Johnson v. Ohio Department of Public Safety Highway Patrol
Filing
43
ORDER granting 27 Motion for Summary Judgment. this case is hereby DISMISSED. Signed by Judge Algenon L. Marbley on 11/9/2018. (cw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MORRIS JOHNSON,
Plaintiff,
v.
OHIO DEPARTMENT OF PUBLIC
SAFETY,
Defendant.
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Case No. 2:17-cv-16
Judge Algenon L. Marbley
Magistrate Judge Jolson
OPINION AND ORDER
This matter is before the Court on Defendant Ohio Department of Public Safety’s (“the
Department”) Motion for Summary Judgment (ECF No. 27). For the reasons set forth below, the
Court GRANTS the Motion.
I.
A.
BACKGROUND
Procedural Background
Plaintiff Morris Johnson was a Trooper with the Ohio State Highway Patrol. After he
was terminated from his position, he brought suit against his former employer, the Ohio
Department of Public Safety, for violations of Title VII of the Civil Rights Act of 1991.
Specifically, he alleges disparate treatment on the basis of race, arguing that he, a Black Trooper,
was treated less favorably than David Johnson, a similarly-situated white Trooper.1 (ECF No. 1).
On March 23, 2018, Defendant Ohio Department of Public Safety filed a Motion for Summary
Judgment, seeking to dismiss his claims. (ECF No. 27). That Motion is fully briefed and is ripe
for review.
1
To avoid confusion between David Johnson and Morris Johnson, this Order refers to Morris
Johnson as “Plaintiff” and refers to David Johnson using both his first and last name.
B.
Factual Background
Plaintiff was stationed as an Ohio State Highway Patrol Trooper in Lebanon, Ohio, in
2013. (ECF No. 17 at 73). In June 2013, he arrested a motorist, Shelley Burchett, for driving
under the influence of alcohol. (Id. at 147). At some point during the stop, Plaintiff mentioned
that there was a Waffle House nearby and told Ms. Burchett that he would take her there, noting
that “[t]hey make some fantastic waffles.” (Id. at 159). During her field sobriety test, Ms.
Burchett mentioned several times that her ex-boyfriend was actually “the one who drives around
drunk without a license” and that he should be arrested instead. (Id.)
The next month, Plaintiff once again spotted Ms. Burchett driving. It is undisputed that
he pulled her over without probable cause. (Id. at 156-57). And what happened following the
second stop is also largely undisputed. At no point during the 11-minute stop did Plaintiff radio
the stop to his post, as Highway Patrol policy required him to do. (Id. at 155). He also admits
that he told Ms. Burchett that he “liked” her and that he “apologized for not coming back and
taking her to the Waffle House . . . .” (Id. at 157). He asked her, “If I would have come over that
night[,] would you have gone to the Waffle House with me?” (ECF No. 17-1 at 82). Ms.
Burchett said yes, but that she knew it would have jeopardized his job. (Id.). Plaintiff then joked
about the impropriety of the offer, saying, “[c]ould you imagine that, me taking you to the
Waffle House and it coming up in court?” (ECF No. 17 at 166-67). Ms. Burchett mentioned
that she had visited the casino after Plaintiff pulled her over the first time, and Plaintiff offered to
meet up with her there, noting, “if you’re ever up there, just give me a call, we can play some
games together.” (Id. at 159). Plaintiff offered Ms. Burchett his personal cell phone number,
and although Ms. Burchett stated that she was “dating someone,” Plaintiff said that “she should
take his number down just in case” and that “if she had a question or was having a bad night[,]
2
give him a ‘buzz.’” (ECF No. 17-1 at 82). When Ms. Burchett said she was using her exhusband’s phone, Plaintiff stated that he would not want her to put his number in that phone, and
directed her to write the number down in a secret location so others could not see it. (Id.).
