Morgan v. City of Columbus, Ohio

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

KEVIN C. MORGAN, :

:

Plaintiff, : Case No. 2:17-cv-829

:

v. : CHIEF JUDGE ALGENON L. MARBLEY

:

CITY OF COLUMBUS, OHIO, et al. : Magistrate Judge Deavers

:

:

Defendants. :

OPINION & ORDER

This matter is before the Court on Defendants’ City of Columbus, Ohio and Kimberley

Jacobs Motion for Summary Judgment. (ECF No. 20). For the following reasons, Defendants’

Motion is DENIED.

I. FACTUAL BACKGROUND

A. Termination of Officer Morgan

Plaintiff Kevin Morgan was a police officer with the Columbus Police Department

(“CPD”) from July 2002 to September 1, 2015. (Morgan Dep. 13:15-21). Officer Morgan is

Black, and brings this lawsuit alleging he was disciplined more harshly than similarly situated

white officers. (ECF No. 3).

During his employment, Officer Morgan engaged in several “special duty” activities, in

which he performed police duties for private businesses and property owners. (Morgan Dep.

28:13-23). One of his assignments was at the Stratford Lake complex, where he began working

in early 2013. (Morgan Dep. 44:22-45:5). The coordinating officer for special duty activities,

Tony Roberts, asked Morgan to work at Stratford Lakes on Wednesdays, and Morgan

understood that he could work on different days depending on family obligations. (Morgan Dep.

49:1-10). At first, Morgan would notify Roberts when he needed to switch shifts. (Morgan Dep.

67:1-20). Roberts stated that the reporting was an honor system, in which each officer was

responsible to work the shift they were scheduled. (Morgan Dep. Ex. 1 at 12). Roberts would

submit an invoice on behalf of the officer once a shift took place unless he was notified of a

change. (Id.).

At a certain point, Morgan stopped notifying Roberts of his shift changes by text

message. (Morgan Dep. 84:2-85:6). He also failed to “mark in service”—notify the CPD radio

room of the start of his special duty shifts—on a number of occasions. (Morgan Dep. 136:14-

137:6). On November 6, 2013, the property manager of Stratford Lakes, Ms. Williams, contacted

Officer Roberts saying she was looking for Morgan on his regular Wednesday shift but could not

find him. (Morgan Dep. Ex. 1 at 11). Then on November 8, 2013, Officer Roberts messaged

Morgan informing him that Stratford Lakes management no longer wanted Morgan working as a

special duty officer and removed him from the schedule. (Morgan Dep. 85:10-21). Morgan was

relieved of duty and assigned to the administrative officer of CPD, where he remained until he

was terminated almost two years later. (Jacobs Dep. 79:15-80:8, 82:9-13). At the time of

Morgan’s termination, he had no record of disciplinary actions on file. (Morgan Dep. 164:19-20;

Morgan Dep. Ex. 23 at 14).

CPD began with a criminal inquiry into Morgan’s conduct. Ms. Williams said she did not

want to press charges. (Bond Dep. 53:7-12). She also reported she had wanted officers to vary

their hours. (Jacobs Dep. 101:2-9; Meister Dep. 39:11-17; Morgan Dep. Ex. 42 at 1). The

assistant county prosecutor declined to prosecute, nothing there were serious challenges of proof,

“including the fact that Ms. Williams had wanted the officers to vary their shifts, that the record-

keeping for the job was not reliable, and that there was no way to disprove any claim by Officer

Morgan that he had, in fact, worked other days and hours than his regular Wednesday evening

shift.” (ECF No. 25 at 12) (Jacobs Dep. 100:15-101:9; Morgan Dep. Ex. 11, 42).

After the conclusion of the criminal inquiry, CPD began an internal disciplinary

investigation by Sergeants Raymond Meister and Kenneth Decker. At this point, nearly a year

after the events, Officer Morgan was having difficulty remembering which shifts he had

switched or completed. (Morgan Dep. 171:15-172:8, 174:2-175:18; Decker Dep. 35:19-36:23;

Meister Dep. 91:3-92:16). Sgt. Decker and Officer Morgan’s union counsel both suggested

requesting radio logs for the time period in question, but Sgt. Meister never did this. (Meister

Dep. 130:21-131:24; Morgan Dep. Ex. 15 at 33-35). Morgan also provided descriptions of

witnesses who might have been able to verify his regular work at Stratford Lakes. (Morgan Dep.

