Franko v. City of Cleveland, Case No. 1:07CV547.

• Decision Date: 16 July 2009
• Docket Number: Case No. 1:07CV547.
• Parties: John Timothy FRANKO, Plaintiff, v. CITY OF CLEVELAND, Defendant.
• Court: U.S. District Court — Northern District of Ohio

654 F.Supp.2d 711

John Timothy FRANKO, Plaintiff, v. CITY OF CLEVELAND, Defendant.

Case No. 1:07CV547.

United States District Court, N.D. Ohio, Eastern Division.

July 16, 2009.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

W. Craig Bashein, John P. Hurst, Bashein & Bashein, Patrick A. D'Angelo, Paul W. Flowers, Cleveland, OH, for Plaintiff.

Ernest L. Wilkerson, Jr., Kathryn M. Miley, Wilkerson & Associates, Cleveland, OH, for Defendant.

OPINION AND ORDER

CHRISTOPHER A. BOYKO, District Judge:

This matter comes before the Court upon the Motion (ECF DKT #51) for Summary Judgment of the City of Cleveland and the Plaintiff's Motion (ECF DKT #57) for Summary Judgment. For the following reasons, the Motion of Defendant City of Cleveland is granted in part and denied in part; and Plaintiff's Motion is denied.

I. FACTUAL BACKGROUND

Plaintiff, John Timothy Franko ("Franko"), is a Cleveland police officer who was involved in an incident on September 30, 2005, which resulted in the fatal shooting of an African-American suspect, Laray Renshaw.

Due to an increase in incidents involving the use of deadly force, and responding to public and media concerns, the United States Department of Justice ("DOJ"), in approximately 1999, began a review of such incidents and departmental policies and procedures in the City of Cleveland. The combined effort and dialogue among the City, the DOJ, and the representatives of the police officers' unions culminated in a Policy for the Use of Deadly Force Investigation Team ("UDFIT") which went into effect in early March, 2005.

Pursuant to the Policy, officers involved in UDF incidents are assigned to gym detail until they are cleared to return to work by both the medical doctor and the department psychologist. In this way, the officers are afforded time to recover, mentally and physically, before returning to active duty; and are separated from the general public while the investigation is conducted. After the doctors clear the officers to return to duty, they are assigned to restricted duty until the Chief Prosecutor issues a ruling.

Plaintiff alleges the Policy, as he understood it when he became a Cleveland police officer, called for a forty-five-day "cooling off" period in the gym after a shooting. Defendant maintains a forty-five-day gym assignment may have been a goal; but was never official policy.

After the shooting on September 30, 2005, Franko reported to the gym on October 19, 2005. He was not cleared by the medical team until February 1, 2006. On February 13, 2006, Franko was assigned to restricted duty—answering phones and filing in the Traffic Unit. After several weeks, Franko expressed discontent with this restricted duty and he was returned to the gym. Franko also took a month of sick leave during this time frame. On May 15, 2006, the Police Chief returned Franko to unrestricted duty at the Sixth District, since the Chief had no reason to believe there would be a negative decision from the Prosecutor. On June 6, 2006, Special Counsel, C. Ellen Connelly, announced a finding that Franko had used justifiable force in the shooting of Laray Renshaw. Although no criminal charges were ever filed or pursued against him, Franko was not returned to active duty until approximately eight months after the shooting incident.

Count I of the Complaint alleges reverse race discrimination in violation of 42 U.S.C. § 1981, 42 U.S.C. § 2000e-2(a)(1) (Title VII), and R.C. § 4112.02(A). Specifically, Franko alleges he was disciplined more harshly than if he were an African-American officer. Count II alleges Franko was knowingly and purposely deprived of established rights, privileges, and immunities secured by the United States Constitution, in violation of 42 U.S.C. § 1983, by virtue of the municipality's longstanding policies and customs. Count III alleges breach of employment contract, implied and express, under state law. Franko alleges he was subjected to a form of "unofficial punishment" and was denied opportunities for overtime, secondary employment, and special assignments.

The City contends Franko cannot prove his discrimination claims as a matter of law. In part, Plaintiff Franko argues that, following the verdict in Edward P. Lentz v. The City of Cleveland, No. 1:04CV669, 2007 WL 4730884 (N.D.Ohio, January 30, 2007), principles of collateral estoppel preclude Defendant City of Cleveland from denying the existence of discriminatory policies and practices.

