Case 2:20-cv-10812-GCS-DRG ECF No. 1 filed 03/27/20 PageID.1 Page 1 of 30

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Linda DeVooght, Tressa Sinha, Jennifer Piper, Donna Tripi, Suzanne Chaffin, and Cheryl Osowski,

Case:

Plaintiffs, v.

Hon. ___________ United States District Judge

City of Warren,

Defendant.

VERIFIED COMPLAINT FOR DAMAGES, DECLARATORY JUDGMENT, INJUNCTIVE RELIEF AND JURY DEMAND Plaintiffs Linda DeVooght, Tressa Sinha, Jennifer Piper, Donna Tripi, Suzanne Chaffin, and Cheryl Osowski, by their attorneys Pitt McGehee Palmer & Rivers, are women dispatchers employed by the City of Warren Police Department. They bring this lawsuit against their employer, the City of Warren, alleging violations of their 14th Amendment Equal Protection rights and their rights under the Elliott-Larsen Civil Rights Act because they are subjected to unlawfully adverse conditions of employment that have now placed them in dire and immediate danger because of the COVID-19 global pandemic and public health emergency. Specifically, Plaintiffs are required to conduct pat-down and, on occasion, strip searches of women arrestees at considerable risk to their health and safety;
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whereas, similarly situated male dispatchers have no such work demand. Plaintiffs have been ordered to conduct these dangerous activities without adequate protective gear and thus are regularly exposed to the risk of the deadly COVID-19 virus; whereas, their male counterparts are never expected to take on such risks.
Plaintiffs’ claims of discrimination on the basis of sex in violation of Title VII are pending before the EEOC, and this Complaint will be amended once the EEOC has conducted its responsibilities under Title VII.
JURISDICTION, PARTIES AND VENUE 1. This Court has jurisdiction pursuant to 28 U.S.C. § 1331, which authorizes federal courts to decide cases concerning federal questions; 28 U.S.C. § 1343(a)(3) and (4), which authorize federal courts to hear civil rights cases; and 28 U.S.C. § 2201, the Declaratory Judgment Act. 2. This Court has jurisdiction pursuant to 28 U.S.C. § 1367 over the statelaw claims under the Elliott-Larsen Civil Rights Act, MCL 37.2101 et seq (“ELCRA”) arising from the same core operative facts as the federal questions. 3. Plaintiff Linda DeVooght is a 48-year-old woman who resides in Sterling Heights, County of Macomb, Michigan. 4. Plaintiff Tressa Sinha is a 35-year-old woman who resides in Troy, County of Oakland, Michigan.
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5. Plaintiff Jennifer Piper is a 46-year-old woman who resides in Warren, County of Macomb, Michigan.
6. Plaintiff Donna Tripi is a 46-year-old woman who resides in Sterling Heights, County of Macomb, Michigan.
7. Plaintiff Suzanne Chaffin is a 38-year-old woman who resides in Sterling Heights, County of Macomb, Michigan.
8. Plaintiff Cheryl Osowski is a 48-year-old woman who resides in Chesterfield, County of Macomb, Michigan.
9. Defendant City of Warren is an incorporated municipality under Michigan’s Home Rule Cities Act and located in Macomb County, Michigan.
10. Venue is proper in this Court as Defendant is located in the Eastern District of Michigan.
Statement of Facts 11. The City of Warren Police Department employs 22 dispatchers, 17 of whom are women. 12. The dispatchers employed by the City of Warren Police Department are paid according to two collective bargaining agreements—one for the dispatchers and one for the supervisors—and these agreements make no distinction in pay between male and female dispatchers.
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13. Plaintiff Linda DeVooght began working as a dispatcher for Defendant City of Warren’s Police Department on or about April 6, 1999. She was promoted to a Supervisor of Dispatch on or about February 20, 2015.
14. Plaintiff Tressa Sinha began working as a dispatcher for Defendant City of Warren’s Police Department on or about May 27, 2015.
15. Plaintiff Jennifer Piper began working a dispatcher for Defendant City of Warren’s Police Department on or about January 24, 2005.
16. Plaintiff Donna Tripi began working as a dispatcher for Defendant City of Warren’s Police Department on or about July 29, 1996.
17. Plaintiff Suzanne Chaffin began working as a dispatcher for Defendant City of Warren’s Police Department on or about December 13, 2010.
18. Plaintiff Cheryl Osowski began working as a dispatcher for Defendant City of Warren’s Police Department on or about November 19, 1991.
A. The City of Warren Police Department Maintains a Long-Standing Policy that Requires Women Dispatchers to Conduct Custodial Searches of Prisoners; whereas, Male Dispatchers Have No Such Requirement
19. On October 4, 2017, the City of Warren Police Department issued General Order No. 17-10 for Arrest Procedures and the “handling, booking, and processing of prisoners taken into custody.”
20. According to Section G, “Prisoner Searches,” of this 2017 General Order:
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a. “the arresting/transporting officers will conduct an initial search for weapons and contraband.”
b. “If a male prisoner is arrested by a female officer, an available male officer who is on duty and in the station when the arrest is made shall be called upon to conduct the search.”
c. “If a female prisoner is arrested by a male officer, an available officer who is on duty and in the station when the arrest is made shall be called upon to conduct the search prior to calling upon a dispatcher to perform the search.”
21. This General Order further directs that “A female dispatcher will conduct the search of a female prisoner in the detention facility when: 1) a female is arrested by a male officer; and 2) there are no female officers on duty and in the station at the time of booking.”
22. This General Order further directs that when only 3 dispatchers are on duty “or if the Watch Commander deems it necessary, an officer will be assigned by the Watch Commander to assist in Dispatch until the search is completed.”
