JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Officers Erin O'Donnell, Wilfredo Diaz, Christopher Ereg, Michael Farley, Cynthia Moore, Michael Rinkus, William Salupo, Brian Sabolik, and Scott Sistek ("Plaintiffs") work as police officers with the Cleveland Police Department. In this case, the Plaintiff Officers sue the City of Cleveland, Michael McGrath, Martin Flask, Calvin Williams, and Frank Jackson ("Defendants").
After a high-speed chase, each Plaintiff fired their guns at two unarmed citizens. Both citizens died. Consistent with long-standing Cleveland policies, the Plaintiffs were placed in a restricted paid work status after the citizens were killed. With this lawsuit, the Plaintiffs say that their restricted duty time was longer than the restricted duty periods imposed upon black police officers who had similarly killed suspects. Plaintiffs make three claims: (1) Race Discrimination; (2) Civil Rights Violation; and (3) Breach of Employment Contract.
Defendants move for summary judgment.
On November 29, 2012, Plaintiffs worked as City of Cleveland plain-clothes and uniformed police officers. On that day, Plaintiffs participated in a late-night police chase that ended with the killing of Timothy Russell and Malissa Williams. Russell drove the vehicle involved in the chase. Williams was a passenger. Both Russell and Williams were unarmed.
Other police officers began pursuing the Russell vehicle after hearing a loud sudden noise they believed could have been gunshots
At least 62 police vehicles chased Russell's vehicle for 25 minutes. Marked and unmarked city, county and highway patrol cars chased the Russell vehicle.
In 2012, Cleveland had more than 100 murders and more than 470 shootings. At some early period in the chase, police obtained the license plate of the vehicle being chased. Against that backdrop, little explains why 62 police cars would chase a vehicle where, at worst, a gunshot type sound had come from the vehicle.
The pursuit ended in a middle school parking lot in East Cleveland. As recreated by the Ohio Bureau of Criminal Identification's report, Russell drove into the dead-end school staff parking lot. Pursuing police officers filled the only exit from the parking lot.
After his vehicle was bumped by a pursuing police officer, Russell's vehicle came to rest on an island. The police driver who had bumped Russell into the island then exited his police vehicle and fired at Russell. Russell's vehicle then drove off the island towards the only parking lot exit but police vehicles blocked Russell's vehicle from leaving through the parking lot access road. Both before and after Russell's vehicle became wedged into police vehicles, the Plaintiff Police Officers fired large volleys of shots into Russell and Williams.
In that parking lot, Russell and Williams never fired any weapon. And no police officers were injured, which is surprising given the number of police who were firing at Russell's vehicle from every direction. Although seemingly boxed by police cars, Plaintiffs and four other police officers fired 137 shots at Russell and Williams while Russell and Williams were in their vehicle in the unoccupied East Cleveland parking lot. Plaintiffs or other police shot Russell 23 times and shot Williams 24 times. Predictably, both Russell and Williams died at the scene.
Both Russell and Williams were African-American. Thirteen officers shot at Russell and Williams. Twelve of the shooting officers were white. One shooting officer was Hispanic. Of the Plaintiffs, eight are white and one is Hispanic. The Russell and Williams police killings received significant media attention.
According to Cleveland Police Department Policy No. 1.1.38, Traumatic Incident Protocol, officers involved in shootings are ordered to serve at least a 45 day period in the "gymnasium" unless the shooting officer or the stress consultant request more time.
Before the November 29, 2012, Russell and Williams shootings, the Division of Police's Use of Deadly Force Investigative
Then Police Chief Michael McGrath testified that he ordered that the Plaintiffs be placed in restricted-duty status until the criminal investigation surrounding their actions was finished.
Plaintiffs were ordered to the "gymnasium," an assignment that is referred to as a type of "Restricted Duty."
Then Police Chief McGrath put Plaintiffs on restricted duty status near December 3, 2012.
