Lacaze v. City of Oklahoma City

UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

REUBIN E. LACAZE, JR., )

)

Plaintiff, )

)

v. ) Case No. CIV-20-1281-G

)

THE CITY OF OKLAHOMA )

CITY et al., )

)

Defendants. )

OPINION AND ORDER

Now before the Court is a Motion for Summary Judgment filed by Defendant Wade

Gourley (Doc. No. 81). Plaintiff Reubin E. Lacaze, Jr. has submitted a Response (Doc.

No. 112), and Defendant Gourley has submitted a Reply (Doc. No. 118). Having reviewed

the parties’ submissions, the Court makes its determination.

In March 2018, following a “demand suppression operation” by the Oklahoma City

Police Department’s (“OCPD”) Vice Unit, a brown paper sack thought to contain

methamphetamine and drug paraphernalia was not booked into evidence. Plaintiff, who

was an OCPD sergeant and the officer responsible for booking the narcotics, became the

subject of an investigation into the whereabouts of the missing evidence. At the end of the

investigation, Plaintiff participated in a disciplinary proceeding called a “predetermination

hearing” presided over by then-Deputy Chief Wade Gourley.

Following the predetermination hearing, Gourley sustained all allegations of

misconduct against Plaintiff, which included allegations that Plaintiff had lost or thrown

away “narcotic evidence,” that Plaintiff had failed to notify his supervisor of the missing

evidence, and that Plaintiff was untruthful about what had happened to the evidence in an

official police report and during the subsequent investigation. Plaintiff was terminated for

untruthfulness in September 2019 by Gourley, who was by then the OCPD Chief of Police.

Plaintiff was later reinstated to his position following an arbitration.

On December 22, 2020, Plaintiff initiated this federal lawsuit against Defendants

City of Oklahoma City (“City”), OCPD Chief of Police Wade Gourley, OCPD Major Bill

Weaver, OCPD Captain Vance Allen, and OCPD Lieutenant Doug Kimberlin. See Compl.

(Doc. No. 1). In his Complaint, Plaintiff alleges claims of racial discrimination in violation

of Title VII of the Civil Rights Act of 1964 against Defendant City, racial discrimination

in violation of 42 U.S.C. § 1981 against all Defendants, and conspiracy to violate civil

rights against all Defendants. See id. ¶¶ 63-83. Defendant Gourley now moves for

summary judgment on Plaintiff’s claims against him. See Def.’s Mot. at 19-28.

I. Standard of Review

Summary judgment is a means of testing in advance of trial whether the available

evidence would permit a reasonable jury to find in favor of the party asserting a claim. The

Court must grant summary judgment when “there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

A party that moves for summary judgment has the burden of showing that the

undisputed material facts require judgment as a matter of law in its favor. Celotex Corp.

v. Catrett, 477 U.S. 317, 322 (1986). To defeat summary judgment, the nonmovant need

not convince the Court that it will prevail at trial, but it must cite sufficient evidence

admissible at trial to allow a reasonable jury to find in the nonmovant’s favor—i.e., to show

that there is a question of material fact that must be resolved by the jury. See Garrison v.

Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005). The Court must then determine

“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.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).

Parties may establish the existence or nonexistence of a material disputed fact by:

• citing to “depositions, documents, electronically stored information,

affidavits or declarations, stipulations . . . , admissions, interrogatory

answers, or other materials” in the record; or

• demonstrating “that the materials cited do not establish the absence or

presence of a genuine dispute, or that an adverse party cannot produce

admissible evidence to support the fact.”

Fed. R. Civ. P. 56(c)(1)(A), (B). While the Court views the evidence and the inferences

drawn from the record in the light most favorable to the nonmoving party, see Pepsi-Cola

Bottling Co. of Pittsburg, Inc. v. PepsiCo, Inc., 431 F.3d 1241, 1255 (10th Cir. 2005), “[t]he

mere existence of a scintilla of evidence in support of the [nonmovant’s] position will be

insufficient; there must be evidence on which the [trier of fact] could reasonably find for

the [nonmovant].” Liberty Lobby, 477 U.S. at 252.

II. Undisputed Material Facts1

A. The Demand Suppression Operation

Plaintiff, who is African American, began working as a police officer for the OCPD

in 1993 and was permanently assigned to the Vice Unit in 2001. See Def.’s Mot. Ex. 1

1 Facts relied upon are uncontroverted or, where genuinely disputed, identified as such and

viewed in the light most favorable to Plaintiff as the nonmoving party.

(Doc. No. 82) at 12:20-13:11; Pl.’s Resp. (Doc. No. 112) at 31. In March 2018, the Vice

Unit conducted a week long demand suppression operation targeting prostitution customers

at various hotels in Oklahoma City. See Def.’s Mot. Ex. 1, at 23:10-24:8. On the evening

of March 28, 2018, as a result of the suppression operation, OCPD officers arrested

Brandon Brawley for possession of methamphetamine and soliciting prostitution services

at the Wyndham Hotel. See Def.’s Mot. Ex. 2 (Doc. No. 81-2); Def.’s Mot. Ex. 30 (Doc.