Ex. 14 at 15). While Meister spoke to one witness, a security officer named Corporal Kyle

DeGoey, Meister testified that there were no other witnesses to talk to when he went to search

for them based on Morgan’s descriptions. (Meister Dep. 66:16-68:7). Decker and Meister also

asked about a conversation between Morgan and Roberts regarding who Roberts could speak

with to confirm Morgan was working at Stratford Lakes, but Decker did not make an effort to

identify the witnesses (Decker Dep. 60:8-61:17).

When an officer denies misconduct and there is no documentation disproving the denial,

the investigation is typically concluded as “not sustained.” (Jacobs Dep. 114:21-115:21; Speaks

Dep. 73:24-74:5; Meister Dep. 65:23-66:15, 147:7-20). Here, Meister recommended sustaining

the allegations that Morgan did not report for duty for eleven (11) entire shifts and five (5) partial

shifts at Stratford Lakes. (Morgan Dep. Ex. 1 at 66-74). The investigation report was sent up the

chain to Deputy Kuebler and then to Chief Jacobs. Jacobs added a handwritten Rule 1.04 “cause

for dismissal” charge, which if sustained, automatically results in termination. (Jacobs Dep. 97:1-

98:12). Jacobs testified she could only remember one other similar case where she had done this,

but records in that case showed there was already a Rule 1.04 against the officer. (Jacobs Dep.

98:19-99:20; Vardaro Decl. Ex. 1). After a hearing, Jacobs concluded Morgan should be

suspended for six weeks and terminated. (Jacobs Dep. 183:13-184:10). Director Speaks upheld

this recommendation. (Morgan Dep. Ex. 20; Morgan Dep. Ex. 23).

B. CPD’s Treatment of White Officers

White officers were also found to have committed “time infractions,” but their alleged

offenses were considered more serious given their higher rank and the greater number of hours

of work they missed. (Jacobs Dep. 47:3-17; Speaks Dep. 50:13-24, 127:23-129:5; Kuebler Dep.

119:18-120:13). The white officers who were charged with similar types of offenses were

allowed to continue working and were not relieved of duty while they were being investigated,

while Morgan had to surrender his firearm and badge. (Morgan Dep. 14:6-16, 165:18-166:14).

Bronson Constable and Doug Jones were white sergeants who failed to report to work on

multiple occasions and were recommended for departmental charges but were not terminated.

(Jones Dep. 189:1-21).

An internal investigation report from May 8, 2015 showed that Sgt. Constable was not at

work for 19 days over a two-year period, and 152 hours were not deducted from his leave banks.

(Jacobs Dep. 188:1-189:11, 190:20-191:9; Morgan Dep. Ex. 6 at 50). Sgt. Constable was also

found to be absent without leave for many shifts, and only submitted notice of leave slips after

his supervisor Lt. Spears informed him that he had not requested permission for these unexcused

absences. (Morgan Dep. Ex. 6 at 6-7, 51-52). The same internal investigation sustained that Sgt.

Jones was not at work for 23 days, and 184 hours of shifts were not deducted from his leave

banks. (Jacobs Dep. 188:1-189:11; Morgan Dep. Ex. 6 at 54). The investigation reported that

Sgt. Jones did not submit leave slips but still took time off from work. (Morgan Dep. Ex. 6 at

55). Compared to Morgan, Director Speaks testified that Sgts. Constable and Jones’ infractions

were “more egregious” in terms of the hours the sergeants were paid for without working.

(Speaks Dep. 128:8-23). While Deputy Chief Kuebler recommended to Chief Jacobs that both

Sgts. Constable and Jones be terminated, Jacobs issued Sgts. Constable and Jones each 240 hours

(six weeks) of suspension. (Kuebler Dep. 118:10-119:17; Jacobs Dep. 219:12-18). Chief Jacobs

testified that this penalty resulted from Sgts. Constable and Jones’s union’s strong advocacy for

their cases and Prosecutor Jeff Blake’s letter declining prosecution. (Jacobs Dep. 213:3-14;

Morgan Stipulated Ex. 3).

Chief Jacobs and Director Speaks both considered the allegations against Sgts. Constable

and Jones and Officer Morgan as claiming pay for hours without having worked. Whether it was

pay from regular shifts funded by taxpayers or pay from special duty activities funded by private

employers, Chief Jacobs and Director Speaks considered the misrepresentation of time worked

as the most relevant issue. (Jacobs 194:18-195:4; Speaks Dep. 118:15-24, 128:5-7). Chief Jacobs

also testified he was aware that Constable had prior disciplinary actions as a result of having

been found untruthful in an internal investigation. (Jacobs Dep. 207:23-208:2). Jones similarly

came forward admitting untruthful conduct, producing leave slips for each absence he had not

requested leave for after the fact. (Jacobs Dep. 197:2-198:13).

