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Third Circuit Swats Philadelphia PD with Cat's Paw Theory

By Robyn Hagan Cain on August 26, 2011 | Last updated on March 21, 2019

The Third Circuit Court of Appeals upheld three former Philadelphia police officers’ employment discrimination judgments last week under the Supreme Court’s “cat’s paw” theory memorialized in Staub v. Proctor Hospital.

The case, McKenna v. City of Philadelphia, went to trial as a Title VII discrimination claim filed by three terminated police officers, William and Michael McKenna, and Raymond Carnation. All three officers alleged that they were disciplined in retaliation for protesting the discriminatory treatment that the Philadelphia Police Department (Philadelphia PD) afforded their African American colleagues.

The jury found in favor of the plaintiffs, and awarded them damages totaling $10 million, which the district court subsequently capped at $300,000 per plaintiff.

The cat's paw theory made its way into American jurisprudence in Judge Richard Posner's 1990 Seventh Circuit opinion in Schager v. Upjohn Company. Judge Posner borrowed the term from Aesop's fable of the cat and the monkey.

Fans of feline-themed legal theories will recall that the Supreme Court ruled in Staub that a fired employee can sue a company for employment discrimination if his supervisor, motivated by bias, took actions to jeopardize the employee's job, which resulted in the employee's firing.

In the case before the Third Circuit Court of Appeals, the circuit said that Carnation, a Caucasian police officer in the Philadelphia PD, was targeted for discipline and subsequently fired after he complained to his superiors about racial tensions within the Philadelphia PD.

In its opinion, the Third Circuit Court of Appeals noted that a reasonable jury could have found that Carnation's superior's animus played a substantial role in the ultimate decision by the Police Board of Inquiry to recommend Carnation's termination.

Do you agree with the court's reliance on the cat's paw theory in McKenna v. City of Philadelphia, or do you think cat's paws are better left out of the courtroom?

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