Howlett v. Warren, City of

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DESHEILA HOWLETT, 4:17-CV-11260-TGB

Plaintiff,

vs. ORDER GRANTING IN PART

AND DENYING IN PART

CITY OF WARREN, DEFENDANTS’ MOTION FOR

LAWRENCE GARDNER, SUMMARY JUDGMENT,

SHAWN JOHNSON, DENYING PLAINTIFF’S

DAWN MCLANE, MOTION FOR PARTIAL

MICHAEL SAUGER, SUMMARY JUDGMENT, AND

ANWAR KHAN, DISMISSING CERTAIN

JERE GREEN, INDIVIDUAL DEFENDANTS

DARRIN LABIN,

WILLIAM ROSS,

KEVIN BARNHILL,

PAUL HOUTOS,

SCOTT TAYLOR,

Defendants.

I. Introduction

In 2006, DeSheila Howlett became the first African-American ever

hired as a police officer for the City of Warren, and she remained the only

black officer in the Warren Police Department until she left her position

in 2017. Now the Plaintiff in this civil action, Howlett alleges that

throughout her employment with the Warren Police Department she en-

dured racial and sex-related discrimination, abuse, and harassment by

fellow officers, supervisors and employees in the Department. She alleges

that she was the victim of a racially and sexually hostile work environ-

ment and that the City of Warren violated her civil rights by failing to

provide adequate training to prevent the injuries she allegedly incurred.

Defendants include the City of Warren, as well as several individually-

named defendants. The individually-named defendants include police of-

ficers for the City of Warren, the then-Police Commissioner, and a mem-

ber of the support staff for the Warren Police Department.

Plaintiff’s Amended Complaint (ECF No. 4) alleges six counts:

Count I: Discrimination Based on Race and

Gender—Hostile Work Environment

(pursuant to Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e,

et seq.)

Count II: Violation of Fourteenth Amendment

right to Equal Protection (pursuant to

42 U.S.C. § 1983)

Count III: Violation of Fourteenth Amendment

right to Due Process (pursuant to 42

U.S.C. § 1983)

Count IV: City of Warren Monell Liability (pursu-

ant to 42 U.S.C. § 1983)

Count V: Conspiracy Invidious Racial Animus

(pursuant to 42 U.S.C. § 1985)

Count VI: Violation of the Right to Make and En-

force Contracts (pursuant to 42 U.S.C.

§ 1981).

Defendants filed a Motion for Summary Judgment on all counts.

ECF No. 66. Plaintiff filed a Motion for Partial Summary Judgment on

Count IV (Monell liability) only. ECF No. 69. Both parties filed opposi-

tions. ECF Nos. 70 (Plaintiff’s Response) & 74 (Defendants’ Response).

The Court held a hearing on June 12, 2019. See June 12, 2019 Minute

Entry.

At the hearing, Plaintiff agreed to voluntarily dismiss the following

individual defendants: Scott Taylor, Paul Houtos, Kevin Barnhill, Wil-

liam Ross, Darrin Labin, and Dawn McLane. Barbara Beyer was previ-

ously dismissed by a stipulated order. ECF No. 21. Plaintiff also agreed

that Arthur Gill, though mentioned in the body of Plaintiff’s Amended

Complaint, was neither named in the caption as a defendant nor served

in the lawsuit and therefore should not properly be considered a defend-

ant. See Plaintiff’s Amended Complaint, ECF No. 4, PageID.52. Addition-

ally, Michael Sauger was named in the initial complaint (ECF No. 1), but

his name was not included among the defendants in the Amended Com-

plaint. As such, Michael Sauger is not an individual defendant in this

case. After these voluntary dismissals, the remaining defendants are the

City of Warren and four individual defendants: Jere Green, Lawrence

Gardner, Shawn Johnson, and Anwar Khan.

For the reasons outlined below, Defendant’s Motion for Summary

Judgment will be DENIED as to Count I, (Discrimination Based on Race

and Gender—Hostile Work Environment—Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e, et seq.), DENIED IN PART and

GRANTED IN PART as to Count II (Violation of Fourteenth Amend-

ment right to Equal Protection—42 U.S.C. § 1983), DENIED as to Count

IV (City of Warren Monell Liability—42 U.S.C. § 1983), but GRANTED

as to Count III (Fourteenth Amendment Due Process—42 U.S.C. § 1983),

Count V (Civil Rights Conspiracy—42 U.S.C. § 1985) and Count VI (Vio-

lation of Right to Make Contracts—42 U.S.C. § 1981). Plaintiff’s Motion

for Partial Summary Judgment as to Count IV will be DENIED.

II. Background

The extensive record in this case consists of numerous depositions

and records gathered during the discovery process. This summary draws

upon the evidence from that record as it relates to the allegations in the

Amended Complaint, which are essentially that Plaintiff endured exten-

sive racial and sexual harassment during her 11-year employment with

the Warren Police Department. Plaintiff’s Amended Complaint, ECF No.

4, PageID.50.

Significantly, Howlett alleges that this harassment occurred in part

due to “customs, practices and policies of unlawful racial and sexual dis-

crimination” that exist in the City of Warren and its municipal depart-

ments. Id. Because this allegation is key to Count IV of the complaint,

seeking to impose Monell liability on the City of Warren, as well as Count

I of the complaint, alleging the City of Warren created a hostile work

environment, the Court will discuss the historical precedents cited by

Plaintiff. As an example of this alleged longstanding culture, Howlett

cites a 1986 lawsuit against the City of Warren brought by the United

States Department of Justice, which alleged that the City’s hiring prac-

tices illegally discriminated against African American applicants to po-

lice and fire department positions, and that the City failed to eliminate

the effects of these discriminatory practices in job recruitment. Plaintiff’s

Motion for Summary Judgment, ECF No. 69, PageID.6077; see also

United States v. City of Warren, 138 F.3d 1083, 1088-90 (6th Cir. 1998).

In that litigation, the court found Warren’s “residency requirement” for

municipal positions had a disparate impact on African American appli-

cations to police and fire positions. See City of Warren, 138 F.3d at 1088-

89; ECF No. 69, PageID.6077–78. The City of Warren agreed to address

the problem by providing equal employment opportunity training to the

police and fire departments. ECF No. 69, PageID.6077.

In 1991, the United States again sued the City of Warren for its

hiring practices, alleging that the City failed to correct the issue in its

police and fire departments, and that the problem had spread to other

departments. ECF No. 69, PageID.6077–78 (citing United States v. City

of Warren, 138 F.3d 1083 (6th Cir. 1998)). The Sixth Circuit Court of Ap-

peals found that the City of Warren’s recruitment practices for all mu-

nicipal positions had a disparate impact on African American applicants.

City of Warren, 138 F.3d at 1094. In response, the City entered into a

formal agreement with the United States in which it agreed to provide

equal employment opportunity hiring for department heads and supervi-

sors of municipal departments, as well as other training and recruitment

measures. 2002 Agreement and Order, ECF No. 69-4, PageID.6156-57.

On August 10, 2006, fifteen years after the federal government sued

over the City of Warren’s discriminatory hiring practices, the Warren Po-

lice Department hired DeSheila Howlett as its first African American po-

lice officer. ECF No. 69, PageID.6078. Howlett worked as a police officer

for the Warren Police Department for the next 11 years. ECF No. 4,

PageID.49.

Howlett asserts she began experiencing harassment and discrimi-

nation almost immediately. Id. at PageID.50. When Howlett was first

hired into the department, like all new officers, she had to complete “field

training”1 before she was permitted to work as a patrol officer on her own.

See Khan Deposition, ECF No. 66-13, PageID.4208. During this training,

one of her Field Training Officers, William Ross, allegedly told her she

would pass her training regardless of her performance because she was

black. ECF No. 4, PageID.51. Officer Ross denies he ever made this state-

ment. See Ross Deposition, ECF No. 66-17, PageID.4281.

1 Field training is a four-month long process that includes Phase I, Phase II, Phase

III, and a “shadow” phase in which the trainee is on the road but supervised closely

by an established officer. Khan Deposition, ECF No. 66-13, PageID.4208–09.

Howlett also alleges that a different Field Training Officer, Anwar

Khan, told her that women do not have a right to work or be police offic-

ers. ECF No. 4, Page ID.51. Plaintiff also alleges that Khan said, “Amer-

ica was better off prior to 1940, 1941, when all the men went off to war

and then the women started working jobs, and basically, our society de-

clined due to the women entering the workforce, so now there’s nobody to

tend to the children.” Howlett Deposition, ECF No. 66-2, PageID.3724.

Khan failed Plaintiff at Phase III of field training, forcing her to

retake the phase. Plaintiff claims he failed her without justification, be-

cause she was a woman. ECF No. 4, PageID.51. The City denies that

Plaintiff was failed without justification and claims she was failed for

deficiencies in her job performance. ECF No. 66, PageID.3675. The City

claimed at the hearing that Plaintiff then retook the course under Khan,

who ultimately passed her. Plaintiff denied this, saying that she retook

the course under a different Field Training Officer. Khan admitted in his

deposition that Howlett was later passed by a different officer. ECF No.

66-13, PageID.4219.

Plaintiff also reports that much later in her career Khan pulled

Howlett over in 2016 while she was driving to a crime scene in an un-

marked car. Khan Deposition, ECF No. 66-13, PageID.4217. Plaintiff

claims Khan falsely alleged that she was “driving recklessly” and she at-

tempted to file a complaint against Khan, but her supervisor, Sergeant

Eidt, did not appear to take the complaint seriously. Howlett Deposition,

ECF No. 66-2, PageID.3730. At the time, Howlett was a Detective Ser-

geant, outranking Khan. ECF No. 4, PageID.52–53. Plaintiff alleges this

was further evidence of Khan’s animus against her based on her sex.

Khan claims that Plaintiff was speeding in an unmarked car, and that

after he pulled her over he simply advised her to slow down. ECF No. 66-

13, PageID.4217–18. Khan claims that Plaintiff told him she was late for

a meeting but did not mention that she was responding to a report of

criminal sexual conduct. ECF No. 66-13, PageID.4217–18; PageID.4232;

PageID.4237. Khan also testified that he did not give her a ticket, but he

did report the incident to her supervisor. ECF No. 66-13, PageID.4236–

37. Khan explained that he believed informing her supervisor was the

same thing as “documenting” the incident. ECF No. 66-13, PageID.4236–

37.

Howlett further alleges that Sergeant Scott Taylor—who trained

Plaintiff during the first phase of field training—told her that after she

had received five complaints from African American citizens, she would

be nominated for a “hood award.” ECF No. 4, PageID.56. Plaintiff inter-

preted this comment to be a reference to the white sheet and hood tradi-

tionally associated with the Ku Klux Klan. Howlett Deposition, ECF No.

69-10, PageID.6344. In Taylor’s deposition, Plaintiff’s counsel misquoted

the allegation from the Amended Complaint, asking Taylor if he remem-

bered telling Howlett she would receive a “KKK award,” rather than a

“hood award”. ECF No. 66-16, PageID.4276. As a result, while Taylor

firmly denied referring to any “KKK award,” he was never asked to com-

ment on the “hood award” allegation. ECF No. 66-16, PageID.4276.

Plaintiff also alleges that Officers Paul Kelly and Dale Malesh re-

peatedly asked Plaintiff out on dates using “extreme sexual overtones.”

ECF No. 4, PageID.52. However, Plaintiff did not specify what “extreme

sexual overtones” means in this context, nor how many times either Kelly

or Malesh allegedly asked her out using such language. Plaintiff also

failed to identify any particular occasion or specific date on which one of

these interactions took place.

Further, Howlett alleges that, because of her race, the police de-

partment routinely failed to provide backup when she was responding to

official police calls. Howlett Deposition, ECF No. 66-2, PageID.3738. She

alleges dispatch failed to send her backup—or failed to send backup as

quickly as was the standard for other officers—on 45 different occasions

in 2007, and 43 occasions in 2013. ECF No. 69, PageID.6093.

