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Black officer’s claim he was disciplined for complaining about arrest by fellow officers revived

By Brandi O. Brown, J.D.

The officer claimed he was the subject of racial harassment during an incident in which he was berated, tightly handcuffed, and arrested by fellow officers.

Reversing in part the grant of summary judgment against an African-American police officer’s claims alleging his municipal employer and several individual defendants maintained a hostile work environment, in violation of Title VII, and retaliated against him for reporting racial discrimination, the Sixth Circuit found the district court erred in concluding that he failed to show the city’s stated reason for disciplining him after he filed a complaint about the excessive use of force against him by his fellow officers was pretextual. As to his hostile environment claim, the appeals court, affirming the decision of the court below, noted that while he presented evidence of race-related comments, their weight was lessened because they were not directed at him and there were only five incidents over 10 years. The court, however, also reversed the district court’s grant of qualified immunity as to one of the individual defendants on the officer’s excessive force claim. Judge Gibbons concurred separately and Judge Nalbandian concurred in part and dissented in part (Strickland v. City of Detroit, Michigan, April 22, 2021, Clay, E.).

“Growing racial problem.” Although this lawsuit stemmed in part from an incident that occurred in 2017, the officer, who has worked for the Detroit Police Department since 2008, also claimed that he has been subjected to race-based harassment throughout his tenure. One of his African-American coworkers, for example, was called “boy” by a white officer. In addition, the assistant police chief made a statement, reported in the news that “Some whites don’t like blacks, some blacks don’t like whites. Some men don’t like women, some women don’t like blacks. I’ve dealt with racial tension before. And I’m not the most PC person, but get over it. You’re wearing blue.”

In social media posts, other department employees made statements referring to Detroit residents as “garbage” and claiming that “The only racists here are the piece of shit black Lives Matter terrorists and their supporters.” Other incidents included officers apparently mocking African-American motorists and referring to residents as “zoo animals,” “Keishas,” and “Homies.” In fact, the department had recognized it had a “growing racial problem.”

Disciplinary action. With regard to the January 2017 incident, the officer unintentionally got caught in the cross-hairs of an active police investigation when he stopped at a gas station after work. He was handcuffed, even though he informed the other officers that he was also an officer. The handcuffs were locked too tightly and the officer in whose custody he was placed refused to loosen them. He ended up with bilateral wrist contusions as a result. After that incident, he complained and was suspended. He became the target of an internal affairs investigation and was charged with three violations of the code of conduct based on his actions following the incident, including failing to fill out an activity log.

Lower court proceedings. After filing an EEOC charge, he sued the city under Title VII for creating a hostile workplace and for unlawful retaliation, as well as under Section 1983 for, among other things, use of excessive force. He also sued several individually named department members. The district court granted the defendants’ motion for summary judgment on all claims and the officer appealed.

Hostile environment claim. With regard to his claim for a hostile work environment, the appeals court affirmed. Although it concluded that some of the conduct cited by the officer constituted racial harassment, the gas station incident was not one of them. Some incidents, such as calling an African-American colleague a “boy” and referring to residents of a majority African-American city as “garbage,” although not “explicitly racial,” could be understood as race-based, as could the assistant chief’s comments dismissing concerns of racial tension.

Nevertheless, those incidents could not establish that the officer was subjected to a hostile work environment. He did not allege physical invasion. Moreover, the race-based conduct and actions were not directed at him, which specifically diminished their severity and entitled them to “less weight.” The evidence of personal discrimination he raised, such as being ignored, did not require reversal. The court also noted that he had only provided evidence of approximately five incidents of harassment over a 10-year span of time, which was not frequent. The district court’s decision was affirmed in this regard.

Claims revived. However, his claims of retaliation and excessive force were revived. As to his retaliation claim, which was based on the discipline and suspension he received after complaining about the January 2017 incident, the appeals court found that the district court erred in concluding that he had not presented evidence of pretext. While it was true that most of the evidence he offered did not meet the standards for showing pretext, one of his arguments should have kept his claim alive.

Specifically, he alleged that a white officer involved in the incident committed the same infraction—failing to complete an activity log—but was neither investigated nor disciplined. Whether or not the officer was correct that the other officer was also required to complete a log required credibility determinations and weighing of testimony that was not appropriate at summary judgment, the court explained. There was no evidence or claim by the employer that distinctions with regards to their positions, reporting regulations, and conduct were relevant to its disciplinary decisions.

Turning to the excessive force claim, the appeals court found a genuine dispute of fact regarding whether the arresting officer ignored his complaint that his handcuffs were too tight. Therefore, she should have been denied qualified immunity. This conclusion should not have been altered on summary judgment by the fact that a different officer ultimately loosened them.

Concurrence and dissent. Judge Gibbons wrote a separate concurrence to “emphasize the primary reason” that the officer’s hostile work environment claim failed—the majority of the conduct was directed at others or was general. Judge Nalbandian also wrote a separate concurrence and dissent in which he disagreed with the retaliation claim’s ultimate outcome.