O'Donnell v. City of Cleveland

148 F.Supp.3d 621

Erin O'Donnell, et al., Plaintiffs,

v.City of Cleveland, et al., Defendants.

CASE NO. 1:14–CV–2612

United States District Court, N.D. Ohio.

Signed December 8, 2015

Jonathan E. Rosenbaum, Elyria, OH, for Plaintiffs.

William M. Menzalora, Aikaterini Houston, Annette G. Butler, Shawn M. Mallamad, City of Cleveland, Alejandro V. Cortes, Cleveland, OH, for Defendants.

OPINION & ORDER

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”).¹

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.² For the reasons that follow, the Court GRANTS Defendants' motion for summary judgment.

I. Factual Background

A) November 29, 2012 police pursuit and shooting death of Timothy Russell and Malissa Williams

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.³ It understates to say that the 62 police car chase resulted in widespread publicity and criticism.

Other police officers began pursuing the Russell vehicle after hearing a loud sudden noise they believed could have been gunshots fired from the vehicle. A backfiring car engine likely caused the noise. No firearm casings were found in Russell's vehicle or at the location where “shots” were heard. No firearm was ever found in Russell's vehicle. No discarded firearm was ever found along the chase route.⁴

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.⁵

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.⁶

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.⁷

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.

B) Restricted duty assignment following the November 29, 2012 police killing of Timothy Russell and Malissa Williams

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.⁸ Feeling aggrieved that they lost overtime pay and outside guard employment after Russell and Williams were killed, Plaintiffs sue. Plaintiffs say they were discriminatorily assigned to longer periods of restricted duty because they are not black.

Before the November 29, 2012, Russell and Williams shootings, the Division of Police's Use of Deadly Force Investigative Team (“UDFIT”) typically investigated use of deadly force incidents. However, at the request of the City of East Cleveland, the Ohio Bureau of Criminal Investigation (“BCI”) investigated the November 29, 2012 incident.⁹

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.¹⁰ McGrath testified that he did not want Plaintiffs involved in street patrol that might involve Plaintiffs in another use of deadly force incident.¹¹

Plaintiffs were ordered to the “gymnasium,” an assignment that is referred to as a type of “Restricted Duty.”¹² While on restricted duty, officers cannot work overtime, cannot work secondary outside employment, and cannot get paid for court appearances.

Then Police Chief McGrath put Plaintiffs on restricted duty status near December 3, 2012.¹³ In February 2013, BCI released its investigative report. The County Prosecutor then began his review. On June 3, 2013 all of the Plaintiffs returned to full duty except for Plaintiff Rinkus who returned on July 1, 2013. Plaintiffs remained on full duty until October 24, 2013 when then Police Chief McGrath returned them to restricted duty.¹⁴

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.¹⁵ Chief McGrath testified that when he learned Plaintiffs had been placed in full-duty front-line positions, he ordered that they return to transitional and restricted duty.¹⁶

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.¹⁷

II. Legal Standard

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.’ ”¹⁸ The moving party must first demonstrate that there is an absence of a genuine dispute as to a material fact entitling it to judgment.¹⁹ Once the moving party has done so, the non-moving party must set forth specific facts in the record—not its allegations or denials in pleadings—showing a triable issue.²⁰ The Court views the facts and all reasonable inferences from those facts in favor of the non-moving party.²¹ The existence of some doubt as to the material facts is insufficient to defeat a motion for summary judgment.²² The moving party's initial burden does not require it to produce evidence showing the absence of a genuine issue of material fact; rather, “the burden on the moving party may be discharged by ‘showing’—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party's case.”²³ Furthermore, the court is not required “to search the entire record to establish that it is bereft of a genuine issue of material fact.”²⁴ Rather, the burden falls on the non-moving party to designate specific facts or evidence in dispute.²⁵

III. Discussion

A. Reverse Discrimination Claim

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.

1. Defendants' argument that Plaintiffs failed to exhaust administrative remedies

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.²⁶ Responding, Plaintiffs admit that they did not file any EEOC charges and acknowledge that this failure to file a charge with the EEOC stops their federal Title VII claim. While acknowledging that their Title VII claim has been forfeited, Plaintiffs say they can nevertheless bring similar claims under Ohio R.C. § 4112.02 and under 42 U.S.C. § 1981.

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.”²⁷ Because § 1983 is the exclusive mechanism to vindicate violations of § 1981, a § 1981 claim companion to a §...