Plaintiff cites to numerous specific pages of Warren Police Depart-

ment Dispatch Records from 2007 and 2013. ECF No. 69, PageID.6093

n.40; Exhibit 6: Backup Chart, ECF No. 69-7; Exhibit 12: 2007 Dispatch

Records, ECF No. 83 (*sealed*). Plaintiff alleges that these records show

the Warren Police Department failing to provide backup in a timely or

safe manner—or at all—on 45 and 43 occasions, respectively. Unfortu-

nately, these records are not self-explanatory, and no witness appears to

have been shown these documents to explain or authenticate them dur-

ing deposition testimony. Defendants also filed similar dispatch records2

as an attachment to their response to Plaintiff’s motion, and they in-

cluded a document called “Key Codes” that includes explanations for

some—but not all—of the fields in the record. See Exhibit 32: Key Codes,

ECF No. 77, PageID.8578–80 (*sealed*); Exhibits 32-1–32-44: Dispatch

Records, ECF No. 77, PageID.8581–8747 (*sealed*). This document like-

wise lacks explanation and is somewhat inscrutable. The parties appear

willing to leave it to the Court to decipher the meaning of various unex-

plained acronyms and police lingo—but the Court cannot speculate as to

the meaning of records that are not clear on their face.

Plaintiff does not present logs for the years 2014-17. However, she

asserts it was well known in the department that she did not receive ad-

equate backup. ECF No. 4, PageID.54. She states that her partner, then-

patrol officer Brent Chisholm, at one time told her that some co-workers

told him to be careful because being partnered with Howlett meant he

would not receive adequate backup. ECF No. 4, PageID.54. She states

Chisholm was told by other officers that he should be worried. Howlett

2 The records filed by Defendants appear to be duplicates of the records filed by Plain-

tiff, with the difference being that Plaintiff’s records are presented in portrait orien-

tation, and Defendants’ are in a landscape orientation. Defendants’ attached records

also do not have the Bates numbers that are present on Plaintiff’s version, so the

Court cannot determine whether the two versions are identical versions. Defendants’

records also all include a following page called a “Case Report” which appears to be a

summary and narrative of the call in a more readable format, but Plaintiff’s exhibits

do not include these pages at all.

Deposition, ECF No. 66-2, PageID.3744. She also alleges that in 2015,

while en route on a call with Chisholm, backup was so delayed that

Chisholm had to request backup on his personal cellphone. Howlett Affi-

davit, ECF No. 69-8, PageID.6263. Chisholm denies being warned by

other officers to be concerned for his safety when working with Howlett.

Chisholm Deposition, ECF No. 66-27, PageID.4520-21. He testified that

he was never fearful working with Howlett and believed that Howlett

received adequate backup. Id. The City denies Howlett failed to receive

proper backup and claims she was never in danger. Defendants’ Response

to Plaintiff’s Motion for Partial Summary Judgment, ECF No. 74,

PageID.7517; Bradley Affidavit, ECF No. 74-5, PageID.7586.

The City alleges Howlett admitted that no one told her directly that

she was not being given backup, and that she never heard anyone tell

Chisholm his life was in danger. Defendants’ Motion for Summary Judg-

ment, ECF No. 66, PageID.3681. Howlett identified several individuals

whom she believed could corroborate her allegation, but when asked,

most of these witnesses either denied her allegation or stated that they

thought it was untrue. See Howlett Affidavit, ECF No. 69-8 (identifying

Officer Nichols, Officer Booton, Officer Scott, Dispatcher Broach, and

Corporal Chisolm as having personal knowledge of her backup allega-

tion); see also Nichols Deposition, ECF No. 69-9, PageID.6317 (claiming

Howlett never mentioned it to him); Scott Deposition, ECF No. 69-32,

PageID.6883 (“I would not know [whether or not she had problems get-

ting adequate timely backup.]”); Chisolm Deposition, ECF No. 69-16,

PageID.6487 (“I don’t believe [Howlett] didn’t get adequate backup.”).

One witness, Dispatcher Broach, did confirm that Howlett voiced her con-

cerns about backup. Broach Deposition, ECF No. 69-28, PageID.6798

(“[Howlett] says, ‘I don’t think the officers are backing me up as fast as

they should,’ but we did not go any further in the conversation[.]”).

Broach stated that she did not report Howlett’s concern and did not know

whether she had a responsibility to report it. Id. She did, however, state

that she never told Howlett she personally believed officers were late re-

sponding to her calls for backup. Broach Affidavit, ECF No. 74-6,

PageID.7591.

At some point in 2010 or 2011,3 Howlett complained to the then-

Labor Relations Manager for the City of Warren, Mark Simlar,4 about a

dispatcher, Dawn McLane, who allegedly failed to provide Howlett with

the physical description of an armed suspect while she was responding to

a run, even after Howlett asked repeatedly. Plaintiff’s Motion for Partial

Summary Judgment, ECF No. 69, PageID.6092; Howlett Deposition,

ECF No. 66-2, PageID.3726. Howlett alleges that Police Commissioner

3 Howlett does not remember when she specifically made the complaint, indicating in

her deposition that she believed it was “2010 or 2011, somewhere in there.” ECF No.

66-2, PageID.3726.

4 Simlar was promoted to Director of Human Resources for the entire city in 2017.

Simlar Deposition, ECF No. 69-6, PageID.6223–24.

Jere Green and Deputy Commissioner Louis Galasso interviewed How-

lett about her complaint against McLane, but that they never spoke with

McLane. ECF 69, PageID.6092. In her deposition, McLane confirms How-

lett’s allegation that the complaint was never addressed with her. ECF

No. 69-25, PageID.6663. An internal affairs complaint form also estab-

lishes that Howlett was interviewed by Green, Galasso, and Simlar in

2013 about an incident involving McLane and that no discipline was rec-

ommended because the issue had been “resolved at intake.” See ECF No.

66-19. However, Green testified that he has no recollection of this event,

and Deputy Commissioner Galasso was not asked about it during his

deposition. Green Deposition, ECF No. 66-10, PageID.4179–80; Galasso

Deposition, ECF No. 69-21. The City alleges the complaint was un-

founded because there was no description of the suspect to give and How-

lett conceded in her deposition that she did not believe McLane withheld

the information because of her race or gender but rather due to a “per-

sonality conflict.” ECF No. 66, PageID.3699; Howlett Deposition, ECF

No. 66-2, PageID3726.

In 2011, Howlett was injured in an off-duty incident. Howlett Dep-

osition, ECF No. 66-2, PageID.3732. She alleges she requested to be re-

assigned to light-duty work while she recovered but was denied that op-

portunity. Id. The City responds that preference for light-duty reassign-

ment is given to on-duty injuries, and that they did not have any light-

duty positions available at that time, so Howlett would have to remain

off duty until she recovered and could work full-time. Id. Howlett alleges

that though the policy lists a preference for injuries occurred in on-duty

accidents, in practice it is not applied in this way as several of her fellow

officers had been allowed light-duty assignments even when they were

injured off-duty. Howlett Deposition, ECF No. 66-2, PageID.3732–34.

She believes she was denied a light-duty reassignment because she is

African American. Howlett Dep. ECF No. 66-2, PageID.3734. Ultimately,

Howlett returned to full-time work a month later than anticipated be-

cause she was denied light-duty assignment. Howlett Dep. ECF No. 69-

10, PageID.6356.

Howlett further alleges being harassed by various co-workers in the

department on different occasions throughout her career. She says

coworker Kevin Barnhill routinely spoke to her in an offensive fashion,

mocking her and using stereotypical depictions of African Americans.

Plaintiff’s Amended Complaint, ECF No. 4, PageID.51; Howlett Deposi-

tion, ECF No. 66-2, PageID.3734. The City alleges that Howlett and

Barnhill had a friendly relationship, and that when she asked him to stop

making offensive comments, he did. ECF No. 66, PageID.3677.

Howlett alleges another co-worker, Roland Bell, asked her why she

was walking “gingerly” after having a minor procedure, and despite her

having provided him with an explanation, Bell said “No, it’s because of

all that big black dick in you.” ECF No. 4, PageID.52. Bell denies this

allegation and claims that the two got along very well. Bell Deposition,

ECF No. 66-25, PageID.4466 (“Never made that comment.”); ECF No. 66,

PageID.3680. Howlett also alleges that Khan and Officer Darrin Laban

approached Officer Nichols asking him if he and Howlett were engaged

in a sexual relationship. Howlett Deposition, ECF No. 66-2,

PageID.3730–31. In response, the City claimed that Howlett admitted

Laban did not engage in any harassment and that she never complained

about Khan or Laban asking this question. ECF No. 66, PageID.3676.

Howlett alleges former Sergeant Arthur Gill, a superior to Howlett at the

time, removed her from the day shift and replaced her with a white officer

even though she had higher seniority than the white officer. ECF No. 4,

PageID.52. The City has not responded directly to this allegation. And

Plaintiff also alleges that an “Officer Dean” allegedly asked her how

much education she has, so he “would know how to speak with her.” ECF

No. 4, PageID.56. It is not clear whether Plaintiff believes this comment

was derogatory of her race, her sex, or both.

At the end of March 2015, Howlett began working as a Detective in

the Special Victims Department where she worked with four other De-

tectives, including Shawn Johnson. Howlett Deposition, ECF No. 66-2,

PageID.3753; Eidt Deposition, ECF No. 69-22, PageID.6581; Johnson

Deposition, ECF No. 69-15, PageID.6430. Sergeant Robert Eidt, the su-

pervisor for this department, assigned Detective Shawn Johnson to assist

Howlett in becoming acquainted with the department. Johnson Deposi-

tion, ECF No. 69-15, PageID.6430. Howlett alleges Johnson sexually har-

assed her, including suggesting she was his “slave girl”, sniffing her sug-

gestively, and rubbing his hands through her hair. ECF No. 4, PageID.54;

Howlett Dep. ECF No. 69-10, PageID.6377. Johnson acknowledges that

he sniffed Howlett, but claims she was wearing a new perfume and he

simply smelled the perfume and wanted to compliment her on it. Johnson

Deposition, ECF No. 69-15, PageID.6438. He also denies rubbing his

hands through her hair and claims he never touched her. ECF No. 69-15,

PageID.6439.

Howlett also alleges Johnson made racist remarks toward her, in-

cluding comparing her to the gorilla depicted on the label for “Gorilla

Glue” and making derogatory comments about the foods Howlett brought

for lunch, insinuating they were stereotypically African American. ECF

No. 4, PageID.55; see, e.g., Johnson Deposition, ECF No. 69-15,

PageID.6436-37 (chicken and ribs), PageID.6439 (“Atlanta” comment),

PageID.6446 (color coordinated clothing), PageID.6450-51 (stealing accu-

sation and “slave” comment). In his deposition, Johnson claims he did not

intend to liken Howlett to the image on the “Gorilla Glue label”, but

simply suggested she use “Gorilla Glue” to fix a clock on her desk that

was broken. ECF No. 69-15, PageID.6434. Johnson also claims his com-

ments about the food Howlett brought for lunch were meant to be friendly

comments about food generally. ECF No. 69-15, PageID.6437. He claims

the two spoke often about cooking and what food they each cooked at

home. Id. Howlett also alleges Johnson frequently suggested she was

stealing items from his desk.5 ECF No. 4, PageID.55. Johnson claims he

was only joking when he made these comments. ECF 69-15, PageID.6449.

Detective Johnson recounted an occasion during which Plaintiff dis-

cussed how her father’s dog liked to sleep under the bed, and when she

tried to get the dog out from under the bed, it bit her. ECF No. 66-20,

PageID.4323. In response, Detective Johnson made a comment along the

lines of, “Oh, he likes to be under there because of all the action that’s

going on,” an apparent reference to sexual activity occurring in Plaintiff’s

father’s bed.6 Detective Johnson testified that this type of statement

could be sexually harassing or demeaning, but repeatedly defended his

actions as lacking any intent to harass, and said that he thought his var-

ious comments were acceptable repartee between co-workers who had a

friendly rapport. ECF No. 66-20, PageID.4323-25.

At a retirement party for Officer Galasso in 2015, Plaintiff told

Kathy Miller (now a retired detective) about Detective Johnson’s contin-

uing behavior toward her. ECF No. 69-10, PageID.6378. Sometime there-

after, Plaintiff was contacted by Sergeant Eidt, who informed her “that

5 Howlett believed his accusation was made against her specifically, and none of the

other officers, because of her race.

6 This phrase was read aloud by Plaintiff’s counsel during the deposition of Detective

Johnson. ECF No. 66-20, PageID.4323. Detective Johnson admitted making the

statement and did not contest it as inaccurate.