Besides Sgts. Constable and Jones, there is evidence that other white officers were found

to have knowingly received pay for absences without leave but were not terminated. Officer

Zane Kirby admitted to lying to a superior about working from home when he in fact took leave

without permission. (Jacobs Dep. 230:21- 232:14). Chief Jacobs only issued a total of 48 hours

of suspension on Kirby and did not sustain the charge of untruthfulness, despite Morgan’s case

being discussed as “an example with similar rule violation.” (Jacobs 239:10-240:12). Officer

David LaRoche falsely claimed he submitted leave slips for the time he actually cut his shifts

short or started them late, which was found to be deliberate misconduct. (Vardaro Decl. Ex. 3 at

13). LaRoche was offered forfeiture of accrued leave instead of being terminated even though

Chief Jacobs admitted that LaRoche’s case would be a potential comparable to Morgan’s.

(Vardaro Decl. Ex. 3 at 1; Jacobs Dep. 254:10-255:5). Finally, Decker sustained theft of time

allegations against Officer Brett Slaughter, whose keycard logs showed he would often not be

present at his assigned post for “a great deal of time” for a yearlong period (Jacobs Dep. 257:6-

258:24; Decker Dep. 87:16-88:14; Vardaro Decl. Ex. 4 at 12-13). Officer Slaughter’s confirmed

instances of missed work and the number of working hours falsely claimed still exceeded the

instances and hours sustained against Morgan. (Vardaro Decl. Ex. 4 at 16-23). Ultimately,

Officer Slaughter accepted leave forfeiture, without being terminated. (Id. at 1-3).

II. PROCEDURAL BACKGROUND

Plaintiff Morgan originally filed suit in the Franklin County Court of Common Pleas on

August 28, 2017, alleging Defendants discriminated against him on the basis of race in

employment under 42 U.S.C. § 1981, Ohio Rev. Code § 4112.02, and the Equal Protection

Clause. (ECF No. 3). On September 20, 2017, Defendants removed the case to federal court.

(ECF No. 1). After a lengthy discovery process, Defendants filed this Motion for Summary

Judgment on October 31, 2019. (ECF No. 20). Plaintiff filed his Response in Opposition to the

motion on December 13, 2019 and Defendants filed their Reply on January 6, 2020. (ECF Nos.

25, 26). Defendants’ Motion for Summary Judgment is now ripe for review.

III. STANDARD OF REVIEW

Federal Rule of Civil Procedure 56(a) provides, in relevant part, that summary judgment

is appropriate “if the movant shows that there is no genuine issue as to any material fact and the

movant is entitled to judgment as a matter of law.” In evaluating such a motion, the evidence

must be viewed in the light most favorable to the nonmoving party, and all reasonable inferences

must be drawn in the non-moving party’s favor. United States Sec. & Exch. Comm'n v. Sierra

Brokerage Servs., Inc., 712 F.3d 321, 327 (6th Cir. 2013) (citing Tysinger v. Police Dep't of City

of Zanesville, 463 F.3d 569, 572 (6th Cir. 2006)).

A fact is deemed material only if it “might affect the outcome of the lawsuit under the

governing substantive law.” Wiley v. United States, 20 F.3d 222, 224 (6th Cir. 1994) (citing

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The nonmoving party must then

present “significant probative evidence” to show that “there is [more than] some metaphysical

doubt as to the material facts.” Moore v. Philip Morris Cos., Inc., 8 F.3d 335, 340 (6th Cir.

1993). The mere possibility of a factual dispute is insufficient to defeat a motion for summary

judgment. See Mitchell v. Toledo Hospital, 964 F.2d 577, 582 (6th Cir. 1992). Summary

judgment is inappropriate, however, “if the dispute about a material fact is ‘genuine,’ that is, if

the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”

Anderson, 477 U.S. at 248.

The necessary inquiry for this Court is “whether ‘the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so one-sided that one party must

prevail as a matter of law.’” Patton v. Bearden, 8 F.3d 343, 346 (6th Cir. 1993) (quoting

Anderson, 477 U.S. at 251-52). It is proper to enter summary judgment against a party “who fails

to make a showing sufficient to establish the existence of an element essential to that party’s

case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986). Where the nonmoving party has “failed to make a sufficient showing on an

essential element of her case with respect to which she has the burden of proof,” the moving

party is entitled to judgment as a matter of law. Id. (quoting Anderson, 477 U.S. at 250).

IV. LAW & ANALYSIS

A. Race discrimination claims

Morgan brings race discrimination in employment claims under 42 U.S.C. § 1981 and

Ohio Rev. Code § 4112.02, as well the Equal Protection Clause pursuant to 42 U.S.C. § 1983.

