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Russell v. City of Detroit

United States District Court, E.D. Michigan, Southern Division

May 2, 2018

MAJOR L. RUSSELL, Plaintiff,
v.
CITY OF DETROIT, et al., Defendants.

          OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (ECF #28)

          MATTHEW F. LEITMAN UNITED STATES DISTRICT JUDGE

         Plaintiff Major L. Russell, a former employee of the City of Detroit Fire Department (the “DFD”), brings this civil action against several of his former superior officers at the DFD and against the City of Detroit. Russell asserts a claim under 42 U.S.C. § 1981 (“Section 1981”) for race discrimination and a claim under 42 U.S.C. § 1983 (“Section 1983”) for retaliation in violation of the First Amendment. The Defendants have moved for summary judgment on both claims. (See ECF #28.) Russell now concedes that he may not assert his race discrimination claim against the Defendants under Section 1981. And as explained below, all of the Defendants other than Deputy Chief Houseworth are entitled to summary judgment on his First Amendment retaliation claim. Accordingly, the Court GRANTS the Defendants' motion for summary judgment on Russell's race discrimination claim, GRANTS summary judgment in favor of all Defendants other than Houseworth on Russell's First Amendment retaliation claim, and DENIES summary judgment against Houseworth on Russell's First Amendment retaliation claim.

         I

         A

         On May 5, 1986, Russell, an African American, began working as a Firefighter Driver with the DFD. (See Russell Dep. at 9, ECF #30-2 at Pg. ID 830.) In 1998, the DFD promoted Russell to Fire Engine Operator. (See Id. at 10, Pg. ID 830.) Russell held that position until he retired on April 14, 2017. (See Id. at 181, ECF #30-3 at Pg. ID 893.)

         The DFD is organized with the following rank structure and job titles:

• Executive Fire Commissioner
• First Deputy Commissioner
• Second Deputy Commissioner
• Chief of Department .Deputy Chief
• Senior Chief .Battalion Chief
• Captain
• Senior Lieutenant
• Lieutenant
• Fire Engine Operator
• Firefighter Driver
• Senior Firefighter
• Firefighter
.Trial Firefighter

         During the time periods at issue in this case, Defendant Craig Dougherty was Chief of Department, Defendant James Houseworth was Deputy Chief, and Defendants Joseph Rinehart, Eugene Biondo, and Joseph English were Battalion Chiefs.

         B

         In December 2012, Russell was assigned to Engine 17 of the DFD. (See Id. at 13, ECF #30-2 at Pg. ID 831.) At that time, Sean Flanagan, a Caucasian firefighter who was also assigned to Engine 17, started treating Russell inappropriately. First, Flanagan physically and verbally intimidated Russell during a fire engine run on December 9, 2012. (See Id. at 122, Pg. ID 858.) Before that run began, Russell and Flanagan consulted a wall map for directions to the fire emergency's location. (See id.) Russell and Flanagan then approached the fire engine, and Russell heard Flanagan say something. (See id.) Believing that Flanagan was talking about the directions, Russell asked Flanagan to repeat what he said. (See id.) In response, Flanagan “blew up and went into a tirade.” (See id.) He repeatedly told Russell to “shut the fuck up.” (See id.) Flanagan then sat behind Russell in the fire engine and continued yelling as Russell drove. (See Id. at 129, ECF #30-3 at Pg. ID 880.) Flanagan later attempted to climb over the interior barrier of the engine's cab and place his hands around Russell's neck. (See id.) Lieutenant Mark Knowles, also present on the run, then intervened and told Flanagan to sit down, and Flanagan did. (See id.) Following that incident, Russell considered filing a complaint against Flanagan, but Lt. Knowles convinced him not to. (See Id. at 187, Pg. ID 894.) For the next five months, Russell and Flanagan did not go on runs together.

         Second, on May 15, 2013, Russell and Flanagan went on an emergency fire run, and Flanagan again verbally attacked and physically threatened Russell. (See Id. at 139, Pg. ID 882.) On that run, Engine 17 was responding to an incident in which a woman's car had caught fire on the freeway. (See id.) On the drive back to the station, Russell again was driving, and Flanagan was in the back seat. (See Id. at 142, Pg. ID 883.) Flanagan stated that he thought the fire was suspicious, and Russell perceived that Flanagan's suspicion was based on the fact that the woman driving the car was African American. (See Id. at 143-44, Pg. ID 883-84.) During their conversation, Flanagan told Russell to “shut the fuck up and drive.” (Id.) Russell and Flanagan argued until they arrived back at the engine house. (See Id. at 146, Pg. ID 884.) At the engine house, Flanagan approached Russell and physically intimidated Russell by standing within a foot of his face. (See Id. at 146-48, Pg. ID 884.)