[Kathy Miller] had gone over to City Hall and filed a third-party com-

plaint” on behalf of Plaintiff. ECF No. 69-10, PageID.6378. Sergeant Eidt

launched an investigation and discovered that not only did Johnson make

some of these offensive remarks, but that three other detectives heard

them and failed to report the incidents. ECF No.69-22, PageID.6597; ECF

No. 69, PageID.6088–89. At the end of the investigation, Johnson took

responsibility for his behavior and Howlett’s formal complaint—that

Johnson racially harassed Howlett—was sustained. Johnson Deposition,

ECF No. 69-15, PageID.6432. The department took disciplinary action

against Johnson, issuing a warning and placing a written note of disci-

pline in his file, which was to be removed after one year if there were no

further incidents. ECF No. 69, PageID.6089. Johnson was moved out of

the Special Victims Department to the Criminal Investigations Division

and was required to attend diversity training. ECF No. 69-15,

PageID.6460. Even though the complaint was sustained in 2015 and the

training was intended to be a curative part of his punishment, Johnson

did not receive any diversity training until 2017, after Howlett left the

department because of her claims of mistreatment. ECF No. 69-15,

PageID.6460. Notably, Johnson attested that, “I would tell you that after

having to go through this and having talked to Mr. Murray [his trainer]

that my behavior and comments that I would make now has drastically

changed.” ECF No. 66-20, PageID.4341 (referring to the 2017 training).

The City provides no explanation for why two years elapsed before John-

son received the training required by his discipline.

In 2016, Howlett was given a promotion requiring her to work in

the same division as Johnson once again, after he had been moved in

2015. Howlett Deposition, ECF No. 69-10, PageID.6379. Howlett claims

that before accepting the position she asked whether she could continue

working in a different physical office from Johnson because of their past.

Id. She claims Sergeant Eidt and Sergeant Mills assured her she could.

Id. However, two weeks later, Lieutenant Lawrence Garner, the supervi-

sor at the time, moved Howlett to the same side of the office with John-

son. Id. Garner had allegedly asked Howlett if the problems with Johnson

were still ongoing, and even though Howlett indicated they were contin-

uing, Garner moved her to Johnson’s side of the office. Howlett Deposi-

tion, ECF No. 69-10, PageID.6383. Howlett alleges that from October to

December 2016, while working near each other again, Johnson would

glare at her, holler at her, and refuse to share work. ECF No. 69,

PageID.6079; Howlett Deposition, ECF No. 66-10, PageID.6383. Police

Commissioner Green testified that Howlett was only moved back into the

same area as Johnson because the office was being renovated and there

was nowhere else for her to sit. Green Deposition, ECF No. 66-10,

PageID.4186.

Howlett also alleges that her co-workers used the “n-word” in her

presence and in the presence of other white officers during her time with

the Warren Police Department. ECF No. 4, PageID.56; ECF No. 69,

PageID.6087. In depositions, two Warren Police Department employ-

ees—one a police officer—indicated they were unfamiliar with the history

of the “n-word” and did not know it was considered particularly offensive

or inappropriate. Beyer Deposition, ECF No. 66-24, PageID.6644, Laban

Deposition, ECF No. 69-29, PageID.6833. Officer Laban also testified he

believed there were situations in which it was okay for him to use the “n-

word”; for example, if it were in a song or movie. Laban Deposition, ECF

No. 69-29, PageID.6832.

In one incident, on February 1, 2017, Special Victims Department

Secretary Barbara Beyer, in a conversation with Howlett, used the “n-

word” word to refer to an African American man. ECF No. 69,

PageID.6089; Beyer Deposition, ECF No. 66-24, PageID.6644. Beyer ad-

mits she used the words “that nigger” to refer to the African American

man. Beyer Deposition, ECF No. 66-24, PageID.6644. Immediately after

hearing Beyer’s comment, Howlett reported the incident to her supervi-

sor, Sergeant Mills. Mills Deposition, ECF No. 69-23, PageID.6623. Ser-

geant Mills notified Lieutenant Gardner and Commissioner Green and

the three then met with Howlett. Id. at PageID.6625. Mills also informed

Sergeant Eidt, Beyer’s supervisor, of the incident. Howlett Deposition,

ECF No. 69-10, PageID.6380. After the meeting with Mills, Gardner, and

Green, Howlett met with Mark Simlar. ECF No. 69-23, PageID.6626. On

route to the meeting with Simlar, Howlett called Matt Nichols, the Dep-

uty Commissioner, and recounted to him the event with Beyer and the

other incidents that had occurred over the previous 11 years. ECF No.

69-10, PageID.6380. Howlett stated that during her meeting with Simlar,

he got very emotional and stated that he believed that racism and sexism

were “institutional” issues within the police department. Id. at

PageID.6388. Simlar was questioned about this exchange, and based on

what he heard from Howlett, he agreed that the situation appeared to be

“institutional.” Simlar Deposition, ECF No. 69-6, PageID.6250 (“At the

time she was describing it to me, she made it sound like it was institu-

tional, yes.”).

Beyer admitted to making the comment. She received a 10-day sus-

pension and was required to watch diversity-related videos. ECF No. 69,

PageID.6090. In her deposition, Beyer acknowledges she used the “n-

word”, but did not believe it was inappropriate to do so:

Q: Well, you know “nigger” was one of the words you

used right? “That nigger”, right, you said that

right?

A: Right

Q: And you said that to Ms. Howlett in her face, cor-

rect?

A: Yes.

Q: Knowing, knowing that you were saying that to

her, correct?

A: Yes.

Q: Okay, and you felt that was okay, correct?

A: Yes.

Q: Okay, why did you feel that was okay?

A: Because we were friends. I thought I could vent.

ECF No. 69-24, PageID.6644. Beyer claimed she does not see her use of

the “n-word” in that context to be a form of racial harassment. ECF No.

69-24, PageID.6645. Howlett alleges this incident with Beyer was the fi-

nal push that sent her into a nervous breakdown, preventing her from

returning to work as a police officer. ECF No. 69-10, PageID.6380-81.

Howlett stopped working for the Warren Police Department immediately

after this incident. ECF No. 69, PageID.6089.

Howlett alleges the City of Warren allowed this hostile work envi-

ronment to exist because it did not provide adequate diversity training to

police officers within the department. ECF No. 4, PageID.69. The City

alleges the Police Department held various training sessions for its em-

ployees on the topic of diversity, pointing to the following sessions as

proof:

• “Cultural Diversity with course objectives on Racial Profiling and

Cultural Awareness” (2005),7

• “Cultural Diversity from outside expert Kretzschmar” (2006),

• “Cultural Diversity from outside expert Nehr” (2007),

• “Operational Spanish for Police Officers and Employee Assis-

tance/Care Worklife Solutions” (2008),

• “Cultural Awareness by Chaplain Friedman” (2009),

• “Hmong American Community and Diabetic Emergencies” (2010),

and

7 This training occurred prior to Howlett being hired by the department.

• “Cultural Diversity by Rev Friedman, Diabetes Awareness, Mental

Health Tactical Communication and Workplace Solutions – Har-

assment Awareness” (2017).8

Reichling Affidavit, ECF No. 66-9, Page ID.3895-96. The City alleges that

all the officers listed in this suit received the 2009 training but provided

no information concerning officer attendance at any of the other train-

ings. Bradley Affidavit, ECF No. 74-5, PageID.7585. The City provided

descriptions of the subject matter taught at each session, and Sergeant

Reichling attached copies of the PowerPoint slides from each listed train-

ing. Reichling Affidavit, ECF No. 66-9. In reviewing the slides, it is evi-

dent that the only trainings having anything to do with diversity are the

four sessions from 2005, 2006, 2007 and 2009.9 The 2008 and 2010 train-

ings—“Operational Spanish for Police Officers and Employee Assis-

tance/Care Worklife Solutions”, and “Hmong American Community and

Diabetic Emergencies”—do not appear to address race and gender dis-

crimination, and the City does not explain how they relate to the general

culture of discrimination of which Plaintiff complains.10

8 This training occurred after Howlett left the department.

9 “Cultural Diversity with course objectives on Racial Profiling and Cultural Aware-

ness” (2005), “Cultural Diversity from outside expert Kretzschmar” (2006), “Cultural

Diversity from outside expert Nehr” (2007), “Cultural Awareness by Chaplain Fried-

man” (2009).

10 Defendants also suggest that “tactical communication” training in 2015 and 2016

was related to racial and sexual harassment. Reichling Affidavit, ECF No. 66-9,

PageID.3895. Upon reviewing those training materials, they appear wholly unrelated

to racial and sexual diversity training.

Defendants provide no documentation for training sessions on the

topic of diversity for the five-year period from 2013 until 2017 when

Plaintiff left the department. Reichling Affidavit, ECF No. 66-9, Page

ID.3895. In deposition testimony, Police Commissioner Jere Green states

that diversity training was provided to all department employees on an

annual basis along with other “annual requirements” like “CPR, blood-

borne pathogens, [and] shootings,” however, Defendants do not provide

any documentation of such annual cultural diversity training for the

years 2013-2017.11 Green Deposition, ECF No. 69-5, PageID.6190-91.

Other Warren Police Department employees agreed with Green that of-

ficers received annual training that included a diversity training block.

See Barnhill Deposition, ECF No. 74-11, PageID.7777 (“We have yearly

training for that.”); Dwyer Affidavit, ECF No. 66-36, PageID.4668 (“The

City’s Police Department conducts annual training on police department

policies and procedures including all policies prohibiting discrimination

and harassment.”); Walny Deposition, ECF No. 66-21, PageID.4356 (ex-

plaining that she receives cultural diversity training on a “mandatory

like yearly basis”). But other officers disputed receiving annual diversity

training. See Houtos Deposition, ECF No. 66-39, PageID.4690-91 (ex-

11 The record shows there was one 3-hour session of cultural diversity training in 2012

(ECF No. 66-9, PageID.4100), however the summary of the training session states

that its focus was on “religious practices and beliefs” and did not suggest that it dis-

cussed race or gender harassment in the workplace.

plaining that he received no diversity training regarding African Ameri-

cans from 2013-16); Bell Deposition, ECF No. 66-25, PageID.4459 (“We

have sexual harassment training I believe every four to two years.”);

Mills Deposition, ECF No. 66-24, PageID.4451 (confirming detectives in

the criminal investigative section did not receive diversity training from

2013-16).

The 2017 training program—“Cultural Diversity by Rev Friedman,

Diabetes Awareness, Mental Health Tactical Communication and Work-

place Solutions – Harassment Awareness”—appears very relevant to

Plaintiff’s complaints. This session discussed examples of overt and sub-

tle racial and sexual harassment in the workplace and explained what

constitutes a “hostile work environment”, how to identify such behaviors,

and what obligations employees and supervisors have when faced with

this behavior. Reichling Affidavit, ECF No. 66-9, PageID.4126-30. How-

ever, this training session occurred after Howlett met with Simlar about

the incident with Beyer and after she left the department

Howlett claims that the harassment and discrimination she en-

dured in the Warren Police Department was part of a pervasive culture

of discrimination in the City of Warren. ECF No. 69, PageID.6077. She

alleges that this culture was engendered by the behaviors, words, and

actions of the City’s leaders, up to and including its Mayor, James Fouts.

ECF No. 69, PageID.6085-87. Although the Mayor is not named as a de-

fendant in this lawsuit, one of the Mayor’s official duties is to appoint the

Warren Police Department Commissioner, the Human Resources Direc-

tor, and the Diversity Coordinator. City of Warren Administrative Ap-

pointments, ECF No. 66-34, PageID.4589. The City alleges that despite

the Mayor’s official role in appointing the heads of these departments, he

has no influence on the policies or day-to-day operations of the Police De-

partment or Human Resources Department. Defendants’ Motion for

Summary Judgment, ECF No. 66, PageID.3683. According to the City,

the departments monitor themselves. ECF No. 29, PageID.613. Plaintiff

alleges that the Mayor is heavily involved in the management of these

departments, and further that the Mayor’s personal beliefs and attitudes

are reflected in the people he appoints. ECF No. 69, PageID.6085-87.

In 2010, Mayor Fouts appointed Jere Green as Commissioner of the

Warren Police Department. Green Deposition, ECF No. 69-5,

PageID.6174. The Commissioner is the highest-ranking person in the po-

lice department, reporting directly and only to the Mayor, and overseeing

and running the entire police department. Id. Green remained Commis-

sioner until he left the position in July 2017. Id.