Plaintiff’s primary motivation in stopping Ms. Burchett on that second occasion is an
issue of contested fact: Plaintiff claims that he initiated the stop in order to get information from
Ms. Burchett as to her allegedly serially-drunk-driving ex-boyfriend’s whereabouts so he “could
work that particular area,” (Id. at 151-52), but he also admitted that he wished for her friendship.
(Id. at 195 (“Q: Were you trying to cultivate a person-to-person friendship with Mrs. Burchett?
A: It was just a friend initiation, just if you’re out and about, give me a call, we can play some
games.”). Defendant, however, argues that he initiated the stop “in order to establish a personal
relationship” with Ms. Burchett. (ECF No. 27 at 6).
A citizen later contacted the Ohio State Highway Patrol reporting the inappropriate
interaction. (ECF No. 17-1 at 161-62). Sergeant Terrill Barnes was assigned to investigate the
complaint. (Id. at 162). As part of his investigation, Sergeant Barnes twice interviewed Plaintiff,
reviewed video of the stop, looked over the documentary record, and interviewed other
witnesses. (Id. at 83-91). After the investigation, Plaintiff was found in violation of the Rules
and Regulations of the Ohio State Highway Patrol, specifically of Rule 4501:2-6-02(i)(1),
Conduct Unbecoming an Officer and Rule 4501:2-6-02(B)(5), Performance of Duty. (Id. at
118).
Plaintiff was recommended for termination. (Id.). The Director of Public Safety held the
termination in abeyance pursuant to the terms of a Last Chance Agreement, which entailed a 10day suspension without pay, an agreement that if Plaintiff ever engaged in similar behavior he
would be terminated, an agreement that Plaintiff would waive the right to any legal proceedings
3
against his employer, and a recognition that if Plaintiff abided by the Last Chance Agreement for
two years, it would “become void and no active record of it will remain.” (Id. at 121-22).
Plaintiff accepted the conditions of the Last Chance Agreement on December 5, 2013. In sum:
all Plaintiff had to do to remain a Trooper with the Ohio State Highway Patrol was to avoid the
same course of conduct for two years.
Less than two years later, on August 22, 2015, Plaintiff violated the Last Chance
Agreement. He pulled over another female motorist, Crystal Stapleton-Wilson, on suspicion of
operating a vehicle while intoxicated. (ECF No. 17 at 202-05). Her field sobriety test reflected
indicia of intoxication, including slow body movements, red and glassy eyes, and a scent of
alcohol. (Id.). He read her Miranda rights, placed her under arrest, put her in handcuffs, and
searched her before taking her to the Franklin police station. (Id. at 205).
Although Ms. Stapleton-Wilson had texted a contact to give her a ride home, Plaintiff
offered to take her himself. (Id. at 207-08). He did so, and, in violation of Ohio State Highway
Patrol Policy, failed to turn on his in-car camera on the ride home. (Id. at 208-09). Plaintiff
claimed that he did not turn on the car camera because “it didn’t dawn on [his] mind at the time”
and “she wasn’t giving [him] any issues at the police station.” (Id.). Yet, throughout the drive
home, Plaintiff admitted that Ms. Stapleton-Wilson continued to behave as though she was
intoxicated, noting that she was “a typical drunk talking.” (Id.). She also evidently repeatedly
expressed concerns about her vehicle being towed. (Id.). So, at some point on the ride, Plaintiff
indicated he would go back out to her car and put a note on the vehicle indicating that she would
pick it up the next day. (Id. at 216). They eventually pulled into her driveway, she left the
vehicle, and Plaintiff radioed his station indicating that he had left the scene. (Id. at 215-16).
4
Plaintiff did not, in fact, leave the scene. He ended up staying at her residence for 32
more minutes after he reported he left, from 4:55 a.m. to 5:27 a.m. (Id. at 215-16, 224). Because
the in-car camera was not turned on, the Court has little information as to the content of the
conversation that transpired between the two. (Id.).
