Johnson v. Ohio Dep't of Pub. Safety

• Citation: 942 F.3d 329
• Decision Date: 13 November 2019
• Docket Number: No. 18-4181,18-4181
• Parties: Morris M. JOHNSON, Plaintiff-Appellant, v. OHIO DEPARTMENT OF PUBLIC SAFETY, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

942 F.3d 329

Morris M. JOHNSON, Plaintiff-Appellant,

v.OHIO DEPARTMENT OF PUBLIC SAFETY, Defendant-Appellee.

No. 18-4181

United States Court of Appeals, Sixth Circuit.

Decided and Filed: November 13, 2019

Rehearing En Banc Denied December 17, 2019^*

THAPAR, Circuit Judge.

The Ohio Department of Public Safety fired Trooper Morris Johnson after he sexually harassed multiple women while on duty. Judge Algenon Marbley, in a thoughtful and thorough opinion, explained why the Department did not racially discriminate against Morris Johnson in doing so. We adopt Judge Marbley’s reasoning in full and affirm.

Morris Johnson pulled over a woman for a DUI, arrested her, and asked her out. A month later, he saw the same woman on the road and pulled her over—without probable cause—so he could talk to her. He asked her out again, told her he "liked" her, and asked her to go to the casino with him so they could "play some games together." R. 17, Pg. ID 316, 318–19. He also gave the woman his personal cell number and told her to hide it in a secret location. When the Department learned this, it considered firing Morris Johnson. But it let him sign a "Last Chance Agreement," which said the Department would not fire him if he followed the rules for two years.

Only he didn’t follow the rules. Next, Morris Johnson pulled over another woman for a DUI. He arrested, searched, and handcuffed her. Then, he offered to take her home, even though she had texted someone to pick her up. On the ride home and for the rest of their encounter, he failed to turn on his in-car camera (a violation of Department policy). When he pulled into the woman’s driveway, he radioed the station saying he was leaving. Yet he didn’t leave. He stayed at the woman’s house for over thirty minutes . Without camera footage, we cannot know what happened in those thirty minutes. Later, Morris Johnson texted the same woman from his personal cell phone with the message, "Yo yo," and "[It’s] Me the person you hate." R. 17-1, Pg. ID 612. When the Department learned of this incident, it fired Morris Johnson for violating the Last Chance Agreement.

To make an initial case for racial discrimination, Morris Johnson must show that he was "similarly situated" "in all of the relevant respects" to an employee of a different race who was treated better. Gragg v. Somerset Tech. Coll. , 373 F.3d 763, 768 (6th Cir. 2004) ; Ercegovich v. Goodyear Tire & Rubber Co. , 154 F.3d 344, 352 (6th Cir. 1998) (cleaned up). We consider whether the employees: (1) engaged in the same conduct, (2) dealt with the same supervisor, and (3) were subject to the same standards. Mitchell v. Toledo Hosp ., 964 F.2d 577, 583 (6th Cir. 1992). Although other factors may also be relevant, depending on the facts of each case, Redlin v. Grosse Pointe Pub. Sch. Sys. , 921 F.3d 599, 610 (6th Cir. 2019), the Mitchell factors are generally relevant. Ercegovich , 154 F.3d at 352. Here, no one disputes that the conduct of the officers and the standards to which they were subject are the most relevant factors.

Morris Johnson, a black trooper, points to David Johnson, a white trooper who received a one-day suspension. No doubt, David Johnson also broke the rules. He may have sent someone he had detained a Facebook friend request after he got off duty (the report was unverified). Three years later, he made conversation with a woman after he issued her a citation, told her she resembled an actress, then later sent her a Facebook friend request and message saying he was thinking of a different actress.

So this case comes down to one question. Was Morris Johnson similarly situated to David Johnson in all relevant respects? That is, did the Department treat the two differently because of their race? As the district court explained, the answer is no. Morris Johnson and David Johnson are both troopers who acted inappropriately. And they happen to share the same last name. But the similarities end there. The Department disciplined the two troopers differently because their situations were different . Thus, Morris Johnson has failed to present a case for discrimination.

Consider each of the three factors. First, conduct. For one, David Johnson’s first incident of sending a Facebook friend request was unverified. Meanwhile the Department verified all of Morris Johnson’s incidents. But even accepting David Johnson’s unverified incident as true, their acts were not of "comparable seriousness." Jackson v. VHS Detroit Receiving Hosp., Inc. , 814 F.3d 769, 778 (6th Cir. 2016).

When it comes to comparable seriousness, it is the particular conduct of the officers, not broad generalizations, that counts. Drawn at too high a level of generality, the "comparable seriousness" test becomes meaningless. True, stitches and open-heart surgery

are both medical procedures. But that does not mean they are of "comparable seriousness." Same here.