In January 2017, Mayor Fouts hired Gregory Murray as the Diver-

sity Coordinator for the City of Warren. Murray Affidavit, ECF No. 69-

12, PageID.6414. Murray submitted his letter of resignation just 10

months later in October 2017. Id. Murray alleges that on three separate

occasions during his short tenure as Diversity Coordinator, Mayor Fouts

instructed him to put diversity training on the “back burner” until after

the 2019 election for fear of backlash from white supporters if there was

too great a focus on diversity. Id. at PageID.6413. Murray stated his pur-

pose for taking on the role of Diversity Coordinator was to advance diver-

sity practices in the city. Murray Deposition, ECF No. 28-2, PageID.487.

Murray alleges he made recommendations for how to improve diversity

in the department after he gave the Mayor his resignation letter, all of

which were rejected by the Mayor. ECF No. 28-2, PageID.488. Murray

alleges he was released by Mayor Fouts on December 8, 2017, ECF No.

28-2, PageID.488, but the City alleges Murray voluntarily left his posi-

tion, ECF No. 29, PageID.614. Murray was replaced by George Anthony

as the new Diversity Coordinator. ECF No. 69-6, PageID.6225.

III. Standard of Review

Summary Judgment

“Summary judgment is appropriate if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with any af-

fidavits, show that there is no genuine issue as to any material fact such

that the movant is entitled to a judgment as a matter of law.” Villegas v.

Metro. Gov't of Nashville, 709 F.3d 563, 568 (6th Cir. 2013); see also Fed.

R. Civ. P. 56(a). A fact is material if it might affect the outcome of the

case under the governing law. See Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 249 (1986). On a motion for summary judgment, the Court must

view the evidence, and any reasonable inferences drawn from the evi-

dence, in the light most favorable to the non-moving party. See Matsu-

shita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)

(citations omitted); Redding v. St. Edward, 241 F.3d 530, 531 (6th Cir.

2001).

The movant has the initial burden to show that there is no genuine

issue of material fact and that they should prevail as a matter of law.

Selby v. Caruso, 734 F.3d 554 (6th Cir. 2013); see also Celotex Corp. v.

Catrett, 477 U.S. 317, 325 (1986). If the movant meets that burden, the

non-moving party must “set forth specific facts showing that there is a

genuine issue for trial.” Ellington v. City of E. Cleveland, 689 F.3d 549,

552 (6th Cir. 2012) (explaining that a non-movant “may not rest upon its

mere allegations or denials of the adverse party’s pleadings”). The non-

moving party must present more than “a scintilla of evidence.” Ander-

son, 477 U.S. at 252. If the disputed evidence is “merely colorable, or is

not significantly probative, summary judgment may be granted.” Id. at

249–50. The Court must determine whether the evidence presents a fac-

tual disagreement sufficient to require submission of the claims to a jury,

or whether the moving party prevails as a matter of law. Id. at 252.

Statute of Limitations

Defendants assert that many of Plaintiff’s claims fall outside the

applicable statute of limitations. To address this argument the Court will

consider both the statute of limitations relating to claims under Title VII,

which allows the application of a “continuing violation” theory, and under

§ 1983 claims, which normally does not. Whether a complaint was filed

within the relevant statute of limitations is a question of law.

Wolfe v. Perry, 412 F.3d 707, 713 (6th Cir. 2005).

Defendants argue that Plaintiff’s Title VII claims are untimely as a

matter of law, asserting that “[a]n EEOC charge must be filed ‘within 300

days after the alleged unlawful employment practice occurred, 42 U.S.C.

§2000e-(5)(e)(1), and the Courts recognize that the filing of a timely

charge with the EEOC is a prerequisite to a Title VII action.’” ECF No.

66, PageID.3683 (citing Sherman v. Optical Imaging Systems, Inc., 843

F. Supp. 1168 (E.D. Mich. 1994)); Block v. Meharry Medical College, 723

F. App’x 273 (6th Cir. 2018)).12 Therefore, according to Defendants, no

acts occurring more than 300 days before Plaintiff’s filing of this lawsuit

should be considered by the Court. In response, Plaintiff argues she was

subjected to a “continuing violation” under Title VII because she alleges

acts that occurred at various times throughout the entirety of her tenure

12 Sherman v. Optical Imaging Systems is about violations of the Americans with Dis-

abilities Act, the Michigan Handicappers’ Civil Rights Act, and the Age Discrimina-

tion in Employment Act. It holds that the court “has jurisdiction to decide Plaintiffs'

ADA claim on the merits as well as procedurally, even though Plaintiffs did not file a

charge with the EEOC or receive a right-to-sue letter.” Sherman v. Optical Imaging

Sys., Inc., 843 F. Supp. 1168, 1179 (E.D. Mich. 1994). Block v. Meharry Medical Col-

lege, 723 F. App’x 273 (6th Cir. 2018) is unpublished and holds no precedential value.

There are several published cases and clear precedent on the topic of Title VII claims,

so the Court does not see the need to consider Block in its analysis.

with the Warren Police Department. The Sixth Circuit employs the con-

tinuing violation doctrine13 most commonly in Title VII cases, but rarely

extends it to § 1983 claims. Sharpe v. Cureton, 319 F.3d 259, 267 (6th Cir.

2003) (citing LRL Properties v. Portage Metro Hous. Auth., 55 F.3d 1097,

1106 n.3 (6th Cir. 1995)).

Under the continuing violation doctrine, “a plaintiff is entitled to

have the court consider all relevant actions allegedly taken pursuant to

the employer's discriminatory policy or practice, including those that

would otherwise be time barred.’” Sharpe, 319 F.3d at 267 (quoting Alex-

ander v. Local 496, Laborers' Int'l Union of North America, 177 F.3d 394,

408 (6th Cir. 1999)). But “when an employee seeks redress for discrete

acts of discrimination or retaliation, the continuing violation doctrine

may not be invoked to allow recovery for acts that occurred outside the

filing period.” Sharpe, 319 F.3d at 267 (citing to National Railroad Pas-

senger Corp. v. Morgan, 536 U.S. 101, (2002)). This is because discrete

acts—such as termination, refusal to hire, or failure to promote—are eas-

ily identifiable.

13 The Sixth Circuit previously recognized two categories of continuing violations:

those (1) alleging serial violations and (2) identified with a longstanding and demon-

strable policy of discrimination. Sharpe v. Cureton, 319 F.3d 259, 266 (6th Cir. 2003).

The “serial violation” category is no longer recognized by the Supreme Court.

See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002).

Hostile work environment claims under Title VII, on the other

hand, “involve unlawful employment practices that cannot be said to oc-

cur on any particular day but, occur over a series of days or years.” Nat’l

Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002) (citing Harris

v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)).

Plaintiff filed her complaint with the EEOC and received a right to

sue letter dated April 4, 2017. ECF No. 66-8. She filed suit on April 21,

2017, well within the 90 days allowed by the letter. ECF No. 1. Her com-

plaint alleges a continuing violation of her rights under Title VII, so the

Court will consider all relevant actions in its consideration of her Title

VII claims, not just those that occurred within 300 days of her EEOC

complaint. See Kovacevich v. Kent State Univ., 224 F.3d 806, 829 (6th Cir.

2000) (explaining that the 300-day time period for filing a charge with

the EEOC may be subject to equitable tolling under the continuing viola-

tions doctrine where at least one alleged event falls within the 300-day

period).

Regarding actions under § 1983, Congress did not adopt a specific

statute of limitations, so courts “must borrow the statute of limitations

governing personal injury actions in the state in which the section 1983

action was brought.” Banks v. City of Whitehall, 344 F.3d 550, 553 (6th

Cir. 2003). This case was brought in Michigan, and “the appropriate stat-

ute of limitations to be borrowed for § 1983 actions arising in Michigan is

the state’s three-year limitations period for personal injury claims.”

Wolfe v. Perry, 412 F.3d 707, 714 (6th Cir. 2005).14 Though state law de-

termines what the statute of limitations period is, federal law determines

when the statutory period begins to run. Harrison v. Michigan, 722 F.3d

768, 772–73 (6th Cir. 2013) (citing Collyer v. Darling, 98 F.3d 211, 220

(6th Cir. 1996)).

The City of Warren argues the statute of limitations period began

running when Plaintiff knew or had reason to know that the acts consti-

tuting the basis of her complaint occurred. ECF No. 66, PageID.3684

(quoting Harrison v. Michigan, 722 F.3d 768, 773 (6th Cir. 2013) (“[T]he

statute of limitations period begins to run when the plaintiff knows or

has reason to know that the act providing the basis of his or her injury

has occurred.”)). As the Court understands it, the City argues each indi-

vidual incident complained of in Plaintiff’s suit set off its own three-year

clock, and after the three years elapsed, Plaintiff would be barred by the

statute of limitations from asserting a claim based on that incident. Be-

cause Plaintiff knew about the injury when it occurred—it was occurring

to her—the clock started at that moment. The City’s position is that only

incidents occurring within the three years immediately preceding Plain-

tiff’s filing of this lawsuit should be considered. The Court concludes that

14 The original Complaint in this case was filed on April 21, 2017. If a three-year

statute of limitations were to apply, then only claims arising after April 21, 2014

could be brought.

Defendants’ position is consistent with Sixth Circuit precedent: the stat-

ute of limitations begins to run when the Plaintiff becomes aware of the

act providing the basis for the claim. The initial complaint in this case

was filed on April 21, 2017; therefore, only incidents occurring on or after

April 21, 201415 may be considered for Plaintiff’s § 1983 claims.

Accordingly, Plaintiff’s hostile work environment claims (Count I:

Violation of Title VII – Discrimination Based on Race and Gender – Hos-

tile Work Environment) may be based on all of the alleged incidents of

discrimination, but Plaintiff’s § 1983 claims may be supported only by

incidents occurring after April 21, 2014.

IV. Analysis

Count I – Violation of Title VII – Hostile Work Environment

(42 U.S.C. § 2000e, et seq.)

Section 2000e of Title 42 of the United States Code states:

It shall be an unlawful employment practice for an

employer –

(1) to fail or refuse to hire or discharge any in-

dividual, or otherwise to discriminate against any

individual with respect to his compensation,

terms, conditions, or privileges of employment, be-

cause of such individual’s race, color, religion, sex,

or national origin; or

(2) to limit, segregate, or classify his employees

or applicants for employment in any way which

15 Defendants argue in their motion that the cut-off date is April 21, 2013, but that

appears to be a simple mathematical mistake on their part. ECF No. 66, PageID.3683

(“All of Plaintiff’s claims preceding April 21, 2013 [sic], are untimely as a matter of

law under both 42 U.S.C. §1983 and Title VII, because those alleged actions occurred

between ten (10) and twelve (12) years ago.”)

would deprive or tend to deprive any individual of

employment opportunities or otherwise adversely

affect his status as an employee, because of such

individual’s race, color, religion, sex or national

origin.

42 U.S.C. § 2000e-2(a); see also Faragher v. City of Boca Raton, 524 U.S.

775, 786 (1998); Williams v. Gen. Motors Corp., 187 F.3d 553, 560 (6th

Cir. 1999).

Plaintiff’s first count alleges a Title VII violation against all “De-

fendants.” See Plaintiff’s Amended Complaint, ECF No. 4, PageID.59-60.

However, Title VII only imposes liability on an “employer,” which is de-

fined as “a person engaged in an industry affecting commerce who has

fifteen or more employees . . . and any agent of such person.” Wathan v.

General Elec. Co., 115 F.3d 400, 405 (6th Cir. 1997) (quoting 42 U.S.C. §

2000e(b)). While other courts have interpreted the phrase “and any agent

of such person” as “incorporating respondeat superior liability into the

statute,” Miller v. Maxwell’s Intern. Inc., 991 F.2d 583, 587 (9th Cir.

1993), the Sixth Circuit has concluded that Congress did not intend for

individual employees or agents to face liability under Title VII, even

those employees operating in a supervisory capacity. Wathen, 115 F.3d

at 405-06 (“We now hold that an individual employee/supervisor, who

does not otherwise qualify as an ‘employer,’ may not be held personally

liable under Title VII.”). Accordingly, the Court will only consider Plain-

tiff’s Title VII claim against the City of Warren as Plaintiff’s “employer.”