But the record reflects that Plaintiff later
texted Ms. Stapleton-Wilson from his personal cell phone. (ECF No. 17-1 at 153). The entirety
of the conversation is as follows:
Plaintiff: Yo yo
Ms. Stapelton-Wilson: Who is this? Lol I don’t recognize this number
Plaintiff: Me the person you hate
Ms. Stapelton-Wilson: Ha ha! Hate?
Plaintiff: Put note on your van. Get some rest.
Lebanon Post Commander Matt Hamilton learned of the incident through a reporting citizen, and
he assigned Sergeant Investigator Robert Hayslip to investigate the allegation. (ECF No. 17-1 at
151). Sergeant Hayslip reviewed the video of the stop, interviewed witnesses including Plaintiff
and Ms. Stapleton-Wilson, and concluded that Plaintiff violated his Last Chance Agreement by
attempting to cultivate a personal relationship with a female arrestee in violation of Rule 4501:26-02(I)(l)(3), Conduct Unbecoming an Officer. (Id. at 205).
Major Richard Fambro and
Lieutenant Colonel George Williams recommended that his employment be terminated;
Assistant Director Montgomery agreed. Plaintiff was fired on December 4, 2015. (Id. at 213).
Plaintiff sought redress through his union, the Ohio State Troopers Association. (ECF
No. 17 at 263). An arbitrator found just cause to support Plaintiff’s termination. (ECF No. 18-1
at 15).
5
Plaintiff then sought and received a right-to-sue letter from the Equal Employment
Opportunity Commission. (ECF No. 1-2). He filed suit in this Court on January 9, 2017. (ECF
No. 1).
II.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 56(a) provides, in relevant part, that summary judgment
is appropriate “if the movant shows that there is no genuine issue as to any material fact and the
movant is entitled to judgment as a matter of law.” In evaluating such a motion, the evidence
must be viewed in the light most favorable to the nonmoving party, and all reasonable inferences
must be drawn in the non-moving party’s favor. United States Sec. & Exch. Comm’n v. Sierra
Brokerage Servs., Inc., 712 F.3d 321, 327 (6th Cir. 2013) (citing Tysinger v. Police Dep’t of City
of Zanesville, 463 F.3d 569, 572 (6th Cir. 2006)). This Court then asks “whether ‘the evidence
presents a sufficient disagreement to require submission to a jury or whether it is so one-sided
that one party must prevail as a matter of law.’” Patton v. Bearden, 8 F.3d 343, 346 (6th Cir.
1993) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 251-52 (1986)).
“[S]ummary
judgment will not lie if the dispute is about a material fact that is ‘genuine,’ that is, if the
evidence is such that a reasonable jury could return a verdict for the non-moving party.”
Anderson, 477 U.S. at 248.
III.
A.
LAW AND ANALYSIS
The McDonnell-Douglas Framework
Plaintiff alleges that, in terminating his employment, the Ohio Department of Public
Safety unlawfully discriminated against him based on his race. Under Title VII, it is unlawful
for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to
discriminate 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
6
origin.” 42 U.S.C. § 2000e–2(a). Plaintiff does not advance direct evidence of discrimination,
but instead seeks to prove his claims under the burden-shifting framework of McDonnellDouglas, 411 U.S. 792 (1973).
Under that framework, Plaintiff must first establish a prima
facie case of racial discrimination by showing: “(1) membership in a protected group; (2)
qualification for the job in question; (3) an adverse employment action; and (4) circumstances
that support an inference of discrimination.” Blizzard v. Marion Tech. Coll., 698 F.3d 275, 283
(6th Cir. 2012) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002)). The purpose of the
prima facie stage of the burden-shifting framework is to:
eliminate . . .the most common nondiscriminatory reasons for the plaintiff's [termination].
. . . . [T]he prima facie case raises an inference of discrimination only because we
presume these acts, if otherwise unexplained, are more likely than not based on the
consideration of impermissible factors. Establishment of the prima facie case in effect
creates a presumption that the employer unlawfully discriminated against the employee.