No. 95) at 34:1-37:15. Det. Jeff Coffey prepared the probable cause affidavit for Brawley’s

arrest (the “Brawley P.C. Affidavit”), and Off. Kelsey Lawson2 and Lt. Kimberlin signed

the affidavit. See Def.’s Mot. Ex. 31 (Doc. No. 81-31); Def.’s Mot. Ex. 30, at 34:1-13.

The probable cause affidavit states that upon Brawley’s arrest, officers recovered a

“small clear ziptop plastic baggie that contained a[n] off white crystal-like substance with

a total package weight of 0.03 grams.” Def.’s Mot. Ex. 31. The probable cause affidavit

further represents that “[t]he substance later field tested positive for Methamphetamine.”

Id. At the time Det. Coffey prepared the probable cause affidavit, however, the substance

recovered had not been tested. Def.’s Mot. Ex. 30, at 34:17-25. Det. Coffey later testified

in a deposition that he expected the substance would be tested prior to being booked into

the property room. Id. at 35:1-7.

At the conclusion of the March 28, 2018 operation, Lt. Kimberlin assigned Plaintiff

and Det. Alonzo Rivera to book the evidence from the evening’s operation. Def.’s Mot.

Ex. 1, at 47:17-21. Before Plaintiff left the Wyndham, Det. Coffey handed him a brown

2 Off. Lawson (now Brown) was the female officer posing as a prostitute who was

propositioned by Brawley. Def.’s Mot. at 22.

paper sack, informing Plaintiff that the sack contained methamphetamine, which had not

yet been tested,3 and two glass pipes. Id. at 47:22-48:7. According to Plaintiff, Det. Coffey

asked Plaintiff to book the narcotic evidence into OCPD’s property room but indicated that

the two glass pipes could be disposed of. See id. at 48:1-7. Plaintiff represents that he took

the sack from Det. Coffey without looking inside and left the Wyndham. See id. at 61:17-

25, 67:6-14. Plaintiff and Det. Rivera arrived at the Property Management Unit (“PMU”)

at 1:09 a.m. on Thursday, March 29, 2018, to book the evidence, and after booking the

evidence, Plaintiff and Det. Rivera went to their homes. See id. at 80:9-12, 97:15-21,

103:14-18.

On the morning of March 30, 2018, Det. Coffey asked Plaintiff for the “drug seal

number” of the narcotic evidence that was supposed to have been booked into the property

room. See id. at 102:5-103:8, 114:2-6. Plaintiff was not able to provide the drug seal

number and told Det. Coffey, “If the meth was in the bag with those pipes, then it got

thrown away, but I didn’t see it.” Id. at 103:1-5. Plaintiff then told Det. Coffey that he

would prepare a report on the missing evidence. See id. at 103:12-13.

The next day Plaintiff created a supplemental report within the OCPD Vice Unit

reporting system, with the description “Lost Evidence – Brawley” on the front cover and

containing the narrative “[t]he baggie of meth and meth pipes were misplaced prior to the

booking process and were unable to be located.” Def.’s Mot. Ex. 5 (Doc. No. 81-5); Def.’s

3 Members of the Vice Unit are required to adhere to the Standard Operating Procedures

for the unit regarding the collection and preservation of evidence. Def.’s Mot. Ex. 3 (Doc.

No. 81-3) § 1000.00; see also Def.’s Mot. Ex. 4 (Doc. No. 81-4) §§ 184.0, 184.10, 184.30.

Mot. Ex. 1, at 114:7-21. The OCPD Vice Unit activity reporting system reflects that

Plaintiff and Det. Coffey reviewed and updated the report multiple times on March 31 and

April 2, 2018. See Def.’s Mot. Ex. 6 (Doc. No. 81-6) at 1-2. The report was then updated

and reviewed by Plaintiff on April 3, 2018, and submitted to Lt. Kimberlin for approval.

See Def.’s Mot. Ex. 6, at 2; Def.’s Mot. Ex. 5, at 1.

B. The Administrative Investigation and Disciplinary Process

Lt. Kimberlin reviewed the report on April 5, 2018, and then called Plaintiff and

Det. Coffey to his office to discuss the misplaced evidence. See Def.’s Mot. Ex. 1, at 68:2-

10; see also Def.’s Mot. Ex. 7 (Doc. No. 83) at 104:1-23. Lt. Kimberlin directed Plaintiff,

Det. Coffey, and Det. Rivera to go to the PMU to search for the lost evidence, which they

did to no success. Def.’s Mot. Ex. 7, at 104:19-105:7; Def.’s Mot. Ex. 1, at 131:3-6. After

informing his supervisor, Capt. Allen, of the report of misplaced evidence, Lt. Kimberlin

was instructed to conduct an administrative investigation into the matter on April 7, 2018.

