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Addressing Title VII reprisal claim, court finds disciplinary hearing did not sever causal connection between supervisor’s animus and termination

August 18th, 2011  |  Cynthia L. Hackerott

In March, the U.S. Supreme Court ruled that an employer can sometimes be liable for discrimination even if the person who makes the decision at issue did not have a discriminatory motive. In the case, Staub v Proctor Hosp, a U.S. Army reservist relied on what is known as the “cat’s paw” theory of liability. Specifically, the Court held that if a supervisor performs an act motivated by antimilitary hostility, and if that act sets in motion a chain of events leading to the ultimate adverse employment action, then the employer is liable under Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). The Court’s holding constituted a new test for employer liability in such cases. A decision issued yesterday by the Third Circuit in a Title VII retaliation case provides some additional guidance on this theory of liability in terms of the role an internal disciplinary review hearing may play.

“Proximate cause” analysis applied in determining “motivating factor.” USERRA forbids an employer from denying “employment, reemployment, retention in employment, promotion, or any benefit of employment” based on a person’s “membership” in or “obligation to perform service in a uniformed service,” and provides that liability is established “if the person’s membership . . . is a motivating factor in the employer’s action.” The Supreme Court noted that USERRA is “very similar to Title VII,” which states that discrimination is established when race, color, religion, sex or national origin is “a motivating factor for any employment practice, even though other factors also motivated the practice.” In construing the phrase “motivating factor in the employer’s action,” the High Court looked to concept from personal injury law known as “proximate cause.”

When an action sets in motion a chain of events that would naturally led to a particular result, that action is known in legal terminology as the “proximate cause” of the result. Stating that the reservist’s USERRA claim was the type of personal injury claim where a showing of intentional action is required, the court explained that this showing generally requires that the actor intend the consequences of an act, not simply the act itself.  Bias and responsibility for the adverse action can both be attributed to the earlier agent if the adverse action is the intended consequence of that agent’s discriminatory conduct. So long as the earlier agent intended, for discriminatory reasons, that the adverse action occur, he has the mindset required for show intent for the purposes of USERRA liability, the Court found. Put another way, the decisionmaker’s exercise of judgment does not prevent the earlier agent’s action (and hence, the earlier agent’s discrimination-based hostility) from being the proximate cause of the harm, the Court wrote.

Superseding cause. But what about the ultimate decisionmaker’s role in the chain of events? The High Court explained that the ultimate decisionmaker’s judgment can not be deemed a “superseding cause” (in other words, an intervening cause) of the termination. In legal terminology, a “superseding cause” is one that breaks the chain of events set in motion by a particular action. The court explained that a cause can be considered “superseding” only if it is a cause of independent origin that was not foreseeable.

If the ultimate decisionmaker was considered to be a superseding cause of the adverse employment decision, the Court found that a result would occur that was not intended by the law. “If an employer isolates a personnel official from its supervisors, vests the decision to take adverse employment actions in that official, and asks that official to review the employee’s personnel file before taking the adverse action, then the employer will be effectively shielded from discriminatory acts and recommendations of supervisors that were designed and intended to produce the adverse action,” the Court wrote (Court’s emphasis).

Disciplinary review hearing found not to be superseding cause. So, the Supreme Court has said that the ultimate decisionmaker cannot be deemed a superseding cause of the adverse employment decision, but what about a disciplinary review hearing? Yesterday, in McKenna v City of Philadelphia, the Third Circuit Court of Appeals found that such a hearing could not be considered a superseding cause. Specifically, the Third Circuit held that the City of Philadelphia failed to demonstrate that an internal disciplinary review hearing was a superseding cause that severed the causal connection between a supervisor’s retaliatory animus and the city’s ultimate decision to terminate a Caucasian police officer who had voiced concerns about racially discriminatory treatment of minority officers.

The officer testified that he brought the racial tensions within his squad to the attention of the squad supervisor, a sergeant, and, on numerous occasions, to his district commander, a captain. When things did not change, the officer told the captain that he thought the sergeant was condoning racism within the squad by failing to address the issue. The officer also told the sergeant that he was contributing to the problem by failing to take any action. After making these complaints, the officer, along with minority officers and other officers who complained of racism, was assigned unassisted duty in dangerous neighborhoods in unpleasant weather conditions, particularly rain and cold.

According to the officer, when he reiterated his concern that the sergeant was condoning racism, the captain told him that if he made an EEOC complaint, the captain would make the officer’s life “a living nightmare.” The captain ordered the officer to apologize for making the accusations. The officer claimed that as a result, he suffered extreme anxiety and depression, and was placed on restricted duty out of the district in May 1998.

