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untanglingwebs
El Supremo
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Flint Talk Forums View topic - Police reverse discrimination ...
www.flinttalk.com › Political Talk
Feb 1, 2013 - 15 posts - 1 author
Officer Robert Garceau, a plaintiff in the case, was notified to appear in a "loudermill hearing", often a prelude to firing of an officer. Garceau is a ... |
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Fri Nov 11, 2016 8:57 am |
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untanglingwebs
El Supremo
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| (ECF No. 58, Ex 8, Garceau Dep., at 69.) Plaintiff Garceau also heard the previous city attorney, Tom Kent, refer to him and Plaintiffs Laframboise and Smith as "Garceau and the gang" as they walked into a negotiation room and described the term as "demeaning" but not racial. (Id. at 109-11.) Similarly, Plaintiff Eads testified that Rodney Williams, an officer with Internal Affairs, identified him as part of "Garceau and the Gang" on an unknown date at the union office. (ECF No. 58, Ex. 9, Eads Dep. at 41-42.) Plaintiff Howe testified that it was "common knowledge" that Defendant Lock referred them as "Garceau and the Gang" but admitted he never heard Defendant Lock (or anyone else specifically) utter the phrase. (ECF No. 58, Ex. 10, Howe Dep., at 39.) Plaintiff Simpson had never heard the phrase "Garceau and the Gang." (ECF No. 58, Ex. 13, Simpson Dep., at 46.) Finally, Plaintiff Dickenson testified he had heard of the term "Garceau and the Gang" but did not know what the term "gang" referenced. (ECF No. 58, Ex. 14, Dickenson Dep., at 93.) Rodney Williams testified that he likely said "Garceau and them" at one point but did not use the term "gang." (ECF No. 58, Ex. 20, Williams Dep. (July 2015), at 15-16.) |
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Fri Nov 11, 2016 9:05 am |
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untanglingwebs
El Supremo
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Prior to the filing of this lawsuit, at a command meeting on November 21, 2012, Defendant Lock allegedly stated "If I weren't chief of police, I would kick Rob Garceau's ass." (Garceau Dep., at 5-6; Third Am. Compl., at ¶ 53.) Defendant Lock confirmed that he made the comment, but explained he made the threat after Plaintiff Garceau had made a threat against him. (Lock Dep. (July 2015), at 24-25.) Defendant Lock testified that he merely informed the staff at the command meeting of the threat and restated that he "if he threatened me again, I was going to kick his ass." (Id., at 25-27.) Defendant Lock never filed a complaint against Plaintiff Garceau for his earlier alleged threat. (Id., at 27-28.)
In approximately March of 2011, Plaintiff Baldwin was transferred from his position as an officer in the courts to patrol by Defendant Lock. (ECF No. 58, Ex. 6, Baldwin Dep., 14-16.) Defendant Lock told Plaintiff Baldwin that the transfer was because, "Well, we need a black female." (Id. at 14.) Defendant Lock then appointed an African-American officer Michelle Tucker to Plaintiff Baldwin's former position in the courts. (Id. at 14- |
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Fri Nov 11, 2016 9:10 am |
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untanglingwebs
El Supremo
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Defendant Lock never filed a complaint against Plaintiff Garceau for his earlier alleged threat. (Id., at 27-28.)
In approximately March of 2011, Plaintiff Baldwin was transferred from his position as an officer in the courts to patrol by Defendant Lock. (ECF No. 58, Ex. 6, Baldwin Dep., 14-16.) Defendant Lock told Plaintiff Baldwin that the transfer was because, "Well, we need a black female." (Id. at 14.) Defendant Lock then appointed an African-American officer Michelle Tucker to Plaintiff Baldwin's former position in the courts. (Id. at 14-16.)
