Misane v. City of Bangor

• Decision Date: 10 April 2023
• Docket Number: 1:21-cv-487
• Parties: HOTHMAN MISANE, et al., Plaintiffs, v. CITY OF BANGOR, et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

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HOTHMAN MISANE, et al., Plaintiffs, v. CITY OF BANGOR, et al., Defendants.

No. 1:21-cv-487

United States District Court, W.D. Michigan, Southern Division

April 10, 2023

OPINION

HALA Y. JARBOU CHIEF UNITED STATES DISTRICT JUDGE

Plaintiffs Hothman Misane, Tyler Sleep, and Jerol Williams bring this civil rights action against Defendants Tommy Simpson, Scott Graham, Darren Williams,^[1] and the City of Bangor. Plaintiffs allege that all Defendants violated the Elliot-Larsen Civil Rights Act (“ELCRA”), the Michigan Whistleblower Protection Act (“WPA”), 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964. Plaintiffs also assert claims under 42 U.S.C. § 1983 against Simpson, Williams, and Graham for violating their First and Fourteenth Amendment rights. Finally, Plaintiffs bring a municipal liability claim against the City of Bangor. Before the Court are Graham and Williams's motion for summary judgment (ECF No. 52); the City of Bangor's motion for summary judgment (ECF No. 54); and Simpson's motion for summary judgment (ECF No. 56).

I. FACTUAL BACKGROUND

Misane Sleep, and Jerol were all employees of the Bangor Police Department (“BPD”) prior to their termination suspension and/or resignation. At the time of the events in question, Simpson was the City Manager and Chief of Police; Graham was the City Attorney; and Williams was the Mayor.

A. Misane

Misane began his employment with BPD in August of 2017 as a road patrol officer. (Misane Dep. 10, ECF No. 60-2.) Misane was promoted to sergeant in April of 2019 and “acting chief position as the sergeant” in July of 2020. (Id. at 11-12.) In this role, he assumed duties that a chief of police would be responsible for but maintained the title of sergeant instead of chief. (Id. at 11.) Misane became deputy chief in October of 2020, and in November of 2020, the City Council appointed him to chief of police. (Id. at 17-18.) Approximately three or four months later, Simpson gave Misane a choice to go back to deputy chief or sergeant, and he chose to go back to being a sergeant. (Id. 18, 22.) Misane is unsure whether Simpson or the City Council made the ultimate decision to demote him. (Id. at 22.) On March 12, 2021, Misane was terminated. (Misane Termination Letter, ECF No. 52-2.)

The Mendoza Case

In April 2019, Misane investigated a criminal sexual conduct case involving suspect Antonio Lee Mendoza and two minors. (Misane Dep. 23.) The victims were four and eight years old at the time of the alleged inappropriate sexual contact. (Graham Mem., ECF No. 52-4, PageID.465.) As part of his investigation, Misane conducted a series of interviews recorded on his body camera including with both victims and their family members. (Id.) One of the victims also journaled her thoughts as part of her therapy after the events in question and gave the original journal pages to Misane. (Id., PageID.466.)

On March 1, 2021, the prosecutor advised BPD of problems with the case because of missing evidence, including the body camera footage and the journal pages. (Id.) On March 5, 2021, Simpson and Sergeant Weber met with the elected prosecutor for Van Buren County and the assistant prosecuting attorney handling the Mendoza case. (Id., PageID.467.) The prosecutors informed them that they did not have the evidence necessary to go to trial and expressed their concern about Misane's investigation and report. (Id., PageID.467-468.) Misane uploaded the bodycam video but did not copy it to a disc-BPD policy is to copy all bodycam footage of evidentiary value to a disc. (Id., PageID.467; Misane Dep. 31.) Misane testified that he placed the victim's journals in “the court box,” a box BPD uses for documents that are to be forwarded to and used in trial. (Misane Dep. 25.) The prosecutors also noted that Misane cancelled two pretrial preparation meetings in February. (Graham Mem., PageID.467.) Misane testified that Simpson ordered him to cancel both meetings to attend to other matters. (Misane Dep. 28.)

The case proceeded to trial and the jury acquitted the defendant of all charges. (Graham Mem., PageID.468.) Jurors interviewed after the trial stated that a lack of evidence weakened the prosecution's case. (Id.) On March 12, 2021, Williams terminated Misane for his performance in relation to this case. (Misane Termination Letter.)

Sexual Harassment Complaint

Misane alleges that Simpson made sexually inappropriate comments to him throughout their working relationship including, but not limited to:

- In 2018, Simpson asked Misane if he had ever considered being with a man.

- In 2019, 2020, and 2021, Simpson described the sexual intercourse he was having with his boyfriend at the time.

- At ¶ 2019 training at the Michigan State Police Headquarters in Lansing, Simpson told Misane he had sexual intercourse with a male hotel clerk the prior night. Simpson further stated that Misane could have watched the encounter and that Simpson was willing to watch Misane engage in sexual intercourse with a female.