Evaluating the officers’ conduct closely, the district court noted several differences. Here are the highlights:

• Morris Johnson harassed intoxicated women. David Johnson did not.

• Morris Johnson was on duty (wearing a uniform and carrying a sidearm) during his encounters. David Johnson was not.

• Morris Johnson harassed women while he detained them (so they were not free to leave). David Johnson did not.

• Morris Johnson propositioned a woman to go out with him. David Johnson did not.

• Morris Johnson pulled a woman over without probable cause to ask her out. David Johnson did not.

• Morris Johnson went to a woman’s home. David Johnson did not.

The list goes on. As the district court explained, it’s simple: "[T]he quantum of misbehavior is radically different, so one would naturally expect a radically different disciplinary outcome." R. 43, Pg. ID 2779.

What’s more, the other two Mitchell factors support this conclusion. The two troopers had different direct supervisors. See Redlin , 921 F.3d at 610 (noting that this factor is not an "inflexible requirement"). And they were subject to different standards. Morris Johnson signed a Last Chance Agreement after his first incident. He was on notice that the Department would fire him if he committed another violation. David Johnson received a warning that the Department may discipline him if he didn’t clean up his act. The district court described this as a "crucial distinction." R. 43, Pg. ID 2773.

***

In the end, we expect police departments to take immediate and swift action when officers abuse their power. The Department did so here. And, as Judge Marbley thoughtfully found, there was nothing discriminatory about that action. We affirm.

DISSENT

KAREN NELSON MOORE, Circuit Judge, dissenting.

The majority concludes that Johnson cannot make out a prima facie case of racial discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), because he cannot identify a comparator based on the three factors mentioned in Mitchell v. Toledo Hospital , 964 F.2d 577 (6th Cir. 1992). However, the majority neglects the flexible approach that we adopted in Ercegovich v. Goodyear Tire & Rubber Co. , 154 F.3d 344 (6th Cir. 1998), and misconstrues the nonmoving plaintiff’s burden at the prima facie stage of a discrimination claim at summary judgment, imposing too high burden upon Johnson. I conclude that Johnson has set forth a prima facie case of racial discrimination against the Ohio Department of Public Safety ("the Department"), when the evidence is construed in the light most favorable to Johnson, and so I would remand the case to the district court for further proceedings. Thus, I respectfully dissent.

When a plaintiff brings a discrimination claim based upon indirect evidence, as here, he must proceed under the McDonnell Douglas burden-shifting framework, first demonstrating a prima facie case of discrimination before the burden "shifts to the employer to offer a legitimate, non-discriminatory explanation for its actions," and then "back to the plaintiff to show pretext." Chattman v. Toho Tenax Am., Inc. , 686 F.3d 339, 347 (6th Cir. 2012) (quoting Chen v. Dow Chem. Co. , 580 F.3d 394, 400 (6th Cir. 2009) ). To make out a prima facie case, a plaintiff must show "that (1) he was a member of a protected class; (2) that he suffered an adverse employment action; (3) that he was qualified for the position; and (4) that a person outside the protected class was treated more favorably than him." Braithwaite v. Timken Co. , 258 F.3d 488, 493 (6th Cir. 2001) (citing Manzer v. Diamond Shamrock Chems. Co. , 29 F.3d 1078, 1081 (6th Cir. 1994) ). Only the fourth element is in dispute in this case.

The majority’s analysis restricts our precedent regarding comparators, or those that a plaintiff must identify as similarly situated to himself. For over twenty years, we have not applied Mitchell v. Toledo Hospital ’s "similarly situated in all respects" approach, 964 F.2d at 583, but rather we adhere to a similarly situated "in all relevant respects" approach for determining whether the plaintiff has provided an appropriate comparator to satisfy the fourth element of a prima facie case, Ercegovich , 154 F.3d at 353 (emphasis in original) (citations omitted). See also Redlin v. Grosse Pointe Pub. Sch. Sys. , 921 F.3d 599, 610 (6th Cir. 2019) (same). It is true that part of our analysis in Ercegovich noted that the three Mitchell factors—same supervisor, same standards, and same conduct—"generally are all relevant considerations" in determining whether a proposed comparator is in fact similarly situated. Ercegovich , 154 F.3d at 352. But what we said next belies the majority’s mechanical reliance on those factors: "Courts should not assume, however, that the specific factors discussed in Mitchell are relevant factors in cases arising under different circumstances, but should make an independent determination as to the relevancy of a particular aspect of the plaintiff’s employment status and that of the non-protected employee." Id. ; see also Redlin , 921 F.3d at 610 (quoting Erc...