See Def.’s Mot. Ex. 8 (Doc. No. 84) at 4.

On June 27, 2018, Lt. Kimberlin conducted an interview of Plaintiff with a Fraternal

Order of Police (“FOP”) representative present. See Def.’s Mot. Ex. 12 (conventionally

filed). During this interview, Plaintiff indicated that he did not conduct a search upon

realizing that the narcotic evidence was missing because if he had left the bag containing

the narcotic evidence on the PMU room countertop, where he last recalled seeing it,

someone would have found the sack and called him. See id. at 21:03-22:08. Subsequently,

on September 27, 2018, Lt. Kimberlin and Capt. Allen interviewed Plaintiff again. Def.’s

Mot. Ex. 17 (Doc. No. 85). In this interview, Plaintiff stated he threw away the paper sack

in a dumpster located outside of the PMU, thinking the sack only contained glass pipes and

no narcotic evidence. See id. at 6:251-266. Plaintiff stated that he realized that he threw

the paper sack away when Det. Coffey asked for the drug seal number. See id. at 31:400-

32:406. On November 28, 2018, Capt. Allen requested that a polygraph examiner

administer a series of polygraph examinations on those involved in the missing narcotic

evidence’s chain of custody, including Plaintiff and Det. Coffey. See Def.’s Mot. Ex. 19

(Doc. No. 87). Those examinations reported inconclusive results for both Plaintiff and

Det. Coffey. Id. at 1, 5.

On January 30, 2019, Plaintiff was placed on Administrative Leave with pay at the

direction of then-OCPD Chief Citty. See Def.’s Mot. Ex. 20 (Doc. No. 88). On April 9,

2019, Lt. Kimberlin and Capt. Allen conducted a third interview with Plaintiff, presenting

Plaintiff with allegations of untruthfulness, which Plaintiff denied. See Def.’s Mot. Ex. 21

(Doc. No. 89). On May 3, 2019, Plaintiff received a Predetermination Hearing Notification

from then-Deputy Chief Wade Gourley. See Def.’s Mot. Ex. 22 (Doc. No. 90) at 14-26.

The May 3, 2019 Predetermination Hearing Notification contained six allegations of

misconduct regarding the lost evidence and Plaintiff’s untruthfulness during the subsequent

investigation. See id. at 14-15.

The predetermination hearing was held on May 19, 2019. See Def.’s Mot. Ex. 23

(Doc. No. 91) at 1. Deputy Chief Gourley was the hearing examiner. See id. Capt. Allen

was the presenter, reporting the facts gathered throughout the investigation, and Lt.

Kimberlin was a witness. See id. at 1, 5-7. Plaintiff, who had a FOP representative present

with him, was given the opportunity to present his own evidence and refute the allegations

against him. See id. at 41-51. Plaintiff admitted that he had thrown the sack away, that the

wording of his report was inaccurate, and that his actions showed a lack of judgment, but

Plaintiff insisted that he did not intend to mislead anyone. See id. at 42-48. Plaintiff

explained that he was frustrated and embarrassed, which led to his lapse in judgment,

admitting he knew he should have stated in his report that he threw the sack away. See id.

Deputy Chief Gourley presented his findings sustaining the allegations against Plaintiff to

then-interim Chief Jeff Becker. See Def.’s Mot. Ex. 24 (Doc. No. 92).

In July 2019, Deputy Chief Gourley was appointed as OCPD Chief of Police. Def.’s

Mot. Ex. 26 (Doc. No. 66-26) ¶ 1. No decision on the findings of the predetermination

hearing had been made in the interim. On September 5, 2019, Chief Gourley terminated

Plaintiff’s employment with the OCPD, citing Plaintiff’s “[u]ntruthfulness.” See Def.’s

Mot. Ex. 27 (Doc. No. 94).

Subsequently, following an arbitration proceeding, Plaintiff was reinstated to his

position as a sergeant/investigator with OCPD. Compl. ¶ 62.

C. Alleged Comparators

Plaintiff alleges four instances in which he believes that white officers were treated

more leniently than Plaintiff for similar violations of the OCPD’s rules regarding

truthfulness. The first instance in which non-minority comparators allegedly received

more lenient treatment involves Det. Coffey, Off. Lawson, and Lt. Kimberlin, the three

white officers who either prepared, signed, or approved the Brawley P.C. Affidavit.

Plaintiff argues that these three officers were never disciplined for including

unsubstantiated statements in the sworn affidavit and violating OCPD procedure with

respect to truthfulness. See Pl.’s Resp. at 40.

