moved on to the question of whether the department’s reaction to the officers’ complaints could be found to be “materially adverse” as defined by Burlington Northern. Initially, the court considered whether the discipline William McKenna received for his “Moroney should be shot” comment was retaliatory. In finding that the discipline could be actionable, the court placed great emphasis on Colarulo’s “living nightmare” threat to Carnation. The court called this “unusually strong evidence of retaliatory animus,” that could allow a jury to conclude that William’s supervisors went beyond legitimate discipline and were actually motivated by retaliatory animus. In considering Michael McKenna’s treatment, his transfer away from the 25th District, where he had received commendations and newspaper attention for his good work, was found to be “materially adverse.” Specifically, the court found 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.” Finally, Carnation, who had previously been threatened with the “living nightmare” comment, was found to be the subject of retaliation when he was disciplined and when Colarulo “thereafter became involved in Carnation’s custody battle with the mother of his child.” Again, the court found that the “unusually strong evidence of retaliatory animus” would allow a fact finder to conclude that retaliation more likely than not motivated Carnation’s supervisor’s actions. Finally, the court noted that William would have triable evidence of retaliatory conduct for filing the complaint of discrimination by “the striking difference in the application of the sick-check policy before and after the date William filed his lawsuit.” Changed Standard The case emphasizes the dramatic difference in the definition of an “adverse action” since Burlington Northern. That is, it is unlikely that Michael McKenna’s lateral transfer would have been found to constitute an adverse action under the pre- Burlington Northern standard in the 3rd Circuit. Significantly, while the Burlington Northern Court referenced a “reasonable employee” standard, the Moore court looked to whether a reasonable police officer, with commendations and positive media attention (i.e., Michael McKenna) would have found the transfer to be adverse. Even more striking is the court’s reliance on evidence that Carnation’s supervisor involved himself in a child custody dispute as being a “materially adverse action.” This is, perhaps, the strongest example that the “materially adverse action” under Burlington Northern need not necessarily be employment-related. The court also seemed to engage in a balancing test, weighing the strength of the evidence of the employer’s intent to retaliate (the “living nightmare” comment) to bolster the materially adverse action. As noted, this decision will likely take its place along side the 3rd Circuit’s pantheon of employment-discrimination cases and will almost certainly make summary judgment in retaliation cases even more difficult from a defense perspective. SID STEINBERG is a partner in Post & Schell’s business law and litigation department. He concentrates his national litigation and consulting practice in the field of employment and employee relations law. Steinberg has lectured extensively on all aspects of employment law, including Title VII, the FMLA and the ADA.

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