McKenna v. City of Philadelphia

• Decision Date: 15 May 2007
• Docket Number: Civil Action No. 99-1163.,Civil Action No. 98-5835.
• Citation: 511 F.Supp.2d 518
• Parties: Michael McKENNA v. CITY OF PHILADELPHIA, et al. Myrna Moore, et al. v. City of Philadelphia, et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

511 F.Supp.2d 518

Michael McKENNA v. CITY OF PHILADELPHIA, et al.

Myrna Moore, et al. v. City of Philadelphia, et al.

Civil Action No. 98-5835.

Civil Action No. 99-1163.

United States District Court, E.D. Pennsylvania.

May 15, 2007.

COPYRIGHT MATERIAL OMITTED

Michael McKenna, Philadelphia, PA, Pro se.

Barbara A. Thomas, Robert M. Hammond Associates, Doylestown, PA, for Plaintiff.

Benjamin C. Abrams, Elizabeth A. Malloy, Mark J. Foley, Klett, Rooney, Lieber & Schorling, Elise Bruhl, City of Phila. Law Dept., Jill Garfinkle Weitz, General Counsel Community College of Philadelphia, Philadelphia, PA, for Defendant.

Jill Garfinkle Weitz, General Counsel Community College of Philadelphia, Philadelphia, PA, for Respondents.

MEMORANDUM AND ORDER

MARY A. McLAUGHLIN, District Judge.

The plaintiffs in these two related cases are former police officers who worked together in the 7-squad of the 25th District of Philadelphia Police Department in the mid-to-late 1990s: Michael McKenna (plaintiff in case no. 98-5835) and his brother William McKenna and Raymond Carnation (plaintiffs in case no. 99-1163). All three plaintiffs, who are white, allege that they suffered discrimination and retaliation because they opposed a racially hostile work environment and discrimination against African Americans in their squad. The defendants are the City of Philadelphia and certain individual supervisors in the Philadelphia Police Department.

These two cases were consolidated for pre-trial proceedings. After the close of discovery, and after the plaintiffs had voluntarily dismissed some of their claims, this Court granted summary judgment in favor of the defendants on the remaining claims on January 17, 2003. The plaintiffs appealed, and on August 30, 2006, the United States Court of Appeals reversed the grant of summary judgment as to the plaintiffs' Title VII retaliation claims and remanded the two cases for further proceedings.

Now after remand, the three plaintiffs, now represented by new counsel, seek to bring additional claims. They seek to add, retaliation claims against certain individual defendants who have already been dismissed from this action, as well as claims alleging that the retaliation they suffered resulted in their being wrongfully terminated from the police department. The plaintiffs have used several different procedural vehicles to raise these new issues. All three plaintiffs have moved to amend their complaints to add § 1983 first amendment retaliation claims against the individual defendants named in their complaints. In these § 1983 claims, the plaintiffs apparently will seek damages for wrongful termination. In the alternative, the plaintiffs argue that, even if leave to amend is denied, they should still be allowed to recover damages for their terminations as part of their remaining Title VII retaliation claims against the City.

Plaintiff William McKenna also moves for reconsideration of this Court's October 25, 2001, Order, which denied a previous motion to amend his complaint to add a claim for wrongful termination. William McKenna has also filed a separate action in this Court, Case No. 06-1705, raising claims for wrongful termination arising out of the same incidents at issue in his suit here. The defendants in that separate action have moved to dismiss on statute of limitations and other grounds.

In this Memorandum and Order, the Court will address the plaintiffs' motions to amend their pleadings, the plaintiffs' argument that their terminations should be considered in this case as damages, and plaintiffs' motion for reconsideration. The Court will address the motion to dismiss Case No. 06-1705 in a separate Memorandum and Order.

I. FACTUAL AND PROCEDURAL BACKGROUND

The Court will not set out in any detail the underlying facts that form the basis for the plaintiffs' claims here. Those facts are set out at length in both this Court's prior summary judgment decisions and the decision on appeal. See Moore v. City of Philadelphia, 461 F.3d 331 (3d Cir.2006), reversing McKenna v. City of Philadelphia, No. 98-5835, 2003 WL 171373 (E.D.Pa. Jan. 17, 2003) and the Memorandum and Order of January 17, 2003 in Moore v. City of Philadelphia, No. 99-1163.