23. There is no provision for male dispatchers to ever search a prisoner. 24. This policy of ordering female dispatchers to perform body searches of female prisoners has been in effect, with some minor variations, since at least 2002.
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25. An earlier version of this General Order, which was in effect from May 17, 2011 until October 4, 2017, ordered that “When a female officer is not available to conduct a search of a female prisoner, a female Dispatcher will be called upon to conduct the search.”
26. The version of the General Order for Prisoner Processing that became effective on August 4, 2005, directs that “when a female officer is not available to conduct a search of a female prisoner, a female Dispatcher will be called upon to conduct the search.”
27. The City of Warren Police Department General Order No. 02-01 regarding the General Description of Duties for Dispatchers became effective on April 30, 2002 and remains in effect today.
28. This General Order regarding the Duties for Dispatchers does not mention prisoner searches.
29. Similarly, the General Order describing the duties of Dispatch Supervisors, which became effective on October 9, 2002 and remains in effect today, makes no mention of prisoner searches as a responsibility of any dispatcher.
30. The collective bargaining agreements relevant to Dispatchers and Dispatch Supervisors similarly make no mention of prisoner searches as a responsibility of any dispatcher.
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B. Plaintiffs and the Other Female Dispatchers Regularly and Frequently Conduct Custodial Searches of Female Arrestees who are Being Detained at the Warren Jail
31. On numerous occasions in any given week—averaging four to five times in a week—it becomes necessary for a female dispatcher to leave her duties and perform a custodial search of a prisoner.
32. Even though the applicable orders direct a female officer who is on duty and in the station to conduct the search, as a practice and policy of the department and its commanding officers, female officers are not ordered to perform these searches, even when they are on duty and in the station.
33. Rather, it is nearly always the case that when a male officer brings in a female prisoner, a female dispatcher is ordered to report to the intake area and conduct the search.
34. Of its nearly 200 sworn officers, Defendant City of Warren’s Police Department employs 13 female police officers.
35. One of these female officers is assigned during the days from Monday to Friday at the station and yet she has rarely if ever been ordered to conduct the full custodial search of a female arrestee brought in by a male officer.
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C. Custodial Searches Involve Extensive Physical Contact with the Prisoner’s Body, Clothing, and Personal Effects; However, the City of Warren has Failed to Properly Train or Protect the Female Dispatchers it Orders to Conduct these Searches
36. The General Order No. 17-10 on Arrest Procedures defines the full custodial search that must be conducted of a prisoner being arrested as requiring the person conducting the search to remove and inventory all personal property, check the prisoner’s garments, remove all medications, contraband, and potential weapons, and remove and inspect all headwear such as wigs, toupees, weaves, or barrettes.
37. When a female dispatcher is performing the search, the arresting/assisting officer is required by the General Order No. 17-10 to “stand by in close proximity in the booking area until the search has been completed and the prisoner has been turned over to detention personnel.”
38. In practice, the arresting/assisting officer will commonly leave the proximity of the female dispatcher and the prisoner she has been ordered to search.
39. Indeed, on March 12, 2020, Plaintiff Suzanne Chaffin was ordered to conduct a custodial search on a female prisoner who was arrested on a two-felony warrant—assault and concealing a dangerous weapon—yet the male arresting/assisting officer left Chaffin alone with this prisoner for at least two minutes during the search.
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40. Sworn police officers receive extensive training to perform all parts of their job requirements, including how to safely conduct a custodial search of a prisoner, disarm prisoners, and remove contraband.
41. However, the City of Warren’s Police Department has failed to provide any training in five years for the female dispatchers to conduct a custodial search of a prisoner, disarm prisoners, or remove contraband from a prisoner.
42. Approximately once a year, the City of Warren’s Police Department has its female dispatchers watch a training video regarding custodial searches of prisoners.
43. Watching a training video is woefully inadequate training for conducting a search that can expose the person conducting the search to infectious diseases such as COVID-19, potential weapons the prisoner is holding that evaded the original pat-down, highly toxic narcotics the prisoner may yet have concealed on her person, as well as lice, scabies, fleas and other pests that may have infested a prisoner.
44. This training video even demonstrates a male officer conducting the custodial search of a female prisoner.
45. Male dispatchers, unlike their female counterparts, are never asked or ordered to perform custodial searches of prisoners; therefore, the male dispatchers
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are never subjected to the risks associated with conducting custodial searches of prisoners.
D. Since March 10, 2020, when the First COVID-19 Case in Michigan was Confirmed, Female Dispatchers have been Ordered to Continue to Conduct Custodial Searches of Prisoners