Around the time of the 2012 promotional exam, Plaintiff Howe testified that now retired Lieutenant James Peterson advised him that Defendant Lock mentioned him by name during a staff meeting and indicated that Plaintiff Howe "wasn't going to get anything [he] wanted as long as [Lock] is here." (Howe Dep. at 24-27, 29.) Defendant Patterson also informed Plaintiff Howe that he would not be getting a position he requested at the impound lot, stating "I don't know what you did to piss [Lock] off, but he said, 'Hell, no. He ain't getting anything as long as I'm here.'" (Id. at 26.) Around this same time, then provisionally appointed Sergeant Lott told Plaintiff Howe that Defendant Lock had informed her that regardless of her test score he would keep her on as a sergeant. (Id. at 40; see also ECF No. 58, Ex. 23, Lott Dep., at 37, stating that she could not recall if Defendants Lock or Patterson told her she would keep her sergeant's position even if she failed the 2012 exam.) Plaintiff Howe testified that these comments informed his decision not to even show up for the 2012 promotional exam because he believed that regardless of his score he would not be promoted. (Howe Dep., at 24.)
H. The "NBC"
Rodney Williams testified that he was ordered by a previous Flint Police Chief to investigate claims of a "N..... Beating Crew" also referred to as "NBC" that operated within the Flint Police Department. (Williams Dep. (July, 2015), at 26-27; ECF No. 58, Ex. 16, Campbell Dep., at 34-35.) Plaintiffs Campbell, Hall, and Simpson testified that they had been erroneously identified as part of the NBC which allegedly operated on the third shift and was known for assaulting minorities in the course of arrests or bookings. (Campbell Dep., at 34-35; ECF No. 58, Ex. 7, Hall Dep., at 45-46; ECF No. 58, Ex. 13, Simpson Dep., at 48; ECF No. 58, Ex. 24, Meeks Dep., at 19-20.) Plaintiff Campbell further testified that she was subjected to harassment by other officers, specifically Petrich, for being an alleged participant in the NBC. (Campbell Dep., at 34-35.) Officer Tanya Meeks testified that Plaintiffs Garceau, Wooster, Smith, Eads, Laframboise, Simpson, Campbell, Dickenson, and Howe were all rumored to be part of the NBC. (ECF No. 58, Ex. 24, Meeks Dep., at 19-20, 33.)
It is unclear from his testimony when this investigation occurred.
The investigation conducted by Williams found there was insufficient evidence to sustain the allegations that the NBC existed. (Williams Dep. (July, 2015), at 27.) The United States Department of Justice ("DOJ") also conducted an investigation into the allegations in 2005, but did not find any truth to the allegations. (Hall Dep., at 45-46.) Plaintiff Hall testified that Defendants Lock and Patterson were in "upper command" at the time of the DOJ investigation. (Id.)
I. "LEIN Sting"
It is undisputed that there was a long-standing rule against parking in the rear of the Flint Police Station, although there was differing testimony regarding whether the rule was collectively ignored. (ECF No. 61, Ex. R, 2001 Barksdale Inter-Office Memo.) On September 15, 2012, Defendant Patterson used the LEIN network to run the license plates of the vehicles parked in violation of the rule in the rear parking lot of the station. (ECF No. 61, Ex. R, Captain's Report at 2.) Defendant Patterson determined that Plaintiffs Garceau, Howe, and Wooster, as well as Sergeant Brian Burdy improperly parked their vehicles and wrote them up for violation of a departmental rule. (Id.; see also Lock Dep., Ex. 3, PGID 1479-80.) Plaintiff Garceau's violation was ultimately dismissed because he was authorized to park in the lot at that time. (Lock Dep., Ex. 3, PGID 1479.)
Plaintiff Howe testified that after he was written up for improperly parking, Officer Meeks, an African-American, advised him that she was warned by Defendant Patterson not to park in that lot over the weekend because he was going to write up people. (Howe Dep., at 31.) Plaintiff Howe did not know if other African-American officers were warned. (Id.) Officer Meeks testified that Sergeant Sergio Thomas, an African-American, told her not to park there at some point in time, but denied that Defendant Patterson had warned her that he was going to write anyone up ahead of time. (Meeks Dep., at 7-8.)
