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Strickland v. City of Detroit

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

November 5, 2019

JOHNNY STRICKLAND, Plaintiff,
v.
CITY OF DETROIT, JAMES CRAIG, MARK BLISS, RODNEY BALLINGER, STEVEN MURDOCK, CASEY SCHIMECK, DEANNA WILSON, Defendants.

          OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [36]

          Nancy G. Edmunds United States District Judge.

         This matter is before the Court on Defendants' motion for summary judgment. (ECF no. 36.) Plaintiff filed a response brief in opposition and Defendants filed a Reply. (ECF nos. 39, 40.) The Court heard Defendants' motion on August 21, 2019.

         I. Background and Facts

         Plaintiff Johnny Strickland is an African American police officer and an eleven-year veteran of the Detroit Police Department. (Am. Compl. ¶ 1, ECF no. 19; Strickland Dep. 20, Def.'s Mot. Summ. J., Ex. 2, ECF 36-3.) Defendants are the City of Detroit (COD), several employees of the COD and the police department sued in their individual and/or official capacities, and Detroit Police Chief James Craig, sued in his official and individual capacities. (ECF no. 19 ¶¶ 4-11.) Plaintiff brings the following claims: Racial discrimination (hostile work environment) in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. (Count 1, against Defendant COD); retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-3(a) (Count 2, against Defendants Sergeant Deanna Wilson and COD); violation of the Fourth and Fourteenth Amendments, 42 U.S.C. § 1983, unlawful search and seizure and excessive force (Count 3, against Defendants COD, Sergeant Rodney Ballinger, Captain Mark Bliss, Officer Steven Murdock, Chief James Craig and Officer Casey Schimeck); and violation of civil rights, 42 U.S.C. § 1981 (Count 4). (ECF no. 19.)

         There are two distinct sets of circumstances at issue in this case. The first relates to Plaintiff's allegation that "Defendant maintained a racially hostile work environment that was characterized primarily by white supervisory officers directing abusive, discriminatory and retaliatory acts at African American subordinates." (ECF no. 19 ¶ 20.) In his complaint, Plaintiff alleges that during his employment with Defendant COD he became aware of incidents of harassment, racial discrimination, racial statements and retaliation and he refers to several "mass media and social media comments by Detroit Police Department personnel that communicated racist, racially coded and demeaning messages." (ECF no. 19 ¶¶ 20, 21.) He testified in his deposition to several specific occurrences of which he had knowledge. (Strickland Dep., Defs.' Mot. Summ. J. Ex. 2, ECF no. 36-3.) These are detailed below in the analysis of Plaintiff's hostile work environment claim. Plaintiff also refers to “recurring incidents of white command officers harassing black subordinates and discriminating against them in job assignments and training opportunities.” (Pl.'s Resp. 2, ECF no. 39, citing Inter-Office Memorandum Committee on Race and Equality, Pl.'s Resp. Ex. 3, ECF No. 39-4.) It is against this backdrop that the second set of circumstances on which Plaintiff's claims are based occurred. The “critical incident, ” as Defendants refer to it, occurred on January 22, 2017, between Plaintiff and several of the named Defendants.

         In February 2016, Defendant Craig established CORE (Committee on Race and Equality, hereinafter “CORE”), described by Craig as a committee to “kind of do a loose assessment” following some “perceptions” and “loose conversation” that had come to his attention that there may be some “tension” within the department related to race. (InterOffice Memorandum Committee on Race and Equality (CORE), Jan. 12, 2017, Pl.'s Resp. Ex. 3, ECF no. 39-4; Craig Dep. 8-9, Defs.' Reply Ex. 1, ECF no. 40.) While Plaintiff refers to CORE as an “investigatory committee, ” Defendant Craig states that “it was that committee's charge not to do an investigation but pretty much just kind of get a post of what was going on.” (Pl.'s Am. Compl. ¶ 22, ECF no. 19; Craig Dep. 9.) When CORE completed its work, it submitted an Inter-Office Memorandum dated January 12, 2017, with the subject line “Investigative Summary With Recommendations From The Committee On Race And Equality (CORE)” (the “CORE Report”). (CORE Report, Pl.'s Resp. Ex. 3, ECF no. 39-4.) The CORE Report stated in part:

Our research revealed numerous incidents which involved some direct or indirect involvement of Command staff members in discriminatory practices, which involved intimidation and retaliatory behavior. The committee therefore determined that there were enough incidents to conclude that the department has a growing racial problem. . . .
African American officers reported retaliatory tactics aimed at those officers who saw bias in the process of appointments to the rank of Detective. A few white Command Officers were blatant in their attacks against black officers who voiced their dissatisfaction with the exam or sought redress through the collective bargaining process.

