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Harper v. City of Cleveland

United States District Court, N.D. Ohio, Eastern Division

May 7, 2018




         Before the Court is the motion for summary judgment filed by defendants City of Cleveland, Calvin D. Williams (“Williams”), and Michael McGrath (“McGrath”) (collectively, the “City”). (Doc. No. 24 [“MSJ”].) Plaintiff Christopher Harper (“Harper”) filed a memorandum in opposition (Doc. No. 27 [“Opp'n”]) and the City filed a reply (Doc. No. 29 [“Reply”]). For the reasons set forth herein, the motion for summary judgment is granted.

         I. BACKGROUND

         A. Harper's Complaint [1]

         On December 12, 2016, Harper, an African-American and a former police officer for the City, filed his complaint against the three defendants (Doc. No. 1 [“Compl.”] ¶ 2), generally raising claims of “retaliation for the exercise of free speech rights insured [sic] under the Constitution of the United States, ” “retaliation for engaging in a constitutionally protected activity[, ]” and “discriminat[ion] . . . on the basis of race in relation to discipline meted out[.]” (Id. ¶ 1.) Harper's claims are not set forth in separate counts, but are purportedly brought “under the Civil Rights Act of 1870, as amended, 42 U.S.C. § 1981, the Civil Rights Act of 1871, 42 U.S.C. § 1983, [and] Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(f)[.]” (Id. ¶ 6.)[2]According to Harper, the gravamen of his complaint is that “he was retaliated against and forced out of his position as a Cleveland police officer for engaging in a matter of public concern, organizing and speaking out for” himself and other City police officers who worked in a specialized unit at Cleveland Hopkins International Airport (“CHIA” or the “airport”) (Opp'n at 347), and that he was discriminated against on the basis of race when “defendants did not treat non-black officers as harshly as the treatment afforded [him].” (Id. at 348.)

         In particular, Harper alleges that, in 2007, he learned that the City was attempting to privatize the safety forces at CHIA. (Doc. No. 27-1, Affidavit of Christopher Harper [“Harper Aff.”] ¶ 9.)[3] Harper claims that he organized 51 CHIA officers to fight this plan, [4] which he believed would place everyone in jeopardy because it would entail hiring officers for CHIA who would have no authority to arrest or detain. (Id. ¶¶ 11, 14.) Harper believes this “represented a serious matter of public concern[.]” (Id. ¶ 15.) Harper asserts that, due to his efforts, the plan was blocked. (See generally Compl. ¶¶ 12-19.) He further alleges that, as a result of his successful First Amendment activities to advance the public interest, instructions went out “to go after [him]”and, within months, he started “receiving unwarranted disciplinary allegations . . . and write-ups.” (Id. ¶¶ 20, 29, 30.)[5] He claims that the City “formulated a plan to scrutinize [his] activities . . . in retaliation for his constitutionally protected activity with the view of discrediting him and punishing him [for] leading the effort to maintain police presence at [CHIA].” (Id. ¶ 35.) Ultimately, following formal disciplinary charges, a suspension, and a transfer from CHIA to the Fourth District (id. ¶¶ 82-93), Harper retired in April 2016 (Harper Aff. ¶ 37), an action he claims was forced upon him. (Compl. ¶ 94.)

         B. The City's Evidence

         The City has submitted three affidavits. First, it submitted the affidavit of Fred Szabo (“Szabo”), currently the Assistant Director of CHIA (since January 2017), and formerly Commissioner of the Airport (from 2001 to January 2017) and Interim Director and Commissioner of the Airport (from 2015 to January 2017). (Doc. No. 24-2, Affidavit of Szabo [“Szabo Aff.”] ¶ 1.) Second, the City submitted the affidavit of defendant McGrath, currently the Director of the Department of Public Safety (since February 2014), and formerly Chief of the Division of Police (from March 2005 to February 2014). (Doc. No. 24-4, Affidavit of McGrath [“McGrath Aff.”] ¶ 1.) Finally, the City submitted the affidavit of defendant Williams, currently the Chief of the Division of Police (since February 2014), and formerly Deputy Chief of Field Operations for the Division of Police (from 2011 to 2014). (Doc. No. 24-5, Affidavit of Williams [“Williams Aff.”] ¶ 1.)

