O'Donnell v. City of Cleveland

• Decision Date: 23 September 2016
• Docket Number: No. 15-4398,15-4398
• Citation: 838 F.3d 718
• Parties: Erin O'Donnell; Wilfredo Diaz ; Christopher Ereg; Michael Farley ; Cynthia Moore; Michael Rinkus; William Salupo; Brian Sabolik; Scott Sistek, Plaintiffs-Appellants, v. City of Cleveland, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

838 F.3d 718

Erin O'Donnell; Wilfredo Diaz ; Christopher Ereg; Michael Farley ; Cynthia Moore; Michael Rinkus; William Salupo; Brian Sabolik; Scott Sistek, Plaintiffs-Appellants,

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

No. 15-4398

United States Court of Appeals, Sixth Circuit.

Argued: August 3, 2016

Decided and Filed: September 23, 2016

Rehearing En Banc Denied October 28, 2016^*

ARGUED: Jonathan E. Rosenbaum, Elyria, Ohio, for Appellants. Aikaterini Houston, City of Cleveland, Cleveland, Ohio, for Appellees. ON BRIEF: Jonathan E. Rosenbaum, Elyria, Ohio, for Appellants. Aikaterini Houston, City of Cleveland, Cleveland, Ohio, for Appellees.

Before: SUTTON, GRIFFIN, and DONALD, Circuit Judges.

OPINION

BERNICE BOUIE DONALD, Circuit Judge.

In November 2012, thirteen police officers—twelve Caucasian and one Hispanic—engaged in a high-speed car chase in Cleveland, Ohio. When the car finally came to a stop, the officers fired 139 bullets into the vehicle, killing the two African American suspects inside. The public outcry was deafening; the event's racial underpinnings spawned extensive media coverage, and the community demanded resignations and answers. The officers involved in the traumatic incident were subsequently assigned to restricted duty pursuant to departmental policy. Nine of those officers are the Plaintiffs in this case. The Plaintiffs assert that, as a result of the racial implications and community response to this particular deadly force incident, they were assigned to restricted duty for a longer period of time than their African American colleagues who have also been involved in deadly force incidents with African American suspects.

United States Supreme Court Justice Thurgood Marshall once wrote, “History teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure.” Skinner v. Railway Labor Executives' Ass'n , 489 U.S. 602, 635, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (Marshall, J., dissenting). The Plaintiffs essentially claim that in a time of urgency, the City of Cleveland determined that the Plaintiffs' liberties were too extravagant to endure. While we should heed history's lesson about protecting civil liberties in times of crisis, history alone is not evidence of civil rights violations. Plaintiffs must still meet minimum requirements under the law to survive summary judgment. See Zambetti v. Cuyahoga Cmty. College , 314 F.3d 249, 255–56 (6th Cir. 2002) (articulating the modified McDonnell Douglas standard). Because the Plaintiffs have not met those requirements, we AFFIRM the district court's grant of summary judgment in favor of the Defendants.

I.

A. The Traumatic Event

On November 29, 2012, a vehicle sped by Cleveland Police Officers Vasile Nan and Alan Almeida and emitted a loud bang. Thinking that it was a gunshot, the officers and members of the public took cover as the vehicle continued along the highway. Officer Nan attempted to ascertain the vehicle's location, radioed the events to his dispatcher, and indicated that he was shot at by two African American men in a vehicle.

Shortly after this encounter, and the radio dispatch, nearby officers began to respond to the dispatcher's call. Two officers attempted a traffic stop of the vehicle, but it did not stop. The subsequent pursuit lasted about twenty-five minutes, reached speeds of over 100 miles per hour, involved 62 marked and unmarked police vehicles from numerous governmental entities, and ended in a middle school parking lot. With the suspects' car finally contained, Officer Wilfredo Diaz exited his vehicle and instructed the driver to “stop.” Diaz believed he saw the passenger reach for a gun. In response, Diaz fired his weapon at the vehicle and its occupants multiple times. The suspects' vehicle then accelerated towards Diaz, and he continued to discharge his weapon. Other officers correspondingly discharged their weapons. In total, thirteen officers fired 139 shots at and into the vehicle. Its occupants, Timothy Russell and Malissa Williams, were killed in the barrage of shots.

B. The Aftermath

The East Cleveland Police Department took responsibility for the initial investigation, but the Ohio Bureau of Criminal Investigation (“BCI”) eventually became the lead investigative body. The media started reporting the story, framing it as twelve Caucasian officers and one Hispanic officer shooting and killing two unarmed African American suspects after a high-speed car chase. The community response was significant, and several people sought Chief of Police Michael McGrath's and Director of Public Safety Martin Flask's resignation, as well as those of the officers involved.