J. Disciplines of Plaintiffs that Post-Date this Lawsuit
On November 27, 2012, Captain Johnson took a citizen's complaint that Plaintiff Garceau had acted "angry and rude" to her and boyfriend when he responded to a call. (ECF No. 54, Ex. D, Garceau Discipline History, Incident Report at PGID 1757.) Plaintiff Garceau was on a call regarding a burglary and the citizens asked him to fill out a form for the Secretary of State regarding a vehicle car in their backyard. (Johnson Dep., at 19.) They claimed that Plaintiff Garceau looked through the windshield but then informed them that he "didn't have time" for the issue. (Id.) Captain Johnson testified that he was "embarrassed" by Plaintiff Garceau's behavior so he filed the complaint. (Johnson Dep., at 19-20.) Plaintiff Garceau denied this verison of the events and claimed that he unsuccessfully attempted to find the VIN Number, apologized to the citizens when he could not locate it, and advised them to call 911 later if they found paperwork or VIN number and he would return. (Garceau Discipline History, Incident Report at PGID 1759.)
The complaint was investigated by Sergeant Bender who authored an Investigative Report and recommended sustaining the violations of unsatisfactory performance, attention to duty, and requests for service. (Id.) Defendant Lock issued Plaintiff Garceau a three day suspension for the violations effective on January 11, 2013. (Id. at PGID 1752.) Thereafter, Plaintiff Garceau grieved the suspension and it was reduced from three days to one day. (Garceau Dep. at 38.)
Plaintiff Dickenson received an eight day suspension effective January 15, 2013. (ECF No. 54, Ex. F, Dickenson Discipline Records, at PGID 1820.) On or about October 10, 2012, Plaintiff Dickenson allegedly responded to a call but failed to get out of his car for almost an hour. Plaintiff Dickenson denied this version of events and claimed he responded to the call and knocked on the door, but surmised the woman did not hear him or had left the residence. He further claimed that he waited at the address because he had been told by the dispatcher that the woman would return shortly. (Id., Investigative Report Synopsis, at PGID 1822-23.) Sergeant Bigelow, who conducted the investigation, found that the citizen may have been wrong to conclude Plaintiff Dickenson did not get out of his cruiser. Sergeant Bigelow, however, found the amount of time Plaintiff Dickenson spent on the call (almost an hour) was an excessive amount of time given that no contact was made with the complainant. Accordingly, Sergeant Bigelow recommended that the charge of unsatisfactory performance be sustained. (Id.) Lieutenant Tindell concurred in the finding, and Defendant Lock gave Plaintiff Dickenson an eight-day suspension. (Id.)
On October 8, 2013, Plaintiff Surface received a twenty-nine-day suspension for using excessive force. Plaintiff Surface had participated in the arrest of a man suspected of a violent assault during the Back to Bricks festival in Flint on August 13, 2013. The arrest was observed by Defendant Lock, the Chief of Police of University of Michigan, Flint, Raymond Hall, and a state trooper, Matthew Bolger. During the course of the arrest, Hall and Bolger observed Plaintiff Surface hit or slap the suspect's head. (See Ex. 58, Ex. 25, Raymond Hall Dep., at 10-14; Ex. 26, Bolger Dep., at 14.) None of the witnesses, however, saw the suspect resist Plaintiff Surface's arrest, and accordingly Hall, Bolger and Defendant Lock believed Plaintiff Surface's actions amounted to an unreasonable use of force. (See Raymond Hall Dep., 35; Ex. 26, Bolger Dep., at 18; and Lock Dep. (July 2015), at 32.) The suspect did not file a complaint against Plaintiff Surface. (Surface Dep. (October 2015), at 14.)
Plaintiff Surface testified that he had tapped the back of the suspect's head as a diversionary technique because the suspect was being verbally noncompliant and had paused and tensed up while Plaintiff Surface attempted to turn him around to administer handcuffs. (Surface Dep. (July 2015), at 45-48.) Plaintiff Surface testified that he believed that an attack was imminent and the force he used was reasonable. (Surface Dep. (October 2015), at 8.) Defendant Lock did not approach Plaintiff Surface after the incident and he finished his shift. (Id. at 53.) Plaintiff Surface was eventually put on administrative leave without explanation, and then put on light duty for a month. (Surface Dep. (July 2015), at 47-48.) He was then brought back to regular duty shortly before being suspended for 29 days for the incident. (Id.) Plaintiff Surface had two previous written reprimands and three oral reprimands over the past 16 years, and none involved excessive force. (ECF No. 54, Ex. C, Surface Discipline History.) The 29-day suspension was overturned in arbitration. (Surface Dep. (October 2015), at 59; ECF No. 59, Ex. 25, 2015 Surface Arbitration.)