The Court analyzes these claims together under the McDonnell Douglas burden-shifting

framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 42 U.S.C. § 1981

provides the “same right… to make and enforce contracts… as is enjoyed by white citizens.”

Ohio Rev. Code § 4112.02 (A) prohibits employment discrimination, including discharge,

“because of the race.”1 The Sixth Circuit has found, “federal case law interpreting Title VII… is

generally applicable to cases involving alleged violations of [Ohio Rev. Code] Chapter 4112.”

Braun v. Ultimate Jetcharters, LLC, 828 F.3d 501, 510 (6th Cir. 2016) (quoting Plumbers &

Steamfitters Joint Apprenticeship Comm. v. Ohio Civil Rights Comm'n, 421 N.E.2d 128, 131

(Ohio 1981)). The Court also “review[s] claims of alleged race discrimination brought under §

1981… under the same standards as claims for race discrimination brought under Title VII.”

Thompson v. City of Lansing, 410 F. App'x 922, 934 (6th Cir. 2011) (quoting Jackson v. Quanex

Corp., 191 F.3d 647, 658 (6th Cir.1999)). Likewise, “the showing a plaintiff must make to

recover on a disparate treatment claim under Title VII mirrors that which must be made to

1“It shall be an unlawful discriminatory practice: (A) For any employer, because of the race, color, religion, sex,

military status, national origin, disability, age, or ancestry of any person, to discharge without just cause, to refuse to

hire, or otherwise to discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of

employment, or any matter directly or indirectly related to employment.” Ohio Rev. Code § 4112.02(A).

recover on an equal protection claim under section 1983.” Id. (quoting Gutzwiller v. Fenik, 860

F.2d 1317, 1325 (6th Cir.1988)).

Title VII prohibits employers from “fail[ing] or refus[ing] to hire or [] discharge[ing] any

individual, or otherwise [] discriminat[ing] against any individual with respect to his

compensation, terms, conditions, or privileges of employment, because of such individual’s race,

color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Under the McDonnell

Douglas burden-shifting framework, Plaintiff has the initial burden of establishing a prima facie

case of race discrimination. McDonnell Douglas Corp. 411 U.S. at 792. Plaintiff has not put

forward direct evidence of discriminatory intent, so he can make out a prima facie case by

demonstrating that: (1) he is a member of a protected class; (2) he suffered an adverse

employment action; and (3) he was treated less favorably than similarly situated employees of a

different race. See, e.g., Crowder v. Railcrew Xpress, 557 Fed. Appx. 487, 494-95 (6th Cir.

2014); Nguyen v. City of Cleveland, 229 F.3d 559, 562–63 (6th Cir. 2000). Once Plaintiff has

established a prima facie case, “[t]he burden then must shift to the employer to articulate some

legitimate, nondiscriminatory reason” for the adverse action. McDonnell Douglas, 411 U.S. at

802. Plaintiff then bears the ultimate burden of showing Defendants’ non-discriminatory reason

is merely pretext. Id. at 804.

There is no question that: (1) Morgan is a member of a protected class; or (2) that he

suffered an adverse employment action when he was terminated from CPD. The question is

whether Morgan was terminated because of his race. Defendants do not challenge the prima facie

case in their Motion. (ECF No. 20 at 9). Rather, they maintain that Morgan has not met his

burden to show pretext. Defendants argue Morgan was fired for performance reasons, while

Morgan maintains similarly situated white employees received lesser disciplinary action for

more egregious violations.

A plaintiff can demonstrate pretext by “showing that the employer’s stated reason for

adverse employment action either (1) has no basis in fact, (2) was not the actual reason or (3) is

insufficient to explain the employer’s action.” White v. Baxter Healthcare Corp., 533 F.3d 381,

392-93 (6th Cir. 2008). Morgan does not dispute the factual basis of the non-discriminatory

reason, but can still show the reason is insufficient—and therefore pretextual—with evidence

that “employees outside the protected class [] were not disciplined even though they engaged in

substantially identical conduct to that which the employer contends motivated its discipline of

the plaintiff.” Moffat v. Wal-Mart Stores, Inc., 624 Fed. Appx. 341, 347 (6th Cir. 2015) (quoting

Chattman v. Toho Tenax Am., Inc., 686 F.3d 339, 349 (6th Cir.2012)). Thus, when “an employer

argues that the plaintiff's differential discipline was justified by material differences in context,

[the court] evaluates whether that justification is pretextual by looking to the same or similar

factors as when evaluating the ‘similarly situated’ element of the prima facie case.” Jackson v.