Police Chief McGrath testified that there was a misunderstanding with regard to the June 2013 order that returned Plaintiffs to front line duty. McGrath says he had ordered Plaintiffs to go to transitional duty in non-front-line positions.
In May 2014, the Cuyahoga County Grand Jury declined to issue criminal charges against the Plaintiff Officers. On June 13, 2014, new Police Chief Calvin Williams returned the Plaintiffs to regular duty status.
Under Federal Rule of Civil Procedure 56, "[s]ummary judgment is proper when `there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'"
Plaintiffs allege reverse discrimination in violation of 42 U.S.C § 1981, 42 U.S.C. § 2000e-2 (Title VII), and Ohio Rev. Code § 4112.02(A). Plaintiffs are white. Police Chief McGrath is white.
In responding to Plaintiffs' Title VII claim, Defendants argue that Plaintiffs did not make a timely charge with the United States Equal Employment Opportunities Commission ("EEOC") and are thus precluded from pursuing a Title VII action.
Because Plaintiffs failed to timely make Title VII charges to the EEOC, Plaintiffs' Title VII claim is dismissed for failure to exhaust administrative remedies.
Plaintiffs' § 1981 claim is also dismissed under Sixth Circuit precedent holding that "the express cause of action for damages created by § 1983 constitutes the exclusive federal remedy for violation of the rights guaranteed in § 1981 by state governmental units."
However, the Ohio state law reverse discrimination claim under R.C. § 4112.02 remains. As to this state law claim, Defendants say Ohio stops such claims when there is a collective bargaining agreement that allow Plaintiffs to grieve Cleveland's actions. Defendants say Plaintiffs work under a collective bargaining agreement that gives Plaintiffs a right to grieve their duty assignments and also stops outside lawsuits for claims that can be grieved.
The Ohio Supreme Court has stated that "[a]n employee or employee's
Here, the collective bargaining agreement, while mentioning that the employer may not discriminate, does not contain a clear and unmistakable agreement to arbitrate statutory claims. This Court declines to dismiss the state law discrimination claim for failure to exhaust mediation and grievance remedies that are given by the collective bargaining agreement.
Turning to the merits of the R.C. § 4112.02 claim, the Court finds that Defendants are entitled to summary judgment.
Ohio R.C. § 4112.02, discrimination claims are analyzed under the Title VII framework.
If the plaintiff presents direct evidence of discrimination, the burden shifts to the defendant to show that it would have taken the adverse employment action absent any discriminatory motive.
In the alternative to using direct evidence to prove a discriminatory intent, a Plaintiff claiming reverse discrimination under R.C. § 4112.02, can offer circumstantial evidence of discrimination using the McDonnell Douglas burden-shifting paradigm.
Once the plaintiff establishes a prima facie case, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse employment action.
This Court finds that Plaintiffs fail the reverse discrimination inquiry. This Court will address each step of the inquiry in turn.
As an initial matter, Plaintiffs have not presented any direct evidence of discrimination. In claiming that they have offered direct evidence, Plaintiffs misunderstand what constitutes direct evidence. They argue that a jury verdict in a 2001 case and a judge's decision to allow a 2008 case to go beyond summary judgment are direct evidence in this case. Both the 2001 and 2008 cases involved challenges to the length of white police officers' restrictive duty after they shot black individuals. Alternatively, Plaintiffs claim that certain testimony in the 2008 case is direct evidence in this 2014 case.
The 2001 jury verdict is rather obviously not direct evidence in this case. Different shooting, different justification for the shooting; different supervisors; and different decision makers. The 2008 decision to allow a reverse discrimination case to go beyond summary judgment is even less relevant. Different shooting, different justification for the shooting; and only an interim ruling allowing a case to go beyond summary judgment. Finally, the testimony in the 2008 case proves little to nothing. Especially since it dealt with 2008 circumstances; not the 2012 circumstances involved with this case.
The Sixth Circuit has stated, "rarely can discriminatory intent be ascertained through direct evidence because rarely is such evidence available."