OCPD Rule 120.0 provides that “[t]estifying, making reports, or conducting

business in a less than truthful and cooperative manner is prohibited.” Def.’s Mot. Ex. 22,

at 10. OCPD Procedure 361.05 prescribes:

An officer, who arrests an individual for any drug violation, must perform a

field test on the drug(s) and obtain a positive indication for the drug. The

officer is responsible for including this information in the probable cause

affidavit. The jail provides supplies used for field-testing cocaine,

methamphetamine, amphetamines and heroin.

Pl.’s Resp. Ex. 12 (Doc. No. 114-12) at 2. Additionally, OCPD Procedure 184.30 directs

that “[f]ield-testing of narcotics will be utilized to identify possible evidence prior to

booking of the suspect.” Def.’s Mot. Ex. 4 (Doc. No. 81-4).

In his deposition, Plaintiff acknowledged that it was the OCPD practice at the time

of the suppression operation to not field test narcotic evidence because of concern that the

substance may be fentanyl. Def.’s Mot. Ex. 1, at 254:11-255:7. Plaintiff represented that

upon recovering narcotic evidence during an investigation, Vice officers would take the

narcotics back to the Vice office to test, weigh, package, and assign a drug seal number to

the narcotic evidence prior to booking the evidence into the property room. See id. If the

narcotic evidence tested differently than was initially stated in a probable cause affidavit,

the officers who prepared the affidavit would be notified and correct the affidavit. See id.

Plaintiff also identifies Off. D.G. Brewer and Maj. William Patten as comparators.

See Pl.’s Resp. at 41. Off. Brewer is a white officer who was issued a Class III reprimand

by Chief Gourley, but was not terminated, for making false statements to criminal

investigators relating to a 2017 domestic assault incident involving Off. Brewer and his

then-wife, who was also a police officer. See Pl.’s Resp. Ex. 21 (Doc. No. 115-21).

Relatedly, Maj. William Patten, a white police officer, was not disciplined for his actions

when he, in connection with a civil case arising out of the Brewer incident, deleted personal

text messages relating to the incident. See Pl.’s Resp. Ex. 24 (Doc. No. 114-24) at 32:1-

33:6; Pl.’s Resp. Ex. 5 (Doc. No. 115-5) at 61:4-25.

Finally, Plaintiff offers Det. Bryn Carter as a comparator. Det. Carter is a white

officer who, during Gourley’s tenure as Chief, was accused of perjury in a sworn probable

cause affidavit by David Prater, the then-District Attorney of Oklahoma County (“D.A.

Prater”). See Pl.’s Resp. Ex. 23 (Doc. No. 114-23). Det. Carter was subsequently

investigated by OCPD’s Internal Affairs unit at Chief Gourley’s direction. See Pl.’s Resp.

Ex. 5, at 56:1-57:20. Chief Gourley represents that the investigation found D.A. Prater’s

allegations to not be substantiated, and so Det. Carter was not disciplined. See id. In

response, D.A. Prater informed Chief Gourley that his office would no longer take charges

where Det. Carter was an affiant on a probable cause affidavit and that his office had a duty

to give Brady/Giglio disclosures in all cases where Det. Carter was a witness. See Pl.’s

Resp. Ex. 23, at 3.

III. Discussion

As noted, Defendant Gourley moves for summary judgment on Plaintiff’s claim that

the termination constituted racial discrimination in violation of 42 U.S.C. § 1981 and the

claim of conspiracy to violate Plaintiff’s civil rights. The Court considers each claim in

turn.

A. Racial Discrimination in Violation of 42 U.S.C. § 1981

Defendant Gourley asserts that he is entitled to qualified immunity on Plaintiff’s

claim for racial discrimination in violation of 42 U.S.C. § 1981. Def.’s Mot. at 25. “When

a defendant asserts qualified immunity at summary judgment, the burden shifts to the

plaintiff to show that: (1) the defendant violated a constitutional right and (2) the

constitutional right was clearly established.” Hannah v. Cowlishaw, 628 F. App’x 629,

631 (10th Cir. 2016) (internal quotation marks omitted). Consequently, “at summary

judgment, [the court] must grant qualified immunity unless the plaintiff can show (1) a

reasonable jury could find facts supporting a violation of a constitutional right [or federal

statutory right], which (2) was clearly established at the time of the defendant’s conduct.”

Est. of Booker v. Gomez, 745 F.3d 405, 411 (10th Cir. 2014). District courts have discretion

in determining which prong of the qualified immunity analysis to address first. See

Pearson v. Callahan, 555 U.S. 223, 236 (2009).

