McKenna v. City of Philadelphia

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________

No. 09-3567
________

MICHAEL MCKENNA;
WILLIAM K. MCKENNA;
RAYMOND CARNATION,
Appellants
v.

CITY OF PHILADELPHIA

________

No. 10-3430
_________

MICHAEL MCKENNA;
WILLIAM MCKENNA;
RAYMOND CARNATION

v.

CITY OF PHILADELPHIA,
Appellant
________

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Nos. 2-98-cv-05835, 2-99-cv-01163)
District Judge: Honorable Mary A. McLaughlin
_______
 No. 09-3567 Submitted Pursuant to 3rd Cir. LAR 34.1 on
July 11, 2011

No. 10-3430 Argued July 11, 2011

Before: SLOVITER, FUENTES, and VANASKIE,
Circuit Judges

(Filed: August 17, 2011)
______

Brian M. Puricelli (Argued)
Law Offices of Brian Puricelli
Newtown, PA l8940

Attorney for Appellants/Cross-Appellees

Eleanor N. Ewing (Argued)
City of Philadelphia Law Department
Philadelphia, PA l9l02

Mark J. Foley
Dexter R. Hamilton
George A. Voegele, Jr.
Cozen O‟Connor
Philadelphia, PA l9l03

Attorneys for Appellee/Cross-Appellant

_____________

OPINION OF THE COURT
_____________

SLOVITER, Circuit Judge.

In Staub v. Proctor Hosp., 131 S. Ct. 1186, 1189
(2011), the Supreme Court addressed “the circumstances
under which an employer may be held liable for employment
discrimination based on the discriminatory animus of an
2
employee who influenced, but did not make, the ultimate
employment decision.” Today we consider, in light of Staub,
whether the City of Philadelphia, the employer at issue, has
demonstrated that its internal disciplinary review hearing
severed the causal connection between a supervisor‟s
retaliatory animus and the employer‟s ultimate employment
decision to terminate the employee. The procedural posture
of this case appears in the margin,1 which disposes of the

1
This case came to trial as a Title VII claim filed by three
terminated police officers, William McKenna, his brother
Michael McKenna, and Raymond Carnation, each of whom
alleged that they were disciplined in retaliation for protesting
the discriminatory treatment afforded their African American
colleagues. Their cases were consolidated for discovery and
trial.

The jury found in favor of the plaintiffs, specifically that
William McKenna proved that the discipline he received
resulting from the comment that “Sergeant Moroney should
be shot in the head” was retaliatory, that the number of sick
checks William received was retaliatory, and awarded him
$3,000,000 in damages; that Michael proved that the pattern
of conduct against him was retaliatory, and awarded him
$5,000,000; and that Raymond Carnation proved that the
pattern of conduct directed against him was retaliatory and
awarded him $2,000,000. App. at 753-57.

The District Court applied the compensatory damages cap
of Title VII to reduce the jury‟s award to $300,000 per
plaintiff. In a thorough and well-reasoned 108-page opinion,
the District Court denied the plaintiffs‟ post-trial motion,
which challenged, among other things, the Court‟s
conclusions that: the McKennas had failed to plead their
wrongful termination claims; the plaintiffs had failed to plead
claims under the Pennsylvania Human Relations Act
(“PHRA”); the City had not impliedly consented to try PHRA
claims; the Court properly imposed the statutory cap of Title
VII because there were no PHRA claims to absorb the excess
above the statutory cap; and that the Court had not erred in
3
issues raised in No. 09-3567. We limit this opinion to the
issues raised in the City‟s cross-appeal, No. 10-3430.

I.

Ray Carnation, who is Caucasian, worked as a police
officer in the Philadelphia Police Department until the City of
Philadelphia terminated him in 1999. He filed a Complaint
against the City, asserting that it terminated him in violation
of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e et seq., in retaliation for his opposition to the City‟s
racially discriminatory treatment of minority officers.

