Morris M. Johnson, Plaintiff-Appellant,
Ohio Department of Public Safety, Defendant-Appellee.
from the United States District Court for the Southern
District of Ohio at Columbus. No. 2:17-cv-00016-Algenon L.
Marbley, District Judge.
H. KLOS, COLUMBUS, OHIO, FOR APPELLANT.
RUTH ITA, WENDY K. CLARY, OFFICE OF THE OHIO ATTORNEY
GENERAL, COLUMBUS, OHIO, FOR APPELLEE.
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
THAPAR, Circuit Judge.
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.
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.
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.
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.
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.
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.
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 ...