Texas Dep’t of Comm. Affairs v. Burdine, 450 U.S. 248, 254 (1981) (internal citations and
quotation marks omitted). The Sixth Circuit has admonished that the plaintiff's burden “at the
prima facie stage is ‘not onerous' and ‘poses a burden easily met.’” Jackson v. VHS Detroit
Receiving Hosp., Inc., 814 F.3d 769, 776 (6th Cir. 2016) (quoting Provenzano v. LCI Holdings,
Inc., 663 F.3d 806, 813 (6th Cir. 2011)).
If Plaintiff is able to establish a prima facie case, the burden of production shifts to the
Defendants to offer a legitimate, nondiscriminatory reason for the adverse action. Johnson v.
Univ. of Cincinnati, 215 F.3d 561, 572 (6th Cir. 2000). Finally, the burden shifts to Plaintiff to
show that the articulated reasons are pretextual by showing that the reasons: “(1) have no basis in
fact; (2) did not actually motivate the actions; or (3) were insufficient to warrant the
actions.” Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir. 1994).
7
B.
Plaintiff Has Not Established a Prima Facie Case of Racial Discrimination
Here, Plaintiff fails to clear even the low hurdle of establishing a prima facie case of
racial discrimination. The Ohio Department of Public Safety concedes that Plaintiff is a member
of a protected group, was otherwise qualified for a Trooper position, and that an adverse action
was taken against him. (ECF No. 27 at 13). But it argues that the circumstances cannot support
an inference of discrimination because neither does Plaintiff allege that he was replaced by a
person outside of his protected class, nor does the record establish that similarly-situated nonprotected employees were treated more favorably. See Peltier v. United States, 388 F.3d 984,
987 (6th Cir. 2004).
In an effort to prove that the Defendant terminated him because of his race, Plaintiff
argues that another Trooper—David Johnson, a white male—received better treatment than he
received. In short: this case rises and falls on whether David Johnson was similarly-situated to
Morris Johnson in all relevant respects, as a Title VII comparator must be. Gragg v. Somerset
Tech. Coll., 373 F.3d 763, 768 (6th Cir. 2004) (quoting Mitchell v. Toledo Hosp., 964 F.2d 577,
583 (6th Cir. 2012)). In Mitchell v. Toledo Hosp., 964 F.2d 577 (6th Cir.1992), the Sixth Circuit
articulated three factors relevant to determining whether employees are “similarly situated” in
the context of cases alleging differential disciplinary action:
to be deemed “similarly-situated”, the individuals with whom the plaintiff seeks to
compare his/her treatment must have (1) dealt with the same supervisor, (2) have been
subject to the same standards and (3) have engaged in the same conduct without such
differentiating or mitigating circumstances that would distinguish their conduct or the
employer’s treatment of them for it.
Id. at 583; see also Johnson v. Kroger Co., 319 F.3d 858, 867 (6th Cir.2003) (“the weight to be
given to each [Mitchell] factor can vary depending upon the particular case”); Ercegovich v.
Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998) (observing that
8
the Mitchell factors “generally are all relevant considerations in cases alleging differential
disciplinary action”).
A review of the record reveals that Plaintiff and David Johnson were not similarlysituated in a number of key ways.