At trial, the evidence established that Carnation
worked in the 7-squad of the 25th District of the Philadelphia
Police Department, over which Captain William Colarulo
assumed command in 1997. Shortly thereafter, Sergeant John
Moroney, who had been one of the rotating supervisors of the
7-squad, was made permanent supervisor.

determining Carnation‟s equity award based on his
termination.

On appeal, plaintiffs challenge the District Court‟s
opinion. After carefully reviewing the parties‟ submissions
and the extensive record, we conclude that the District Court
did not err or abuse its discretion. We agree with the District
Court. Substantially for the reasons set forth in that excellent
opinion, we will affirm the Court‟s judgment as to the
plaintiffs‟ appeal.

Plaintiffs also argue on appeal that the District Court erred
in deferring any determination of an award of attorney‟s fees
and costs. We find this remaining argument without merit
and not in need of a separate discussion. Accordingly, we
will affirm the District Court‟s judgment with respect to the
plaintiffs‟ appeal. The Court may consider on remand
plaintiffs‟ attorney‟s fee petition.

4
 Carnation testified that there were racial tensions
within the 7-squad before Moroney assumed control, and that
Carnation brought the problem to Moroney‟s attention.
Carnation also complained on numerous occasions to
Colarulo about racial tensions in the 7-squad. When things
did not change, Carnation told Colarulo that he thought
Moroney was condoning racism within the squad by failing to
address the issue. Carnation also told Moroney that he was
contributing to the problem by failing to take any action.

Carnation claimed that, after making these complaints,
he, 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. When Carnation reiterated his
concern that Moroney was condoning racism, Colarulo told
him that if he made an EEOC complaint, Colarulo would
make Carnation‟s life “a living nightmare.” App. at 2022.
Colarulo ordered Carnation to apologize for making the
accusations.

Carnation claims that as a result, he suffered extreme
anxiety and depression, and was placed on restricted duty out
of the 25th District in May 1998. Shortly after his transfer,
on the Friday before Memorial Day weekend, Carnation made
at least two telephone calls to the 25th District, seeking to
speak with Moroney. According to Carnation, Colarulo
called him back and exclaimed “[w]ho the fuck do you think
you are calling Sgt. Moroney at the District?” App. at 2055.
After a brief discussion, Colarulo ordered Carnation to “not
call Sgt. Moroney.” App. 2054 Carnation testified that he
understood Colarulo to mean that he should not attempt to
reach Moroney for the rest of that day.

The next day, a Saturday, Carnation called the 25th
District and spoke with Moroney about his concerns. On
Sunday, Carnation called Colarulo, who was off duty, at
around 8:30 in the morning at his shore house. Carnation
testified that he called to inform Colarulo that he had reached
Moroney and had resolved many of his concerns, but that he
5
still wanted to schedule a meeting among the three of them.
Colarulo declined the request, telling Carnation that “he
doesn‟t conduct meetings in that fashion.” App. at 2030-31.
Colarulo thereafter served Carnation with disciplinary papers
for his Memorial Day calls.

Colarulo brought, or “preferred,” against Carnation
two counts of insubordination, based on his purported
“refusal to obey proper orders from superior[s]” and “us[e of]
profane or insulting language to a superior officer,” and one
count of neglect of duty, based on his alleged “failure to
comply with any commissioner‟s orders, directives,
regulations, etc., or any oral or written orders of superiors.”
App. at 3527-31. Colarulo recommended that the matter be
adjudicated by the Police Board of Inquiry (“PBI”).

Colarulo testified at trial as to the process for bringing
charges against officers in 1998 and 1999. He stated that he
would complete an investigation and determine that
disciplinary action was warranted. Then, Colarulo would
submit the charging papers, also known as “18s,”2 to the
charging unit of the PBI via his chain of command. Colarulo
“d[id not] know how many signatures would be required,” but
stated that whatever the method, “eventually it does go to the
[PBI].” App. at 2821. The 18s against Carnation were signed
by Colarulo, the Division Commander, the Chief Inspector,
and the Deputy Commissioner.