1. Qualified Immunity: Violation of a Federal Statutory Right

The Court first considers whether Plaintiff has shown that a reasonable jury could

find facts to support a violation of a constitutional or federal statutory right, in this case

racial discrimination in violation of § 1981.4 “A plaintiff alleging discrimination on the

4 Section 1981 prescribes that “[a]ll persons within the jurisdiction of the United States

shall have the same right in every State and Territory to make and enforce contracts, to sue,

be parties, give evidence, and to the full and equal benefit of all laws and proceedings for

the security of persons and property as is enjoyed by white citizens.” 42 U.S.C. § 1981(a).

basis of race may prove intentional discrimination through either direct evidence of

discrimination (e.g., oral or written statements on the part of a defendant showing a

discriminatory motivation) or indirect (i.e., circumstantial) evidence of discrimination.”

Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1225 (10th Cir. 2000). McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973), provides the analytical framework for claims

of disparate treatment involving circumstantial evidence of discrimination, as are at issue

here. Under this framework, the plaintiff must first establish a prima facie case of

discrimination. See id. at 802. If the plaintiff satisfies this initial burden, the burden shifts

to the defendant “to articulate some legitimate, nondiscriminatory reason” for its decision.

Id. Then, if the defendant meets this burden, “summary judgment is warranted unless [the

plaintiff] can show there is a genuine issue of material fact as to whether the proffered

reasons are pretextual.” Plotke v. White, 405 F.3d 1092, 1099 (10th Cir. 2005). The parties

agree that the McDonnell Douglas framework applies. See Def.’s Mot. at 19; Pl.’s Resp.

at 36.

a. Prima Facie Case

The burden at the prima facie stage is not onerous. Tabor v. Hilti, Inc., 703 F.3d

1206, 1216 (10th Cir. 2013). To establish a prima facie case of racial discrimination, a

plaintiff must present evidence showing that (1) he belongs to a protected class, (2) he

suffered an adverse employment action, and (3) the circumstances surrounding the adverse

“In racial discrimination suits, the elements of a plaintiff’s case are the same whether that

case is brought under §§ 1981 or 1983 or Title VII.” Carney v. City & Cnty. of Denver,

534 F.3d 1269, 1273 (10th Cir. 2008) (internal quotation marks omitted).

action give rise to an inference of discrimination. Ibrahim v. All. for Sustainable Energy,

LLC, 994 F.3d 1193, 1196 (10th Cir. 2021).5 “An inference of discrimination can arise

from an employer’s favoritism toward a similarly situated employee who is not part of the

protected class.” Id.

Defendant Gourley concedes that Plaintiff is a member of a protected class and that

he suffered an adverse employment action in being terminated. Def.’s Mot. at 21.

Defendant Gourley disputes, however, that Plaintiff is able to prove that the adverse action

occurred under circumstances giving rise to an inference of discrimination. See id. As

detailed above, Plaintiff alleges four instances in which white OCPD officers who had

committed similar violations involving untruthfulness received less severe punishment

than Plaintiff. See Pl.’s Resp. at 34, 39-42. Considering these specific comparator

examples most favorably to Plaintiff, and given his light burden at the prima facie stage,

see Tabor, 703 F.3d at 1216, the Court finds that Plaintiff has satisfied his burden to show

an inference of discrimination through Defendant Gourley’s “favoritism toward . . .

similarly situated employee[s] who [are] not part of the protected class.” Ibrahim, 994

5 The Tenth Circuit has clarified that “[a]lthough the ‘articulation of the plaintiff’s prima

facie test might vary somewhat depending on the context of the claim,’ ‘[t]he critical prima

facie inquiry in all cases is whether the plaintiff has demonstrated that the adverse

employment action occurred under circumstances which give rise to an inference of

unlawful discrimination.’” DePaula v. Easter Seals El Mirador, 859 F.3d 957, 969-70

(10th Cir. 2017) (second alteration in original) (quoting Kendrick, 220 F.3d at 1227).

F.3d at 1196. The Court therefore finds that Plaintiff’s burden of demonstrating a prima

facie case of racial discrimination is satisfied.

Because Plaintiff concedes that Defendant Gourley has satisfied his burden under

the second step of the McDonnell Douglas framework by proffering a legitimate,

nondiscriminatory reason for Plaintiff’s termination (untruthfulness), see Pl.’s Resp. at 38-

39, the Court proceeds to the final step of the analysis.

b. Pretext

The burden now shifts back to Plaintiff to show that “there is a genuine issue of

material fact as to whether the proffered reasons [for Plaintiff’s termination] are

pretextual.” Plotke, 405 F.3d at 1099. This final element requires the plaintiff to “show

that the proffered reasons were so incoherent, weak, inconsistent, or contradictory that a

rational factfinder could conclude the reasons were unworthy of belief.” Bekkem v. Wilkie,

915 F.3d 1258, 1268 (10th Cir. 2019) (internal quotation marks omitted). “Mere conjecture

that the employer’s explanation is a pretext for intentional discrimination is an insufficient

basis for denial of summary judgment.” Id. (internal quotation marks omitted).