(CORE Report 2, ECF no. 39-4.) Following the release of the report, the media reported Defendant Craig as saying “A lot of what CORE uncovered was based on rumor. . . . CORE co-chair Officer Weekley pointed out that he found nothing of substance.” (Metro Times, “Racial Committee Co-Chair Blasts Detroit Police Chief for Undermining Reports of Bias, ” 1/12/2017, Pl.'s Resp. Ex. 5, ECF no. 39-6.)

         Less than two weeks later, in the early morning hours of January 22, 2017, Defendant Officer Casey Schimeck, a Caucasian female, and her more experienced partner, Officer Lawrence Blackburn, an African American, made a run to a BP gas station regarding a suspicious package. (Schimeck Dep. 10, Defs.' Mot. Summ. J. Ex. 4, ECF no. 36-5.) When they arrived at the scene, the fire department was on the scene and fire trucks were blocking off Jefferson Avenue and side streets. (Id. at 14.) The fire trucks and police cars had their lights on. (Id. at 40:17-19.) Defendant Schimeck was across Jefferson Avenue from the gas station when she observed the gas station and an object next to one of the gas pumps. (Id. at 12-13.) She and her partner had the fire trucks reposition to block off more side-streets and more of Jefferson Avenue. (Id. at 15.) There was a clerk inside the gas station building and it was established that he was the only person in the building at that time. (Id. at 17.) Defendant Sergeant Rodney Ballinger, a Caucasian officer, arrived at the scene approximately five minutes later and confirmed with binoculars that the object next to one of the gas pumps was a grenade. (Id. at 19; Strickland Dep. 124:20-21, Defs.' Mot. Summ. J. Ex. 2, ECF no. 36-3.) Defendant Ballinger notified the Notification and Control Center, which would direct the Bomb Squad to the scene. (Schimeck Dep. 19.)

         Plaintiff Sergeant Strickland (prior to his promotion to sergeant) was off duty at the time and pulled into the gas station lot and stopped at a pump.[1] (Strickland Dep. 112-13, 120; Ballinger Dep. 15, Defs.' Mot. Summ. J. Ex. 5, ECF 36-6.) According to Plaintiff, the gas station was not secure, there was no crime scene tape, and there were no police cars at any entrance. (Strickland Dep. 118-20.) The parties agree that when Plaintiff emerged from his car, there was shouting; Plaintiff describes it as “a commotion, ” that ensued. (Strickland Dep. 113; Ballinger Dep. 15-16.) Plaintiff described that he heard “What the fuck are you doing? Get the fuck out of there. Get the hell away from there, ” he did not know who it was coming from, and “[n]obody identified themselves.” (Strickland Dep. 113-14.) Defendant Ballinger testified that the officers were yelling “you need to get out of there” and giving loud verbal commands to leave; Ballinger recalls telling Plaintiff to “get the fuck out of here” or “something to that effect, ” but does not recall the other officers using profanity and does not recall identifying himself by name to Plaintiff. (Ballinger Dep. 14, 17:12-20, 22:12-22, 23:3-12, 34-35; Strickland Dep. 123).

         Defendants testified that Plaintiff did not initially identify himself as a police officer, and instead responded with “something to the effect you can't talk to me like that, you don't know who I am.” (Ballinger Dep. 15; Schimeck Dep. 22 “He said you don't know who I am.”) The parties agree it was a foggy night and vision was not clear. (Ballinger Dep. 11, 15; Strickland Dep. 115-16.) Defendant Ballinger approached Plaintiff, handcuffed him and walked him back to Ballinger's car. (Schimeck Dep. 26.) Defendant Ballinger testified that Plaintiff did not identify himself as a police officer prior to being placed in handcuffs; Plaintiff testified that he identified himself as soon as he saw Ballinger come out of the fog and he saw a uniform. (Ballinger Dep. 19; Strickland Dep. 115.) There is no dispute that Defendant Ballinger gave directives to Plaintiff (“get out”) prior to Plaintiff identifying himself. There are questions of fact as to who identified themselves and when, yet it is not in dispute that a period of time lapsed after Plaintiff was initially directed to leave and before Plaintiff identified himself as a police officer. (Strickland Dep. 114-16.)