Carnation was permitted to either plead guilty and
waive a hearing, or plead not guilty and request a hearing. As
indicated on the 18s, Carnation pled not guilty and requested
a hearing before the PBI. Colarulo characterized the
adjudication arm of the PBI, before which hearings were held,
as “completely separate” from the charging unit of the PBI.
App. at 2823. He characterized the adjudication unit as

2
The term “18” is short for document number 75-18,
which gives notice to the charged person of the charges
against him or her, the basis for the charges, and the action
being taken.

6
“similar to a military court marshal.” App. at 2783. He
elaborated:

[W]hen a officer is disciplined, they go before
this board and there‟s always one person of
the same rank as the officer and then there
would be a captain and a lieutenant that sits on
that board as well. The City will -- or the
Police Department will present their case.
The officer will have representation, legal
representation with them, and they‟re able to
cross examine, similar to a courtroom, and it‟s
basically done at the Round House[3] and then,
after testimony is taken, that three-person
board will mediate and decide what the
appropriate finding is, guilty, not guilty, or so
forth.

App. at 2783.

More concisely, the PBI adjudication unit is “a three-
person panel that listens to the evidence and then decides the
proper sanction” to recommend. App. at 2794. Its authority
is limited to recommending sanctions. The power to impose
sanctions lies with the Commissioner.

Colarulo informed Carnation that the hearing itself
would be confidential. The notice to Carnation regarding the
PBI hearing also informed him that he had the right to
counsel. By signing it, Carnation acknowledged that
Colarulo had advised him of his right to have counsel of
choice present at the hearing and that the absence of counsel
would not be a ground for a continuance and would be
deemed a waiver of the right to counsel‟s presence.

3
The “Round House” is the popular name for the
headquarters of the Philadelphia Police Department,
originally from the architectural form of the building.
Counsel for Carnation explained at oral argument that the
hearing is held in the basement of the Round House.
7
 Although Carnation, like other members of the Police
Department, is ordinarily represented by the Fraternal Order
of Police, which serves as the collective bargaining agent for
Philadelphia police officers, it did not represent him before
the PBI. According to Carnation, the Fraternal Order of
Police declined to represent him at the hearing because it felt
that the discord was “a big personality conflict.” App. at
2061. Carnation apparently secured private counsel to
represent him at the PBI hearing, and he testified on his own
behalf. Colarulo also testified for the City, in addition to
other witnesses.

The PBI that considered the charges against Carnation
consisted of a police officer, a lieutenant, and a captain. After
the hearing, which took place about six months after
Carnation was charged and lasted just over three hours, the
PBI found Carnation guilty of the charges preferred by
Colarulo. Acting within its authority, it also added a charge
against Carnation for conduct unbecoming an officer, based
on its finding that Carnation engaged in “[r]epeated violations
of departmental rules and regulations, and/or any other course
of conduct indicating that a member has little or no regard for
his responsibility as a member of the Police Department.”
Supp. App. at 633.

The PBI did not give Carnation any notice that it was
contemplating adding a charge after the hearing.4 Based on
the four charges for which it found Carnation guilty, the PBI

4
It is unclear from the record, and indeed it was unclear to
Carnation, what formed the basis of the charge for conduct
unbecoming an officer. Carnation testified that he was under
significant stress at the time and that the initial charges “kind
of took [him] over the edge.” App. at 2036. Acknowledging
to himself that he was “having some type of psychological
problems,” he admitted himself to a hospital where he was
diagnosed as homicidal towards Colarulo and as suicidal.
App. at 2037. At trial, Carnation seemed to speculate that the
added charge stemmed from his homicidal tendencies
diagnosis. He referred to the charge as one for “tr[ying] to
kill a commanding officer.” App. at 2060.
8
recommended Carnation‟s dismissal. Shortly thereafter, the
Commissioner gave Carnation notice of the City‟s intent to
terminate him.

