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Johnson v. Ohio Department of Public Safety

United States Court of Appeals, Sixth Circuit

November 13, 2019

Morris M. Johnson, Plaintiff-Appellant,
Ohio Department of Public Safety, Defendant-Appellee.

          Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 2:17-cv-00016-Algenon L. Marbley, District Judge.

         ON BRIEF:



          Before: MOORE, COOK, and THAPAR, Circuit Judges.

          THAPAR, J., delivered the opinion of the court in which COOK, J., joined. MOORE, J. (pp. 5-10), delivered a separate dissenting opinion.


          THAPAR, Circuit Judge.

         The Ohio Department of Public Safety fired Trooper Morris Johnson after he sexually harassed multiple women while on duty. Judge Algenon Marbley, in a thoughtful and thorough opinion, explained why the Department did not racially discriminate against Morris Johnson in doing so. We adopt Judge Marbley's reasoning in full and affirm.

         Morris Johnson pulled over a woman for a DUI, arrested her, and asked her out. A month later, he saw the same woman on the road and pulled her over-without probable cause-so he could talk to her. He asked her out again, told her he "liked" her, and asked her to go to the casino with him so they could "play some games together." R. 17, Pg. ID 316, 318-19. He also gave the woman his personal cell number and told her to hide it in a secret location. When the Department learned this, it considered firing Morris Johnson. But it let him sign a "Last Chance Agreement," which said the Department would not fire him if he followed the rules for two years.

         Only he didn't follow the rules. Next, Morris Johnson pulled over another woman for a DUI. He arrested, searched, and handcuffed her. Then, he offered to take her home, even though she had texted someone to pick her up. On the ride home and for the rest of their encounter, he failed to turn on his in-car camera (a violation of Department policy). When he pulled into the woman's driveway, he radioed the station saying he was leaving. Yet he didn't leave. He stayed at the woman's house for over thirty minutes. Without camera footage, we cannot know what happened in those thirty minutes. Later, Morris Johnson texted the same woman from his personal cell phone with the message, "Yo yo," and "[It's] Me the person you hate." R. 17-1, Pg. ID 612. When the Department learned of this incident, it fired Morris Johnson for violating the Last Chance Agreement.

         To make an initial case for racial discrimination, Morris Johnson must show that he was "similarly situated" "in all of the relevant respects" to an employee of a different race who was treated better. Gragg v. Somerset Tech. Coll., 373 F.3d 763, 768 (6th Cir. 2004); Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998) (cleaned up). We consider whether the employees: (1) engaged in the same conduct, (2) dealt with the same supervisor, and (3) were subject to the same standards. Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992). Although other factors may also be relevant, depending on the facts of each case, Redlin v. Grosse Pointe Pub. Sch. Sys., 921 F.3d 599, 610 (6th Cir. 2019), the Mitchell factors are generally relevant. Ercegovich, 154 F.3d at 352. Here, no one disputes that the conduct of the officers and the standards to which they were subject are the most relevant factors.

         Morris Johnson, a black trooper, points to David Johnson, a white trooper who received a one-day suspension. No doubt, David Johnson also broke the rules. He may have sent someone he had detained a Facebook friend request after he got off duty (the report was unverified). Three years later, he made conversation with a woman after he issued her a citation, told her she resembled an actress, then later sent her a Facebook friend request and message saying he was thinking of a different actress.

         So this case comes down to one question. Was Morris Johnson similarly situated to David Johnson in all relevant respects? That is, did the Department treat the two differently because of their race? As the district court explained, the answer is no. Morris Johnson and David Johnson are both troopers who acted inappropriately. And they happen to share the same last name. But the similarities end there. The Department disciplined the two troopers differently because their situations were different. Thus, Morris Johnson has failed to present a case for discrimination.

         Consider each of the three factors. First, conduct. For one, David Johnson's first incident of sending a Facebook friend request was unverified. Meanwhile the Department verified all of Morris Johnson's incidents. But even accepting David Johnson's unverified incident as true, their acts were not of "comparable ...

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