         Plaintiff testified that the handcuffs were not double-locked and they began to tighten and cause him pain. (Strickland Dep. 52, 58-59.) He also testified that the officers made fun of him, and that Defendant Ballinger called him dumb, stupid, and an idiot, used profanity, and disrespected both Plaintiff and Plaintiff's ten years on the police force. (Strickland Dep. 122-26.) Defendants Schimeck and Ballinger do not deny using profanity. (Schimeck Dep. 31; Ballinger Dep. 17.) Plaintiff testified that Ballinger walked him back to the squad car and told Schimeck, “Hey, watch him.” (Strickland Dep. 126.) Defendant Schimeck yanked on the cuffs and they tightened more. (Strickland Dep. 126-29.) Plaintiff testified that he notified Defendant Schimeck that the handcuffs were too tight, but she did not respond; Defendant Schimeck testified that when he said the handcuffs were hurting, her partner said she could let go of the handcuffs and she did so. (Strickland Dep. 131:18-19; Schimeck Dep 33-34.) When Plaintiff complained to Schimeck's partner that the handcuffs were too tight, he loosened them and double locked them to prevent them tightening any further. (Strickland Dep. 137-38; Wilson Dep. 38, ECF no. 36-19.) When Defendant Mark Bliss, a supervisory officer and Caucasian, arrived on the scene, Plaintiff told him what was going on and shortly thereafter, Defendant Bliss advised the officers to take the handcuffs off Plaintiff. (Strickland Dep. 129: 7-8, 136.) Plaintiff was in the handcuffs approximately twenty or twenty-five minutes in total. (Strickland Dep. 138.)

         Plaintiff alleges that Defendant Bliss made the statement to Plaintiff, “This goes nowhere from tonight.” (Strickland Dep. 135.) Plaintiff alleged in his deposition that Defendant Bliss “also made a statement along the lines of if I said anything or made mention of it again, there would be consequences or repercussions.” (Strickland Dep. 135.) During this incident, Defendant Murdock, an African American officer, executed a canine search of Plaintiff's car; Plaintiff testified that the dog was in his car for less than a minute, as he recalls from reviewing a video of the gas station lot. (Strickland Dep. 129:3-4, 132; Murdock Dep. 14, Defs.' Mot. Summ. J. Ex. 7, ECF no. 36-8.) The constitutionality of the canine search is also at issue in Plaintiff's claims.

         Following the incident, Defendant Bliss contacted someone from Plaintiff's command to notify them of what had transpired and that an investigation would be conducted; Defendant Bliss found out later that Internal Affairs was conducting the investigation. (Bliss Dep. 28, 29.) As set forth in more detail below, Plaintiff filed an internal “EEO” complaint about the January 22 incident, designating “race” and “retaliation” as the basis for his complaint. (Charge of Discrimination/Harassment Report 1/24/17, Defs.' Mot. Summ. J. Ex. 13, ECF no. 36-14.)

         The Internal Affairs investigation was assigned to Defendant Wilson and conducted with a partner. (Wilson Dep. 8-9, Defs.' Mot. Summ. J. Ex. 18, ECF no. 36-19; Inter-Office Memo. Internal Affairs 2, Defs.' Mot. Summ. J. Ex. 6, ECF no. 36-7.) The allegation being investigated was made by Plaintiff: that members of the police department mistreated him during an off duty incident at a gas station on January 22, 2017. (Inter-Office Memo. 1, ECF no. 36-7.) Subjects of the investigation were Defendants Ballinger and Schimeck, Officer Blackburn and Plaintiff. Facts related to the investigation are set forth in more detail below, in the analysis.

         Plaintiff had alleged injury and pain to his wrists from the handcuffing, yet during the course of the investigation, Defendant Wilson's partner mentioned having seen Plaintiff working out, after the time of the incident and injury, at a fitness center at which they were both members. (Wilson Dep. 22-24, Defs.' Mot. Summ. J. Ex. 18, ECF no. 36-19.) Defendant Wilson obtained a print out of Plaintiff's attendance at the fitness center and asked her partner to record Plaintiff working out there. (Wilson Dep. 22-24, Defs.' Mot. Summ. J. Ex. 18, ECF no. 36-19; Inter-Office Memo. 11, ECF no. 36-7.)