Following the PBI proceedings, which were the
subject of testimony before the jury at the Title VII trial, the
jury returned a verdict for all three plaintiffs. With respect to
Carnation, the jury found that Carnation 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.” App. at 756. The jury awarded
Carnation $2,000,000 in compensatory damages, which the
District Court reduced to $300,000, based on the
compensatory damages cap of Title VII, 42 U.S.C. §
1981a(b)(3)(D). After an equity hearing on Carnation‟s
termination, the District Court awarded Carnation $208,781
back pay, and $46,560 of pre-judgment interest on the back
pay. The Court entered a total judgment in favor of Carnation
in the amount of $555,341, representing the $300,000 in the
Title VII case in addition to the equity award.

The City moved for judgment as a matter of law and/or
notwithstanding the verdict on Carnation‟s termination claim.
It argued that although Carnation was terminated as a result
of disciplinary proceedings brought by Colarulo, Carnation
had failed to establish the requisite causal link between his
termination and Colarulo‟s alleged retaliatory animus because
the termination recommendation was made by an
“independent” PBI. Supp. App. at 536. The City emphasized
that the PBI added a charge sua sponte against Carnation and
that he had not presented any evidence to permit the inference
that the PBI itself was motivated by retaliatory animus.

The District Court denied the City‟s motion for
judgment as a matter of law and/or notwithstanding the
verdict. In doing so, the Court evaluated the evidence in the
light most favorable to Carnation and concluded that the jury
was entitled to credit Carnation‟s testimony and find that
Colarulo was motivated by an intent to retaliate against him.
9
With respect to the PBI, the Court determined that the jury
had no basis upon which it could find that the PBI itself was
motivated by retaliation. The Court held, however, that there
was sufficient evidence upon which the jury could impute to
the PBI the retaliatory animus of Colarulo.

In so holding, the Court relied on this court‟s decision
in Abramson v. William Paterson Coll. of N.J., 260 F.3d 265,
286 (3d Cir. 2001), in which we stated that “[u]nder our case
law, it is sufficient if those exhibiting discriminatory animus
influenced or participated in the decision to terminate.”
Applying this test, the District Court in this case noted that
“[v]ery little testimony was offered at trial by either side
about the PBI‟s involvement in Carnation‟s termination.”
McKenna v. City of Phila., Nos. 98-5835, 99-1163, 2010 WL
2891591, at *26 (E.D. Pa. July 20, 2010).

The Court concluded, however, that “[b]ecause the
events of [Memorial Day] weekend formed the grounds for
the disciplinary charges against [Carnation] and the
proceedings before the PBI, a reasonable jury could find that
Colarulo‟s animus played a substantial role in the ultimate
decision by the PBI to recommend Carnation‟s termination.”
Id. at *31. The City appeals.

II.

The District Court had jurisdiction under 28 U.S.C. §§
1331, 1343, and 1367. This court has jurisdiction under 29
U.S.C. § 1291. We review the denial of judgment as a matter
of law de novo, viewing the evidence in the light most
favorable to Carnation, the prevailing party. Acumed LLC v.
Advanced Surgical Servs., Inc., 561 F.3d 199, 211 (3d Cir.
2009). This court will reverse only if the record is “critically
deficient of the minimum quantum of evidence” upon which a
jury could reasonably base its verdict. Id. (internal quotation
omitted).

III.

10
 While this case was pending on appeal, the Supreme
Court decided Staub v. Proctor Hosp., 131 S. Ct. 1186
(2011), a decision directly relevant to the issues in the City‟s
cross-appeal. We directed the parties to file supplemental
memos on the effect of Staub.