Plaintiffs show no evidence of any direct proclamation of racial animus against whites by any of the Defendants. Instead, Plaintiffs point to short excerpts from dated testimony in unrelated cases that consist of individuals giving general discussion about race and the City of Cleveland.
Plaintiffs offer the testimony of three Cleveland Police officers who were involved in an earlier, separate 2008 case. The testimony of Deputy Chief Hennessy,
The 2008 and 2009 Hennessy, McHugh and DeSimone testimonies were given years before the restricted duty given in this case. The expert opinions in the Franko case were similarly from the 2008 and 2009 time period. Neither is direct evidence or relevant circumstantial evidence in this case.
More importantly, this Court struggles to find anything indicative of direct evidence of discrimination in the McHugh, Simone, or Hennessy testimony excerpts. Police Lieutenant McHugh supervised the gymnasium in 2008. In the 2008 Franko case, he testified that three white officers who were "involved in the most unrest and racial concerns in the community and racial issues also spent the most amount of time on restricted duty in the gym."
Plaintiffs also say that the 2008 Franko case testimony from Deputy Chief Hennessy should be considered as direct evidence in this case. Obviously not. But even if it could be considered, the Hennessy testimony helps Defendants; it does not help the Plaintiffs.
For example, Deputy Chief Hennessy gave 2008 testimony that:
Hennessy also testified that he sought to have the Franko officers returned to normal duty but Franko was not returned immediately to normal duty.
Police Officer Simone's Franko case testimony gives even less direct evidence. Plaintiffs offer one page from Simone's 2008 Franko case testimony that "it's obvious that the investigations from the very beginning are focused on satisfying the media and the [minority] people that are involved."
The preliminary opinions of Lt. Col. Johnson
Because Plaintiffs have not offered any direct evidence, this Court turns to Plaintiffs' efforts to prove their case by circumstantial evidence. "In reverse discrimination cases, the first prong of the McDonnell Douglas standard has been interpreted to allow a majority plaintiff to establish a prima facie case of intentionally disparate treatment when `background circumstances support the suspicion that the defendant is that unusual employer who discriminates against the majority.'"
Plaintiffs again point to the Franko case and claim that the threshold burden was met in that case on "evidence nearly identical as to that in this case."
Plaintiffs' comparisons to the Franko case are misguided. Similar to this case, Franko challenged the length of his restricted duty status. However, in challenging the length of restricted duty, Franko testified that he had received a voicemail from then Mayor Campbell while Franko was on restricted duty where former Mayor Campbell allegedly told Franko that his restricted duty status was tied to the elections.
Plaintiffs have pointed to no evidence even remotely similar to the Franko voicemail. Franko differs from this case for a number of reasons. Franko involved a
Second, the Franko court relied heavily on a jury verdict that found the City of Cleveland intentionally discriminated against Edward Lentz, a Caucasian police officer, by virtue of an almost two-year reassignment to gym duty pending investigation for use of deadly force against an African American individual.
The Franko case involved different evidence, different parties, and is not direct or indirect evidence of a reverse discrimination motive in this case.
Plaintiffs present statistical police disciplinary data that does not meet Plaintiffs' burden to establish a prima facie case. "Statistics standing virtually alone are improper vehicles to prove discrimination."
Plaintiffs' entire claim seems to rest on such a proclamation. Plaintiffs say they offer statistical support that non-African-American officers spent longer periods on restricted duty compared to African-American officers.
Finally, the preliminary expert opinions of Johnson and Ott do not suffice to establish that Defendants fall in the unusual case of discriminating against the majority. The opinions were conclusory in nature and not based on any type of personal knowledge about the employment decisions at hand. Ott's statistical analysis did not take into account the ways in which white and African American officers were not similarly situated.
Thus, this Court concludes that Plaintiffs were not able to establish background circumstances sufficient to meet their burden in proving that Defendants discriminate against the majority. Nevertheless, even if Plaintiffs had been able to meet that burden, their reverse racism claim would still fail at the subsequent steps of the inquiry, as explained below.