Shortly after his transfer, on the Friday before Memorial Day weekend, the officer made a least two phone calls to the district, attempting to speak with the sergeant. The captain called him back and exclaimed “[w]ho the f**k do you think you are calling [the sergeant] at the District?” The captain ordered the officer not to call the sergeant, which the officer understood to mean that he should not attempt to reach the sergeant for the rest of that day. On Sunday, the officer called the captain to inform him that he had reached the sergeant on Saturday and had resolved many of his concerns, but that he still wanted to schedule a meeting among the three of them. The captain declined and thereafter served the officer with disciplinary papers for insubordination based on his Memorial Day calls.

About six months later, a hearing was held before the adjudication unit of the Police Board of Inquiry (PBI). The adjudication unit is “a three-person panel that listens to the evidence and then decides the proper sanction” to recommend. Its authority is limited to recommending sanctions; the power to impose sanctions lies with the police commissioner. The PBI found the officer guilty of four charges of insubordination and recommended his dismissal.

District court proceedings. At trial on the officer’s Title VII reprisal claim, the jury found that the officer had proven by a preponderance of the evidence that “the discipline he received for contacting his supervisors over the Memorial Day weekend was motivated by unlawful retaliation for his protesting the treatment of African-Americans or filing a claim of discrimination.” The court entered a total judgment in favor of the officer in the amount of $555,341, representing $300,000 in compensatory damages, $208,781 in back pay, and $46,560 of pre-judgment interest on the back pay.

The district court denied the city’s motion for judgment as a matter of law and/or notwithstanding the verdict finding that, under existing Third Circuit precedent, a reasonable jury could find that the captain’s animus played a substantial role in the ultimate decision by the PBI to recommend the officer’s termination. While the city’s appeal to the Third Circuit was pending, the Supreme Court issued its ruling in Staub, and the Third Circuit ordered the parties to file supplemental memos on the effect of that decision.

Effect of Staub. The City argued that, under Staub, the district court’s decision had to be reversed because the hearing before the PBI severed the causal connection between the captain’s retaliatory animus and the police commissioner’s ultimate decision to terminate the officer. In other words, the city contended that the captain’s animus was not a proximate cause of the officer’s termination because the PBI adjudicatory process was an intervening superseding cause.

The Third Circuit disagreed. Once the officer established a prima facie case that his termination was motivated by the captain’s retaliatory animus, it was the city’s burden to come forward with evidence that it terminated the officer for reasons unrelated to the captain’s original biased action in preferring charges against him, the court explained. However, the testimony that was offered at trial did not illuminate the extent of the PBI’s role in the officer’s termination. It was not clear that the officer called witnesses on his behalf or cross-examined the captain, even if he could have. The record did not reveal the testimony of the other witnesses for the city or if they were cross-examined. Moreover, there was no testimony as to what the police commissioner saw or relied upon when making the termination decision. All that the evidence demonstrated was that the captain retaliated against the officer by referring the charges against him, the PBI affirmed those charges, and the commissioner then terminated the officer, the Third Circuit found. Applying Staub, the appeals court ruled that a reasonable jury could conclude the captain’s animus bore a direct and substantial relation to the officer’s termination.

The court rejected the city’s argument that the fact that the PBI added a charge against the officer (in addition to the three charges brought by the captain) demonstrated that the PBI was independent. The jury was entitled to conclude that the added charge just as likely reflected that the PBI was not independent and that it adopted the captain’s biased account of the events, the Third Circuit ruled. The jury was also entitled, based on the evidence, to find the city’s argument that the PBI was an independent decision-maker unconvincing. Thus, the court ruled that, under Staub, the district court did not error in denying the city’s motion.

Even though Staub was not the law in effect at the time the jury was instructed or when the district court rendered its decision, the Third Circuit found there was no reason to remand the case. Pre-Staub, Third Circuit precedent provided that it is sufficient for a plaintiff to prevail if those exhibiting discriminatory animus influenced or participated in the decision to terminate.

The jury was instructed that it was the officer’s burden to demonstrate by a preponderance of the evidence that he was terminated after engaging in protected activity and that there was a causal connection between the termination and the protected activity. As to causation, the jury was instructed that it must decide whether the officer’s protected activity “had a determinative effect on the alleged materially adverse action. Determinative effect means that, if not for the plaintiff’s protected activity, the alleged materially adverse action would not have occurred.”

The instructions to the jury incorporated the concept of proximate cause, the court concluded. Based on these instructions, the jury found that the captain’s animus caused the officer’s termination, notwithstanding the intervening hearing before the PBI. “The jury could not have reached a different decision as a matter of law, even if it had been instructed in accordance with Staub,” the appeals court wrote, because there was no evidence to support a conclusion that the hearing before the PBI was an intervening superseding cause of the officer’s termination.

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