         The City's Division of Police provides officers to CHIA, assigning officers there in the same manner as they are assigned to the five City police districts. (McGrath Aff. ¶ 3.) An officer's assignment to CHIA is subject to transfer/change at any time under the managerial rights of the City, as allowed by the collective bargaining agreement (“CBA”).[6] (Id.)

         Szabo attests that the City began to explore privatizing safety forces at CHIA in 2006, but there was never any intention to bring in private individuals without the power to arrest or detain. (Szabo Aff. ¶¶ 3, 4.) At the time, McGrath was Chief of Police, but he was not involved in the development of the idea of privatization. (McGrath Aff. ¶ 4.) Williams attests that, prior to his becoming Chief of Police, he was aware of efforts to privatize the safety forces at CHIA, but he had no first hand involvement or knowledge of those efforts, which had terminated by the time he became Chief. (Williams Aff. ¶ 3.)

         Szabo and McGrath both attest that, until the filing of the complaint herein, they were never aware of any group of officers organizing or collectively expressing concerns about privatization, except for the police union (the Cleveland Police Patrolmen's Association [the “union”]) through its official representatives. (Szabo Aff. ¶ 5; see McGrath Aff. ¶ 5.) Szabo, McGrath and Williams all attest that they were not aware of any involvement by Harper in opposing privatization, either personally or through leadership of other officers, or through the union. (Szabo Aff. ¶ 6; McGrath Aff. ¶ 7; Williams Aff. ¶ 4.) In any event, the efforts to privatize the airport safety forces ended in 2008. (Szabo Aff. ¶ 7; McGrath Aff. ¶ 6.)[7]

         In mid-2013, approximately five (5) years after the privatization discussions ended (Williams Aff. ¶ 14), Szabo was made aware of citizen complaints of Harper sleeping in his vehicle while parked at the roadway at CHIA. Szabo passed this information on to the officer in charge. (Szabo Aff. ¶ 8.)[8] Szabo attests that, subsequently, Harper was observed inside the airport for prolonged periods, and Szabo became aware that Harper was abandoning his post and disappearing for hours at a time into a utility room containing HVAC equipment. Szabo and his security office decided to check the airport security cameras and Harper's swipe card records, which logged his entry through each doorway of the airport, including the utility room. (Id. ¶ 9.) This check of cameras and records verified that Harper was going frequently to the utility room, abandoning his post. (Id. ¶ 10.)[9] Szabo began to work with the police department's internal affairs unit and his security office to investigate this matter. They decided to utilize a pinhole camera in the utility room and, when viewing the resulting video footage, saw Harper sleeping in the room and even setting an alarm on his phone to wake himself up. (Id. ¶¶ 11, 12.) After this discovery, the matter was turned over to internal affairs and Szabo had no further involvement, other than to ultimately revoke Harper's airport security credentials on August 25, 2015. (Id. ¶ 14.)

         Williams attests that in October 2014, while he was Chief of Police, his office “received a charging packet containing the internal investigation of Officer Harper's misconduct on duty in October 2014.” (Williams Aff. ¶ 7.) Prior to that, he was unaware of any monitoring or investigation of Harper. (Id.) Williams reviewed the charging packet, recommended the charges, and forwarded the disciplinary information to McGrath for further proceedings under the CBA. (Id. ¶ 8.) According to Williams, a pre-disciplinary hearing was scheduled for December 3, 2014, but was rescheduled due to additional review, in particular, the need to investigate both whether Harper's supervisors had any culpability for failing to ensure he was performing his duties, and whether Harper's conduct rose to the level of criminality. (Id. ¶¶ 9-11.) Williams attests that it was standard practice to refer to the prosecutor's office for review any serious misbehavior with legal implications. (Id. ¶ 11.) The prosecutor declined to pursue criminal charges. (Id.)

         McGrath attests that, on November 10, 2014, he sent Harper a charging letter based on numerous charges of sleeping on duty, being late for his shift, neglect of duty, and improperly filling out duty forms, among other things. (McGrath Aff. ¶ 12.) A copy of the charging letter is attached to McGrath's affidavit. (See Doc. No. 24-4 at 171-184.) Although the originally scheduled pre-disciplinary hearing was delayed due to the need for additional review, the charges against Harper were never dismissed pending that review. (McGrath Aff. ¶ 13.)