“Evidence of pretext may take a variety of forms.” Dewitt v. Sw. Bell Tel. Co., 845

F.3d 1299, 1307 (10th Cir. 2017) (internal quotation marks omitted). One way a plaintiff

may show pretext on a disparate-treatment claim is “by providing evidence that he was

treated differently from other similarly-situated, nonprotected employees who violated

work rules of comparable seriousness.” Kendrick, 220 F.3d at 1232. “Employees are

similarly situated when they share a supervisor or decision-maker, must follow the same

standards, and engage in comparable conduct.” Ibrahim, 994 F.3d at 1196. “When

comparing the relative treatment of similarly situated minority and non-minority

employees, the comparison need not be based on identical violations of identical work

rules; the violations need only be of ‘comparable seriousness.’” Kendrick, 220 F.3d at

1233 (internal quotation marks omitted).

Plaintiff cites four instances where white OCPD officers who committed the same

or similar violations as Plaintiff received less severe punishment than Plaintiff. See Pl.’s

Resp. at 39-42. The Court examines each instance in turn.

i. The Brawley P.C. Affidavit

First, Plaintiff argues that Det. Coffey, Off. Lawson, and Lt. Kimberlin, the three

white officers who either prepared, signed, or approved the Brawley P.C. Affidavit, were

never disciplined for including unsubstantiated statements in the sworn affidavit. See Pl.’s

Resp. at 40. Defendant Gourley does not dispute that these officers shared the same

supervisors and were subject to the same rules and standards as Plaintiff, but Defendant

Gourley denies that the officers’ conduct in preparing, signing, and approving the Brawley

P.C. Affidavit is comparable to Plaintiff’s conduct. See Def.’s Mot. at 22-23.

Plaintiff was officially terminated for untruthfulness during an administrative

investigation and for falsifying a police report. See Def.’s Mot. Ex. 27. Like making false

statements in an administrative investigation or police report, making unsubstantiated

statements in a probable cause affidavit implicates the integrity of the officers who

prepared the affidavit. OCPD Rule 120.0 states that “[t]estifying, making reports, or

conducting business in a less than truthful and cooperative manner is prohibited.” Def.’s

Mot. Ex. 22, at 10. Plaintiff further contends that including unsubstantiated statements in

a probable cause affidavit is contrary to OCPD’s written policy, specifically Procedure

361.05’s prescription that “[a]n officer, who arrests an individual for any drug violation,

must perform a field test on the drug(s) and obtain a positive indication for the drug. The

officer is responsible for including this information in the probable cause affidavit.” Pl.’s

Resp. Ex. 12 (Doc. No. 114-12) at 2; see Pl.’s Resp. at 12. Additionally, Plaintiff argues

that this conduct violates OCPD Procedure 184.30, which instructs that “[f]ield-testing of

narcotics will be utilized to identify possible evidence prior to booking of the suspect.”

Def.’s Mot. Ex. 4, at 4; see Pl.’s Resp. at 12.6

Defendant Gourley argues, with supporting evidence, that the unsubstantiated

statements in the Brawley P.C. Affidavit representing the weight of the substance and that

“[t]he substance later field tested positive for Methamphetamine” were consistent with the

OCPD practice regarding field testing at the time. See Def.’s Mot. at 22-23; Def.’s Mot.

Ex. 31. In his deposition, Plaintiff himself stated that it was the practice at the time to not

field test narcotic evidence because of the possible presence of fentanyl. Def.’s Mot. Ex.

1, at 254:11-255:7. Plaintiff stated that upon recovering narcotic evidence during an

investigation, Vice officers would take the narcotics back to the Vice office for testing. See

id. Then, if the narcotic evidence tested differently than was initially stated in a probable

6 Procedure 184.30 goes on to state that “[i]f other charges are pending on the person in

possession of the suspected narcotic, and a field test is not available, that person may be

placed in jail on those charges and the suspected narcotics submitted to the lab for chemical

analysis.” Def.’s Mot. Ex. 4, at 5. Brawley was also arrested for soliciting prostitution

services. See Def.’s Mot. Ex. 31.

cause affidavit, the officers who prepared the affidavit would be notified and correct the

affidavit. Id.

Viewing the facts in the light most favorable to Plaintiff as the nonmovant, the Court

concludes that no reasonable factfinder could find that the officers’ actions in preparing,

signing, and approving the Brawley P.C. Affidavit, which contained unsubstantiated

statements, were comparable to Plaintiff’s conduct in making false statements during the

investigation and administrative hearing. There is no genuine dispute that Det. Coffey,

Off. Lawson, and Lt. Kimberlin’s actions regarding the Brawley P.C. Affidavit were

consistent with department practice at the time or that Plaintiff’s making of false statements

was not consistent with such practice.7 It cannot reasonably be said that actions consistent

with a department practice are of comparable seriousness to actions inconsistent with

department practice. Accordingly, Det. Coffey, Officer Lawson, and Lt. Kimberlin are in

this respect not similarly situated to Plaintiff and are not proper comparators.

ii. Off. D.G. Brewer

As another example of pretext, Plaintiff argues that he received more severe

punishment than Officer D.G. Brewer for a violation of rules of comparable seriousness.