46. On March 10, 2020, the first COVID-19 case in Michigan was confirmed and Governor Whitmer declared a State of Emergency directing that steps be taken to prevent the spread of the disease.
47. Since March 10, 2020, Plaintiffs and their fellow Female Dispatchers have been ordered to conduct custodial searches of female prisoners on no fewer than 12 separate occasions.
48. The United States Centers for Disease Control and Prevention (“CDC”) has issued guidance regarding the measures to be taken at workplaces to avoid and protect against transmission of COVID-19. Among the recommendations provided for law enforcement personnel is maintain a distance of 6 feet from individuals whenever possible.1
1 “What Law Enforcement Personnel Need to Know About Coronavirus Disease 2019 (COVID-19),” CDC, available at https://www.cdc.gov/coronavirus/2019ncov/community/guidance-law-enforcement.html (Last visited 3-23-2020).
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49. Additionally, the CDC has proscribed the following as minimally acceptable Personal Protective Equipment to Wear when one must be within 6 feet of another individual to perform operational duties2:
a. A single pair of disposable examination gloves, b. Disposable isolation gown or single-use/disposable coveralls, c. Any NIOSH-approved particulate respirator (i.e., N-95 or
higher-level respirator); Facemasks are an acceptable alternative until the supply chain is restored, and d. Eye protection (i.e., goggles or disposable face shield that fully covers the front and sides of the face) 50. While disposable gloves and face masks have been made available to Plaintiff and their fellow Female Dispatchers, at no time has Defendant provided isolation gowns or eye protection to them. 51. Indeed, on March 22, 2020, Plaintiff Cheryl Osowski expressed her grave concerns about performing a custodial search without such protective equipment because she lives with three family members who are in high-risk categories for COVID-19 exposure—diabetes, cancer treatment, and asthma. 52. The Watch Commander told Osowski that all she needed was the mask and the gloves. He denied her a protective gown and eye protection.
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53. Osowski was required to perform the custodial search on this female prisoner notwithstanding her concerns and the lack of proper protective equipment, and the fact that a female officer was due to come on duty at the station in 15 minutes.
54. Police officers are provided with eye protection and protective gowns to perform custodial searches.
55. Male Dispatchers are never expected to perform custodial searches of prisoners.
56. It appears nowhere in the Dispatcher job description that any Dispatcher would be expected to perform custodial searches of prisoners.
57. Nonetheless, when Plaintiff Jennifer Piper took a medical leave in the fall of 2019, the City of Warren required her to demonstrate that she was physically able to conduct custodial searches or prisoners before she was cleared to return to work.
58. No male dispatcher has ever had to demonstrate that he was physically able to conduct custodial searches in order to be cleared to return to work.
E. In Addition to the Immediate Concerns of COVID-19 Exposures, Custodial Searches of Prisoners Expose Female Dispatchers to Other Dangerous and Odious Conditions
59. Plaintiffs and their fellow Female Dispatchers have been ordered to conduct searches in which they must touch and handle women who:
a. are extremely intoxicated;
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b. are belligerent and make direct threats to the female dispatchers; c. have urinated, vomited, and/or defecated on themselves; d. are known or believed to be infected with highly contagious
diseases; e. show obvious signs of lice, bed bugs, flea, and/or scabies
infestation; and/or f. may have sharp objects such as drug paraphernalia and/or
weapons. 60. Plaintiffs and their fellow Female Dispatchers have been ordered to conduct strip searches of women who are believed to be:
a. concealing weapons in the folds and cavities of their bodies; b. concealing highly toxic controlled substances in the folds and
cavities of their bodies; c. are known or believed to be infected with highly contagious
diseases; d. show obvious signs of lice, bed bugs, flea, and/or scabies
infestation. 61. Plaintiffs and their fellow Female Dispatchers have been ordered to conduct searches of women who are obviously ill.
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62. Plaintiffs and other Female Dispatchers have been exposed directly to the body fluids of women prisoners during these searches.
63. Plaintiffs and other Female Dispatchers have been left alone with multiple female prisoners during the custodial search or left with only an inexperienced rookie officer while the female dispatcher conducted the search.
64. Plaintiffs and other Female Dispatchers have even been left alone to search prisoners who were arrested on violent felony charges.
F. Plaintiffs Have Been Required to Search Prisoners even when Female Officers were on Duty and in the Station
65. The General Order governing custodial searches of prisoners requires that a female officer present in the station and on duty conduct the search, and that a female dispatcher only be ordered to conduct the search when that is not the case.
66. However, on numerous occasions Plaintiffs and their fellow female dispatchers have been ordered to conduct the custodial search of female prisoners even though there were female officers on duty in the station. For example:
a. On June 24, 2019, a female prisoner was brought in by a male officer. A female officer was on duty and in the station at the time but she rejected the page to conduct the search. Instead, Plaintiff Linda DeVooght was ordered to conduct the search.
b. On October 4, 2019, a female prisoner was brought in by a male officer. At the time, two female officers were on duty at the 14