After the shooting, the officer Plaintiffs—Erin O'Donnell, Diaz, Christopher Ereg, Michael Farley, Cynthia Moore, Michael Rinkus, William Salupo, Brian Sabolik, and Scott Sistek—were subject to the City of Cleveland's police department policy entitled Post Traumatic Incident Protocol (“PTIP”). The PTIP requires officers involved in deadly force incidents to be assigned to restricted duty status, which is colloquially referred to as being assigned to the “Gymnasium.” Officers are assigned to the Gymnasium for a period of forty-five days by default to “facilitate” return to full duty as healthy, productive employees.” R. 54-13, PageID #666–68. Being assigned to restricted duty limits an officer's contact with the public and prevents him from earning overtime pay, earning pay for court appearances, and engaging in outside employment. It also can cause stress and has been characterized as a “demeaning process,” as “an officer who entered law enforcement to provide a service to the citizens of a community is given a do-nothing assignment that provides no value to the citizens who the officers took an oath to serve.” R. 54-22, PageID #724.

Once the forty-five day period is over, the PTIP allows the Chief of Police to extend the period “[a]t the request of the [officer] and/or the recommendation of the Division's Stress Consultant.” R. 54-13, #667. To return to full duty, the officer must be cleared by the Division's Stress Consultant, an outside mental health professional, as well as the Medical Director. After an officer is cleared to return to full duty, the Chief of Police then has the discretion to determine the officer's assignment, “which may consist of a detail to a transitional non-sensitive position for up to 90 days.” Id. The PTIP indicates that each incident will be reviewed individually.

Police Chief McGrath assigned the Plaintiffs to restricted duty on December 3, 2012, in compliance with the forty-five-day cooling-off period. On February 5, 2013, the BCI released its report to the county prosecutor, who then began his review. Before the county prosecutor finished his review, on June 3, 2013, McGrath issued a written order, indicating that the Plaintiffs were to return to full duty (except Rinkus, who returned to full duty on July 1, 2013). At the same time, he asserts that he issued a verbal instruction to his command staff that the Plaintiffs were to only be assigned non-sensitive positions, or transitional duties. In October 2013, McGrath discovered that the Plaintiffs had returned to full duty, in violation of his verbal instructions. When he discovered this error, McGrath once again ordered the Plaintiffs assigned to traditional duty. In May 2014, the state grand jury declined to issue criminal charges against any of the Plaintiffs, and on June 13, 2014, the new Police Chief, Calvin Williams, ordered the Plaintiffs to return to full duty.

C. The Court Case

The Plaintiffs filed suit against the City of Cleveland, Michael McGrath (both in his individual and official capacities), Martin Flask (both in his individual and official capacities), Calvin Williams (both in his individual and official capacities), and Frank G. Jackson (in his official capacity) (collectively, the “Defendants”) on November 28, 2014. Count I of the Complaint alleges that the Defendants discriminated against the Plaintiffs in violation of 42 U.S.C. § 1981, 42 U.S.C. § 2000e-2 (Title VII of the Civil Rights Act), and Ohio Rev. Code § 4112.02(A). Count II alleges a violation of constitutional rights pursuant to 42 U.S.C. § 1983. Finally, Count III alleges a breach of contract claim. The Plaintiffs' theory of the case was that there was a policy in place that addressed officers involved in traumatic events. That policy, they assert, was to relegate those officers to the Gymnasium for a set period of time—namely, forty-five days. The Plaintiffs contend that McGrath relegated them to the Gymnasium and/or restricted duty for a longer period of time than established in policy because they were Caucasian officers involved in a traumatic event with African American suspects, which caused political problems for the mayor, the safety director, and the chief of police.

The district court ultimately granted summary judgment in favor of the Defendants.

On appeal, the Plaintiffs assert numerous arguments.¹ They claim that the district court failed to properly construe facts in their favor in violation of the summary judgment standard; that the district court erred in granting the Defendants' summary judgment on the state law discrimination claim; that the district court erred in dismissing and denying their 42 U.S.C. §§ 1981 and 1983 claims; and that the district court erred in dismissing the Plaintiffs' breach of contract claim for failure to exhaust contractual remedies. We review each in turn.

II.

First, the Plaintiffs claim that the district court wrongfully construed two facts in favor of the Defendants, in violation of the summary judgment standard.² “In ruling upon a Rule 56 motion, ‘a District Court must resolve any factual issues of controversy in favor of the nonmoving party’ only in the sense that, where the facts specifically averred by that party contradict facts specifically averred by the movant, the motion must be...