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Funk v. City of Lansing

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

May 24, 2019

CHARLES FUNK, Plaintiff,
v.
CITY OF LANSING, a municipal corporation, and MICHAEL YANKOWSKI, in his individual and official capacity, Defendants.

          OPINION GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          GORDON J. QUIST UNITED STATES DISTRICT JUDGE

         Plaintiff, Charles Funk, brought this civil rights action, alleging race discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.; the Michigan Elliot-Larsen Civil Rights Act (ELCRA), Mich. Comp. Laws § 37.210, et seq.; and the First and Fourteenth Amendments to the United States Constitution. Defendants, City of Lansing and Chief Michael Yankowski, have filed a motion for summary judgment, asserting that Funk cannot sustain any of his claims against them. (ECF No. 28.) For the following reasons, the Court will grant Defendants' motion for summary judgment.

         I. Background

         Funk is an African-American law enforcement officer. From 1997 through 2016, Funk worked first as a law enforcement officer and later as a sergeant in the Lansing Police Department (LPD).

         According to Funk, in 2014 and 2015, relations between law enforcement and the African-American community deteriorated considerably on a nationwide basis. Funk states that based on concerns he had about LPD's treatment of black suspects, Funk emailed Chief Yankowski on three occasions-December 12, 2014; January 15, 2015; and August 28, 2015. Funk met with Chief Yankowski shortly after each of these emails was sent, and in these conversations, Funk related incidents that he believed showed racial prejudice. But Funk did not refer any of his complaints to the BlueTeam complaint system (tracking software for which officers are instructed to enter positive or negative comments about incidents involving other officers); any other person in the chain of command; or Internal Affairs (IA).

         Funk sought promotion to lieutenant for the first time in late 2015 to 2016. The promotional process involves a written test administered by an outside vendor known as EMPCO. There is also an oral presentation to a panel and a series of scenarios. Participants in the EMPCO testing receive a score from the testing. The top five scorers are placed into the “A Band” for promotion. The Chief of Police has the sole discretion to select any candidate from the A Band for lieutenant promotion taking into consideration factors other than just the test score. Chief Yankowski testified that those factors include IA history, seniority, command experience, community involvement, and commitment to the mission of the organization. He further testified that an applicant's entire career can be reviewed for supervisory promotional decisions to lieutenant.

         In September 2015, Chief Yankowski promoted the highest scorer from the A Band, Sergeant Traci Ruiz, a Hispanic female, to lieutenant. On April 4, 2016, Chief Yankowski informed Funk that two other candidates from the A Band-Rodney Anderson, an African-American male, and Robert Backus, a white male-had been promoted to lieutenant positions instead of Funk. Funk asked Chief Yankowski why he had not been promoted, and Chief Yankowski responded that the chosen candidates had greater community involvement, as compared to Funk, who lacked engagement or volunteering in the community, plus a lack of leadership, and disciplinary issues with IA. In June 2016, Chief Yankowski promoted Dave Sileo to lieutenant, leaving Funk as the only candidate not yet promoted from the A Band.

         On April 6, 2016, two days after Funk learned that Anderson and Backus had been promoted over him, Funk filed a grievance with his union challenging the promotional decision. On April 12, 2016, Funk contacted the City's HR department to report a complaint of race discrimination and retaliation in the promotional process. The City responded by having Funk's complaint investigated by an outside attorney, Pamela Dausman. Attorney Dausman conducted her investigation in April and May 2016 and found that the City had not committed wrongdoing.

         On August 8, 2016, Funk was on duty in a marked LPD vehicle. When he turned right at a corner, his vehicle hit a wheelchair occupied by Paul Palmer. According to Funk, he never saw Palmer until he saw him on the ground in the crosswalk using his side-view mirror and he did not actually make contact with the wheelchair. Funk helped Palmer back into his wheelchair and spoke with him. Funk did not activate his video or audio equipment during the conversation, did not complete any report of the accident, and did not ask Palmer for his name. Funk believed a report was not necessary because no one was injured and no property was damaged.

         Later that evening, Funk received a phone call from Officer Belill, who was interviewing an individual who claimed to have been hit by a police vehicle. Funk assumed this was related to his contact with Palmer. Instead of ordering Belill to fill out a police report, Funk called his superior, Lieutenant Anderson. According to Funk, Palmer had changed his story from saying that Funk almost hit him when they talked on the scene to saying that he had been hit. Funk claims that Anderson told him to talk to Palmer again, and if Palmer's story had changed, Funk should write notes in the Computer Aided Dispatch (CAD) system.

         Funk called Officer Belill and told Belill to clear the scene without doing a report because Funk stated that he would take care of it. Funk went to Palmer's residence and took Palmer back to the scene of the accident. Funk recorded his conversation with Palmer on a private cell phone instead of LPD communication systems. Palmer told Funk that he believed he, not Funk, had the right-of-way at the intersection. When Funk took Palmer back to the scene of the accident, Funk parked near the intersection and had Palmer watch the light cycles to show that the incident was not Funk's fault. Funk claimed that Palmer apologized to him, but he never made any notes of their conversation in the CAD system.

         IA instructed Lieutenant Bayliss to conduct an investigation of the August 8, 2016, accident because Funk should have made a report of the accident. Funk was placed on administrative leave pending investigation. Bayliss interviewed Palmer, who indicated that: (1) he had been in an accident with a police vehicle; (2) the vehicle scraped his wheelchair; (3) he tried to file a police report; and (4) he had been persuaded by Funk to not file a police report on the grounds that the accident was Palmer's fault. In addition to interviews of Palmer and Funk, the evidence reviewed in the investigation included (a) photographs of damage to the wheelchair, an abrasion on Palmer's knee, and scuffing on the patrol car; (b) video from nearby stores of the accident; and (c) a determination of the traffic light sequencing at the intersection.

         In addition to the IA investigation, the incident was referred to the Michigan State Police (MSP) to determine whether Funk had committed a crime. Funk provided MSP with an audio recording from his private cell phone of his conversation with Palmer. Bayliss also asked for the recording, but it was already in MSP's custody.

         IA completed its investigation, finding that Funk had violated LPD policies regarding truthfulness; conformance to laws; accountability, responsibility, and discipline; and insubordination. A predetermination hearing was scheduled for September 15, 2016.

         Chief Yankowski met with the union attorney, Steven Lett, at some point after the conclusion of the Lieutenant Bayliss's investigation. Chief Yankowski told Attorney Lett that Funk was facing some sustained charges that were pretty significant but that Chief Yankowski had not yet determined what the sanction would be. Funk spoke with Attorney Lett on the phone sometime after Attorney Lett met with Chief Yankowski. Attorney Lett told Funk that Funk could resign or face termination at the pre-determination meeting.

         Funk decided to resign on September 12, 2016. If Funk had been terminated, he would have lost his pension, which was worth up to $4, 000 per month. At the time that Funk chose to resign, neither Lieutenant Sosebee, who was in charge of recommending a sanction, nor Captain Southworth, who was in charge of reviewing Sosebee's recommendation, had completed his portion of the charge sheet. Their signatures on the charge sheet are dated September 13 and 14, 2016, respectively.

         On September 13, 2016, Chief Yankowski received the results of the IA investigation with the recommended sanction. He testified that he never had a chance to review the investigation to determine if he agreed with the recommended dismissal sanction because Funk had already resigned.

         The investigation by MSP resulted in the Ingham County Prosecutor issuing charges relating to the accident. Funk was later found guilty by jury verdict of the misdemeanor ...


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