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station; however, they did not respond to their commanding officer’s page. Instead, Plaintiff Cheryl Osowski was ordered to report to the booking area and conduct the search. c. On October 28, 2019, a female prisoner was brought in by a male officer. At the time, two female officers were on duty and at the station, but their commanding officers were not. As a result, Plaintiff Donna Tripi was ordered to conduct the search. d. On February 26, 2020, a female prisoner was brought in by a male officer. At the time, a female officer was on duty and in the station, but Dispatch was informed that this officer was “unavailable” without any additional clarification. Instead, Plaintiff Donna Tripi was ordered to search the prisoner. e. On February 27, 2020, a female prisoner was brought in by a male officer. At the time, a female officer was on duty in the building and Plaintiff Donna Tripi actually saw this officer by the elevator when Tripi responded to the order to report to the booking area and conduct the custodial search. f. On March 13, 2020, a female prisoner was brought in by a male officer. At the time, a female officer was in the station and on
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duty. Nonetheless, Plaintiff Jennifer Piper was ordered to conduct the search of the prisoner. g. On March 16, 2020, a female prisoner was brought in by a male officer. At the time, a female officer was on duty and in the station; however, the watch commander informed dispatch that this officer was “unavailable” with no further elaboration. Instead, Plaintiff Tressa Sinha was ordered to conduct the search of the prisoner. G. When Female Dispatchers are Ordered to Report to Booking and Conduct a Search, Dispatch is Left Understaffed 67. The General Order governing prisoner processing indicates that to prevent understaffing of the dispatch unit, a male officer will provide relief for the female dispatcher when she is ordered to conduct a custodial search of a prisoner. 68. However, the male officers sent to relieve female dispatchers do not have training to perform the functions of the dispatch, leaving the dispatch unit short of staff. 69. On June 13, 2019, a female dispatcher was ordered to conduct a custodial search. While she was conducting the search, the male police officer sent to cover this dispatcher’s duties talked with colleagues nearby instead of answering the phones at dispatch.
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70. On October 19, 2019, when a female dispatcher was ordered to report to booking and conduct a search, the male officer who replaced her at dispatch sat at a computer that was not logged in and worked on his own paperwork instead of answering the phones at dispatch.
H. Plaintiffs Face Immediate and Ongoing Threats to their Physical Health Because of Defendant’s Unlawful Policy
71. The policy and practice of the City of Warren’s Police Department on its face imposes conditions and terms of employment on the women who work as dispatchers and dispatch supervisors that are far more dangerous and odious than the terms and conditions of employment enjoyed by the male dispatchers.
72. Because of this facially discriminatory policy and practice, Plaintiffs have endured the risk and danger of exposure to infectious diseases, including notably COVID-19, solely because of their sex.
73. Indeed, on March 23, 2020, the dispatch unit received a memo entitled “Friendly Reminders During the COVID-19 Pandemic” explicitly confirming that “Searches of female prisoners when an officer is not available remains status quo.”
74. Even before the COVID-19 Pandemic, Plaintiffs have regularly and frequently been subjected to belligerence and hostility by the female prisoners they have been ordered to search, and Plaintiffs suffer these indignities and stresses solely because of their sex.
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75. Plaintiff have also regularly and frequently been subjected to the risk of being exposed to noxious infestations like scabies, bed bugs, lice, and fleas, as well as the dangers of toxic drugs and weapons hidden on these female prisoners’ bodies, and Plaintiffs have been forced to face these dangers solely because of their sex.
76. Plaintiffs receive no remuneration nor compensation of any sort for the additional dangers, risks, and unpleasantness of being regularly and frequently ordered to conduct custodial searches solely because of their sex.
I. There Exist Other Reasonable Operational Procedures That Would Allow for the Processing of Female Prisoners without Violating Plaintiffs’ Equal Protection Rights
77. The City of Warren’s Police Department has failed to consider or adopt alternative procedures that would allow for the processing of female prisoners without imposing on Plaintiffs and their fellow female dispatchers unfair, dangerous, and noxious terms and conditions of employment because of their sex.
78. For instance, Plaintiffs have requested many times and been denied on each and every occasion that they be paid a form of “hazard compensation” for being ordered to conduct these dangerous and odious custodial searches of prisoners.
