Employment Law Daily Longer restricted duty for white officers after outcry over shooting did not show bias
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Tuesday, September 27, 2016

Longer restricted duty for white officers after outcry over shooting did not show bias

By Lorene D. Park, J.D. Affirming summary judgment against the race discrimination and constitutional claims of Caucasian officers who were allegedly placed on restricted duty for longer than was typical after a public outcry over their shooting of two African-American suspects, the Sixth Circuit found no evidence suggesting the two suspects they killed were armed, no evidence that similarly situated African-American officers received better treatment, and no other evidence of pretext (O’Donnell v. City of Cleveland, September 23, 2016, Donald, B.). Car backfiring or gun shot? Twelve Caucasian police officers and one Hispanic officer became involved in a November 2012 high-speed car chase after a loud bang was heard as the suspects’ vehicle passed (the officers and nearby members of the public took cover, thinking it was gunfire). When the car finally stopped, the officers fired 139 bullets into the vehicle, killing two unarmed African-American suspects. The public outcry was deafening; the event’s racial underpinnings spawned extensive media coverage, and the community demanded resignations. Restricted duty. The officers involved in the incident were assigned to restricted duty under a Post Traumatic Incident Protocol (PTIP), which requires that officers involved in deadly force incidents be assigned to the "Gymnasium" for 45 days. Officers considered this "demeaning," and it prevented them from earning overtime or engaging in outside employment. Once the 45-day period ends, the PTIP allows the chief of police to extend the period. To return to full duty, officers must be cleared by mental health professionals, though the chief still has discretion to determine assignments for cleared officers. Here, the chief issued a written order on June 3, 2013, indicating that all but one of the officers could return to full duty, but he issued verbal instructions to their respective commanders that they were only to be assigned non-sensitive or transitional duties. In October, he learned his verbal orders had not been followed and he again ordered the officers to restricted duty. In May 2014, the grand jury declined to issue criminal charges and they returned to full duty. Officers allege race discrimination. Filing suit under Title VII, Section 1981, and Section 1983, nine of the officers claimed that as a result of the racial implications and public outcry, they were assigned to restricted duty for a longer period of time than African-American officers who were also involved in deadly force incidents. They alleged race discrimination and violations of their constitutional rights. The court granted summary judgment and the plaintiffs appealed. No evidence suspects were armed. While the plaintiffs took issue with the district court’s characterization of the two suspects as unarmed, and its indication that a "backfiring car engine likely caused the noise" that resembled a gunshot, the plaintiffs offered not a "scintilla of evidence" suggesting the noise was actually a gunshot or that the suspects were armed. Even assuming the lower court’s inferences were wrong, that did not raise a dispute of material fact because their race discrimination claim did not turn on whether the suspects were actually armed. No direct evidence of bias. In addition, the plaintiffs lacked evidence of discrimination. They pointed to prior cases against the City of Cleveland, in which a jury found direct evidence of discrimination against Caucasian officers, but that did not mean that this case involved racial bias. Indeed, those cases involved different traumatic events and different officers, supervisors, and decisionmakers. No comparator evidence. Furthermore, the plaintiffs lacked comparator evidence showing that similarly situated non-white officers were treated differently. They produced a spreadsheet with information on deadly force incidents, the officers involved, and the length of restricted duty, but such statistics were insufficient where there was no other background information. Indeed, there was no information on the supervising officers, the type of investigations involved, the time spent on transitional duty, or the type of duties required of the officers. No pretext. The chief testified that he ordered the officers to return to restricted duty because he had learned that his verbal order that they be assigned only transitional duties was not being followed. According to the officers, though, this was pretext and they were wrongfully ordered to return to the Gymnasium until the prosecutor’s review was complete as a result of a media inquiry into their employment status. Rejecting their position, the appeals court noted that the article they cited stated that it had earlier reported that the officers returned to full duty but that the officers subsequently had been ordered "off the streets until a county prosecutor decides on any criminal charges." Nothing in the article indicated that the decision was based on race. The plaintiffs also claimed that it was unusual for written orders returning officers to full duty to be accompanied by verbal orders to keep them on transitional duty, and unusual for five months to pass before the chief realized his orders were compromised. However, they failed to point to any evidence supporting their argument. Summary judgment affirmed. For the foregoing reasons, summary judgment was affirmed on the race discrimination claims under Title VII, Section 1981, and Section 1983. Likewise, because the plaintiffs failed to articulate a "racially discriminatory intent or purpose," their equal protection claims also failed.

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