VHS Detroit Receiving Hosp., Inc., 814 F.3d 769, 779 (6th Cir. 2016)).

The Court finds that Defendants have not met their burden of showing there are no

disputed material facts as to pretextual nature of their alleged non-discriminatory reason for

terminating Morgan. Defendants maintain Morgan cannot show there are any “similarly situated”

white employees because the white officers Morgan compares himself to were not charged with

violations of the same rules. (ECF No. 20 at 13). Defendants characterize the comparators as

“fail[ing] to properly submit leave slips for time away from their job” while Morgan “falsely

claimed to be working a special duty job.” (Id.). However, Defendants gloss over the evidence

supporting the seriousness of the offenses of the alleged comparators and erroneously conclude

the fact that the white officers were not charged with the same exact rule violations supports

summary judgment in their favor. As Plaintiff argues in response, the proper inquiry is the level

of “‘comparable seriousness,’ not comparable rule numbers.” (ECF No. 25 at 6) (citing Jackson,

814 F.3d at 777 (6th Cir. 2016)).

This Court has held that “[t]he issue is not… whether “similarly situated” employees

violated the exact same rule, but “whether the white employees were engaged in acts of

comparable seriousness.” Jules v. Vill. of Obetz Police Dep't, No. 2:11-CV-582, 2013 WL

4832893, at *6 (S.D. Ohio Sept. 11, 2013) (citing Mitchell v. Toledo Hosp., 964 F.2d 577, 586

(6th Cir. 1992)). Likewise, the Sixth circuit has held “[a] plaintiff is not required to show that his

proposed comparator’s actions were identical to his own.” Jackson, 814 F.3d at 777 (quoting

Colvin v. Veterans Admin. Med. Ctr., 390 Fed. Appx. 454, 459 (6th Cir. 2010)). Among the

comparators are Sgts. Constable and Jones, who were disciplined less harshly for failing to report

more hours. (Speaks Dep. 128:8-23). While Defendants are correct that Constable and Jones

were ranked higher than Morgan, this fact also lends itself to the perceived seriousness of their

offenses. (Jacobs Dep. 47:3-17; Speaks Dep. 50:13-24, 127:23-129:5; Kuebler Dep. 119:18-

120:13). In support of his argument that their offenses were at least as serious, Morgan points to

Constable’s disciplinary history and Jones’s admitted untruthfulness in the investigation. (Jacobs

Dep. 197:2-198:13, 207:23-208:2).

The Court finds unpersuasive Defendants attempt to distinguish Morgan’s failure to

report to his special duty assignment from other officers’ misrepresentations about time worked

on their regular duty shifts. Chief Jacobs and Director Speaks testified that they considered the

misrepresentation of time worked as the most relevant issue to Morgan’s discipline. (Jacobs

194:18-195:4; Speaks Dep. 118:15-24, 128:5-7). Viewing the facts in the light most favorable to

Morgan, the white officers’ infractions for misrepresenting their hours in various contexts could

be construed as equally serious. The Court finds that “[a] jury could infer that Defendants’

decision to take the drastic disciplinary action of termination” for failing to report shift changes

when they had “never…previously disciplined [Morgan] for the same conduct, was a pretextual

reason for [Morgan’s] termination.” Jules, 2013 WL 4832893, at *7.

The Court finds the record demonstrates a genuine issue of material fact as to whether the

white officers’ conduct was at least as serious as Morgan’s. Defendants have not conclusively

demonstrated that the white officers’ conduct was less serious, merely alleged that they were not

charged with the same rule violations and that they had different supervisors. Such distinctions

are insufficient to disprove pretext. See Hopson v. DaimlerChrysler Corp., 306 F.3d 427, 441

(6th Cir. 2002) (genuine issue of material fact existed as to whether defendants’ decision to hire

white applicants was pretextual, given their “non-discriminatory reason was vague” and they

“failed to specify the manner in which the white employees were better qualified”). The Court

concludes a reasonable jury could support an inference of pretext on the facts that white officers

were disciplined less harshly for comparable conduct. Jules, 2013 WL 4832893, at *7. See also

White v. Baxter Healthcare Corp., 533 F.3d 381, 394 (6th Cir. 2008) (finding a reasonable jury

could infer pretext on the facts that plaintiff possessed some qualifications for a position that the

comparator did not).

B. Liability

1. Section 1981

Defendants argue they are entitled to summary judgment on Plaintiff’s Section 1981

claim because the statute does not permit suit against state actors or municipalities. (ECF No. 20

at 6) (citing McCormick v. Miami Univ., 693 F.3d 654, 659-60 (6th Cir. 2012) (“a plaintiff

cannot use § 1981 to sue a state actor in his or her official capacity”); Arendale v. City of

Memphis, 519 F.3d 587, 598-99 (6th Cir. 2008) (“no independent cause of action against

municipalities is created by § 1981(c)”)).