The Court begins with a review of David Johnson’s infractions: In October 2013, David
Johnson’s Lieutenant Post Commander received a complaint that David Johnson had “initiated
requests through social media, such as Facebook, to befriend citizens whom [he had]
encountered during traffic stops.” (ECF No. 22 at 25-26). Lieutenant Post Commander Conley
was unable to substantiate that allegation, so he advised David Johnson that any future violations
may result in disciplinary action. (Id.). Almost three years later, in March 2016, David Johnson
pulled over a motorist, Kimberly Edwards, for speeding. He spoke to her for almost 13 minutes
after he issued her the citation, including about her family business and about NASCAR. (Id. at
56). He also told her that she looked like Heather Thomas, star of the 1980s television program,
The Fall Guy.2 (Id.). He later contacted Ms. Edwards on Facebook Messenger, saying that he
was actually thinking of a different actress that bore a similarity to Ms. Edwards, and sent her a
Facebook friend request. (Id.). Ms. Edwards reported the conduct, and Sergeant Investigator
Terrill Barnes was assigned to investigate the complaint. (Id.). Major Richard Fambro and
Lieutenant Colonel George Williams recommended that David Johnson be suspended for one
day; Assistant Director Montgomery agreed. (Id.).
The following key dissimilarities preclude David Johnson from being a similarly-situated
comparator to Plaintiff: First, and perhaps most saliently, David Johnson was not subject to a
Last Chance Agreement. The existence of the Last Chance Agreement is a crucial distinction
2
See Heather Thomas, IMDB, https://www.imdb.com/name/nm0001793/ (last visited Oct. 22,
2018).
9
because it demonstrates that Plaintiff was on clear notice that further violations would result in
possible termination and that Plaintiff voluntarily waived any right to legal proceedings against
his employer as to the initial infraction. 3
Moreover, it was a contract, negotiated at arm’s
length, that vested each party with certain rights: in consideration for the termination being held
in abeyance, Plaintiff agreed that if he violated either Rule 4501:2-6-02(I)(3), Conduct
Unbecoming an Officer, or Rule 4501:2-6-02(B)(5), Performance of Duty, within two years of
signing the date of the agreement he “will be terminated.” (ECF No. 17-1 at 145 (emphasis
added)). David Johnson was subject to no such agreement, and therefore was not “subject to the
same standards” as is necessary to be a relevant comparator. See Mitchell v. Toledo Hosp., 964
F.2d 577. 583 (6th Cir.1992).
Plaintiff identifies two points at which he believes procedural iniquities arose: First, he
argues that the investigation of the first alleged Facebook friending incident was insufficient.
But Commander Conley testified that he tried to investigate, but was unable to make contact with
any alleged victims: “We couldn’t get a hold of anybody; no one would call us back. It was an
unsubstantiated complaint.” (ECF No. 19 at 19). He later continued: “I couldn’t confirm or
deny that it even occurred. And without being able to have any other further information, there
was no other recourse than to tell him if it did happen, don’t do it again.” (Id. at 25). He later
reiterated the point: “We couldn’t determine if it was a traffic stop made, we couldn’t determine
if [David Johnson] knew this guy or girl, or whoever it was, at the time off duty, if he hadn’t
come across her at Walmart off duty, on his own time. There was no information.” (Id. at 34).
The Court sees no reason to disbelieve Commander Conley on this subject, and there is no
3
It is true, of course, that “an employee may not prospectively waive his or her rights under . . .
Title VII.” Hamilton v. General Elec. Co., 556 F.3d 428 (6th Cir. 2009). Here, the existence of
the Last Chance Agreement does not preclude Plaintiff from asserting his rights under Title VII
in this forum or any other. Its existence does, however, shed light on the dissimilar positions of
Plaintiff and David Johnson.
10
evidence to suggest that Commander Conley left major stones unturned.
Additionally, as
discussed at length below, there is a difference in the severity of the allegations against Plaintiff
and against David Johnson. It is this factual distinction underlying the allegations that
differentiates this case from Ross v. City of Dublin, in which this Court determined that a
Plaintiff had established a prima facie case of racial discrimination where his white comparator
faced a much less comprehensive investigation for the exact same alleged misconduct (there,
violation of a policy that prohibited City employees from using City vehicles for personal use).
(No. 2:14-cv-2724; ECF No. 39).
Second, he argues that there is a genuine issue of material fact as to whether David
Johnson should have received more severe discipline after the second Facebook friending
incident because he had effectively been “warned” by Commander Conley after the first incident.