In that case, Vincent Staub sued his former employer,
respondent Proctor Hospital, under the Uniformed Services
Employment and Reemployment Rights Act of 1994
(“USERRA”), 38 U.S.C. § 4301 et seq.5 Staub alleged that
his termination was motivated by Proctor‟s hostility to his
obligations as a member of the United States Army Reserve,
which required him to devote a certain number of weeks and
weekends per year to training. Specifically, he claimed that
although the vice president of human resources, who lacked
such hostility, made the decision to terminate him, her
decision was influenced by Staub‟s supervisors, who
possessed enmity to his military obligations. Id. at 1190.

The Seventh Circuit characterized Staub‟s claim as a
“cat‟s paw case,”6 or one in which Staub sought to hold his

5
The Supreme Court described USERRA as a statute
“very similar to Title VII.” 131 S. Ct. at 1191. USERRA
provides that “[a]n employer shall be considered to have
engaged in [prohibited] actions . . . if the person‟s
membership . . . in the services . . . is a motivating factor in
the employer‟s action.” 38 U.S.C. § 4311(c). Likewise, Title
VII prohibits employment discrimination “because of . . .
race,” among other grounds, and provides that the
complaining party establishes an unlawful employment
practice when it demonstrates that race “was a motivating
factor for any employment practice, even though other factors
also motivated the practice.” 42 U.S.C. § 2000e-2(a), (m).
6
As explained by the Supreme Court in Staub, the term
“cat‟s paw” derives from one of Aesop‟s fables. 131 S. Ct. at
1190 n.1. In the fable, a mischievous monkey compliments
his company, a cat, on his abilities and suggests that the cat
steal the chestnuts that they were watching roast in a fire.
The naïve cat, flush with the monkey‟s flattery, readily
11
employer liable for the animus of a nondecisionmaker. Staub
v. Proctor Hosp., 560 F.3d 647, 651 (7th Cir. 2009). Under
Seventh Circuit precedent, an employer would be held liable
in such a circumstance only if the nondecisionmaker exerted
such “singular influence” over the decisionmaker as to make
the decision no more than a rubber stamp of the
nondecisionmaker‟s recommendation. Id. The
decisionmaker would not be considered a pawn of the
nondecisionmaker, however, if he or she conducted an
independent investigation into the relevant facts before
rendering the adverse decision. Id. at 656-57.

Applying this test, the Seventh Circuit observed that
the vice president of human relations considered Staub‟s past
employment incidents, in addition to the supervisors‟
opinions, before rendering her ultimate decision. Id. at 659.
Thus, the court held that a reasonable jury could not have
concluded that the decision to terminate Staub was a product
of “blind reliance.” Id. Although the decision was influenced
by the supervisors‟ opinions, it was not “„wholly dependent‟”
upon them, and thus Proctor was not liable. Id. (internal
quotation omitted).

The Supreme Court reversed. It rejected the “singular
influence” test and stated that the correct test of employer
liability was one of proximate cause. 131 S. Ct. at 1194. The
Court further found unpersuasive Proctor‟s argument that a
decisionmaker‟s “independent investigation (and rejection) of
the employee‟s allegations of discriminatory animus” relieves
an employer of fault. Id. at 1193. It declined to adopt a
“hard-and-fast rule” that a decisionmaker‟s independent
investigation would be sufficient to negate the effect of a
nondecisionmaker‟s discrimination. Id. The Court explained:

[I]f the employer‟s investigation results in
an adverse action for reasons unrelated to
the supervisor‟s original biased action . . .

obliges. The cat proceeds to pluck the chestnuts from the
flames, singeing his paws in the process, while the monkey
snatches the chestnuts away. See id.
12
 then the employer will not be liable. But the
supervisor‟s biased report may remain a
causal factor if the independent investigation
takes it into account without determining
that the adverse action was, apart from the
supervisor‟s recommendation, entirely
justified. . . . The employer is at fault
because one of its agents committed an
action based on discriminatory animus that
was intended to cause, and did in fact cause,
an adverse employment decision.

