Different Discipline for Hitting on Arrestees Was Not Based on Race.

In a case about which we previously and irreverently blogged, the U.S. Court of Appeals for the Sixth Circuit has now affirmed that a black trooper appropriately received harsher discipline than a white trooper for hitting on arrestees.

In Johnson v. Ohio Dept. of Public Safety, a black trooper was placed on a last chance agreement (LCA) after hitting on a female motorist when he initially arrested her for DUI and then again a month later when he stopped her without probable cause. Despite the LCA, which provided for termination for any further incidents of misconduct within a two year period, the trooper subjected another arrestee to sexual harassment. Specifically, after arresting a woman for DUI, the trooper drove her home without his in-car camera on, in violation of policy. Although he radioed that he had left her house, he actually stayed for over 30 minutes, and then subsequently texted the woman from his personal cell phone. He was terminated and sued for race discrimination. The trooper contended that he had been treated less favorably than a white trooper who engaged in similar misconduct.

The Sixth Circuit, however, found that the white trooper was not a proper comparator. His misconduct was not as serious, as he had only been warned about sending Facebook “friend” requests to two women, approximately three years apart. Moreover, as the Sixth Circuit noted, the women were not intoxicated, they were not being detained, the trooper was not on duty at the time of his misconduct, he did not proposition the women, he did not pull them over without probable cause, and he did not go to their homes. The Sixth Circuit further noted that the troopers had different supervisors. And at the time of the second incidents, the black trooper was on an LCA while the white trooper had only received a warning of possible unspecified discipline for further misconduct. Thus, the black trooper appropriately received much harsher discipline.