The remaining defendants, Jere Green, Lawrence Gardner, Shawn John-

son, and Anwar Khan are not alleged to be Plaintiff’s “employer” as de-

fined in Title VII. Further, Plaintiff’s first count encompasses hostile

work environment claims both on the basis of sex and race. Because the

facts necessary to show a hostile work environment claim based on sex

are different than those for race, the Court will consider them separately.

a. On the basis of sex

A plaintiff may establish a violation of Title VII by proving that the

discrimination occurred based on sex and created a hostile or abusive

work environment. See Meritor Savings Bank v. Vinson, 477 U.S. 57, 66

(1986); Black v. Zaring Homes, Inc., 104 F.3d 822, 825 (6th Cir.

1997), cert. denied, 522 U.S. 865 (1997). A hostile work environment is

one in which “the workplace is permeated with discriminatory intimida-

tion, ridicule, and insult that is sufficiently severe or pervasive to alter

the conditions of the victim's employment and create an abusive working

environment.” Harris, 510 U.S. at 21 (citations and internal quotation

marks omitted). While individual instances of harassment usually do not

create a hostile work environment on their own, “the accumulated effect

of such incidents may result in a Title VII violation.” Williams v. Gen.

Motors Corp., 187 F.3d 553, 563 (6th Cir. 1999). As such, use of a “total-

ity-of-the-circumstances” test is “the most basic tenet of the hostile-work-

environment cause of action.” Id. The Court must consider “‘all of the cir-

cumstances,’ including ‘the frequency of the discriminatory conduct; its

severity; whether it is physically threatening or humiliating, or a mere

offensive utterance; and whether it unreasonably interferes with an em-

ployee's performance.’” Jackson v. Quanex Corp., 191 F.3d 647, 658 (6th

Cir. 1999) (quoting Harris v. Forklift Sys., 510 U.S. 17, 23 (1993)). The

conduct is judged on both an objective and a subjective standard. That is,

“the conduct must be severe or pervasive enough to create an environ-

ment that a reasonable person would find hostile or abusive, and the vic-

tim must subjectively regard that environment as abusive.” Id. at 658

(quoting Black v. Zaring Homes, Inc., 104 F.3d 822, 826 (6th Cir. 1997)).

In the Sixth Circuit, to establish a prima facie case of sexually hos-

tile work environment, a plaintiff must show the following elements by a

preponderance of the evidence,

(1) that she was a member of a protected class;

(2) that she was subjected to unwelcome sexual

harassment;

(3) that the harassment was based on sex;

(4) that the harassment unreasonably interfered

with her work performance by creating a hostile,

offensive, or intimidating work environment; and

(5) that there is a basis for employer liability.

Thornton v. Fed. Express Corp., 530 F.3d 451, 455 (6th Cir. 2008) (citing

Hafford v. Seidner, 183 F.3d 506, 512 (6th Cir. 1999)). It is undisputed

that Plaintiff, an African American woman, is a member of a protected

class. Defendants dispute the next three elements, arguing that the al-

leged harassment was not unwelcome, was not based on sex, and did not

create a hostile work environment. ECF No. 66, PageID.3686. The De-

fendants do not appear to contest that there would be a basis for employer

liability if the other elements of the prima facie case were present.

As to the elements of the prima facie case, it is undisputed that

Plaintiff is a member of a protected class, and therefore meets the first

element. The second element is that she was subject to “unwelcome har-

assment.” Defendants dispute this by claiming that because Plaintiff was

“friends” with some of her alleged harassers, their conduct could not be

unwelcome. Specifically, Defendants argue, “Plaintiff has admitted that

she frequently joked with Bell, that she believes Bell is a ‘good guy.’ A

solitary, alleged crude comment, (denied in full by Bell, ¶ 33 herein), if

made, was not unwelcome.” ECF No. 66, PageID.3686. At best, this de-

fense applies only to the allegations against Bell. At worst, it suggests

that a person can become inoculated against ever being subject to work-

place harassment claims simply by befriending one’s co-workers. Plaintiff

testified to numerous incidents that she felt were harassing and unwel-

come. That she may at one time have had a friendly rapport with some-

one who participated in the alleged harassment does not mean such har-

assment was welcome. The evidence in the record is sufficient to raise an

issue of fact as to the second element of her prima facie case.

The third element is that the alleged harassment was based on sex.

Defendants argue Plaintiff has not shown that the alleged harassment

was “based on sex.” They assert that her allegations against Officers

Kelly and Malesh were simple misunderstandings, and that those officers

were only inviting her to friendly outings. ECF No. 66, PageID.3686.

They say that her allegations regarding Officer Khan failing her in field

training cannot be boiled down to simple discrimination on the basis of

sex because he also failed similarly-situated white male officers. ECF No.

66, PageID.3689–90. They point to James Twardesky and James Huron,

who took the field training course around the same time as Plaintiff and

were also failed at Phase III by Khan. ECF No. 66, PageID.3689–90.

Defendants’ point is that if Khan also failed otherwise similarly-

situated white male officers, then he could not have failed Plaintiff on the

basis of her sex (or race). But Plaintiff does not allege that Khan only

failed women, always failed women, only passed men, or always passed

men. Rather, she alleges that Khan failed her because she is a woman,

and that his concerns about her performance were mere pretext. In sup-

port of this, she testified that Officer Khan made statements to her

demonstrating a regressive view of women in general and specifically an

enmity against women participating in the workforce. These statements

allow a fair inference that Officer Khan held her sex against her when

assessing her performance. A reasonable jury might conclude that Khan

failed Plaintiff at Phase III on the basis of her sex. Defendants do not

address whether the allegations that pertain to Detective Johnson or De-

tective Bell meet this element. When taken altogether, a reasonable jury

could find that some of these incidents of alleged harassment were moti-

vated by Plaintiff’s sex. This is sufficient to conclude that Plaintiff has

presented sufficient facts to raise an issue on the third element of her

prima facie case.

Defendants next dispute whether Plaintiff has presented facts ca-

pable of establishing the fourth element of her prima facie case—that the

harassment created a hostile work environment. They argue that even if

Plaintiff’s allegations were taken as true, these few events, when consid-

ered against Plaintiff’s whole eleven-year career, do not rise to the level

of creating a sexually-hostile work environment. They further argue that

Plaintiff has failed to show “that the claimed harassment was sufficiently

‘severe or pervasive.’” ECF No. 66, PageID.3686–87.

Defendants acknowledge that Detective Johnson was disciplined

“for a sexually crude comment he made to Plaintiff,” but also claim that

“Plaintiff testified in deposition that she was satisfied with the Depart-

ment’s action.” ECF No. 66, PageID.3688. Defendants imply that Plain-

tiff felt the department handled the discipline of Johnson appropriately

and adequately. They do so to support their argument that “when meas-

uring the hallmark of whether a work environment is objectively hostile,

Courts examine employers’ remedial measures to determine if the

measures put an end to further complaints of harassment by the offend-

ing individual.” ECF No. 66, PageID.3688 (citing Vermett v. Hough, 627

F. Supp. 587, 607 (W.D. Mich. 1986)). But Plaintiff explained in her dep-

osition and alleges in her complaint that the department’s remedial

measures did not put an end to Johnson’s harassment of Plaintiff, nor

her harassment by other people, including Barbara Beyer. Indeed, this is

evidence that the work place was objectively hostile. Plaintiff has set

forth sufficient facts to establish the fourth element of her prima facie

case.

Defendants do not dispute the fifth element, that there is a basis

for employer liability. While they dispute whether the City should be lia-

ble under Monell v. Dep’t of Soc. Svcs. of City of New York, 436 U.S. 658,

691 (1978) for damages pursuant to § 1983, that is unrelated to whether

the City, as Plaintiff’s employer, is liable for potential Title VII claims.

Plaintiff has sufficiently alleged the prima facie elements of her

hostile work environment claim as it pertains to her sex. There are gen-

uine issues of material fact—namely, whether she was failed at Phase III

because of her sex, whether various officers and detectives made the com-

ments she alleges they made, and whether the City forced her to work

with someone they should have known was sexually harassing her. A jury

could reasonably find that the totality of circumstances at the Warren

Police Department constituted a hostile work environment for Plaintiff

on the basis of her sex.

Consequently, Defendants’ Motion for Summary Judgment will be

denied as to Count I – Hostile Work Environment on the Basis of Sex.

b. On the basis of race

The fundamental underlying rationale for a claim of hostile work

environment on the basis of race is the same for a claim on the basis of

sex. See Thornton v. Fed. Express Corp., 530 F.3d 451, 455 (6th Cir. 2008)

(citing Hafford v. Seidner, 183 F.3d 506, 512 (6th Cir. 1999)).

Plaintiff makes numerous allegations about how she was discrimi-

nated against and harassed on the basis of race, which are thoroughly

summarized in the background section above. Plaintiff is a member of a

protected class, and she sufficiently alleges that she was subjected to har-

assment on the basis of her race that created a hostile work environment

and interfered with her work. The conduct attested to—from making

statements involving racial stereotypes about food and clothing, degrad-

ing Plaintiff’s appearance, and using the “n-word” around her, to failing

to provide adequate backup, among other allegations—is the type that a

jury could find sufficient to constitute an unreasonably abusive or offen-

sive work environment that adversely affected Plaintiff’s ability to do her

job.

Defendants’ Motion for Summary Judgment will therefore be de-

nied as to Count I – Hostile Work Environment on the Basis of Race.

Count II – Fourteenth Amendment Equal Protection

(42 U.S.C. § 1983)

Plaintiff alleges that “[a]s a direct and proximate result of the un-

constitutional acts of the Defendants as alleged herein, Plaintiff has sus-

tained a violation of her right to equal protection of the law[.]” ECF No.

4, PageID.61. The relevant statute of limitations for Plaintiff’s § 1983

claims, as discussed above, is three years. Wolfe, 412 F.3d at 714. The

three-year period began running at the time of each alleged injury. Har-

rison v. Michigan, 722 F.3d 768, 773 (6th Cir. 2013). The only incidents

allegedly violating Plaintiff’s right to equal protection that fall within the

statute of limitations are those that occurred within three years of Plain-

tiff’s filing of the first complaint in the instant action.

The following incidents fall within the statutory period because

they occurred after April 21, 2014: (1) Detective Shawn Johnson’s conduct

in harassing Plaintiff, (2) Officer Khan’s conduct in pulling Plaintiff over

as she was driving in an unmarked police vehicle responding to a call, (3)

Barbara Beyer’s use of the n-word,16 (4) Commissioner Jere Green’s al-

leged conduct in failing to adequately discipline Johnson by ensuring that

he promptly take diversity training, (5) Lieutenant Lawrence Garner’s

alleged conduct in requiring Plaintiff to work near Johnson after he had

been disciplined for misconduct toward her and she expressed concern

16 Because Barbara Beyer was previously dismissed as an individual defendant by

stipulated order, ECF No. 21, the Court will not discuss the incident involving her as

a basis for liability under § 1983.

that such conduct might continue, and (6) the City’s ongoing conduct in

failing to provide diversity training during this time period.

The Equal Protection Clause of the Fourteenth Amendment guar-

antees the right to be free from discrimination on the basis of sex or race.

See Poe v. Hayden, 853 F.2d 418, 429 (6th Cir. 1988) (on the basis of sex);

see also Village of Arlington Heights v. Metro. Housing Dev. Corp., 429

U.S. 252, 265 (1977) (on the basis of race). To state a claim here, Plaintiff

need only to allege sufficient facts to show “that a state actor intention-

ally discriminated against her because of membership in a protected

class.” Brand v. Motley, 526 F.3d 921, 924 (6th Cir. 2008) (quoting Henry

v. Metro. Sewer Dist., 922 F.2d 332, 341 (6th Cir. 1990)).

a.) Detective Shawn Johnson

Plaintiff has alleged sufficient facts showing Detective Shawn

Johnson intentionally discriminated against her on the basis of her race

and sex. This is evidenced by the number of incidents she alleges from

the time she began working with Johnson in 2015 to when she left the

department in 2017. This time-frame was during the statutory period.