Id.7

Here, the City argues that, under Staub, the District
Court‟s decision denying its motion for judgment as a matter
of law/notwithstanding the verdict must be reversed because
the hearing before the PBI severed the causal connection
between Colarulo‟s retaliatory animus and the
Commissioner‟s ultimate decision to terminate Carnation.8

7
By the terms of USERRA, it is the employer‟s burden to
demonstrate that “the action would have been taken in the
absence of [the employee‟s] membership [in the uniformed
services].” 38 U.S.C. § 4311(c)(1). Similarly, under the
familiar McDonnell Douglas burden-shifting framework
applicable to Title VII cases such as this, if an employee
establishes a prima facie case of retaliation, “the burden shifts
to the employer to advance a legitimate, non-retaliatory
reason for its conduct.” Moore v. City of Phila., 461 F.3d
331, 342 (3d Cir. 2006) (internal quotation omitted); see
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973).
8
We note that the City does not contest that the record was
sufficient to support the jury‟s finding that Colarulo harbored
retaliatory intent towards Carnation. Nor could it. There was
more than enough evidence to support the jury‟s
determination in this regard. The City only challenges the
conclusion that Colarulo‟s animus may be imputed to the
13
Essentially, the City contends that Colarulo‟s animus was not
a proximate cause of Carnation‟s termination because the PBI
adjudicatory process was an intervening superseding cause.
We do not agree.

“Proximate cause requires only „some direct relation
between the injury asserted and the injurious conduct
alleged,‟ and excludes only those „link[s] that are too remote,
purely contingent, or indirect.‟” Id. at 1192 (quoting Hemi
Group, LLC v. City of New York, 559 U.S. 1, ----, 130 S. Ct.
983, 989 (2010)). It is “causation substantial enough and
close enough to the harm to be recognized by law.” Sosa v.
Alvarez-Machain, 542 U.S. 692, 704 (2004). “A cause can be
thought „superseding‟ only if it is a „cause of independent
origin that was not foreseeable.‟” Staub, 131 S. Ct. at 1192
(quoting Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830, 837
(1996)).

Once Carnation established a prima facie case that his
termination was motivated by Colarulo‟s retaliatory animus,
it was the City‟s burden to come forward with evidence
that it terminated Carnation for reasons unrelated to
Colarulo‟s original biased action in preferring charges against
him. See McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 (1973). As the District Court noted, however, the
testimony that was offered at trial did not illuminate the
extent of the PBI‟s role in Carnation‟s termination. It is not
clear that Carnation called witnesses on his behalf or cross-
examined Colarulo, even if he could have.9 The record does
not reveal the testimony of the other witnesses for the City or
if they were cross-examined. There was no testimony as to
what the Commissioner saw or relied upon when making the

PBI, which recommended Carnation‟s termination, and the
Commissioner, who actually terminated Carnation.
9
At oral argument, Carnation‟s counsel suggested that
Carnation did not and could not call any witnesses to testify
on his behalf because of the general fear of retaliation from
Colarulo.

14
decision to terminate Carnation. All that the evidence
demonstrates is that Colarulo retaliated against Carnation by
referring the 18s against him, the PBI affirmed those charges,
and the Commissioner then terminated Carnation.

We agree with the District Court that “the events of
[Memorial Day] weekend formed the grounds for the
disciplinary charges against [Carnation] and the proceedings
before the PBI, [and] a reasonable jury could find that
Colarulo‟s animus played a substantial role in the ultimate
decision by the PBI to recommend Carnation‟s termination.”
McKenna, 2010 WL 2891591, at *31. In the words of Staub,
a reasonable jury could conclude that Colarulo‟s animus bore
a direct and substantial relation to Carnation‟s termination
and that the PBI‟s recommendation was not independent and
was foreseeable. See Staub, 131 S. Ct. at 1192-93. See also
Sosa, 542 U.S. at 703.