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79. It is also the case that while nationally, women comprise over 14 percent of all police officers3, the City of Warren employs only 13 female police officers, which is approximately 7% of the police force. Therefore, the City of Warren has failed to adequately recruit and employ reasonable numbers of female officers. If the City of Warren had female police officers in numbers commensurate with the national averages, it would have twice the female officers it currently employs—at least 28.
80. As alleged above, even when female officers are on duty and in the station, they do not report to the jail to conduct searches of female prisoners. Therefore, the City of Warren’s Police Department has failed to rely upon its female officers, who are properly trained to handle prisoners and compensated commensurate to the risks and dangers they must face as sworn officers, to conduct custodial searches—an integral part of their own job descriptions while not a component of Plaintiffs’ job descriptions.
81. The City of Warren’s Police Department has failed to organize its staffing schedules to ensure that a female officer is on duty and available to conduct female prisoner searches.
3 Data USA, “Police Officers”, available at https://datausa.io/profile/soc/333050/#demographics (last visited March 24, 2020).
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82. For the immediate future, from today through the next month, at least one of the Plaintiffs is scheduled to work on each day; therefore, Plaintiffs face immediate and ongoing risks of exposure to COVID-19 if and when they are ordered to conduct a custodial search of a female prisoner.
Count One: 42 U.S.C. § 1983, Monell-based Violation of Plaintiffs’ Rights Under the Equal Protection Clause of the 14th Amendment
83. Plaintiffs incorporate all the above allegations by reference here. 84. 42 U.S.C. § 1983 allows for a municipality to be sued when it enacts and promulgates a law or policy that violates the Constitution or Laws of the United States. Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658 (1978) 85. The 14th Amendment of the United States Constitution forbids the denial of any person the equal protection of the laws. 86. Included within the 14th Amendment is the guarantee that a government may not treat a group of persons less favorably because of their sex. 87. As set forth above, the City of Warren, through its Police Department, has promulgated and enforced a General Order that treats Plaintiffs, a group of female dispatchers, less favorably in the terms and conditions of their employment with the City of Warren because of their sex. 88. As set forth above, Plaintiffs now face imminent and real danger of exposure to COVID-19—a danger amplified far above the danger faced by the male dispatchers who are their co-workers—because of their sex.
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89. Pursuant to 42 U.S.C. §§ 1983, 1988 and other applicable laws, Plaintiffs seek the following relief:
a. Issue a Temporary Restraining Order banning the policy and practice of requiring Plaintiffs and their fellow female dispatchers to conduct custodial searches of female prisoners:
b. a declaratory judgment that Defendant’s General Order, policy, and practice of requiring Plaintiffs and their fellow female dispatchers to conduct custodial searches of female prisoners violates Plaintiffs’ Equal Protection rights guaranteed by the 14th Amendment;
c. monetary damages to compensate Plaintiffs for the many years of extremely dangerous and odious terms and conditions of employment that have been imposed upon them unlawfully because of their sex;
d. an award of Plaintiffs’ attorney’s fees and costs; e. other relief that the Court may deem appropriate. Count Two: Violation of the Elliott-Larsen Civil Rights Act, M.C.L. § 37.2101 et seq., Disparate Treatment in the Terms and Conditions of Employment
on the Basis of Sex 90. Plaintiffs incorporate all the above allegations by reference here.
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91. The ELCRA prohibits employers from discriminating in the terms and conditions of employment on the basis of sex. M.C.L. § 37.2202.
92. Municipalities and governmental entities are covered employers under the ELCRA.
93. As set forth above, the City of Warren, through its Police Department, has promulgated and enforced a General Order that treats Plaintiffs, a group of female dispatchers, less favorably in the terms and conditions of their employment with the City of Warren because of their sex.
94. As set forth above, Plaintiffs now face imminent and real danger of exposure to COVID-19—a danger amplified far above the danger faced by the male dispatchers who are their co-workers—because of their sex.
95. Pursuant to M.C.L. § 37.2801 and other applicable laws, Plaintiffs seek the following relief:
a. immediate injunctive relief banning the policy and practice of requiring Plaintiffs and their fellow female dispatchers to conduct custodial searches of female prisoners:
b. a declaratory judgment that Defendant’s General Order, policy, and practice of requiring Plaintiffs and their fellow female dispatchers to conduct custodial searches of female prisoners violates Plaintiffs’ rights under the ELCRA;
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c. monetary damages to compensate Plaintiffs for the many years of extremely dangerous and odious terms and conditions of employment that have been imposed upon them unlawfully because of their sex;
d. an award of Plaintiffs’ attorney’s fees and costs; e. other relief that the Court may deem appropriate.