Plaintiff responds that he is not bringing a freestanding or independent Section 1981

claim, which he admits would be impermissible under the case law, but that “Plaintiff’s

constitutional claim under the equal protection clause and his race discrimination claim under

Section 1981 are considered together using the Section 1983 rubric, under which individual

liability for Chief Jacobs is subject to qualified immunity analysis, while municipal liability for

the City is determined based on the application of Monell.” (ECF No. 25 at 31-32).

The case law makes clear that Section 1981 does not provide a broader remedy for

damages against state actors than Section 1983, but permits Plaintiff to vindicate his Section

1981 rights via the Section 1983 damages framework. See Jett v. Dallas Indep. Sch. Dist., 491

U.S. 701, 733 (1989) (“Section 1983 provides an explicit remedy in damages which, with its

limitations on municipal liability, Congress thought ‘suitable to carry ... into effect’ the rights

guaranteed by § 1981 as against state actors”). Plaintiff acknowledges he is not bringing a

standalone Section 1981 claim but is seeking to hold governmental officials and municipalities

liable under the Section 1983 rubric, which the case law clearly permits. (ECF No. 25 at 31-32).

See McCormick, 693 F.3d at 661 (“[w]hether the violation of § 1981 is committed by a

municipality through its policies or custom, or individuals acting under the color of state law, §

1983 contains an express clause permitting an aggrieved person to sue the state actor for money

damages”). Therefore, the Court analyzes Plaintiff’s claims against the police chief pursuant to

qualified immunity analysis and the claims against the City of Columbus pursuant to the Monell

framework for municipal liability.

2. Qualified Immunity

Qualified immunity “protects government officials from liability for civil damages unless

a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right,

and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Wood v.

Moss, 572 U.S. 744, 757 (2014).

Defendants argue Chief Jacobs is entitled to qualified immunity because Chief Jacobs

“does not have a final determination in Morgan’s employment,” but “simply makes a

recommendation to the Director of Public Safety who then holds a hearing and makes an

independent determination.” (ECF No. 20 at 16). In one sentence, Defendants also claim

Morgan’s rights were not clearly established, but make no arguments supporting this assertion.

(Id.). The Court finds the constitutional and statutory prohibitions on race discrimination in

employment were clearly established at the time of Morgan’s termination. See, e.g., Williams v.

Richland County Children Services, 489 Fed. Appx. 848, 854 (6th Cir. 2012) (“If any ‘right’

under federal law is ‘clearly established,’ it is the constitutional right to be free from racial

discrimination. Not only is this obligation ‘clearly established,’ but it is evident from the face of

the statute [Section 1981] under which Williams brought her claim.”); Fairman v. Konteh, 361 F.

Supp. 2d 704, 709 (N.D. Ohio 2005) (“the right not to be terminated because of race is clearly

established”).

Rather than argue the right to be free from race discrimination in employment is not

clearly established, Defendants’ qualified immunity argument focuses on Chief Jacobs’s role in

Morgan’s termination. They argue Safety Director Speaks, not Chief Jacobs, was the final

decision-maker, and Jacobs is thus entitled to qualified immunity. (ECF No. 20 at 15-16).

However, the Sixth Circuit has held “an influential recommender can be liable under § 1983

without being the final decisionmaker, if the recommendations are shown to be sufficiently

influential.” Ward v. Athens City Bd. of Educ., 187 F.3d 639 (6th Cir. 1999) (citing Adkins v.

Board of Educ., 982 F.2d 952 (6th Cir.1993)). Director Speaks testified that while it wasn’t a

“foregone conclusion” he would agree with the Chief’s recommendation, he “had great respect

for the chiefs” and “would have given [their decisions] weight.” (Speaks Dep. 42:19-23). He also

testified that he could not recall any situation in which he decided to terminate an officer when

Jacobs recommended lesser discipline. (Speaks Dep. 169:4-9).