Johnson pleaded as an affirmative defense that he was entitled to quali-

fied immunity. ECF No. 7, PageID.112. However, Defendants did not ar-

gue that Johnson was entitled to qualified immunity in their motion for

summary judgment, ECF No. 66, or their reply brief in support of that

motion, ECF No. 76. The Court considers that defense abandoned at this

time. Larry v. Powerski, 184 F.Supp.3d 584, 602 (E.D. Mich. 2015) (hold-

ing defendant abandoned qualified immunity defense where defendant

did not argue or mention qualified immunity in her motion for summary

judgment or reply brief, even though she pled the defense in her answer);

see also Ortiz v. Jordan, 562 U.S. 180, 184 (2011) (explaining that courts

may entertain renewed motions for qualified immunity during trial).

b.) Officer Anwar Khan

Plaintiff states Officer Anwar Khan intentionally discriminated

against her and is not entitled to qualified immunity because he “har-

assed Plaintiff[] and knew or should have known that [his] conduct vio-

lated her constitutional rights.” Plaintiff’s Response to Defendants’ Mo-

tion for Summary Judgment, ECF No. 70, PageID.6929. Defendants as-

sert Khan is entitled to qualified immunity because the evidence is “un-

controverted” that Khan failed similarly-situated men during Phase III

of field training and because Plaintiff “admitted” she was having prob-

lems performing the tasks in Phase III. ECF No. 66, PageID.3699. But

because they occurred prior to April 21, 2014, Khan’s actions during field

training are not considered for purposes of Plaintiff’s § 1983 claim. Ra-

ther, the incident where Khan pulled Plaintiff over in an unmarked police

vehicle while responding to a call is at issue. Defendants do not argue

why Khan is entitled to qualified immunity for that act. See Defendants’

Motion for Summary Judgment, ECF No. 66, PageID.3699. While “it is

the plaintiff’s burden to convince the court that the law was clearly es-

tablished at the time of the offensive conduct[,]” Hughes v. City of North

Olmsted, 93 F.3d 238, 241 (6th Cir. 1996), Defendants moved for sum-

mary judgment on Plaintiff’s § 1983 claim and failed address the relevant

conduct that allegedly did not violate a clearly established constitutional

right.

The Court will not sua sponte grant summary judgment on behalf

of Khan where he has failed to argue that his conduct did not violate

clearly established federal law. See Larry, 184 F.Supp.3d at 602 (citing

McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997) (observing that

“[i]ssues averted to in a perfunctory manner, unaccompanied by some ef-

fort at developed argumentation, are deemed waived,” and reiterating

that “[i]t is not sufficient for a party to mention a possible argument in

the most skeletal way, leaving the court to put flesh on its bones”) (quo-

tations and alterations omitted)). Therefore, Khan is not entitled to qual-

ified immunity at this time. Ortiz, 562 U.S. at 184. However, Plaintiff has

alleged sufficient facts to demonstrate that Khan intentionally discrimi-

nated against her on the basis of her sex during this encounter where he

allegedly pulled her over in her unmarked police vehicle, harassed her,

and attempted to file a complaint against her.

c.) Commissioner Jere Green

Plaintiff also argues Police Commissioner Jere Green violated her

constitutional rights in his individual capacity when he failed to ade-

quately discipline Johnson, monitor activities in the department, ensure

that Johnson complete a diversity training course in a timely manner,

and provide diversity training to the department as a whole. ECF No. 70,

PageID.6929. Defendants assert Green is entitled to qualified immunity.

Defendants’ Motion for Summary Judgment, ECF No. 66, PageID.3696-

97.

Qualified immunity protects state actors from liability unless they

violate “clearly established” federal law at the time they acted. Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). This is usually a two-fold question.

The Court first determines whether a plaintiff has shown the defendant

violated a constitutional right, and if so, whether that right was “clearly

established” at the time the defendant acted. Id. Plaintiffs bear the bur-

den of persuasion once defendants properly raise the defense. Hughes v.

City of North Olmsted, 93 F.3d 238, 241 (6th Cir. 1996).

Taking the second qualified immunity question first, Plaintiff had

a clearly established constitutional right under the Equal Protection

Clause not to be discriminated against by the City on the basis of race or

sex. See Washington v. Davis, 426 U.S. 229, 239-41 (1976) (on the basis

of race); Poe v. Haydon, 853 F.2d 418, 430 (6th Cir. 1988) (on the basis of

sex). The objective question is whether the “contours of the [asserted]

right were sufficiently clear that a reasonable official would understand

that what he is doing violates that right.” Poe, 853 F.2d at 423 (quoting

Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Because the basis of

Green’s alleged § 1983 liability cannot be premised on a theory of re-

spondeat superior, Plaintiff must demonstrate that Green personally vi-

olated her rights. See Lynn v. City of Detroit, 98 Fed.Appx. 381, 385 (6th

Cir. 2004). According to the record, Green’s conduct consisted more in

acts of omission rather than commission: at the individual level, he failed

to ensure that Johnson completed his disciplinary punishment by

promptly attending diversity training; and, at the department-wide level,

he failed to order that the department conduct any diversity training

from 2014-17.

In the context of such supervisory liability, the Sixth Circuit has

held that “a supervisory official’s failure to supervise, control or train the

offending individual is not actionable unless the supervisor ‘either en-

couraged the specific incident of misconduct or in some other way directly

participated in it. At a minimum a plaintiff must show that the official at

least implicitly authorized, approved, or knowingly acquiesced in the un-

constitutional conduct of the offending officers.’” Shehee v. Luttrell, 199

F.3d 295, 300 (6th Cir. 1999) (quoting Hays v. Jefferson County, 668 F.2d

869, 874 (6th Cir. 1982)); see also Salehpour v. Univ. of Tennessee, 159

F.3d 199, 206 (6th Cir. 1998) (concluding that § 1983 liability cannot be

based upon a “mere failure to act”). Notably, merely “neglectful” conduct

is not sufficient for § 1983 liability. Doe v. Claiborne County, Tenn., 103

F.3d 495, 513 (6th Cir. 1996) (stating that knowing acquiescence implies

more than “sloppy, reckless, or neglectful” execution of duties). Therefore,

the Court must determine whether Green’s conduct rises to the level of

encouragement or knowing acquiescence.

Turning to Green’s specific actions, the record demonstrates that

he authorized Johnson’s discipline and ordered Johnson receive diversity

training but failed to follow up on whether that training ever occurred.

When Lieutenant Lawrence Garner approached Green requesting to

physically relocate Plaintiff to a workspace near Johnson, Green testified

that he had a meeting with Garner, labor relations employee Mark Sim-

lar and Plaintiff about the move. ECF No. 66-10, PageID.4186. While it

appears Simlar confirmed that no additional incidents had been reported,

Green did not inquire whether Johnson’s discipline had been completed

by his having attended the mandated diversity training. Id. Garner tes-

tified that Green told him “everything [with the discipline] was done” and

“[t]here was nothing to prevent them [Johnson and Plaintiff] from being

in the same room together.” ECF No. 66-22, PageID.4378. Green testified

that he remembered meeting with Plaintiff to discuss this decision, but

according to Garner, Green did not participate in the meeting with Plain-

tiff. Green Deposition, ECF No. 66-10, PageID.4186; Garner Deposition,

ECF No. 66-22, PageID.4409. Plaintiff testified that she discussed the

matter with Garner, and specifically told Garner that she did not wish to

be returned to the same work-space with Johnson, but she was never

asked whether she participated in any discussion with Green. ECF No.

69-10, PageID.6383. Green then approved placing Plaintiff back into the

same room with Johnson. ECF No. 66-10, PageID.4186.

As for Plaintiff’s allegation that Green failed to implement any di-

versity training from 2013-16, the record is unclear whether Green was

personally tasked with designing and implementing this training.17 It

cannot be said, on the record before the Court, that Green “personally

had a job to do, and he did not do it” when he failed to monitor Johnson

and failed to provide department-wide diversity training from 2014-17

before Plaintiff left the department. Hill v. Marshall, 962 F.2d 1209, 1213

(6th Cir. 1992), cert. denied, 509 U.S. 903 (1993) (finding supervisor lia-

bility where plaintiff alleged that supervisor abandoned the specific du-

ties of his position—reviewing and responding to inmate medical com-

plaints—“in the face of actual knowledge of a breakdown in the proper

workings of the department”); see also Gregory v. City of Louisville, 444

F.3d 725, 751-52 (6th Cir. 2006) (explaining that supervisor was entitled

to qualified immunity where plaintiff only alleged sufficient facts show-

ing that supervisors “failed to review their subordinates’ work” and did

not present evidence that it was the active performance of the supervisor’s

17 While several witnesses testified that yearly training of some kind was provided

that allegedly included information on diversity issues, none of the materials docu-

menting this yearly training was provided, and the Court has carefully examined all

of those materials that were provided. See Analysis supra at 23-24.

individual job function that caused the plaintiff’s constitutional injury).

Because the evidence does not show that Green abandoned a specific duty

to provide diversity training to the department in the face of actual

knowledge that racial and sexual harassment was a problem in the de-

partment, the record does not support a finding of implicit authorization,

approval or knowing acquiescence on Green’s part that would be suffi-

cient under the case law to impart supervisory liability.

The same analysis applies to the question of whether Green was

directly responsible for following up on Johnson’s requirement of com-

pleting diversity training. Green was aware that Johnson was required

to undergo diversity training as part of his discipline, but he never mon-

itored the progress of that decision to ensure that Johnson took the train-

ing. See Green Deposition, ECF No. 70-5, PageID.7129-30 (“I never fol-

lowed up on it. . . . If [training] didn’t occur, I would assume that it would

have been reported to me as the police commissioner. So it never was.”).

Without question, this would appear to be negligent supervision, but im-

posing supervisory liability requires implicit authorization, approval or

knowing acquiescence in a violation of constitutional rights, not merely

“neglectful” behavior. Doe, 103 F.3d at 513.

Finally, with respect to the decision to allow Plaintiff to return to

work in the same office with the person who was harassing her, the rec-

ord is likewise insufficient to overcome qualified immunity as to Commis-

sioner Green. Green says that he checked with the labor relations man-

ager, Simlar, to make certain there were no new incidents before approv-

ing Plaintiff’s relocation. Green Deposition, ECF No. 66-10,

PageID.4186; Garner Deposition, ECF No. 66-22, PageID.4378. Plaintiff

is clear that she told Garner she did not want to be forced to co-locate

again with Johnson, but there is nothing in the record indicating that

Green was told of Plaintiff’s objection. Howlett Deposition, ECF No. 69-

10, PageID.6383; Green Deposition, ECF No. 66-10, PageID.4186. On

this subject, Green’s knowledge is distinguishable from Garner’s. As to

Green, there is no allegation of fact that he was aware that the decision

to allow Plaintiff and Johnson to work together in the same office again

would subject her to harassment. In the absence of evidence that Green

“possessed information revealing a ‘strong likelihood’ of unconstitutional

conduct by subordinate officers but did nothing to prevent the miscon-

duct, thereby causing harm to the plaintiffs,” see Lynn v. City of Detroit,

98 Fed. Appx. 381, 385 (6th Cir. 2004) (quoting Doe v. City of Roseville,

296 F.3d 431, 439 (6th Cir. 2002)), the record is insufficient to impose

supervisory liability and Green is entitled to qualified immunity.

d.) Lieutenant Lawrence Garner

Plaintiff argues that Lieutenant Lawrence Garner violated her con-

stitutional rights following her 2016 promotion when he placed Plaintiff

back in the same office space as Johnson even though Plaintiff indicated

that her problems with Johnson were ongoing. ECF No. 70, PageID.6929.

Plaintiff testified she was only willing to take the promotion because she

had been promised she would not have to move to an office space near

Johnson. Howlett Deposition, ECF No. 66-2, PageID.3759. Because of the

move, Plaintiff alleges Johnson was able to continue to harass her from

October to December 2016. Defendants allege Garner is also entitled to

qualified immunity. ECF No. 66, PageID.3697. They assert Garner only

moved Plaintiff to the same office space after she stated she had “no prob-

lem” moving to a seat closer to Johnson because of remodeling in the

building. Defendants’ Motion for Summary Judgment, ECF No. 66,

PageID.3698; Garner Deposition, ECF No. 66-22, PageID.4379-80. That

characterization conflicts with Plaintiff’s testimony. She stated that she

told Garner her issues with Johnson were still ongoing and summarized

some of those problems for him. ECF No. 66-2, PageID.3759.