We are not convinced by the City‟s arguments to the
contrary. The City argues that the fact that the PBI added a
charge against Carnation demonstrates that the PBI was
independent. The jury was entitled to conclude, however,
that the added charge just as likely reflected that the PBI was
not independent and that it adopted Colarulo‟s biased account
of the events. Notably, the City argued to the jury that the
PBI “added something that Colarulo hadn‟t even . . .
introduced, and they made the decision to terminate him.
[Carnation] was represented by his union that day, and he
could have challenged that.” App. at 3064. The jury found
this unpersuasive, as do we.

The City also asserts on appeal that the PBI was
necessarily independent because the hearing was “an
adversarial fact-finding process accompanied by due process
protections” that assessed the charges under “quasi-judicial
scrutiny” and was “designed to elicit a complete airing of the
facts before an unbiased board.” Appellee‟s Reply Br. at 4.
This characterization significantly exaggerates any inferences

15
that are permissible from the record.10 The City argued to the
jury in its closing that the PBI “was a department process, and
three independent people who didn‟t know Ray Carnation,
who weren‟t involved with his other allegations, the
information was presented to them, and they made the
decision.” App. at 3064. The jury was entitled to find this
argument unconvincing.

We thus conclude that, under Staub, the District Court
did not err in denying the City‟s motion for judgment as a
matter of law/notwithstanding the verdict. Staub, however,
was not the law in effect at the time the jury was instructed or
at the time that the District Court rendered its decision.

10
At oral argument, Carnation‟s counsel informed this
court that Carnation was not entitled to counsel or to review
the evidence against him before the PBI hearing took place.
Nor was he permitted to respond to the 18s as they were
passing through Colarulo‟s chain of command, other than
check a box to plead not guilty to the charges and request a
hearing. Counsel also explained that Carnation‟s right to
appeal from the PBI‟s ultimate recommendation was narrow.
And counsel noted that the Commissioner, when deciding
Carnation‟s punishment, was given a limited record to
review. The Commissioner was not presented with the
transcript of the PBI hearing, but rather was presented with
“white papers,” which included only the PBI‟s ultimate
recommendation and Colarulo‟s statements. None of this was
made part of the trial record. If it had been made part of the
record, it would have only further demonstrated that the PBI
was not, as the City characterizes it, an “independent
adjudicatory process . . . involving a hearing with due process
protections.” Appellee‟s Br. at 94. We need not rely on
counsel‟s statements at argument, however, as the record
itself is insufficient to demonstrate the PBI‟s independence.
Even if the City had proven that the PBI was a truly
independent body, this alone would not undermine the jury‟s
determination, based on all the evidence, that there was a
causal connection between Carnation‟s termination and his
involvement in protected activity.

16
Rather, it was this court‟s decision in Abramson that was
controlling. In Abramson, we did not explicitly characterize
the applicable test as one of proximate cause. Rather, we
explained that “it is sufficient if those exhibiting
discriminatory animus influenced or participated in the
decision to terminate.” 260 F.3d at 286. At oral argument,
the City requested that we remand for a new trial so that the
jury may be instructed in accordance with Staub if we
conclude that Carnation prevails thereunder.

After consideration of the City‟s request, we find no
reason to remand. The jury was instructed that it was
Carnation‟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 “you must decide whether the
plaintiff‟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.”
App. at 3108.

The instructions to the jury incorporated the concept of
proximate cause. Based on these instructions, the jury
concluded that Colarulo‟s animus caused Carnation‟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. As explained, there was no evidence
to support a conclusion that the hearing before the PBI was an
intervening superseding cause of Carnation‟s termination.

Thus, although the jury instructions did not precisely
hew to the proximate cause language adopted in Staub, we
conclude that the variation was harmless. We will decline to
remand for a new trial with different instructions.

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 IV.
For the foregoing reasons, we will affirm the judgment
of the District Court.11

11
The motion of the City of Philadelphia for leave to file a
Supplemental Appendix is granted.
18