.........This Court also found that in regards to Count III, "First Amendment Violations Against Plaintiffs Dickenson II, Howe, Garceau, and Wooster," Plaintiffs had asserted three separate instances of protected conduct: (1) the filing of the class action union grievance; (2) complaints that Defendants misused the LEIN system, and (3) the filing of the instant lawsuit. Id., at *5. This Court then concluded that the class action grievance did not constitute a "public concern," and that the allegations regarding the misuse of the LEIN system did not constitute a plausible claim of First Amendment retaliation. Id., at *7-8. This Court held, however, that Plaintiffs adequately pleaded a First Amendment retaliation claim based upon the filing of the instant lawsuit. Id., at *8. This Court found that Plaintiffs had sufficiently pleaded adverse actions in regards to Plaintiffs Garceau and Dickenson, both of whom alleged they were subjected to excessive suspensions in retaliation after this lawsuit was filed. Id., at *9 (citing Second Am. Compl. at ¶¶ 77, 7 . Finally, this Court denied Defendants' request to dismiss the Plaintiffs' claims of discrimination against Defendant City of Flint and concluded that Plaintiffs had set forth adequate allegations to plausibly support their claims. Id., at *10.
On appeal, the United States Court of Appeals for the Sixth Circuit held that Defendants Lock and Patterson were not entitled to qualified immunity protection for the First Amendment claims because the filing of a lawsuit claiming racial discrimination was a "well-established" matter of public concern and was thus protected by the First Amendment. Garceau, et al. v. City of Flint (Garceau II), 572 F. App'x 369, 371 (6th Cir. 2014). The Sixth Circuit further held that this Court did not err in declining to grant the Defendant City's motion to dismiss the discrimination and retaliation claim against it because "the complaint contains sufficient factual material to raise a 'plausible' inference that the defendants maintained a policy or custom that led to discrimination and retaliation." Id. (citation omitted).
On August 21, 2015, after obtaining leave from the Court, Plaintiffs filed their Third Amended Complaint. (ECF Nos. 46, 47.) The Third Amended Complaint set forth the identical claims previously asserted in the Second Amended Complaint but added Count IV, a First Amendment retaliation claim on behalf of Plaintiff Surface. Plaintiff Surface alleges in Count IV that he was subject to an excessive discipline because of his participation in the instant lawsuit when "Defendant Lock made up and concocted a false and phony story that Plaintiff William Surface '.. slapped' an innocent citizen, and thereby committed an assault and battery, and used excessive force against the innocent citizen, which story was absolutely untrue, and Defendants knew it!" (Third Am. Comp., ¶ 97.) |
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Fri Nov 11, 2016 9:21 am |
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untanglingwebs
El Supremo
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| There are real issues in the Flint Police Department and Dean Yeotis is going to work hard to earn his fee. |
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Fri Nov 11, 2016 9:24 am |
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untanglingwebs
El Supremo
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KEVIN SMITH V CITY OF FLINT :: 2015 :: Michigan Court of Appeals ...
law.justia.com › ... › Michigan Court of Appeals - Published Opinions Decisions › 2015
KEVIN SMITH V CITY OF FLINT. ... Justia › U.S. Law › Case Law › Michigan Case Law › Michigan Court of Appeals - Published Opinions Decisions › 2015 ... |
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Fri Nov 11, 2016 10:50 am |
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untanglingwebs
El Supremo
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plaintiff may establish a WPA claim by showing that he or she suffered some abstract “adverse employment action.” Wurtz, 495 Mich at 251 n 14. The Court explained:
While the term “adverse employment action” may be helpful shorthand for
the different ways that an employer could retaliate or discriminate against an
employee, this case illustrates how such haphazard, telephone-game jurisprudence
can lead courts far afield of the statutory language. That is, despite courts’
freewheeling transference of the term from one statute to another, the WPA
actually prohibits different “adverse employment actions” than the federal and
state antidiscrimination statutes. So we take this opportunity to return to the
express language of the WPA when it comes to the necessary showing for a prima
facie case under that statute. Put another way, a plaintiff’s demonstration of some
abstract “adverse employment action” as that term has developed in other lines of
caselaw will not be sufficient. Rather, the plaintiff must demonstrate one of the
specific adverse employment actions listed in the WPA. [Id.]