The Interoffice Memorandum that Commander Conley sent to David Johnson after he
investigated the first allegation read as follows: “It has been brought to my attention that you
have initiated requests through social media, such as Facebook, to befriend citizens whom you
have encountered during traffic stops. These attempts have the appearance of impropriety and
reflect negatively on the Highway Patrol. Any future instance of this conduct is prohibited and
reoccurrence may result in disciplinary action.” (ECF No. 22-1). This warning is not comparable
to the Last Chance Agreement for a number of reasons: First, it was issued after unsubstantiated
conduct. Second, it does not prescribe a disciplinary measure for a subsequent infraction:
whereas the Last Chance Agreement provides that “[if] the Employee violates Rule 4501:2-602(I)(3) Conduct Unbecoming an Officer, the Employee will be terminated” (ECF No. 17-1 at
145 (emphasis added), this warning uses “may” to connote a future possibility. Nor does it
explicitly bind the parties, as the Last Chance Agreement did. In short, the informal warning
11
David Johnson received and the Last Chance Agreement under which Plaintiff operated are such
different beasts that they provide no basis to conclude that the two Troopers should have
received similar discipline on the second alleged infraction.
Moreover, in order to demonstrate that the two Troopers’ actions are comparable,
Plaintiff must demonstrate that the incidents were of “comparable seriousness.” Jackson v. VHS
Detroit Receiving Hosp., Inc., 814 F.3d 769, 778 (6th Cir. 2016) (quoting Mitchell, 964 F.2d at
583).
The conduct David Johnson engaged in, while highly inappropriate and inarguably
corrosive of the trust the public affords to law enforcement officers, was not nearly as severe as
Plaintiff’s, in large part because Plaintiff’s infractions occurred while he was on duty, while the
women he spoke to were detained, and while he carried with him all of the accoutrements of
state power and its accompanying capacity for violence: a badge, a patrol car, handcuffs, and a
gun. A person detained is a person coerced. This principle animated the Supreme Court’s
decision in Miranda when it recognized that the Fifth Amendment privilege protected
individuals from self-incrimination “in all setting in which their freedom of action is curtailed in
any significant way” because “the process of in-custody interrogation of persons suspected or
accused of crime contains inherently compelling pressures which work to undermine the
individual’s will to resist and to compel [her] to speak where [she] would not otherwise do so
freely.” Miranda v. Arizona, 384 U.S. 436, 467 (1966). This is not only true of detentions in
which a law enforcement officer seeks to extract incriminating information from a detained
person; it is also true when a law enforcement officer seeks to extract personal favor, such as
friendship or romance, from a detained person. To put it succinctly: these interactions are not
consensual. And that concern is only amplified when the detained person is also intoxicated, as
were the women in Plaintiff’s case.
12
Of course, to send a Facebook friend request to a previously-detained woman is grossly
at odds with the professed mission of the Ohio State Highway Patrol to “protect life and
property, promote traffic safety and provide professional public safety services with respect,
compassion, and unbiased professionalism.” 4 But David Johnson’s romantic overture to Ms.
Edwards was not comparable in the sense that his on-duty behavior was limited to comparing her
to an attractive actress. It goes without saying that the comparison alone may have been
uncomfortable for Ms. Edwards: absolutely nothing suggests she invited an officer of the state to
comment on her appearance. But the behavior for which he was actually disciplined – the
Facebook friending – took place when David Johnson was off-duty. Thus, David Johnson’s
conduct lacks some of the hallmarks of coercion that are so troubling in Plaintiff’s case. To wit,
Plaintiff attempted to consort with two women while he was actively on duty and while they
were not free to leave his presence. In one case, he offered to take a detained woman to a Waffle
House – a woman whom he suspected of being so intoxicated that she could not lawfully operate
a vehicle. He stopped her again without probable cause, offered to take her to a restaurant and to
meet up with her at a casino, and gave her his personal number, asking her to conceal it from her
ex-husband and others. In another, he stopped a woman who was, again, so intoxicated that she
could not operate a vehicle, handcuffed her, took her to her house despite the fact that she had
contacted another person to pick her up, lingered for at least 30 minutes, and then texted her
from his personal phone, in violation of State Highway Patrol policy, in a manner that was, at
best, indecorous.