Briefly stated, beginning in August 1997, when Raymond Carnation and William McKenna were transferred to the 7-squad where Michael McKenna was already working, the three plaintiffs experienced harassment from their fellow officers. The plaintiffs have alleged that over the next several months they witnessed several incidents of discriminatory treatment of African-American officers and numerous racially derogatory remarks by their supervisor, Sgt. John Moroney. The plaintiffs allege that they complained about these incidents-to their superiors, and that after these complaints, they suffered retaliation from Sgt. Moroney and others.

The McKenna brothers were transferred out of 7-squad to separate districts in February 1998, while Raymond Carnation remained in the squad until May 1998, when he was given restricted duty at the Police Academy. Michael McKenna was ultimately discharged by the police department in October 1998. William McKenna was placed on restricted duty from February 1998 through November 1998 and on medical leave from November 1998 through May 1999. While on medical leave, he was subject to "sick checks" in which a supervisor would visit his home and confirm he was there. William McKenna was terminated in May 1999 after failing five such checks, and he contends the frequency of these checks increased greatly after he filed suit against the department in March 1999 and constituted one of the ways in which the police department retaliated against him. Raymond Carnation contends that during the summer of 1998 he was retaliated against by being falsely brought up on disciplinary charges and by having a supervisor intervene in a custody matter concerning his children. Mr. Carnation also eventually left the police department.

On April 29, 1998, before any of the plaintiffs had been terminated from the police department, the McKennas, Raymond Carnation and three African-American officers filed a complaint with the Pennsylvania Human Relations Commission and the federal Equal Employment Opportunity Commission. Michael McKenna filed his suit, Case No. 98-5835, on November 4, 1998, bringing a Title VII retaliation claim against the City, a § 1981 claim against the City and the individual defendants for retaliation ... and a § 1983 claim against the City and the individual defendants for violating Michael McKenna's right to privacy. On March 5, 1999, William McKenna, Raymond Carnation and the three African-American officers filed a separate suit, Case No. 99-1163, also bringing Title VII retaliation claims against the City and § 1981 retaliation and discrimination claims against the City and the individual defendants, as well as a § 1983 claim against the City and individual defendants for violations of procedural and substantive due process. Neither of the plaintiffs complaints, either as originally filed or as amended, raised claims concerning the plaintiffs' termination from the police department.

On May 29, 2001, counsel for plaintiff William McKenna wrote the Court requesting permission to amend his complaint to add a claim for wrongful discharge under 42 U.S.C. §§ 1981 and 1983. The Court treated this letter as a motion to amend, ordered defendants to respond and ultimately denied the motion on October 25, 2001. The Court found the motion to amend untimely because it was filed more than two years after Mr. McKenna was discharged and was therefore outside the statute of limitations. The Court further held that Mr. McKenna's attempted wrongful discharge claims could not "relate back" to his original filing because neither his original pleadings nor his subsequent filings put defendants on notice of his wrongful discharge claim.

In September 2002, the defendants filed a motion for summary judgment in both cases. During the briefing, plaintiff Michael McKenna agreed to the entry of summary judgment on all claims as to some of the individual defendants and agreed to the entry of judgment on his § 1981 retaliation claims in favor of all defendants. Plaintiffs William McKenna and Raymond Carnation also agreed to the entry of summary judgment on all claims as to some of the individual defendants and agreed to judgment as to their § 1981 discrimination and retaliation claims as to all defendants. The Court then granted summary judgment on the remaining claims.

In his summary judgment brief, Michael McKenna listed thirteen incidents by the City of Philadelphia that the he contended were adverse employment actions supporting his Title. VII retaliation claims. See McKenna, 2003 WL 171373 at *10. William McKenna and Raymond Carnation listed nine separate adverse employment actions in their brief. Memorandum and Order of January 16, 2003 at 29-31. Neither brief included the plaintiffs' terminations as an adverse employment action at issue in their claims.

The plaintiffs filed a timely appeal from this Court's grant of summary judgment. The plaintiffs did not raise on appeal the Court's October 25, 2001, denial of William McKenna's motion to amend his complaint to add a wrongful termination claim, nor did they mention their terminations as an adverse employment action supporting their retaliation claims. See Brief of Appellants, Appeal Nos. 03-1465, 03-1473 at 36-40 (filed February 21, 2006).

The United States Court of Appeals for the Third Circuit granted the plaintiffs' appeal on August 13, 2006. The court found that the plaintiffs had presented sufficient evidence to show "genuine issues of material fact as to whether they suffered retaliation made unlawful by Title VII" and remanded the case for further proceedings. Moore, 461 F.3d at 352. Although the Moore decision mentions the plaintiffs' terminations in its recitation of facts, it does not...