Accordingly, in order to establish an adverse employment action under the WPA, a plaintiff has
to show that he was discharged, threatened, or otherwise discriminated against, such that his compensation, terms, conditions, location, or privileges of employment were affected. Id. at 251.
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hold that the objective and material standard provided by Peña continues to apply. Namely, an adverse employment action (regarding that employee’s compensation, terms, conditions, location, or privileges of employment) must be more than a mere inconvenience or an alteration of job responsibilities, and there must be some objective basis for demonstrating that the change is adverse because a plaintiff’s subjective impressions as to the desirability of one position over
another are not controlling. See Peña, 255 Mich App at 312.
Here, plaintiff has not alleged sufficient facts to show that he suffered an actual adverse employment action within 90 days of filing his complaint.3
Plaintiff’s removal as full-time union president and return to work as a patrol officer was accomplished by the emergency financial manager’s order in April 2012, which was well over 90 days before plaintiff filed his complaint
on May 31, 2013. In fact, the decision to return plaintiff to work as a police officer was made before plaintiff’s statements complaining about the use of the millage revenue.
Further, plaintiff’s subsequent assignment to patrol duty on the north end of Flint does not constitute an adverse employment action. While retaliation related to an employee’s “location” is expressly covered under the WPA, we do not construe “location” under the statute to encompass the action here. Plaintiff’s assignment to patrol areas of the city is more in the nature of “job duties” that fall squarely within the discretion of a police department’s fundamental role in securing public safety. We discern the statute’s reference to a change in location to be a significant, objective one, such as a move from one city to another or from one
location to another of an employer with multiple offices. Here, the area where officers patrol within the same city they were sworn to protect concerns job assignments, not a matter of location. As a result, plaintiff’s assignment to a particular patrol duty within the city of Flint, objectively, is simply not covered by the WPA.
In sum, under the facts as pled by plaintiff, defendant’s alleged acts of retaliation do not constitute an adverse employment action under the WPA. Accordingly, summary disposition in defendant’s favor is proper under MCR 2.116(C)(. Although the trial court erroneously equated an “adverse employment action” with an “ultimate employment decision,” we will not reverse when the court reaches the right result, albeit for the wrong reason. Gleason v Mich
Dep’t of Transp, 256 Mich App 1, 3; 662 NW2d 822 (2003). |
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Fri Nov 11, 2016 11:09 am |
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untanglingwebs
El Supremo
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On the Thompson O'Neil site, under wrongful termination and employee discrimination sub category of cases they discuss an 8-24-2012 case and focus on the Republican make up of Michigan's higher courts.
Then local Representative Richard Hammel along with other state representatives sued the House Speaker after he allowed a vote relating to employment rights of public employees be given immediate effect after a voice vote. Hammel argued the Michigan Constitution required a recorded vote before a vote could be given immediate status. Hammel argued that transparency about the close vote (55-53)would have made the measure fail. The Ingahm County Circuit Court agreed and denied the PERA bills immediate status. The Court of Appeals reversed and stated transparency is not required by the Constitution.
Government can deceive us in so many ways by denying us transparency in our government. Is it going to be government for corporations and governments over the average citizen. With so many challenges to Whistle blower cases and employment discrimination cases, what are the odds of these new cases succeeding?
As this law firm stated:
"Needless to say, Michigan's highly political Judicial system, currently dominated by highly political Republican judges and justices, is unlikely to step on the toes of Republican Legislative bosses."
While the races are non-partisan, the parties select he candidates. Once elected, the incumbents have the edge and challengers must spend big bucks. Our recent elections confirmed the 5-2 Republican majority.
What happens to these new lawsuits will be interesting. |
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Sun Nov 13, 2016 10:07 am |
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