         The rescheduled pre-disciplinary hearing was conducted on August 20, 2015 before Assistant Safety Director Tim Hennessy. (Id. ¶ 15.) During such proceedings, an employee may plead guilty, not guilty, or no contest. (Id. ¶ 16.) Under a pre-arranged agreement, at the hearing Harper entered a “no contest” plea to the disciplinary charges, in the presence of his union representative, the union attorney, and Harper's own attorney (who also represents him before this Court). (Id. ¶ 17.) Under that agreement, Harper received a 30-day suspension and would be transferred from the airport. Harper never filed a grievance regarding either this disciplinary decision or the internal investigation that led to the charges. (Id.) Nor did he or his representatives ever challenge the timeliness of the charges or the disciplinary hearing. (Id.) In a letter dated August 21, 2015, a copy of which is attached to McGrath's affidavit (see Doc. No. 24-4 at 205-213), McGrath agreed to the 30-day suspension. (See also Doc. No. 24-7, Transcript of 8/20/15 Disciplinary Hearing.)

         Following this discipline issued by McGrath, and after Szabo revoked Harper's airport security credentials, Williams transferred Harper from the airport to the Fourth District, under Williams' managerial authority within the CBA, and pursuant to the agreement reached when Harper entered his “no contest” plea to the charges. (Williams Aff. ¶ 16.) Harper did not file a grievance under the CBA regarding either the discipline or the transfer. (Id. ¶ 17.)

         Although Harper now alleges that he was transferred to the Fourth District without any retraining, [10] causing him to go out on “stress leave” and never return (Harper Aff. ¶ 36), Williams attests that no retraining was necessary because Harper, as a CHIA officer, maintained the same level of annual in-service training as all other officers and was equally qualified as any other officer to work in the Fourth District. (Williams Aff. ¶¶ 18, 20.) In addition, although Harper was supposed to participate in a Return to Duty training program after his 30-day suspension and prior to going to work in the Fourth District, he appeared only for an initial intake and then called in sick for the remainder of the program until he retired. (Id. ¶ 19.)

         Williams attests that Harper's transfer from the airport to the Fourth District was a lateral transfer, without any demotion or decrease in salary or benefits. (Id. ¶ 21.) According to Williams, Harper retired on March 22, 2016. (Id. ¶ 28.)[11]


         A. Standard of Review

         Under Fed.R.Civ.P. 56(a), when a motion for summary judgment is properly made and supported, it shall be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

         An opposing party may not rely merely on allegations or denials in its own pleading; rather, by affidavits or by materials in the record, the opposing party must set out specific facts showing a genuine issue for trial. Fed.R.Civ.P. 56(c)(1). Affidavits or declarations filed in support of or in opposition to a motion for summary judgment “must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4). A movant is not required to file affidavits or other similar materials negating a claim on which its opponent bears the burden of proof, so long as the movant relies upon the absence of the essential element in the pleadings, depositions, answers to interrogatories, and admissions on file. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

         In reviewing summary judgment motions, this Court must view the evidence in a light most favorable to the non-moving party to determine whether a genuine issue of material fact exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); White v. Turfway Park Racing Ass'n, Inc., 909 F.2d 941, 943-44 (6th Cir. 1990), impliedly overruled on other grounds by Salve Regina Coll. v. Russell, 499 U.S. 225, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991). A fact is “material” only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Determination of whether a factual issue is “genuine” requires consideration of the applicable evidentiary standards. Thus, in most civil cases the Court must decide “whether reasonable jurors could find by a preponderance of the evidence that the [non-moving party] is entitled to a verdict[.]” Id. at 252.

         Summary judgment is appropriate whenever the non-moving party 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, 477 U.S. at 322. Moreover, “[t]he trial court no longer has the duty to search the entire record to establish that it is bereft of a genuine issue of material fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989) (citing Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1034 (D.C. Cir. 1988)). The non-moving party is under an affirmative duty to point out specific facts in the record as it has been established that create a genuine issue of material fact. Fulson v. City of Columbus, 801 F.Supp. 1, 4 (S.D. Ohio 1992) (citation omitted). The ...

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