         C

         Shortly after the second incident of harassment by Flanagan, Russell decided to initiate disciplinary charges against Flanagan. On May 18, 2013, Russell completed a form entitled “Official - Detroit Fire Department - Charge.” (See Flanagan Charge, ECF #31-3 at Pg. ID 1032-33.) In a section of the form labeled “CHARGE, ” Russell identified numerous policies that he believed Flanagan had violated: “G/R 5.41 Neglect of Duty, G/R 11.2 Intimidation of a Member of Lesser Rank, G/R 5.1 Using Profane and Abusive Language, Violation of Executive Order No. 2010-1 Violence in the Workplace, Violation of Executive Order No. 2010-2 Internal Policy Against Discrimination and Harassment.” (Id.) The last policy identified by Russell, Executive Order No. 2010-2, prohibits “discrimination on the basis of race, color, religious beliefs, national origin, age, marital status, disability, sex, sexual orientation, or gender identification or expression” in the workplace. (Executive Order, ECF #31-4 at Pg. ID 1041.) Finally, in a section of the form labeled “SPECIFICATION, ” Russell wrote: “Sergeant Sean Flanagan used physical and verbal intimidation towards FEO Major Russell. Sergeant Sean Flanagan used profane and abusive language towards FEO Major Russell. A letter of further explanation is attached.” (Id.)

         In the attached letter - which was addressed to Donald Austin, Executive Fire Commissioner (the “Austin Letter”) - Russell cited the same anti-harassment and anti-discrimination policies that he identified on the charge form, including Executive Order No. 2010-2. (See Id. at Pg. ID 1036-1039.) The Austin Letter also described in greater detail the harassing conduct by Flanagan that, according to Russell, violated the City of Detroit's anti-discrimination policies.

         After Russell prepared the charge form and Austin Letter, he attempted to submit them to the DFD in accordance with the Department's disciplinary policies and procedures. Under those rules, a grievant first submits charges to a Battalion Chief. (See DFD Admin. Manual, ECF #31-8 at Pg. ID 1103.) The Battalion Chief is then required to review the charges and forward them to the appropriate Deputy Chief at the DFD's headquarters in downtown Detroit. (See id.) At that point, the DFD investigates the charges by, among other things, speaking with witnesses and taking statements. (See Houseworth Dep. at 16-17, ECF #30-5 at Pg. ID 946.) Finally, the DFD holds a hearing and decides whether to discipline the subject of the charges or dismiss the charges. (See Id. at 17, 20, Pg. ID 946-47.)

         Russell contends that the individual Defendants did not handle his charges properly. Specifically, he says that the individual Defendants ignored his charges and/or refused to send the charges to the next level of the disciplinary process for additional review and investigation. (See, e.g., Russell Dep. at 34-37, 54-55, 58-59, 64-65, 80-82, ECF #30-2 at Pg. ID 836-37, 841-42, 844, 848-49.) And he asserts that the individual Defendants - some of whom are African American - denied him access to the DFD's internal disciplinary process because he is African American.[1](See, e.g., Compl. at ¶ 19(f), (k), (1).) He contends that as a result of the individual Defendants' acts and omissions, the DFD never investigated his charges against Flanagan, never held a hearing on the charges, and never issued a decision with respect to the charges.

         Russell also says that the Defendants retaliated against him for filing the charges against Flanagan. For instance, he contends that Deputy Chief Houseworth threatened that Russell would experience a “mind fuck” in retaliation for pursuing his charges. (Russell Dep. at 42-43, ECF #30-2 at Pg. ID 838.) He likewise insists that as a result of the charge, Chief of Department Dougherty refused to permit him to reschedule a furlough to begin on June 19, 2013 (see Id. at 104-06, Pg. ID 854), and Russell says he was falsely accused of being “AWOL” (absent without leave) from work. (See Id. at 17-18, ECF #30-2 at Pg. ID 832.) Finally, Russell also maintains that he was denied the opportunity to work overtime. (See Id. at 218-20, ECF #30-3 at Pg. ID 902-03.)

         D

         At the same time Russell was pursuing disciplinary action against Flanagan, Flanagan was pursuing disciplinary action against Russell. (See ECF #31-11.) On May 30, 2013, Flanagan submitted written charges against Russell in which Flanagan accused Russell of “us[ing] coarse and profane language to Sgt. Sean Flanagan and Sgt Michael Dillon this being a violation of G.R. 5.1 [addressing conduct with immediate supervisors].” (Id. at Pg. ID 1120; see ECF #31-9 at Pg. ID 1109-10.)

         Flanagan's charges, like Russell's, went nowhere. Indeed, Flanagan did not “hear anything at all” after he filed his charges against Russell (Flanagan Dep. at 21, ECF #28-2 at Pg. ID 399), nor did Flanagan ever receive any ...


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