The Court finds the record contains sufficient evidence as to the influence of Chief

Jacobs’s recommendation in order to survive summary judgement. There is ample evidence that

Chief Jacobs was an influential recommender in Officer Morgan’s termination. A police chief’s

“supervisory position and expertise in police matters could have rendered [her] opinion about the

need to terminate [plaintiff] highly influential.” Sigler v. City of Englewood, No. 3:07CV092,

2008 WL 4448978, at *14 (S.D. Ohio Aug. 19, 2008), report and recommendation adopted in

part, rejected in part, No. 307CV092, 2008 WL 4448977 (S.D. Ohio Sept. 29, 2008). At the very

least, there is a genuine issue of material fact as to the level of Jacobs’s influence sufficient to

defeat summary judgment on Defendants’ qualified immunity claim. See Stinebaugh v. City of

Wapakoneta, 630 Fed. Appx. 522, 530 n.2 (6th Cir. 2015) (denying summary judgment to fire

chief, despite the city safety director’s final say in the plaintiff’s termination, because “a

reasonable jury could find that [the chief] played an influential role in [plaintiff’s] demotion and

termination”).

3. Municipal liability

The Supreme Court in Monell v. Department of Social Services of City of New York held

that § 1983 imposes liability on a municipality when an employee acts “under color of some

official policy” thereby causing a violation of another’s constitutional rights. 436 U.S. 658, 692

(1978).

Defendants argue “there is simply no municipal policy at issue” in this case, and

therefore the city cannot be held liable under Section 1983. (ECF No. 20 at 15). But Monell’s

“requirement that a municipality's wrongful actions be a ‘policy’ is not meant to distinguish

isolated incidents from general rules of conduct promulgated by city officials. It is meant to

distinguish those injuries for which ‘the government as an entity is responsible under § 1983’

from those injuries for which the government should not be held accountable.” Meyers v. City of

Cincinnati, 14 F.3d 1115, 1117 (6th Cir. 1994) (quoting Monell, 436 U.S. at 694)).

In addition to (1) “legislative enactments or official agency policies,” a plaintiff can look

to: “(2) actions taken by officials with final decision-making authority; (3) a policy of inadequate

training or supervision; or (4) a custom of tolerance or acquiescence of federal rights violations”

as evidence of a policy or custom sufficient for municipal liability. Red Zone 12 LLC v. City of

Columbus, 758 Fed. Appx. 508, 515 (6th Cir. 2019) (quoting Thomas v. City of Chattanooga,

398 F.3d 426, 429 (6th Cir. 2005)). The City of Columbus can thus be liable for an isolated

instance of discharge if the discharge decision “was made or approved by a final policy-maker of

the City.” Meyers, 14 F.3d at 117. This includes “a subordinate’s decision… if ratified by an

authorized policymaker.” Lentz v. City of Cleveland, 333 Fed. Appx. 42, 47 (6th Cir. 2009)

(citing Feliciano v. City of Cleveland, 988 F.2d 649, 656 (6th Cir. 1993)). Plaintiff may also be

able to show “a custom of tolerance or acquiescence of federal rights violations” by

demonstrating a practice of disciplining white officers less severely for similar offenses. Red

Zone 12, 758 Fed. Appx. at 515.

The Court finds Defendants have not met their burden of showing there is no genuine

issue of material fact regarding municipal liability under either of these theories. Morgan’s

termination was recommended by Chief Jacobs and ratified by Director Speaks. It is at least a

disputed material fact that Morgan’s termination was an “action[] taken by officials with final

decision-making authority.” Red Zone 12 LLC, 758 Fed. Appx. At 515. Morgan also alleges

CPD has a practice of disciplining white officers less severely for similar or more egregious

conduct, which could amount to a “tolerance or acquiesce of federal rights violations.” Id. This is

sufficient to survive summary judgment on municipal liability under Monell.

C. Spoliation

Finally, Defendants seek summary judgment against Plaintiff as a sanction for alleged

spoliation by Plaintiff. (ECF No. 20 at 13). Defendants allege that Morgan destroyed a hard copy

of a calendar that showed when he was working special duty jobs for the year 2013. (Id.)

Defendants allege that this calendar is relevant to the question of whether Plaintiff was present at

his workplace because he told Chief Jacobs that the calendar would show when he was at work.

(Id. at 14). They argue that Morgan “had control over his personal calendar,” which he had

access to as late as May 21, 2015, and he destroyed it with a “culpable mental state.” (Id. at 13-

14).

Plaintiff opposes Defendants’ conclusions from the record, arguing that Defendants have

“cherry-picked testimony.” (ECF No. 25 at 36). Plaintiff explains in his deposition that he

incorrectly believed he still had this calendar during both his investigative interviews in

September 2014 and his hearing with the chief in May 2015. (Id. at 36-37). When Chief Jacobs

asked Morgan to search for this calendar, Morgan testified that he could no longer find it and

realized he did not know what happened to the calendar. (Morgan Dep. 148:17-149:17).

The Sixth Circuit has held that “a federal court's inherent powers include broad discretion

to craft proper sanctions for spoliated evidence.” Adkins v. Wolever, 554 F.3d 650, 651 (6th Cir.