         As a result of the Internal Affairs investigation, Defendant Wilson recommended charges against all officers, including one charge of “failure to exhibit a polite, dignified and courteous manner towards any person (includes detainees and fello (sic) officers” against the two defendants, and three charges against Plaintiff related to actions that came to light during the internal affairs investigation. These included Plaintiff's obtaining the gas station's surveillance video on his own personal flash drive and withholding information in an ongoing criminal investigation. (Wilson Dep. 14-15; Inter-Office Memo. 36-38, ECF no. 36-7.) The third recommended charge against Plaintiff was for neglect of duty, because Plaintiff failed to document on his activity log that he had reviewed the gas station video. (Id.) The Internal Affairs report is discussed in more detail below.

         Plaintiff alleges that as a result of Defendants' actions he has suffered emotional trauma that is likely to be permanent and physical injuries.

         II. Summary Judgment Standard

         “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A moving party may meet that burden “by ‘showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). “The court need consider only the cited materials, but it may consider other materials in the record.” Fed.R.Civ.P. 56(c)(3).

         When the moving party has met its burden under rule 56, “its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The non-moving party must present some evidence in support of its complaint to defeat a motion for summary judgment, and show that a genuine issue for trial exists-i.e., that “a reasonable jury could return a verdict for the nonmoving party.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[W]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., 475 U.S. at 587 (citing First Nat. Bank of Ariz. v. Cities Servs. Co., 391 U.S. 253, 289 (1968)). Ultimately a district court must determine whether the record as a whole presents a genuine issue of material fact, id. at 587, drawing “all justifiable inferences in the light most favorable to the non-moving party.” Hager v. Pike Cnty. Bd. Of Educ., 286 F.3d 366, 370 (6th Cir. 2002).

         III. Analysis

         A. Racially Hostile Work Environment

         1. Whether Harassment Was Based On Race

         “Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating ‘against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.'” Williams v. General Motors, 187 F.3d 553, 560 (6th Cir. 1999) (citing 42 U.S.C. § 2000e- 2(a)(1)). To establish a Title VII case of a racially hostile workplace, as Plaintiff claims, Plaintiff must show: “(1) [He] is a member of a protected class; (2) [he] was subjected to unwelcomed racial harassment; (3) the harassment was race based; (4) the harassment unreasonably interfered with [his] work performance by creating an environment that was intimidating, hostile, or offensive; and (5) employer liability.” Clay v. United Parcel Service, Inc., 501 F.3d 695, 706 (6th Cir. 2007) (citing Hafford v. Seidner, 183 F.3d 506, 512 (6th Cir. 1999)). Plaintiff is a member of a protected class- he is African American. (Am. Compl. ¶ 19, ECF no. 19.)

         Defendants first argue that Plaintiff offers no direct evidence or comparative evidence to support that he was subjected to harassment based on race. Plaintiff points out that the Sixth Circuit, following the Supreme Court, has recognized a “totality of the circumstances” approach in hostile environment cases. See Williams, 187 F.3d at 562 (citing Harris v. Forklift Systems, 510 U.S. 17, 23 (1993)). Yet “only harassment based on the plaintiff's race may be considered.” Williams v. CSX Transportation Co., 643 F.3d 502, 511 (6th Cir. 2011). A plaintiff may prove race-based harassment by “direct evidence of the use of race-specific and derogatory terms or . . . comparative evidence about how the alleged harasser treated members of both races in a mixed-race workplace.” Id. at 511. “Conduct that is not explicitly race-based may be illegally race-based and properly considered in a hostile-work-environment analysis when it can be shown that but for the employee's race, []he would not have been the object of harassment.” Clay, 501 F.3d at 706. “[A] work environment viewed as a whole may satisfy the legal definition of an abusive work environment, for purposes of a hostile environment claim, even though no single episode crosses the Title VII threshold.” Williams, 187 F.3d at 564.