Dated: March 27, 2020

PITT McGEHEE PALMER & RIVERS
By: /s/ Robin B. Wagner____ Michael L. Pitt (P24429) Robin B. Wagner (P79408) Kevin M. Carlson (P67704) Attorneys for Plaintiffs 117 W. Fourth Street, Suite 200 Royal Oak, MI 48067 248-398-9800 248-268-7996 (fax) mpitt@pittlawpc.com rwagner@pittlawpc.com kcarlson@pittlawpc.com

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DEMAND FOR JURY TRIAL

Plaintiffs hereby demand a trial by jury of the facts and issues involved in this

matter.

PITT McGEHEE PALMER & RIVERS

Dated: March 27, 2020

By:_/s/ Robin B. Wagner Michael L. Pitt (P24429) Robin B. Wagner (P79408) Kevin M. Carlson (P67704)
Attorneys for Plaintiffs 117 W. Fourth Street, Suite 200 Royal Oak, MI 48067 248-398-9800 248-268-7996 (fax) mpitt@pittlawpc.com rwagner@pittlawpc.com kcarlson@pittlawpc.com

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 U.S. District Court Eastern District of Michigan (Detroit) CIVIL DOCKET FOR CASE #: 2:20-cv-10812-GCS-DRG

Create an Alert for This Case on RECAP

DeVooght et al v. City of Warren Assigned to: District Judge George Caram Steeh Referred to: Magistrate Judge David R. Grand Cause: 28:1331 Fed. Question: Employment Discrimination

Date Filed: 03/27/2020 Jury Demand: Both Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Plaintiff Linda DeVooght

represented by Kevin M. Carlson Pitt McGehee Palmer & Rivers PC 117 West Fourth Street Suite 200 Royal Oak, MI 48067 248-398-9800 Email: kcarlson@pittlawpc.com ATTORNEY TO BE NOTICED

Michael L. Pitt Pitt, McGehee, 117 W. Fourth Street Suite 200 Royal Oak, MI 48067-3804 248-398-9800 Email: mpitt@pittlawpc.com ATTORNEY TO BE NOTICED

Robin Beth Wagner Pitt McGehee Palmer & Rivers PC 117 W. Fourth Street Suite 200 Royal Oak, MI 48067 248-398-9800 Fax: 248-398-9804 Email: rwagner@pittlawpc.com ATTORNEY TO BE NOTICED

Plaintiff

Tressa Sinha TERMINATED: 02/25/2021
Plaintiff Jennifer Piper
Plaintiff Donna Tripi TERMINATED: 07/22/2020
Plaintiff Suzanne Chaffin TERMINATED: 04/15/2020

represented by Kevin M. Carlson (See above for address) ATTORNEY TO BE NOTICED
Michael L. Pitt (See above for address) ATTORNEY TO BE NOTICED
Robin Beth Wagner (See above for address) ATTORNEY TO BE NOTICED
represented by Kevin M. Carlson (See above for address) ATTORNEY TO BE NOTICED
Michael L. Pitt (See above for address) ATTORNEY TO BE NOTICED
Robin Beth Wagner (See above for address) ATTORNEY TO BE NOTICED
represented by Kevin M. Carlson (See above for address) ATTORNEY TO BE NOTICED
Michael L. Pitt (See above for address) ATTORNEY TO BE NOTICED
Robin Beth Wagner (See above for address) ATTORNEY TO BE NOTICED
represented by Kevin M. Carlson (See above for address) ATTORNEY TO BE NOTICED
Michael L. Pitt (See above for address)

Plaintiff Cheryl Osowski TERMINATED: 07/22/2020
Plaintiff Dawn McLean
Plaintiff Amber Mavis TERMINATED: 04/15/2020
V. Defendant City of Warren

ATTORNEY TO BE NOTICED
Robin Beth Wagner (See above for address) ATTORNEY TO BE NOTICED
represented by Kevin M. Carlson (See above for address) ATTORNEY TO BE NOTICED
Michael L. Pitt (See above for address) ATTORNEY TO BE NOTICED
Robin Beth Wagner (See above for address) ATTORNEY TO BE NOTICED
represented by Kevin M. Carlson (See above for address) ATTORNEY TO BE NOTICED
Robin Beth Wagner (See above for address) ATTORNEY TO BE NOTICED
represented by Kevin M. Carlson (See above for address) ATTORNEY TO BE NOTICED
Robin Beth Wagner (See above for address) ATTORNEY TO BE NOTICED
represented by Elizabeth P. Roberts Kirk, Huth, Lange & Badalamenti, P.L.C. 19500 Hall Road

Suite 100 Clinton Township, MI 48038 586-412-4900 Fax: 586-412-4949 Email: eroberts@KirkHuthlaw.com ATTORNEY TO BE NOTICED
James M. Moore Gregory, Moore, 65 Cadillac Square Suite 3727 Detroit, MI 48226-2893 313-964-5600 Fax: 313-964-2125 Email: jim@unionlaw.net ATTORNEY TO BE NOTICED
Raechel M. Badalamenti Kirk and Huth 19500 Hall Road Suite 100 Clinton Township, MI 48038 586-412-4900 Fax: 586-412-4949 Email: rbadalamenti@kirkhuthlaw.com ATTORNEY TO BE NOTICED

Date Filed 03/27/2020
03/27/2020

# Docket Text
1 COMPLAINT For Damages, Declaratory Judgment and Injunctive Relief filed by Cheryl Osowski, Donna Tripi, Linda DeVooght, Jennifer Piper, Tressa Sinha, Suzanne Chaffin against City of Warren with Jury Demand. Plaintiff requests summons issued. Receipt No: AMIEDC7707158 - Fee: $ 400. County of 1st Plaintiff: Macomb - County Where Action Arose: Macomb - County of 1st Defendant: Macomb. [Previously dismissed case: No] [Possible companion case(s): None] (Wagner, Robin) (Entered: 03/27/2020)
2 Emergency MOTION for Temporary Restraining Order by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5) (Wagner, Robin) (Entered: 03/27/2020)

03/27/2020 3 NOTICE of Appearance by Michael L. Pitt on behalf of All Plaintiffs. (Pitt, Michael) (Entered: 03/27/2020)

03/30/2020 4 ATTORNEY APPEARANCE: Raechel M. Badalamenti appearing on behalf of City of Warren (Badalamenti, Raechel) (Entered: 03/30/2020)