Plaintiffs argue that circumstantial evidence supports finding discriminatory treatment. For Plaintiffs to make a circumstantial showing of discrimination treatment, Plaintiffs must show that the comparable white officers were treated differently and the comparables are similarly situated in "all respects."
Further, to make this assessment, a court must look to
The conduct must be of "comparable seriousness" or "similar in kind and severity."
Plaintiffs fail to show that similarly situated black officers received different treatment. When relying upon circumstantial evidence, Title VII plaintiffs typically identify a similar officer involved in the same conduct with the same supervisor who the employer treated differently. When the officer's race is the only distinguishing factor, a plaintiff can support an inference
In opposing summary judgment, Plaintiffs make no effort to identify black officers who engaged in similar conduct but received less restricted duty time. Instead, Plaintiffs say that Cleveland has an overall pattern of giving less restrictive duty to black officers who shoot and kill suspects than Cleveland gives to white officers who shoot and kill suspects.
However, under pattern and practice analysis, Plaintiffs' evidence is again insufficient. Under the Supreme Court's International Brotherhood of Teamsters v. United States
Plaintiffs identify 34 white officers who were put on restricted duty after the death of black suspects. Thirteen of those 34 white officers were involved with the Timothy Russell and Malissa Williams deaths. Plaintiffs identify seven black police officers who were put on restricted duty after the death of a black suspect.
Plaintiffs suggest that their white race is associated with longer restricted duty assignments. But the length of restricted duty assignment is overwhelmingly affected by the police officer shooting circumstances. Sometimes the police officer's justification is obvious; other times it is not. Both within white officer restricted duty periods and black officer restricted duty periods wide variances occur between incidents. While restricted duty periods vary widely between incidents, restricted duty periods are nearly identical for all officers involved in each incident.
Plaintiffs argue that Cleveland imposed an "average" 239 days restricted duty on white officers involved in fatal police shootings but 79 days on black police officers involved with fatal police shootings. But this average is skewed by the fourteen officers involved with this November 29, 2012, incident, far more officers than were involved in any other shooting death.
Almost always, Cleveland assigns the same restricted duty to all officers involved in a police suspect killing. For example, after a March 13, 2012, police shooting that resulted in a suspect's death, Cleveland assigned two black officers and two white officers to restricted duty. Each served 62 or 63 days on restricted duty.
Typically, using the median rather than the mean better lessens the effect of outliers.
With the small data set, and with the unusually large restricted duty period associated with the Russell and Williams deaths, the median gives a better indication of whether black or white restrictive duty periods are significantly different.
As described by the Teamsters Court: "statistics are not irrefutable; they come in infinite variety and, like any other kind of evidence, they may be rebutted. In short, their usefulness depends on all of the surrounding facts and circumstances."
Plaintiffs suggest a correlation between an officer's race and the restricted duty given the officer after a suspect death. Plaintiffs statistical evidence is insufficient to raise material issues that would support finding that Plaintiffs were assigned to longer periods of restricted duty because of their race.
With few exceptions, Cleveland consistently assigned similar restricted duty for all officers involved in each suspect death. And Cleveland assigned significantly different restricted duty periods between different suspect deaths.
This Court agrees that "looking merely at the time these officers were on restricted duty does not establish that they were similarly-situated."
The high-profile nature of the November 29, 2012, incident highlights how Plaintiffs were not similarly situated to other officers sent to the gym in other deadly force cases.
A minimum of 62 police vehicles engaged in a 25 minute pursuit of the Russell vehicle. Thirteen police officers fired one hundred and thirty-seven shots at the Russell vehicle. Russell was shot twenty-three times while Williams was shot twenty-four
Plaintiffs say a white police chief discriminated against them because of their race when that white police chief gave Plaintiffs longer than usual restricted duty assignment. But Plaintiffs do not identify any similarly situated black officer being given less restricted duty time after an incident remotely resembling the Plaintiffs' shooting circumstances.
