519 F.3d 587 (6th Cir. 2008), 07-5230, Arendale v. City of Memphis

Docket Nº:07-5230.
Citation:519 F.3d 587
Party Name:Michael J. ARENDALE, Plaintiff-Appellant, v. CITY OF MEMPHIS, Defendant-Appellee.
Case Date:March 20, 2008
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 587

519 F.3d 587 (6th Cir. 2008)

Michael J. ARENDALE, Plaintiff-Appellant,

v.

CITY OF MEMPHIS, Defendant-Appellee.

No. 07-5230.

United States Court of Appeals, Sixth Circuit.

March 20, 2008

Argued and Submitted: Jan. 29, 2008.

Appeal from the United States District Court for the Western District of Tennessee at Memphis. No. 05-02190-J. Daniel Breen, District Judge.

Page 588

[Copyrighted Material Omitted]

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ARGUED:

Amber Isom-Thompson, Kiesewetter, Wise, Kaplan & Prather, Memphis, Tennessee, for Appellee.

ON BRIEF:

James Edward King, Jr., Eskins King, Memphis, Tennessee, for Appellant.

Amber Isom-Thompson, Robert D. Meyers, Kiesewetter, Wise, Kaplan & Prather, Memphis, Tennessee, for Appellee.

Before: SILER, CLAY, and COOK, Circuit Judges.

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CLAY, J., delivered the opinion of the court in which SILER, J., joined. COOK, J. (p. 607), delivered a separate opinion concurring in part and concurring in the judgment.

OPINION

CLAY, Circuit Judge.

Plaintiff Michael Arendale is a white police officer employed by the Memphis Police Department. He appeals the district court's grant of summary judgment in favor of Defendant City of Memphis ("The City") in this civil rights suit brought under 42 U.S.C. §§ 1981 and 1983, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Tennessee Human Rights Act ("THRA"), Tenn. Code Ann. § 4-21-101 et seq.For the reasons that follow, the district court's decision granting summary judgment in favor of the City is AFFIRMED.

STATEMENT OF FACTS

Plaintiff Michael Arendale is a self-described "White American citizen" who has been an officer with the Memphis Police Department ("MPD") since 1990. (J.A. 17-18) He alleges that he was given less desirable assignments than his African-American colleagues, that ill-treatment of him by an African-American supervisor created a hostile work environment, that he was illegally suspended from work after an altercation with that same supervisor, and that he was retaliated against after he filed a charge with the EEOC.

In August 2002, after more than twelve years working in the MPD's North Precinct, Plaintiff sought a transfer to the Northeast Precinct, which he believed to be a "better work location" because "[t]he demographic area was a lot better." (J.A. 29, 49) Plaintiff was granted the transfer, and was assigned to the 7 a.m. to 3 p.m. shift. At the time relevant to this case, Plaintiff was supervised by Lieutenant Andre Cox, who is African-American. Also during this time, the Northeast Precinct's acting commander was Major Danny Cooper, and the Deputy Chief of the MPD was M.J. Wright. Both Major Cooper and Chief Wright are white.

A. Arendale's Assignments

Upon arriving at the Northeast Precinct, Plaintiff's first assignment was the "extra board." Extra board officers do not have continuing responsibility for a specific geographic area or "ward," but instead are assigned to fill in for officers who call in sick or who are otherwise unable to patrol their assigned wards. Although Plaintiff admitted in a deposition that new officers in a precinct are typically assigned to the extra board so that they can "become familiar with the entire precinct," he also testified that he was assigned to the extra board for three months, which he believes is an "abnormally long amount of time" for a veteran officer to have this assignment. (J.A. 293, 295) According to testimony by Major Cooper, an officer's assignment to a ward or the extra board is normally determined by the officer's lieutenant, although the lieutenant's commander might occasionally intervene if the commander "saw a problem." (J.A. 432)

Plaintiff was eventually assigned to Ward 828, a ward he believes is "one of the better and less stressful wards in the Northeast Precinct." (Plaintiff's Br. at 4) On May 8, 2003, however, Plaintiff was reassigned to Ward 822.1 According to

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Plaintiff, he was informed by Lieutenant Cox that the decision to reassign him came from a meeting of precinct command officers, and was made because they believed "crime was running rampant in 828 and [Plaintiff] wasn't doing anything to curtail it ...." (J.A. 304) This testimony was corroborated by that of Major Cooper, who said that he personally made the decision to move Plaintiff out of Ward 828 due to a large number of complaints from ward residents that the officers in that ward were not sufficiently attentive to their duties.