The City points out that Franko did not file a timely charge with the Equal Employment Opportunities Commission or the Ohio Civil Rights Commission; and thus, he is precluded from pursuing a Title VII action. United Air Lines, Inc. v. Evans, 431 U.S. 553, 555 n. 4, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977). Franko admits that impediment; but asserts discrimination claims brought under § 1981 and R.C. § 4112.02 are analyzed under the same evidentiary framework as Title VII claims, yet do not require exhaustion of administrative remedies. Patterson v. McLean Credit Union, 491 U.S. 164, 181, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989); Carney v. Cleveland Hts.-Univ. Hts. City Sch. Dist., 143 Ohio App.3d 415, 426-427, 758 N.E.2d 234 (8th Dist.2001). The Title VII claim brought in Count I of Franko's Complaint is dismissed for failure to exhaust administrative remedies. His § 1981 and R.C. § 4112.02 claims under Count I remain.

In response to the City's Motion for Summary Judgment, Franko voluntarily abandoned the state law breach of contract claims comprising Count III of his Complaint. (ECF DKT # 60, p. 15).

II. LAW AND ANALYSIS

Standard of Review

Summary judgment is proper "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); accord Int'l Union v. Cummins, Inc., 434 F.3d 478, 483 (6th Cir.2006); Turner v. City of Taylor, 412 F.3d 629, 637 (6th Cir.2005). The initial burden to demonstrate the absence of a genuine issue of material fact rests with the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "When a motion for summary judgment is properly made and supported" the initial burden shifts to the opposing party, who "may not rely merely on allegations or denials in its own pleading; rather, its response must—by affidavits or as otherwise provided in this rule—set out specific facts showing a genuine issue for trial." Fed.R.Civ.P. 56(e)(2).

The "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original); accord Leadbetter v. Gilley, 385 F.3d 683, 689-90 (6th Cir.2004); Weaver v. Shadoan, 340 F.3d 398, 405 (6th Cir.2003). A fact is material only if its resolution "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

When deciding a motion for summary judgment, the court must view the evidence and draw all reasonable inferences in favor of the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Ciminillo v. Streicher, 434 F.3d 461, 464 (6th Cir.2006); Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir. 2005). "Thus, any direct evidence offered by the plaintiff in response to a summary judgment motion must be accepted as true." Muhammad v. Close, 379 F.3d 413, 416 (6th Cir.2004). However, summary judgment should be granted if the party bearing the burden of proof at trial does not establish an essential element of its case. Tolton v. American Biodyne, Inc., 48 F.3d 937, 941 (6th Cir.1995) (citing Celotex, 477 U.S. 317, 106 S.Ct. 2548). Furthermore, the court is not required "to search the entire record to establish that it is bereft of a genuine issue of material fact." Betkerur v. Aultman Hosp. Ass'n., 78 F.3d 1079, 1087 (6th Cir.1996). Rather, the burden falls on the non-moving party to designate specific facts or evidence in dispute. Anderson, 477 U.S. at 249-250, 106 S.Ct. 2505.

Reverse Race Discrimination

42 U.S.C. § 1981 prohibits intentional race discrimination in the making and enforcing of contracts with public and private actors. Section 101 of the Civil Rights Act of 1991, Pub. Law No. 102-166, 105 Stat. 1071 (1991), expands the scope of § 1981 to encompass racial discrimination during the entire scope of the contractual relationship, including discrimination in the workplace, and is applied prospectively only. Rivers v. Roadway Express, Inc., 511 U.S. 298, 313, 114 S.Ct. 1510, 128 L.Ed.2d 274 (1994). Section 102 of the Act allows for compensatory and punitive damages as well as for the right to a jury trial for such claims.

Section 1981 claims are examined under the same analytical framework applicable to Title VII claims. Christian v. Wal-Mart Stores, Inc., 252 F.3d 862, 868 (6th Cir.2001). A plaintiff can prove a case of reverse discrimination by (1) offering direct evidence that race was a substantial factor in the employment decision, or by (2) offering circumstantial evidence of discrimination. Weberg v. Franks, 229 F.3d 514, 522-23 (6th Cir.2000). "Direct evidence is that evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer's actions." Id. at 522. (internal quotations omitted). If the plaintiff presents direct evidence of discrimination, the burden of persuasion shifts to the defendant to show that it would have taken the adverse employment action absent any discriminatory motive. Id.

In the alternative, the plaintiff can offer circumstantial evidence of discrimination using the McDonnell Douglas...