Plaintiffs repeatedly point to the justifiably heightened media attention surrounding the incident and the fact that media outlets noted the race of Russell, Williams and the police officers involved. The heightened media attention reinforces that this incident was unique and that Plaintiffs have failed to identify a similarly situated black police.
Finally, the City of East Cleveland requested that the Ohio Bureau of Criminal Investigation conduct an investigation of the incident, and the Cuyahoga County Prosecutor then reviewed BCI's investigation to determine whether criminal charges were appropriate. Plaintiffs do not identify any black officers involved in use of deadly force incidents with unarmed civilians that included similar prosecutor review.
To establish an adverse employment action, a plaintiff must identify a materially adverse change with respect to the terms and conditions of his employment.
"Reassignments without salary or work hour changes do not ordinarily constitute adverse employment decision."
In arguing that their long gymnasium assignment would be objectively intolerable to a reasonable person, Plaintiffs rely upon a district court decision in the 2008 Franko case. Franko was settled and dismissed without Sixth Circuit review.
Plaintiffs did not endure discharge, demotion, refusal to hire, refusal to promote, or reprimand. While they were on restricted duty, the officers had some of the following assignments: reporting to the gymnasium; working inside one of the five police district buildings; and reporting to the CPD impound lot.
The Plaintiffs did not receive overtime, but overtime is not guaranteed under the Collective Bargaining Agreement ("CBA").
The Sixth Circuit has found that a suspension with pay and full benefits pending a timely investigation into suspected wrongdoing is not an adverse employment action.
This case presents a close question whether Plaintiffs' restricted duty sufficiently changes the terms of employment to be an adverse action., The restricted duty prevented the officers from working overtime or secondary employment. Plaintiffs claim they received substantial overtime compensation and potentially substantial outside employment income. Because Plaintiffs fail at every other step of the reverse racism inquiry, this Court does not reach the question of whether Plaintiffs suffered an adverse employment action.
Plaintiffs fail to show a prima facie reverse discrimination case. However, even if they had shown evidence establishing a prima facie case, they would not survive summary judgment on their reverse discrimination claim.
Once a plaintiff establishes a prima facie case, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse employment action.
Defendants state the Plaintiffs were held on restricted-duty status because the BCI investigation and prosecutorial review were on-going. Cleveland returned Plaintiffs to full duty once the investigation and prosecutorial review were completed. This is a sufficient non-discriminatory reason and it shifts the burden to require Plaintiffs to show pretext.
A Plaintiff can rebut a defendant's proffered non-discriminatory explanation by showing that it was pretext. A Plaintiff shows pretext when the employer's reason either (1) has no basis in fact, (2) was not the actual reason, or (3) is insufficient to explain the employer's action.
Plaintiffs argue that Defendants' proffered reason has no factual basis since Plaintiffs were switched from restricted duty to active duty on June 3, 2013 (and July 1, 2013 for Plaintiff Rinkus) and then were returned to restricted duty on October 24, 2013. Plaintiffs seem to say that their June 2013 return to active duty prevents any later claimed need for restricted duty.
However, Police Chief McGrath testified that the return to full duty was a mistake and that as soon as he realized the Plaintiffs were on full-duty, he ordered that they return to the restricted duty positions.
Plaintiffs also claim that Defendants deprived Plaintiffs of their clearly established rights, privileges, and immunities as secured by the Constitution and laws of the United States. With this civil rights claim, Plaintiffs say that Defendants violated their rights to equal protection by unlawfully discriminating against Plaintiffs because they are white. Plaintiffs bring this claim under 42 U.S.C. § 1983.
To show a violation of the Equal Protection Clause, Plaintiffs must show individual discriminatory intent. Plaintiffs must show that Defendants, and especially Police Chief McGrath intended to discriminate against them because they are white.
Section 1983 claims can be made against political subdivisions such as Cleveland or can be made against responsible individuals. But equal protection claims under § 1983 cannot be based solely on the disparate impact of a facially neutral policy. "Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause."