To be sure, the right to be free from state-sponsored discrimination

based on race and sex is clearly established. See Davis, 426 U.S. at 239-

41 (on the basis of race); Poe, 853 F.2d at 430 (on the basis of sex). But

the Court must also consider whether a reasonable official in Garner’s

position could have believed that placing Plaintiff in the same office space

as Johnson following a sustained disciplinary action and expressly

against her wishes—resulting in continued harassment by Johnson—

was lawful, considering that clearly established right. See Poe, 853 F.2d

at 423. Here, a genuine issue of material fact exists as to whether Garner

intentionally discriminated against Howlett. If Plaintiff is correct, Gar-

ner was aware of a prior sustained disciplinary action against Johnson,

and also that Plaintiff was still concerned about Johnson’s conduct, but

nevertheless put Plaintiff in an office space close to him against her

wishes.

Granted, Garner stated that he personally went to Commissioner

Green to make sure that nothing in Johnson’s disciplinary file prevented

the move and “[he] was told there was not.” ECF No. 66-22, PageID.4378.

When Garner spoke with Green, the two also got confirmation from Mark

Simlar that “everything was done” and “[t]here would be nothing against

her being moved[.]” Id. But on a motion for summary judgment, the Court

must credit the factual assertions of the non-moving party. See Matsu-

shita, 475 U.S. at 587. And here, Plaintiff stated she told Garner she was

still having problems with Johnson and did not want to be located near

him because of her fear of continued harassment. ECF No. 69-10,

PageID.6383. Taking this as true, it was the kind of information that

would have put Garner on notice of a “strong likelihood” of unconstitu-

tional conduct by a subordinate officer regardless of Green’s authoriza-

tion. And by failing to prevent the misconduct, he arguably exhibited “de-

liberate indifference” to violation of her rights. Lynn, 98 Fed. Appx. at

385. Under these circumstances, Garner is not entitled to qualified im-

munity. See Crawford v. Davis, 109 F.3d 1281, 1284 (8th Cir. 1997) (af-

firming district court’s refusal to grant summary judgment to defendants

on basis of qualified immunity “[b]ecause significant factual disputes ex-

ist[ed] with regard to the defendants’ actions in preventing and respond-

ing to sexual harassment” and the court could not say, as a matter of law,

that their actions did not violate the plaintiff’s clearly established right

to be free from sexual discrimination) (emphasis added)); see also T.E. v.

Grindle, 599 F.3d 583, 588 (7th Cir. 2010) (recognizing that it was clearly

established “that a supervisor could be held liable for participating in or

deliberately turning a blind eye to the equal protection violation of her

subordinate”).]

For the above reasons then, Defendants’ Motion for Summary Judg-

ment as to Count II is GRANTED in part, as to claims pertaining to

events occurring before April 21, 2014 and as to all claims against De-

fendant Green, who is entitled to qualified immunity; and DENIED in

part as to claims pertaining to events occurring after April 21, 2014

against Defendants Johnson, Garner, and Kahn.

Count III – Fourteenth Amendment Due Process

(42 U.S.C. § 1983)

Fourteenth Amendment due process claims can be brought as “pro-

cedural” challenges or “substantive” ones. Parrino v. Price, 869 F.3d 392,

397 (6th Cir. 2017). Plaintiff does not plead that she was denied a certain

process that she should have been granted or that any of the processes

she accessed were somehow unfair. Nor does the Court identify any facts

that would sustain such an allegation. Though Plaintiff also does not an-

alyze the elements of a substantive due process claim, it appears her

claim that she was routinely denied backup assistance from other officers

because of her race would constitute a substantive due process challenge.

Amended Complaint, ECF No. 4, PageID.62.

Substantive due process “serves the goal of preventing ‘governmen-

tal power from being used for purposes of oppression,’ regardless of the

fairness of the procedures used.” Howard v. Grinage, 82 F.3d 1343, 1349

(6th Cir. 1996) (quoting Daniels v. Williams, 474 U.S. 327, 331, (1986)

(internal quotation omitted)). “Substantive due process claims may be

loosely divided into two categories: (1) deprivations of a particular consti-

tutional guarantee; and (2) actions that “‘shock the conscience.’” Pusey v.

City of Youngstown, 11 F.3d 652, 656 (6th Cir. 1993), cert. denied, 512

U.S. 1237 (1994).

Plaintiff does not allege a deprivation of a particular constitutional

guarantee. Therefore, the Court considers whether the actions she al-

leges “shock the conscience.” Plaintiff alleges that she was routinely de-

nied backup assistance from other officers because of her race. Amended

Complaint, ECF No. 4, PageID.62. The City denies that Plaintiff failed to

receive proper backup. If true, such an allegation would certainly shock

the conscience: the intentional, systematic, and repeated denial of

needed backup to support an officer in the field—simply because of race—

would be reprehensible on a grand scale. But the support for this allega-

tion consists primarily of the difficult-to-interpret “dispatch records”

from 2007 and 2013. ECF No. 70, PageID.6912; ECF No. 69, PageID.6093

(alleging dispatch failed to send her backup—or failed to send backup as

quickly as was the standard for other officers—on 45 different occasions

in 2007, and 43 occasions in 2013). She does make one specific allegation

about dispatcher Dawn McLane in 2010 or 2011 failing to provide a de-

scription of an armed suspect, but this single incident also occurred more

than three years before the Complaint was filed.18 ECF No. 69,

PageID.6092; Howlett Deposition, ECF No. 66-2, PageID.3726. This is

significant because the same three-year statute of limitations discussed

above in connection with Plaintiff’s § 1983 claims for Equal Protection

violations applies here. That three-year statute of limitations precludes

this Court from considering those acts documented in the 2007 and 2013

records, even assuming that the proffered records supported the claim

that backup was delayed or denied. Plaintiff also does not allege any spe-

cific facts showing that defendants Shawn Johnson, Anwar Khan, Jere

18 Howlett makes one allegation of failure to provide backup in a timely manner that

occurs after April 21, 2014. That allegation involves a call for backup when Plaintiff

and Detective Brent Chisolm were arresting a criminal sexual conduct suspect. ECF

No. 69, PageID.6079. However, that allegation was against the City, and not any in-

dividual officer. Id. As such, it may more properly be considered in connection with

Plaintiff’s claim that the City is liable under Monell. Moreover, the Court notes that,

to the extent there is evidence of a race-based failure to provide back-up during the

time-frame preceding April 21, 2014, such evidence could be relevant to proving

Plaintiff’s hostile-work environment claim under the continuing violation theory.

Green, or Lawrence Garner routinely denied her backup assistance. Her

pleadings allege that “defendants” as a whole “purposefully refused and

failed to provide the necessary backup.” ECF No. 4, PageID.62. This al-

legation is conclusory and is not supported by any facts the Court can

consider for Plaintiff’s claim against the remaining individual defend-

ants.

Defendants’ Motion for Summary Judgment as to Count III must

therefore be GRANTED.

Count IV – Municipal Liability under Monell

(42 U.S.C. § 1983)

Both parties move for summary judgment on Count IV, Plaintiff’s

claim seeking to impose § 1983 liability on the City of Warren. A munic-

ipality cannot be liable under a theory of respondeat superior for the con-

stitutional torts of its employees. Monell v. Dep’t of Soc. Svcs. of City of

New York, 436 U.S. 658, 691 (1978). Instead, municipal liability may be

established either through an express municipal policy that deprives an

individual of a constitutionally protected right, or by a “widespread prac-

tice that, although not authorized by written law or express municipal

policy, is ‘so permanent and well settled as to constitute a custom or us-

age with the force of law.’” City of St. Louis v. Praprotnik, 485 U.S. 112,

127 (1988) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68

(1970)); Monell, 426 U.S. at 694. The “policy or custom” must be the

“moving force” behind the deprivation of the plaintiff’s rights. Monell, 426

U.S. at 694. An actionable custom—as opposed to a written policy—is one

that “has not received formal approval through . . . official decisionmak-

ing channels.” Powers v. Hamilton Cty. Pub. Def. Comm'n, 501 F.3d 592,

607 (6th Cir. 2007). A plaintiff may establish the existence of a custom

by showing that “policymaking officials knew about and acquiesced in the

practice at issue.” Id. (citing Memphis, Tenn. Area Local, Am. Postal

Workers Union v. City of Memphis, 361 F.3d 898, 902 (6th Cir. 2004)); see

also Doe v. Claiborne County, 103 F.3d 495, 507 (6th Cir. 1996) (“Under

Monell, the [defendants] cannot be found liable unless the plaintiff can

establish that an officially executed policy, or the toleration of a custom

. . . leads to, causes, or results in the deprivation of a constitutionally pro-

tected right.”) (emphasis added).

Plaintiff alleges that the City of Warren knew of racial discrimina-

tion and harassment in the police department but did nothing to rectify

the issue. Plaintiff must prove four elements to establish Monell liability

premised on a theory of inaction:

(1) Existence of a clear and persistent pattern of

violating federal rights,

(2) Notice or constructive notice on the part of

the defendants,

(3) The defendants’ tacit approval of the uncon-

stitutional conduct, such that deliberate indiffer-

ence in failing to act can be said to amount to an

official policy of inaction; and

(4) That the defendants’ custom was the “mov-

ing force,” or direct causal link to the constitu-

tional deprivation.

See, e.g., Powers v. Hamilton Cty. Pub. Def. Comm'n, 501 F.3d 592, 607

(6th Cir. 2007); Doe v. Claiborne County, 103 F.3d 495, 507 (6th Cir.

1996).

As summarized in greater detail above, Plaintiff alleges that the

City of Warren has a notable history of racial issues, and points to two

lawsuits by the United States Department of Justice in which the City

was sued for racial discrimination in hiring. ECF No. 69, PageID.6077-

78. Plaintiff also points to her own alleged experiences as examples of

ongoing racial harassment in the Warren Police Department. Though

Plaintiff personally only filed one “official” complaint during her tenure

with the Warren Police Department (the complaint about Barbara Beyer

in 2017), she adequately alleges that her supervisors were aware of the

racial harassment and that they did nothing to stop it. For example,

Mark Simlar, the labor relations manager for the City at the time, testi-

fied that Plaintiff came to him in 2017 after the Barbara Beyer incident

and expressed concern that the department was not responding to her

calls for backup as quickly as other officers. Simlar Deposition, ECF No.

69-6, PageID.6251. Despite these allegations that Plaintiff was being

placed in danger because of racial discrimination, Simlar did not conduct

an investigation. Id. Simlar claims it was because he did not know how

to investigate when Plaintiff refused to provide any names, but he admit-

ted she refused to provide more details because “she felt the more com-

plaints she made, the more that the department would turn against her.”

ECF No. 69-6, PageID.6252. Howlett’s experiences, the inaction of her

superiors, and the City’s history as reflected in the Department of Justice

lawsuits raise facts that could serve to establish the first element of the

Claiborne test.19

Defendants argue that Plaintiff failed to identify the policy or cus-

tom at issue, but Plaintiff clearly alleges that the failure to train Plain-

tiff’s co-workers “in a relevant respect evidences a deliberate indiffer-

ence” to Plaintiff’s rights and that “such a shortcoming [can] be properly

thought of as a city policy or custom that is actionable under § 1983.” ECF

No. 69, PageID.6083 (quoting City of Canton v. Harris, 489 U.S. 378, 388–

89 (1989) (internal quotation marks omitted)). This is not a novel theory.

The Sixth Circuit has held that the “systematic failure to train police of-

ficers adequately is a custom or policy which can lead to municipal liabil-

ity” so long as the custom or policy actually caused the deprivation of the

plaintiff’s rights. Miller v. Sanilac County, 606 F.3d 240, 255 (6th Cir.

2010) (citing Gregory v. City of Louisville, 444 F.3d 725, 753 (6th Cir.

2006)); see also City of Canton, 489 U.S. at 391.

The City alleges the Police Department held various training ses-

sions for its employees on the topic of diversity. Reichling Affidavit, ECF

No. 66-9, Page ID.3895-96. However, the record reveals that during the

19 A question still exists as to whether conduct that predated April 21, 2014, could

provide a basis for liability under Monell. If Plaintiff believes that conduct occurring

prior to April 21, 2014 may be considered as a basis for liability under Monell, that

issue can be addressed by the Court prior to trial.

period from 2013 until 2017 when Plaintiff left the department, there

were no training sessions addressing the topic of diversity in the context

of racial and sex-based discrimination in employment. Defendants can

only point to training sessions offered in 2005, 2006, 2007, and 2009 as

being relevant to diversity. Reichling Affidavit, ECF No. 66-6, Page

ID.3895. The City also seeks to rely on two training programs conducted

in 2008 and 2010. But these are presentations about diabetic emergen-

cies or “operational Spanish.”20 These examples tend to lend credence to

Plaintiff’s allegations and support her contention that the police depart-

ment lacks adequate training in cultural diversity and racial harass-

ment.