Against this backdrop, it was eminently reasonable for the State to treat Plaintiff’s actions
with the gravity they deserved: he was afforded one last chance, he agreed that if he violated the
4
Our Mission, OHIO STATE HIGHWAY PATROL, https://www.statepatrol.ohio.gov/about.aspx (last
visited October 23, 2018).
13
Last Chance Agreement he would be terminated, he violated the agreement, and he was
terminated. Plaintiff cannot establish a reasonable inference of discriminatory motive because he
was treated more severely than David Johnson based on “more egregious circumstances.”
Clayton v. Meijer, Inc., 281 F.3d 605, 612 (6th Cir.2002).
To be sure, David Johnson’s record – other than the two Facebook incidents, one of
which was verified and the other was not – was far from spotless: he also had previously been
disciplined for unprofessional behavior, including a 3-day suspension in 2012 after he failed to
administer aid to a female passenger suffering from cardiac arrest in a car that he pulled over,
and a 2014 incident in which he improperly detained an individual without a search warrant and
was issued a written reprimand. (ECF No. 24). But these infractions are not analogous to
Plaintiff’s. Because this conduct is not substantially identical in “all of the relevant aspects” it is
not evidence the Court may use in comparing disciplinary measures.
See Ercegovich v.
Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998). Moreover, it is evidently the
policy of the Ohio State Highway Patrol that discipline only stays on a Trooper’s record for two
years, and pursuant to the Trooper collective bargaining agreement, the Department of Public
Safety may not consider behavior that is not reflected in a Trooper’s record.
Thus, the
Department would not have considered incidents that occurred before March 2014 in fashioning
sanctions against David Johnson.
Finally, Mitchell advises that to be deemed “similarly-situated,” comparator individuals
must have “dealt with the same supervisor.” Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th
Cir. 1992).
Subsequent case law in the Sixth Circuit clarified that the “same supervisor”
requirement “does not automatically apply in every employment discrimination case,” Bobo v.
United Parcel Serv., Inc., 655 F.3d 741, 751 (quoting McMillan v. Castro, 405 F.3d 405, 414
14
(6th Cir. 2005), and that it is not an “inflexible requirement.” Id. (quoting Seay v. Tenn. Valley
Auth., 339 F.3d 454, 479-80 (6th Cir. 2003)). Here, it informs the Court’s analysis that Plaintiff
and David Johnson never had the same direct supervisor because it is relevant to the ultimate
question – namely whether “the plaintiff was the victim of intentional discrimination.” Id.
(quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 153 (2000). Plaintiff argues
that David Johnson is a relevant comparator despite this dissimilarity because his initial incident
was investigated by Terrill Barnes and resulted, through Director Montgomery’s ratification, in a
Last Chance Agreement, whereas David Johnson’s second infraction was investigated by Terrill
Barnes and resulted, through Director Montgomery’s ratification, in a one-day suspension. But
this argument is unavailing, for the reasons addressed above: the quantum of misbehavior is
radically different, so one would naturally expect a radically different disciplinary outcome.
Here, because the Troopers dealt with different supervisors, were subject to different standards,
and engaged in conduct with differing levels of egregiousness, no rational jury could determine
that the two Troopers were similarly-situated for the purposes of the McDonnell-Douglas
framework. See Peltier v. United States, 388 F.3d 984, 987 (6th Cir. 2004).
IV.
CONCLUSION
The Court GRANTS the Motion for Summary Judgment (ECF No. 27). This case is
hereby DISMISSED.
IT IS SO ORDERED.
s/Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
DATED: November 9, 2018
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