See Pl.’s Resp. at 41. Off. Brewer was a white officer who was issued a Class III reprimand

by Chief Gourley for making false statements to criminal investigators relating to a 2017

7 This is not to say that the Court agrees with a policy of including yet-to-be-verified

statements in probable cause affidavits with the intention of proving them later. The issue

here is not whether this practice was proper, but whether the officers’ actions regarding the

Brawley P.C. Affidavit were comparable to Plaintiff’s actions regarding the missing

narcotic evidence.

domestic assault incident involving Off. Brewer and his then-wife, who was also a police

officer. See Pl.’s Resp. Ex. 21. Plaintiff and Off. Brewer shared the same decisionmaker,

Chief Gourley, and were subject to the same department policies regarding integrity and

truthfulness. See Pl.’s Resp. Ex. 21, at 3, 4; Def.’s Mot. Ex. 22, at 4, 10. But unlike

Plaintiff, Officer Brewer was not terminated for his untruthfulness. See Pl.’s Resp. Ex. 21.

Defendant Gourley argues that Off. Brewer was not similarly situated to Plaintiff

because Plaintiff’s discipline and termination resulted from on-duty activities in which he

misled his supervisors, while Off. Brewer’s discipline resulted from off-duty activities in

which he misled criminal investigators. See Def.’s Mot. at 23. Both instances involve a

police officer being disciplined by the same decisionmaker for untruthfulness, however.

Viewing the facts in the light most favorable to Plaintiff, the Court concludes that a

reasonable factfinder could find Plaintiff’s and Off. Brewer’s offenses to be of comparable

seriousness, regardless of when the officers’ untruthfulness occurred or to whom the

officers were untruthful, and so find the officers to be similarly situated and the rationale

for termination to be pretextual as to Plaintiff. See Ibrahim, 994 F.3d at 1197

(“Determining the similarity of the situations is generally a fact question.”).

iii. Maj. William Patten

Additionally, Plaintiff argues that Chief Gourley’s failure to discipline Maj. William

Patten, a white police officer who deleted personal text messages relating to the 2017

Brewer incident, demonstrates that OCPD’s explanation for Plaintiff’s termination was

pretextual. See Pl.’s Resp. at 34; Pl.’s Resp. Ex. 24, at 32:21-33:6. Plaintiff argues that

Patten intentionally deleted these text messages after a lawsuit was filed against him. See

Pl.’s Resp. at 34. Plaintiff bears the burden of showing that “there is a genuine issue of

material fact as to whether Defendants’ proffered reasons are pretextual.” Plotke, 405 F.3d

at 1099. Plaintiff, however, does not explain how Maj. Patten’s deletion of these text

messages violates any OCPD work rule regarding truthfulness. Accordingly, because

Plaintiff has not provided sufficient summary judgment evidence supporting a finding that

Maj. Patten’s conduct and Plaintiff’s conduct are comparable, Maj. Patten is not an

appropriate comparator for the purposes of establishing pretext. Cf. Kendrick, 220 F.3d at

1232 (“Differences in treatment that are trivial or accidental or explained by a

nondiscriminatory motive will not sustain a claim of pretext.”).

iv. Det. Bryn Carter

Finally, Plaintiff argues that Det. Bryn Carter, a white officer who, during Gourley’s

tenure as Chief, was publicly accused of perjury in a sworn probable cause affidavit by

D.A. Prater, received less severe punishment than Plaintiff for violating a rule of

comparable seriousness. See Pl.’s Resp. at 33-34, 42; Pl.’s Resp. Ex. 23. Following D.A.

Prater’s allegation, Det. Carter was investigated by OCPD’s Internal Affairs unit at Chief

Gourley’s direction, but Det. Carter was not disciplined as the investigation found the

allegations to be unsubstantiated. See Pl.’s Resp. Ex. 5, at 56:1-57:20.

Defendant Gourley contends this incident is not a proper comparator, arguing,

“Carter was investigated by OCPD and his case is still the subject of an ongoing

investigation by the Oklahoma Attorney General and/or the Oklahoma State Bureau of

Investigation.” Def.’s Reply (Doc. No. 118) at 4.

Plaintiff has provided evidence that, if believed, proves that a white officer who was

publicly accused of perjury by a public official was cleared by OCPD and not disciplined

at all, while Plaintiff, an African American officer, was terminated for his untruthfulness

during an internal administrative investigation. Viewing the facts in the light most

favorable to the nonmovant, Plaintiff, a reasonable jury could find Det. Carter’s alleged

conduct to be of comparable seriousness to Plaintiff’s conduct, and so find Plaintiff and

Det. Carter to be similarly situated. See Ibrahim, 994 F.3d at 1197.

v. Summary

Accordingly, because a reasonable jury could conclude that Det. Carter and Off.