2009) (en banc). This discretion includes imposing sanctions such as “dismissing a case” or

“granting summary judgment” for the moving party. Id. at 653. In order for this Court to

determine whether sanctions for spoliation are appropriate, “a party seeking an adverse inference

instruction based on the destruction of evidence must establish: (1) that the party having control

over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the

records were destroyed ‘with a culpable state of mind’; and (3) that the destroyed evidence was

"relevant" to the party's claim or defense such that a reasonable trier of fact could find that it

would support that claim or defense.” Beaven v. U.S. Dep’t of Justice, 622 F.3d 540, 553 (6th

Cir. 2010). Applying these factors, this Court finds that the Defendants have not furnished

evidence to justify sanctions for spoliation.

As to the first element, control and obligation to preserve, the Defendants have not

provided sufficient evidence to show that Morgan had an obligation to preserve the calendar. In

their Motion for Summary Judgment, Defendants only argue that “Morgan had control over his

personal calendar.” (ECF No. 20 at 14). The record does support that Morgan had control of the

calendar, as he testified that it was “[his] calendar,” which he had the power to share with

investigators and could choose not to. (Morgan Dep. 187:15-188:20). As to the duty to preserve

evidence, the obligation to preserve may arise “‘when a party should have known that the

evidence may be relevant to future litigation.’” Beaven, 662 F.3d at 553. In order to assess

whether this duty existed, the court considers any evidence that shows litigation was “probable”

when the relevant evidence was destroyed. O’Brien v. Ed Donnelly Enters., 2010 U.S. Dist.

LEXIS 42271, at *9-10 (S.D. Ohio Apr. 29, 2010) (quoting John B. v. Goetz, 531 F.3d 448, 459

(6th Cir. 2008)). Defendants have not presented any evidence that Morgan knew or should have

known he would be filing this action on September 2017. Given that the calendar was allegedly

destroyed on or around May 2015 at the latest and Morgan’s termination that gave rise to this

action did not occur until September 2015, there was no reasonable expectation for litigation at

the time the calendar was allegedly destroyed. (Morgan Dep. 13:20-21).

As to the second element, Defendants have not produced evidence to support their theory

that Morgan destroyed the calendar with a culpable state of mind. A culpable state of mind

requires a party destroyed the evidence “knowingly, even if without intent to breach a duty to

preserve it, or negligently.” Adkins v. Wolever, 692 F.3d 499, 504-05 (6th Cir. 2012) (quoting

Beaven, 622 F.3d at 554). Morgan testified that he did not still possess the relevant calendar

because he had “never” kept calendars. (Morgan Dep. 77:8-15). Defendants only make a

conclusory statement that Morgan destroyed the calendar “with a culpable mental state” and

repeat the record that Morgan did not know why he got rid of the calendar without offering

countervailing evidence. (ECF No. 20 at 14).

Finally, as to the third element, the destroyed evidence must be “more than sufficiently

probative to satisfy Rule 401 of the Federal Rules of Evidence.” One Beacon Ins. Co. v. Broad

Dev. Group, Inc., 147 F. App’x 535, 541 (6th Cir. 2005) (citing Residential Funding Corp. v.

DeGeorge Fin. Corp., 306 F.3d 99, 108-09 (2d Cir. 2002)). Essentially, this means “when the

negligence of one party in destroying or losing evidence has undermined the ability of an

opposing party to prove its case,” then an adverse inference instruction is appropriate. Id. at 542.

Negligence is tied primarily to notice of the evidence’s relevance to litigation and the subsequent

duty not to destroy it. Id. (citing Welsh v. United States, 844 F.2d 1239 (6th Cir. 1988); Rogers v.

T.J. Samson Comm. Hosp., 276 F.3d 228, 233 (6th Cir. 2002)). In this case, the record does not

support negligence on Plaintiff's part, as he could not have been on notice for litigation whose

underlying events had not yet occurred. Defendants contend that the calendar would be relevant

to determining whether Morgan was working at Stratford Lakes when he was supposed to, but

Morgan had not yet been terminated at or around the time the calendar was allegedly destroyed.

Thus, there was no notice that this litigation would occur. Therefore, the calendar could not have

been yet relevant at the time it was allegedly destroyed, and this element is not satisfied.

Therefore, this Court concludes Defendants have not met their burden to win summary judgment

as a sanction for Plaintiffs alleged spoliation.

V. CONCLUSION

For the foregoing reasons, Defendants’ Motion for Summary Judgment is DENIED.

IT ISSO ORDERED.

= 2

Jj /

CHIEF UNITED STATES DISTRICT JUDGE

DATE: August 25, 2020

20