03/30/2020 5 NOTICE of Appearance by Kevin M. Carlson on behalf of All Plaintiffs. (Carlson, Kevin) (Entered: 03/30/2020)

03/30/2020 6 NOTICE of Appearance by Elizabeth P. Roberts on behalf of All Defendants. (Roberts, Elizabeth) (Entered: 03/30/2020)

03/30/2020

A United States Magistrate Judge of this Court is available to conduct all proceedings in this civil action in accordance with 28 U.S.C. 636c and FRCP 73. The Notice, Consent, and Reference of a Civil Action to a Magistrate Judge form is available for download at http://www.mied.uscourts.gov (LGra) (Entered: 03/30/2020)

03/30/2020 7 SUMMONS Issued for *City of Warren* (LGra) (Entered: 03/30/2020)

03/31/2020

8 NOTICE TO APPEAR BY TELEPHONE: Telephonic Conference set for 4/2/2020 at 11:00 AM before District Judge George Caram Steeh **PLAINTIFF'S COUNSEL IS TO SET UP A CALL-IN NUMBER FOR ALL PARTIES TO CALL AT THE TIME OF THE CONFERENCE. PLAINTIFF'S COUNSEL IS TO NOTIFY ALL PARTIES, INCLUDING THE COURT, OF THIS NUMBER BY 4/1/2020** (BSau) (Entered: 03/31/2020)

04/01/2020

9 SUPPLEMENTAL BRIEF re 2 Emergency MOTION for Temporary Restraining Order filed by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3) (Wagner, Robin) (Entered: 04/01/2020)

04/02/2020

Minute Entry for proceedings before District Judge George Caram Steeh: Telephonic Status Conference held on 4/2/2020. (Court Reporter: None Present, Not on the Record) (BSau) (Entered: 04/02/2020)

04/06/2020

10 STIPULATION AND ORDER Regarding 2 Emergency MOTION for Temporary Restraining Order and Scheduling. Signed by District Judge George Caram Steeh. (BSau) (Entered: 04/06/2020)

04/09/2020 11 STIPULATED SCHEDULING ORDER. Signed by District Judge George Caram Steeh. (BSau) (Entered: 04/09/2020)

04/10/2020 12 AMENDED COMPLAINT with Jury Demand VERIFIED COMPLAINT FOR DAMAGES, DECLARATORY JUDGMENT, INJUNCTIVE

RELIEF filed by All Plaintiffs against City of Warren. NEW PARTIES ADDED. (Wagner, Robin) (Entered: 04/10/2020)

04/15/2020 13 NOTICE of Voluntary Dismissal by Suzanne Chaffin as to Suzanne Chaffin (Carlson, Kevin) (Entered: 04/15/2020)

04/15/2020 14 NOTICE of Voluntary Dismissal by Amber Mavis as to Amber Mavis (Carlson, Kevin) (Entered: 04/15/2020)

05/01/2020

15 ANSWER to Amended Complaint with Affirmative Defenses with Jury Demand by All Defendants. (Badalamenti, Raechel) (Entered: 05/01/2020)

05/29/2020 16 STIPULATED PROTECTIVE ORDER. Signed by District Judge George Caram Steeh. (BSau) (Entered: 05/29/2020)

06/05/2020

TEXT-ONLY ORDER Regarding Scheduling Order Deadlines and Briefing Schedule. Discovery due by 7/1/2020, Dispositive Motion Cutoff set for 7/15/2020, Responses due 8/12/2020, Replies due 8/26/2020. Entered by District Judge George Caram Steeh. (BSau) (Entered: 06/05/2020)

07/08/2020

17 STIPULATED ORDER Extending Scheduling Order Deadlines and Briefing Schedule. Discovery due by 7/31/2020, Dispositive Motion Cut-off set for 8/14/2020, Responses due by 9/11/2020, Replies due by 9/25/2020. Signed by District Judge George Caram Steeh. (BSau) (Entered: 07/08/2020)

07/15/2020

18 MOTION to Compel by All Defendants. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B) (Badalamenti, Raechel) (Entered: 07/15/2020)

07/15/2020

19 ORDER Referring Pretrial Matters Excluding Dispositive Motions to Magistrate Judge David R. Grand including 18 Motion to Compel. Signed by District Judge George Caram Steeh. (BSau) (Entered: 07/15/2020)

07/21/2020

20 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 7/22/2020 at 11:00 AM before District Judge George Caram Steeh. **PLAINTIFF'S COUNSEL IS TO PROVIDE A NUMBER FOR THE CONFERENCE CALL TO ALL PARTIES, INCLUDING THE COURT, BY THE END OF 7/21/2020** (BSau) (Entered: 07/21/2020)

07/22/2020

21 STIPULATED ORDER of dismissal as to Plaintiffs Donna Tripi and Cheryl Osowski, only. Signed by District Judge George Caram Steeh. (BSau) (Entered: 07/22/2020)

07/22/2020

Minute Entry for proceedings before District Judge George Caram Steeh: Telephonic Status Conference held on 7/22/2020. (Court Reporter: None Present, Not on the Record) (BSau) (Entered: 07/22/2020)