Brewer were similarly situated to Plaintiff and received greater leniency for their

infractions, a genuine dispute exists as to whether the stated reason for Plaintiff’s

termination was pretextual.

2. Qualified Immunity: Clearly Established Right

Because Plaintiff has met his burden to show that a reasonable jury could find that

Defendant Gourley discriminated against Plaintiff based upon his race in violation of §

1981, the Court must determine whether the right violated was clearly established when

Plaintiff was terminated in September of 2019. See Est. of Booker, 745 F.3d at 418.

The Tenth Circuit stated in 2016: “It is clearly established that ‘employment

discrimination on the basis of race’ is forbidden by § 1981.” Hannah, 628 F. App’x at 633

(quoting Ramirez v. Dep’t of Corr., 222 F.3d 1238, 1244 (10th Cir. 2000)). Although

Defendant Gourley objects that he terminated Plaintiff for lying, and that terminating

Plaintiff for lying would not violate a clearly established right, as discussed above Plaintiff

has sufficiently shown that a jury could find that Defendant Gourley’s stated reason for

terminating Plaintiff was pretextual. See Def.’s Mot. at 27.

3. Conclusion as to 42 U.S.C. § 1981 Claim

For the reasons outlined above, Defendant Gourley is not entitled to summary

judgment on the basis of qualified immunity or otherwise as to Plaintiff’s § 1981 claim.

B. Conspiracy to Violate Plaintiff’s Civil Rights

Defendant Gourley also moves for summary judgment on Plaintiff’s conspiracy

claim. See Def.’s Mot. at 25. Plaintiff alleges that “[t]he Defendants, either implicitly or

explicitly, entered into an unlawful agreement to deprive Lacaze of his federal rights by

agreeing to cause Lacaze’s termination because of his race, African American,” and that

“[t]he Defendants each took an overt act in furtherance of the conspiracy.” Compl. ¶¶ 80-

81.

While the Complaint does not specify, Plaintiff presumably brings his conspiracy

claim pursuant to either 42 U.S.C. § 1983 or 42 U.S.C. § 1985(3). “[A] federal conspiracy

action brought under either [§ 1983 or § 1985(3)] requires at least a combination of two or

more persons acting in concert and an allegation of a meeting of the minds, an agreement

among the defendants, or a general conspiratorial objective.” Brooks v. Gaenzle, 614 F.3d

1213, 1227-28 (10th Cir. 2010), abrogated on other grounds by Torres v. Madrid, 592 U.S.

306 (2021). Further, “a plaintiff must allege specific facts showing an agreement and

concerted action amongst the defendants because conclusory allegations of conspiracy are

insufficient.” Id. at 1228 (alteration and internal quotation marks omitted).

Defendant Gourley argues that Plaintiff only offers conclusory allegations that “a

conspiracy had to [have] existed because he faced an adverse employment action” but “is

unable to offer any specific facts showing an agreement and concerted action among the

defendants.” Def.’s Mot. at 26. In his Response, Plaintiff argues that a rational jury could

find that Defendants City, Gourley, Kimberlin, Allen, and Weaver conspired to cause

Plaintiff’s unlawful termination because “[t]hey were all aware that there were serious

policy violations by other officers, but they each acted to minimize those violations and

shield white officers from scrutiny.” Pl.’s Resp. at 49. Specifically, Plaintiff contends that

“Kimberlin’s report intentionally and falsely explained the reason the PC affidavit was

false, in an effort to blame Lacaze.” Id. Plaintiff offers no specific facts and points to no

evidence regarding any agreement or concerted action among the defendants to minimize

the referenced violations, however. Additionally, Plaintiff’s argument that Lt. Kimberlin’s

report was false implicates only Lt. Kimberlin.

For the above reasons, and as the record reflects no genuine dispute for trial,

Defendant Gourley is entitled to summary judgment on Plaintiff’s conspiracy claim

pursuant to Federal Rule of Civil Procedure 56.8

8 The Court need not reach Defendant Gourley’s assertion that he is entitled to qualified

immunity on the conspiracy claim because, as explained above, the record does not support

a claim for conspiracy against Defendant Gourley.

CONCLUSION

For the reasons cited herein, Defendant Wade Gourley’s Motion for Summary

Judgment (Doc. No. 81) is GRANTED IN PART and DENIED IN PART.

Specifically, the Motion is denied as to Plaintiff Reubin B. Lacaze’s claim for racial

discrimination in violation of 42 U.S.C. § 1981. The Motion is granted as to Plaintiff's

claim of conspiracy to violate Plaintiffs civil rights.

IT IS SO ORDERED this 29th day of March, 2024.

(Barba B. Kadota

United States District Judge

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