- In 2019, Simpson told Misane that a Berrien County officer requested that Simpson urinate on his back.

- In 2020, Simpson and Misane traveled to the Blue Chip Casino Hotel together. They shared a room with two separate beds. Simpson asked Misane if he wanted to come to his bed and cuddle. Simpson further stated that after Misane fell asleep, he found an individual at the hotel who was willing to watch Misane have sexual intercourse with his wife and participate as well.

- In 2021, Simpson told Misane that he was engaging in sexual intercourse with a Bangor firefighter.

(See Misane's Answers to Simpson's First Interrogs., ECF No. 62-3, PageID.2453-2458.)

Misane likewise discussed matters of a sexual nature with his coworkers, including his own sex life. (Misane Dep. 86-88; Misane Text Messages, ECF No. 52-8.) He also drew a pornographic picture of individuals engaging in anal sex. (Misane Drawing, ECF No. 52-9.)

Misane informed Williams of the sexual harassment over the phone on March 9 or 10, 2021. (Id. at 72, 120.) He formally filed a sexual harassment complaint against Simpson on March 12, 2021, after his termination. (Id.)

Graham's Investigation

Graham formally investigated Misane's handling of the Mendoza case as well as his sexual harassment complaint. With respect to the Mendoza case, Graham interviewed Weber, Simpson, and defense attorney Gary Stewart. (Graham Dep. 19, ECF No. 60-4.) He also attempted to interview the prosecutor for Van Buren County and the assistant prosecuting attorney who was handling the case. (Id.) Graham did not interview Misane. He also reviewed the evidence and applicable BPD policies. (Id. at 27.) Graham deemed Misane's termination appropriate. (Graham Mem., PageID.469.)

With respect to the sexual harassment complaint, Graham first interviewed Simpson. (Graham Dep. 27-30.) He asked to speak with Misane on a few separate occasions, but Misane declined. (Id. at 34; 3/14/2021 Text Message & 3/19/2021 Email from Graham to Misane, ECF No. 52-10; Misane Dep. 114.) Graham also interviewed the following individuals: Officer Juan Mata, Officer Justin Blankenship, Councilman Jermy Uplinger, Councilwoman Lynn Farmer, Weber, Officer Phil Garcia, Officer Tyler Sleep, Department of Public Words (“DPW”) Director John Saylor, DPW employee John Hagel, and the Director of the Bangor Housing Commission. (Graham Dep. 30-35.) Graham attempted to interview Williams, and he responded with conditions on the interview that Graham viewed as unacceptable. (Id. at 33.) Graham concluded that “[t]here is no viable claim of an adverse employment decision in this case” because “Simpson did not terminate Sgt. Misane's employment [and] had nothing to do with the decision.” (Graham Mem., PageID.473.)

B. Sleep

Sleep worked as a police officer for the BPD from May 2019 till July 2021. (Sleep Dep. 9, ECF No. 60-7.) Like Misane, Sleep alleges that Simpson made sexually inappropriate comments to him throughout his time at the BPD. On one occasion, Sleep picked up Simpson, and, upon entering the car, Simpson said he had just finished “doing the McNasty.” (Id. at 46.) On another occasion, while the two were driving around, Simpson pointed to a home and told Sleep he had engaged in sexual intercourse with the married man who lived there. (Id.) Also, like Misane, Sleep discussed matters of a sexual nature with his coworkers. (Sleep Dep. 47, 56-57; Sleep Text Messages, ECF No. 52-12.)

On April 22, 2021, Sleep was suspended for his work-related performance. Sleep allegedly told fellow officers that he would participate in the “blue flu,” meaning calling in sick to disrupt scheduling and that he would do as little work as he could. (Graham Dep. 40.) Sleep was also found sleeping while on-duty. (Id. at 41.) Sleep submitted a sexual harassment complaint the night of April 22, 2021, after he had been suspended. (Sleep Dep. 91.) After returning to work, Sleep met with Graham on April 30, 2021, to discuss his complaint. (Id. at 93.) Sleep resigned from the BPD on July 18, 2021. (Sleep Resignation Email, ECF No. 52-13.)

C. Jerol

Jerol began working for BPD in January of 2020. (Jerol Dep. 23, ECF No. 60-5.) Jerol worked as an officer but had also served as a taser instructor and school resource officer. (Id. at 24.) Like Misane and Sleep, Jerol also alleges that Simpson made sexually inappropriate comments to him.

- In February of 2020, Simpson asked Misane if Jerol was “well hung” and called him a “poon hound.”

- In the spring of 2020, Simpson described the genitalia of the Benton Harbor Deputy Director of Public Safety to Jerol.

- Around the same time, Simpson told Jerol that a male deputy from the Berrien County Sherriff's Department asked to urinate on him.

- In the summer of 2020, Simpson described

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