Plaintiffs sue Cleveland and former Police Chief McGrath. McGrath made the restricted duty decisions and, as police chief, his "edicts or acts may fairly be said to represent official policy," and are attributed to the City.
A plaintiff making equal protection claims under § 1983 must show that the discrimination was intentional.
But as discussed with regard to Plaintiffs' Ohio Chapter 4112 claims, Plaintiffs do not show any evidence that Police Chief McGrath or Cleveland assigned longer restricted duty because Plaintiffs were white. In addition, Plaintiffs do not establish a protected property interest in overtime, court attendance pay or outside employment referrals.
To state a § 1983 claim, a plaintiff must allege that: 1) he was deprived of a right, privilege, or immunity secured by the Federal Constitution or laws of the United States, and 2) the deprivation was caused by a person while acting under color of state law.
Plaintiffs claim that they have a constitutionally protected property interest in working secondary employment and earning overtime and court time. "To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it."
The Sixth Circuit has held that "[i]f an official has unconstrained discretion to deny the benefit, a prospective recipient of that benefit can establish no more than a `unilateral expectation' to it."
The General Police Order dealing with secondary employment also gave the Police Chief and Public Safety Director wide discretion over secondary employment approvals. The Order states, "upon written permission by the Chief of Police and the Director of Public Safety, Division members may engage in secondary employment if the work does not interfere with Division employment and there is no conflict of interest between the work and the Division. The Chief of Police or the Director of Public Safety may at any time revoke authorization to work secondary employment based upon the operational needs of the Division."
With regard to overtime, the Collective Bargaining Agreement between Plaintiffs and the City of Cleveland states that "the City shall be the sole judge of the necessity of overtime."
As to court appearances, General Police Order 9.1.02 states that "Supervisors shall [a]pprove all in-house assignments, [including court appearances].
Finally, Plaintiffs do not allege any facts to show that they were not able to apply for transfers or to sit for promotional exams.
All of these policies show that the Cleveland Police Department had discretion in assigning overtime, Plaintiffs cite to no policy or evidence that limited the Cleveland Police Department's discretion in assigning overtime or approving outside work.
On this issue, the Plaintiffs say the Bargaining Agreement generally provides specified overtime, court duty, off duty arrests, and call-in pay rates. Defendants respond that the benefits were available, but the Cleveland Police Department kept discretion and never guaranteed overtime, court duty, off duty arrests, and call-ins pay. According to Cleveland, the Agreement describes the pay but does not promise any assignment will be made. The Court agrees.
The Plaintiffs do not show a protected property interest in overtime assignments,
Courts analyze § 1983 equal protection claims under the framework governing Title VII discrimination claims.
Although Chief McGrath was in a position as police chief to set municipal policy with regard to the assignments, this Court has found that Plaintiffs did not suffer from a deprivation of a constitutional right.
This Court does not have subject matter jurisdiction over Plaintiffs' breach of contract claims. Ohio Rev. Code Section 4117.10(A) states, "An agreement between a public employer and an exclusive representative entered into pursuant to this chapter, governs the wages, hours and terms and conditions of public employment covered by the agreement. If the agreement provides for a final and binding arbitration of grievances, public employers, employees, and employer organizations are subject solely to that grievance procedure."
Here, Article XXII (51) of the CBA provides in gives a Grievance Procedure: "The term grievance shall mean any dispute arising out of or connected with the subject matter of this Contract or the interpretation, application or enforcement of any of its terms."
Plaintiffs point to the 1969 Supreme Court case of Glover v. St. Louis-San Francisco Railway Co., to argue that employees alleging racial discrimination should not be required to submit their controversy to a "group which is in large part chosen by the [defendants] against whom their real complaint is made."
The situation here differs markedly. There is no indication that Plaintiffs ever attempted to follow the grievance policy.
For the foregoing reasons, the Court
IT IS SO ORDERED.
