The white trooper was not on a last chance agreement, and his “quantum of misbehavior” was “radically different.”
Rejecting the notion that race discrimination was at the heart of the disparate discipline imposed on a black trooper who hit on intoxicated female motorists that he detained, a divided Sixth Circuit panel affirmed summary judgment in the employer’s favor on his Title VII claim. Like the court below, the appeals court found the trooper’s conduct significantly more egregious than his white counterpart; moreover, unlike the appellant, the white trooper was not on a last chance agreement when he committed his second offense. Dissenting, Judge Moore took issue with the majority’s consideration of the last chance agreement as a standard for gauging the severity of the underlying conduct (Johnson v. Ohio Department of Public Safety, November 13, 2019, Thapar, A.).
The black trooper arrested a female motorist for suspected DUI and during the traffic stop he told her there was a Waffle House nearby and that he’d take her there. Within a month, he pulled her over again, admittedly without probable cause and without radioing the stop to his post, as was required by policy. He told the motorist that he liked her, asked her if she would have gone to the Waffle House with him, gave her his personal cell phone number (also a violation of policy), and suggested they meet at a casino.
Last chance agreement. After an investigation, the trooper was found to have violated several rules and was recommended for termination. Instead, he signed a last chance agreement that if he ever engaged in similar behavior he would be terminated and would waive the right to any legal proceedings against the employer. The last chance agreement would be operative for two years, after which it would become void.
Second offense. But less than two years later, the trooper pulled over another female motorist on suspicion of DUI and arrested her, put her in handcuffs, searched her, and took her to the station. He then drove her home—even though she had texted someone else to provide her a ride home—plus, he failed to turn on his in-car camera for the ride home, another violation of policy. She still appeared intoxicated, he said, and she was concerned about her vehicle being towed, so he told her he would go back to her car and put a note on it that she would pick it up the following day.
At her driveway, he radioed his station that he had left the scene but he had not. He ended up staying at her residence for 32 more minutes after reporting that he left, from 4:55 a.m. to 5:27 a.m., and it was unknown what happened during that half-hour. However, the trooper later texted her from his personal cell phone.
Race bias claim. A citizen reported the incident and the investigating sergeant determined that the trooper had violated his last chance agreement by attempting to cultivate a personal relationship with a female arrestee. He was terminated and he sued for race discrimination, contending that he was disciplined more harshly than a white trooper who merely received a one-day suspension for his personal contacts with female motorists.
However, the district court found the white trooper was not a proper comparator. The white trooper merely had been verbally warned in the past about initiating contact on social media with female motorists whom he encountered during traffic stops, and his second offense occurred three years later. In contrast, the black trooper’s second offense occurred while he was subject to a last chance agreement expressly prohibiting such behavior—a “crucial distinction,” in the lower court’s view, because unlike the white trooper, the plaintiff was “on clear notice that further violations would result in possible termination.”
Not similarly situated. Affirming, the appeals court restated the numerous other clear differences between the black trooper and the alleged comparator, and agreed with the court below that the misconduct was not of comparable seriousness: The black trooper had improper contact with female motorists while he detained them—and while they were intoxicated—yet the white trooper contacted a motorist he had detained after the fact, and on social media, not face-to-face. The black trooper was on duty, in uniform, carrying a side-arm; the white trooper was off-duty. The black trooper propositioned the woman to date him; the white trooper did not. The black trooper pulled the woman over without probable cause and went to her house. The white trooper did neither. Finally, the white trooper’s first alleged incident had never actually been verified. Therefore, the appeals court agreed with the court below that “the quantum of misbehavior is radically different.”
Moreover, the troopers worked under different direct supervisors, further evidence that the different outcome here was attributable to factors other than race.
Dissent sees a prima facie case. Judge Moore disagreed, concluding that the black trooper had indeed made out a prima facie case of race discrimination. The majority (and the court below) had imposed too high a standard, she urged, relying inflexibly, mechanically, and “unthinkingly” on the circuit’s three Mitchell factors—”same supervisor, same standards, and same conduct”—in deciding whether the comparator was similarly situated. In her view, the appeals court erred in failing to follow the “flexible approach” that it had subsequently adopted. Construing the facts in the plaintiff’s favor, Moore saw little distinction between the infractions at issue here. As she saw it, the white trooper’s conduct was similarly egregious. “It was just as inappropriate for an officer in a position of public trust, just as abusive of at least a perceived use of official authority, and just as problematic due to the harassing nature of the conduct directed toward the women.” And she saw nothing in the department rulebook to suggest that the employer saw the troopers’ infractions as qualitatively different either.
Of particular note, Moore took exception with the majority’s reasoning regarding the last chance agreement, which “speaks to the sanction for the conduct, not the standard for evaluating the conduct.” Because a last chance agreement generally functions “to justify termination upon another infraction,” it was more properly considered in the burden-shifting stage after the prima facie stage, she argued—just as the appeals court had done in its only other published ruling addressing a last chance agreement in a discrimination case.
At any rate, she pointed out, the key question is not whether the court deems the plaintiff similarly situated to his comparator are, but whether a reasonable jury could so find.
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