         Plaintiff does not allege that overt racial comments were made during the January 22, 2017 incident, nor is there evidence of the same. The overarching theory of Plaintiff's claim is that the Chief of Police created CORE, then the Chief denied there were any race issues in the department, thus sending “the message to all white supervisory officers” that disrespecting black officers was okay, resulting in Plaintiff being disrespected by white officers and his Constitutional rights violated. (Strickland Dep. 127.) Plaintiff alleges that the January 22, 2017 encounter in which he was yelled at by other police officers and ended up in handcuffs was the “manifestation of numerous incidents of discrimination, harassment and retaliation directed at African American officers that were known to Plaintiff and that constituted a racially hostile employment environment. These workplace conditions were exacerbated by racial comments, racial social media posts, and accounts of discriminatory treatment of African American officers by white supervisory officers.” (Am. Compl. ¶ 34.)

         With respect to Plaintiff's interaction with officers at the scene on January 22, 2017, a reasonable jury could not find that the January 22 incident was based on race. Plaintiff generally alleges that he was “disrespected” but does not allege racial references in that exchange. (Strickland Dep. 126-27.) There is no direct evidence of racial causation, no comparable evidence offered as to how a member of another race would have been treated, if showing up at the gas station where the grenade was located, no evidence tying those officers at the gas station with the other allegedly racial comments that Plaintiff offers as evidence, and Plaintiff was not on duty or at work when the January 22 incident occurred. As set forth in further detail below, Defendant Officers' actions during that incident were not unreasonable.

         The next question is whether a reasonable jury could find that the multiple racial occurrences Plaintiff alleges having heard about were actually based on race. They include:

• An African-American friend and co-worker was called “boy” by a fellow officer who was white. (Strickland Dep. 65, Defs.' Mot. Summ. J. Ex. 2, ECF 36-3.)
• A social media posting stated: “The only racists here are the piece of shit Black Lives Matter terrorists and their supporters.” (Am. Compl. ¶ 20; Strickland Dep. 85, ECF 36-3.) (Plaintiff had no recollection in his deposition who made the statement or when, only that it was made by someone else who works for the police department. He simply knows that the statement was made and remembers hearing about it at the time it was made. Strickland Dep. 85-86).
• A Snapchat video posted by a member of the police department and depicting a black female motorist after a traffic stop that resulted in the impounding of the vehicle she had been driving. The motorist walked away in freezing temperatures and one of the involved members of the police department recorded her on his cell phone. Officers could be heard mocking her in the background and the video was edited to include captions containing the words “What black girl magic looks like” and “Celebrating Black History Month.” (6th Precinct Environmental Audit 6, Pl.'s Resp. Ex. 1, ECF no. 39-2.) (Plaintiff cites to the Environmental Audit, which identifies reports of this video surfacing in February 2019, and a news article regarding the same is from January 2019. (Pl.'s Resp. 2, citing ECF no. 39-2; see also ECF no. 39-3.))
• Two officers referred to black females as “Keishas” and one of the officers referred to black males as “Homies.” (6th Precinct Environmental Audit 11, Pl.'s Resp. Ex. 1, ECF no. 39-2.) (Plaintiff's response cites an Environmental Audit as support for these comments occurring; Plaintiff does not cite to testimony or other evidence that he had knowledge of this comment aside from the Environmental Audit provided with his response brief. (Pl.'s Resp. 2, citing ECF no. 39-2.))
• “In September 2018, white rookie officer . . . was terminated after posting a smug uniformed selfie with the caption: ‘Another night to Rangel (sic) up these zoo animals.'” (1/31/2019 Metro Times article, Pl.'s Resp. Ex. 2, ECF no. 39-3.) (Plaintiff's response cites a 2019 news article as support for this comment, again, with no citation to testimony or other evidence as to when he had knowledge of this comment, aside from the January 2019 news article. (Pl.'s Resp. 2, citing ECF no. 39-3.))
• “[A]n officer called the citizens of Detroit ‘garbage' in the comments section of a news story . . . .” The statement was “Getting rid of residency was the best thing that ever happened t the Detroit Police!!!!! We have to police the garbage but you can't make us live in the garbage.” (Am. Compl. ¶ 20; 1/19/17 Metro Times article, Defs.' Mot. Summ. J. Ex. 15, ECF no. 36-16.) (Plaintiff does not recall who made the statement or when he heard it, but testified that it was in ...

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