B. Alleged Harassment

Plaintiff also alleges that various altercations between himself and Lieutenant Cox amounted to racially motivated harassment. According to Plaintiff, Lieutenant Cox would often call Plaintiff into his office and criticize him for incorrectly completing accident reports. Plaintiff testified that at least once a week, Cox would "berate me about my ability to write a report that I had been doing for 12, 13 years." (J.A. 63-64) Plaintiff also claimed that Cox treated other white officers in the same way, but that black officers did not receive this treatment. When asked how he knew that Cox's criticism was limited to white officers, however, Plaintiff admitted that it was "[j]ust my observation." (J.A. 64)

In his deposition, Lieutenant Cox testified that at the time he was working at the Northeast Precinct, the MPD had recently changed the format of its offense reports, and that "numerous officers" had problems complying with the new forms. (J.A. 86-87) Cox further testified that, to ensure compliance with federal reporting regulations, the MPD put pressure on lieutenants to ensure that the forms were completed correctly, and even threatened consequences to lieutenants whose subordinates did not comply. As a relatively junior lieutenant, Cox testified that he was particularly concerned that he could face disciplinary charges for non-compliance. Lieutenant Cox added that several officers, both white and African-American, had complained about his insistence that the reports be filled out correctly, and he named three black officers who had lodged such complaints. No testimony or other statements from these officers appear in the record.

In addition to his claims that Lieutenant Cox harassed him by criticizing his accident reports, Plaintiff also alleges that two additional incidents constituted racially motivated harassment. In June of 2003, Plaintiff claims, he was called into Cox's office and accused of leaving a crime scene unattended, when in fact it was a different officer who had left the crime scene.2 Plaintiff admits, however, that after he told Lieutenant Cox that Cox was accusing the wrong officer, Cox eventually left the office, verified Plaintiff's statement and admitted that Plaintiff was correct. While Plaintiff adds that Cox then "just started on something else berating me and telling me I handled that all wrong," Plaintiff does not explain the subject of this new accusation. (J.A. 310)

Additionally, Plaintiff alleges he was harassed by Lieutenant Cox after an incident involving a different crime scene. According to Plaintiff, he and his partner arrived at the scene of an attempted aggravated robbery and discovered a knife which had been used in the crime. Both men stood by the knife to guard it. Although Cox said nothing to either officer upon his arrival at the crime scene, Plaintiff says that the next day Lieutenant Cox "began berating me about standing at the crime scene,

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looking at a knife and that [sic] it did not take two officers to watch the knife." (J.A. 775)

On February 4, 2004, Plaintiff was reassigned to the extra board. Shortly thereafter, on February 20, 2004, he filed a charge with the EEOC alleging both race and age discrimination against Lieutenant Cox.

C. Insubordination Charges

On April 15, 2004, Plaintiff was assigned to the front desk at the Northeast Precinct. As the desk officer, Plaintiff was required to follow a one page set of "desk procedures," which include a requirement that "officers working the desk . . . will be aware of who is at the location, whether it is visitors, or officers and will monitor any visitors and will not allow visitors in unauthorized areas." (J.A. 108) While at the desk, Plaintiff was approached by Charles Allred, who identified himself as a retired police officer and asked if he could look at some of the pictures on the precinct walls. In Plaintiff's own words, the following exchange then occurred:

I caught some motion coming from my left side and I looked up and it was Lieutenant Cox coming. And he said in just a hostile manner, is that man down there with you? I said, no sir. He said, well, who is he? I said, he's a retired police officer, he's here to do a report and he asked if he could look at the pictures on the wall while I finished this report and I said okay. He said, has anybody ever told you about letting people go back there? I said, no, sir. I said he's a retired police officer. I said, you know, what's the big deal? [Lieutenant Cox said w]ell, I want you to write me a memo on what he is doing back there. Well, at that specific moment, that was about the most ridiculous thing I have ever heard in my life, and I am on the phone trying to take a report. I said, Lieutenant Cox . . . I don't have time to write you a memo for that.

(J.A. 330-331)

Lieutenant Cox relieved Plaintiff of duty, and Plaintiff was eventually sent home. While there is some dispute as to whether Plaintiff was sent home because he lacked the required equipment to be reassigned to the field, or because Major Cooper observed Plaintiff and believed he was too visibly angry to be entrusted with police work, three facts about this incident are undisputed. First, Lieutenant Cox told Plaintiff to write a memo. Second, Plaintiff expressly refused to do so. Third, Plaintiff did not bring his pistol belt to work, a violation of MPD regulations.

Lieutenant Cox charged Plaintiff with insubordination for...

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