Moore v. City of Philadelphia

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Precedential or Non-Precedential: Precedential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