Plaintiff alleges that everyone above her—from her direct supervi-

sors to the human resources department to the police commissioner and

even the Mayor himself—were aware of the racial harassment and either

did nothing at all to stop it, or actively interfered with efforts to correct

it. Greg Murray, the Diversity Coordinator, alleges the Mayor told him

to put “diversity issues” on the “back burner” until after the next election,

for fear of backlash from white residents. Murray Affidavit, ECF No. 69-

12, PageID.6413. Murray states he resigned because the Mayor refused

20 Training in operational Spanish and diabetic emergencies does nothing to raise

awareness of the problem of race and sex-based discrimination in the workplace, nor

is it focused on increasing understanding of cultural differences or appreciating indi-

viduals from diverse backgrounds and experiences. That Defendants cite such presen-

tations as relevant examples of “diversity” training may be more revealing of the un-

derlying problem alleged by Plaintiff than of any genuine effort to address it.

to address diversity issues in the city and treated Murray’s position as

merely a “window dressing.” ECF No. 69-12, PageID.6414. Plaintiff as-

serts this tacit approval is evidenced by the City’s failure to train Shawn

Johnson until 2017, ECF No. 69, PageID.6079, as well as Deputy Police

Commissioner Galasso’s and Sergeant Nichols’ failure to report multiple

instances of hearing the “n-word” used in the department, ECF No. 69,

PageID.6088; Galasso Deposition, 69-21, PageID.6565-66; Nichols Depo-

sition, ECF No. 69-9, PageID.6320. In response, the City asserts Howlett

did not follow the appropriate channels to complain about her disparate

treatment in the department. ECF No. 74, PageID.7513. The City relies

on the Police Department’s General Orders and Rules of Conduct to es-

tablish that, contrary to Plaintiff’s assertions, the City has policies in

place to prevent a custom or policy of racial harassment and Plaintiff’s

“failure to report any and all complaints negates her recent complaints.”

ECF No. 74, PageID.7518, Defendants argue the City cannot be penal-

ized for failing to investigate allegations that were never brought to light.

The City also disputes Murray’s assessment of his job as Diversity Coor-

dinator for the City and denies Murray’s allegation that the mayor told

him to put diversity on the “back burner.” ECF No. 74, PageID.7516.

Plaintiff asserts she did not file formal complaints because she felt “[i]t

would be worse for [her] if [she] spoke out.” Howlett Deposition, ECF No.

74-8, PageID.7647. However, the evidence of the City’s failure to provide

diversity training until after Plaintiff left the department, combined with

the lack of supervisory action in response to Plaintiff’s informal com-

plaints could allow a jury to find that the City had notice or constructive

notice of the violation of Plaintiff’s rights and that it acted with deliberate

indifference amounting to a tacit approval of the conduct, and an official

policy of inaction.

The fourth element of Claiborne is perhaps the hardest to prove:

that the Defendants’ custom was the “moving force,” or a direct causal

link to Plaintiff’s constitutional deprivation. In considering this element,

the testimony of Detective Shawn Johnson is on point. After speaking to

Detective Howlett at a retirement party, Kathy Miller filed a complaint

against Detective Johnson on Howlett’s behalf. Sergeant Eidt investi-

gated the complaint and learned that not only were the allegations true,

but other detectives were aware of the conduct as well. The complaint

was therefore sustained, and Detective Johnson was disciplined. As part

of his discipline, Detective Johnson eventually attended a training by

Greg Murray on the topic of diversity in 2017. In his deposition, Detective

Johnson said that, if he had had that training earlier in his career, he

would not have made the comments that he made to Plaintiff:

Q. Had you had that training in 2013, ’14 and ’15, do

you think you would have perhaps been more pre-

pared to recognize that those statements consti-

tuted racial harassment that you made to Ms.

Howlett?

A. I don’t know because at the time I didn’t believe

that I was racially harassing her. […] I don’t know.

I would tell you that after having to go through

this and having talked to Mr. Murray that my be-

havior and comments that I would make now has

drastically changed.

ECF No. 66-20, PageID.4341 (Transcript pg. 151–52, lines 15–20, 24–25,

1–2).

THE WITNESS: […] I know with my training with Mr.

Murray and having to go through this it really hit

home with me and, you know, it changed my behav-

ior in regards to my coworkers.

ECF No. 66-20, PageID.4342 (Transcript pg. 156, lines 1–4).

Detective Johnson’s own account allows an inference that appropri-

ate training could change behavior and correct the allegedly discrimina-

tory policy of indifference within the department. However, to demon-

strate that a municipality’s custom or practice amounted to deliberate

indifference, “it is not enough for [a plaintiff] to show that his injury could

have been avoided if the officer had more or better training.” Mayo v.

Macomb County, 183 F.3d 554, 558 (6th Cir. 1999). Rather, deliberate

indifference can be established where a plaintiff alleges a particular area

where there is a clear need for training in order to avoid constitutional

violations. Miller, 606 F.3d at 255. Plaintiff has made this allegation and

supported it with evidence of the City’s lack of diversity training. Here,

Defendants dispute the causal connection between the training that was

provided and the deprivation of Plaintiff’s rights under the Equal Protec-

tion Clause. The dispute rests on whether the previous training (and the

subsequent lack of training) provided to Johnson and the other officers

amounted to a conscious avoidance of racial diversity training and there-

fore amounted to a deliberate indifference of Plaintiff’s rights. As the

Ninth Circuit has stated, “the deliberate-indifference inquiry should go

to the jury if any rational factfinder could find [the municipality acted

with] this requisite mental state.” Patel v. Kent Sch. Dist., 648 F.3d 965,

974 (9th Cir. 2011). On the record before the Court, if Plaintiff’s testi-

mony and that of other certain other witnesses are credited, there is a

genuine issue of material fact as to whether the City could be held liable

under Monell; consequently, neither Defendant nor Plaintiff is entitled

to summary judgment on Count IV.

The Court hereby DENIES Defendants’ Motion for Summary Judg-

ment as to Count IV and DENIES Plaintiff’s Motion for Partial Summary

Judgment as to Count IV.

Count V – Conspiracy Invidious Racial Animus

(42 U.S.C. § 1985)

Plaintiff alleges Defendants violated her rights under 42 U.S.C. §

1985 when they “agreed and conspired to violate the Plaintiff’s rights se-

cured by the Thirteenth and Fourteenth Amendments to the United

States Constitution . . . and the actions undertaken pursuant to this

agreement and conspiracy, were so done based upon an invidious racial

animus directed at the Plaintiff[.]” ECF No. 4, PageID.65-66.

To state a claim under § 1985(3), a plaintiff must allege four factual

elements:

(1) a conspiracy; (2) for the purpose of depriving,

either directly or indirectly, any person or class of

persons of the equal protection of the laws, or of

equal privileges or immunities of the laws; (3) an

act in furtherance of the conspiracy; (4) whereby a

person is either injured in his person or property

or deprived of any right or privilege of a citizen of

the United States.

Vakilian v. Shaw, 335 F.3d 509, 518 (6th Cir. 2003) (quoting United Bhd.

of C & J v. Scott, 463 U.S. 825, 828–29 (1983)). A plaintiff must make

“specific factual allegations” that tend to show the formation of a conspir-

acy, including “allegations that defendants acted with specific intent to

deprive a plaintiff equal protection or privileges and immunities[.]” Pa-

hssen v. Merrill County Sch. Dist., 668 F.3d 356, 368 (6th Cir. 2012). Im-

portantly, “a plaintiff must allege a sufficient factual basis to establish a

‘meeting of the minds’ on the part of the alleged conspirators.” Amadasu

v. The Christ Hospital, 514 F.3d 504, 507 (6th Cir. 2008).

The Amended Complaint contains little or no specifics in the sub-

stantive counts describing the conduct of any individually identified de-

fendants. It tends to speak in the collective—saying “the Defendants” did

this or that. There are no allegations of any specific facts showing the

existence of a conspiracy, nor which of the defendants joined the conspir-

acy. Plaintiff does not allege how any conspirators “acted with specific

intent,” nor does she state that there was some “meeting of the minds”

between those conspirators. The most charitable way to read Plaintiff’s

claims here is that all of the defendants must have been involved in a

conspiracy to violate her Thirteenth21 and Fourteenth Amendment

rights, and that they were motivated by racial animus. See ECF No. 4,

PageID.65. But such an allegation is conclusory and unsupported by any

facts. Instead, Plaintiff’s general factual allegations describe individual

acts of harassment and discrimination, but do not describe a “meeting of

the minds” or a jointly agreed-to scheme entered into by two or more spe-

cific defendants. In a rather vague and conclusory fashion, Count V as-

serts that “Defendants agreed and conspired to violate Plaintiff’s rights

secured by the Thirteenth and Fourteenth Amendments,” but it does not

say specifically who entered this conspiracy, how we know they entered

it, or what specifically the conspirators agreed to do.

Plaintiff fails to plead any facts that would tend to show the for-

mation of a conspiracy against her by any of the defendants. Because for-

mation of a conspiracy is a threshold event for any claim under § 1985,

the Court will not address any of the other factors from Vakilian v. Shaw,

335 F.3d 509 (6th Cir. 2003). Defendants’ Motion for Summary Judgment

as to Count V is GRANTED.

Count VI – Violation of Right to Make and Enforce Contracts

(42 U.S.C. § 1981)

Plaintiff alleges that her right to make and enforce contracts, es-

tablished in 42 U.S.C. § 1981, was violated by Defendants, whose actions

21 It is not clear from the Amended Complaint how Plaintiff’s right to be free from

involuntary servitude, as guaranteed by Thirteenth Amendment, is implicated by the

alleged conduct of the Defendants.

or inactions prevented her from enjoying the various elements of her em-

ployment with the City of Warren to the same degree as white persons

also employed there. ECF No. 4, PageID.67.

But in the Sixth Circuit, “a plaintiff cannot use § 1981 to sue a state

actor in his or her official capacity.” McCormick v. Miami Univ., 693 F.3d

654, 659–60 (6th Cir. 2012); Grinter v. Knight, 532 F.3d 567, 577 (6th Cir.

2008) (Ҥ 1983 provides an exclusive remedy for violations against state

actors sued in their official capacities. An official capacity lawsuit against

... a state actor[ ] for constitutional violations, such as race discrimina-

tion, cannot be brought under § 1981.”); see also Arendale v. City of Mem-

phis, 519 F.3d 587, 598–99 (6th Cir. 2008) (“[T]he express cause of action

for damages created by § 1983 constitutes the exclusive federal remedy

for violation of the rights guaranteed in § 1981 by state governmental

units.”) (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 733

(1989)). A plaintiff also cannot bring a § 1981 claim against an individual

state actor in his or her individual capacity. McCormick v. Miami Univ.,

693 F.3d 654, 659–60 (6th Cir. 2012).

Plaintiff attempts to find relief in § 1981, but the appropriate stat-

utory vehicle for her claims is § 1983, which she employs in Counts II,

III, and IV. For this reason, Defendants’ Motion for Summary Judgment

as to Count VI (42 U.S.C. § 1981) is GRANTED.

V. Conclusion

For the reasons stated above, Defendants’ Motion for Summary

Judgment is DENIED as to Counts I and IV, GRANTED as to Counts

III, V, and VI, and GRANTED IN PART and DENIED IN PART as to

Count II. Plaintiff’s Motion for Partial Summary Judgment is DENIED.

Based on Plaintiff’s statements in open court and in accordance

with the rulings set forth in this opinion and order, the following Defend-

ants are DISMISSED WITH PREJUDICE: Jere Green, Scott Taylor,

Paul Houtos, Kevin Barnhill, William Ross, Darrin Labin, Dawn

McLane, and Michael Sauger. Defendant Barbara Beyer remains dis-

missed pursuant to this Court’s prior order.

IT IS SO ORDERED.

s/Terrence G. Berg

Dated:September 16, 2019

TERRENCE G. BERG

UNITED STATES DISTRICT JUDGE

Certificate of Service

I hereby certify that this Order was electronically filed, and the

parties and/or counsel of record were served on September 16, 2019.

s/A. Chubb

Case Manager