07/22/2020

22 STIPULATION AND ORDER Extending Discovery. Discovery Cut-Off is extended to 45 days after a ruling on dispositive motions. Signed by District Judge George Caram Steeh. (BSau) (Entered: 07/22/2020)

07/22/2020

23 NOTICE by All Defendants of withdrawal of 18 MOTION to Compel Without Prejudice or Costs. (Badalamenti, Raechel) (Entered: 07/22/2020)

08/05/2020 24 STIPULATION re 10 Stipulation and Order, Terminate Motions by All Plaintiffs (Wagner, Robin) (Entered: 08/05/2020)

08/14/2020

25 STIPULATION of Joint Statement of Facts in Support of Cross Motion for Summary Judgment by All Plaintiffs (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13) (Wagner, Robin) (Entered: 08/14/2020)

08/14/2020

26 MOTION re 25 Stipulation, by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11) (Wagner, Robin) (Entered: 08/14/2020)

08/14/2020

27 MOTION for Summary Judgment by All Defendants. (Attachments: # 1 Index of Exhibits Index of Ex. 1-5, # 2 Exhibit 1: Affidavit of Cptn Bonett, # 3 Exhibit 2: PLfs Expert Report, # 4 Exhibit 3: CTO Records, # 5 Exhibit 4: Union Documents, # 6 Exhibit 5: Unpublished Cases) (Badalamenti, Raechel) (Entered: 08/14/2020)

09/04/2020

28 RESPONSE to 27 MOTION for Summary Judgment filed by Linda DeVooght, Dawn McLean, Jennifer Piper, Tressa Sinha. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3) (Wagner, Robin) (Entered: 09/04/2020)

09/11/2020

29 RESPONSE to 26 MOTION re 25 Stipulation, filed by All Defendants. (Attachments: # 1 Index of Exhibits Index of Exs 1-3, # 2 Exhibit 1: Unpub. Cases, # 3 Exhibit 2: Website Prints re Dispatch Job, # 4 Exhibit 3: Dispatch Center by County) (Badalamenti, Raechel) (Entered: 09/11/2020)

09/25/2020 30 REPLY to Response re 26 MOTION re 25 Stipulation, filed by All Plaintiffs. (Carlson, Kevin) (Entered: 09/25/2020)

09/25/2020

31 REPLY to Response re 27 MOTION for Summary Judgment filed by All Defendants. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 6) (Badalamenti, Raechel) (Entered: 09/25/2020)

10/09/2020

32 MOTION for Leave to File Amended Complaint by Linda DeVooght, Dawn McLean, Jennifer Piper, Tressa Sinha. (Attachments: # 1 Exhibit 1) (Wagner, Robin) (Entered: 10/09/2020)

10/22/2020

33 STIPULATED ORDER Extending Briefing on Plaintiff's 32 MOTION for Leave to File Amended Complaint. Response due by 11/12/2020. Signed by District Judge George Caram Steeh. (BSau) (Entered: 10/22/2020)

11/02/2020

34 NOTICE OF HEARING BY VIDEO CONFERENCE on 26 MOTION re 25 Stipulation, , 27 MOTION for Summary Judgment . Motion Hearing set for 11/12/2020 at 10:00 AM before District Judge George Caram Steeh. |Zoom Webinar Information: https://www.zoomgov.com/j/1619065643?pwd=ZjBqSnV0TDdRNTgxT FhsUDlrR1drdz09 Passcode: 178421 Or iPhone one-tap : US: +16692545252,,1619065643# or +16468287666,,1619065643#|. (BSau) (Entered: 11/02/2020)

11/12/2020

Minute Entry for proceedings before District Judge George Caram Steeh: Motion Hearing held on 11/12/2020 re 27 MOTION for Summary Judgment filed by City of Warren, 26 MOTION re 25 Stipulation, filed by Dawn McLean, Suzanne Chaffin, Linda DeVooght, Jennifer Piper, Amber Mavis, Donna Tripi, Cheryl Osowski, Tressa Sinha. Disposition: Motions taken under advisement. (Court Reporter: Rob Smith) (BSau) (Entered: 11/12/2020)

11/13/2020

35 STIPULATION AND ORDER Granting Plaintiff's 32 Motion for Leave to File Second Amended Complaint. Signed by District Judge George Caram Steeh. (BSau) (Entered: 11/13/2020)

11/13/2020

36 AMENDED COMPLAINT with Jury Demand Verified and Stipulated filed by Jennifer Piper, Dawn McLean, Tressa Sinha, Linda DeVooght against City of Warren. NO NEW PARTIES ADDED. (Wagner, Robin) (Entered: 11/13/2020)

11/16/2020

37 OPINION AND ORDER Denying Plaintiff's 26 Motion for Partial Summary Judgment and Denying Defendant's 27 Motion to Dismiss or for Summary Judgment and Ordering parties to submit a new proposed scheduling order by December 4, 2020. Signed by District Judge George Caram Steeh. (BSau) (Entered: 11/16/2020)

11/27/2020

38 ANSWER to Amended Complaint with Affirmative Defenses with Jury Demand by All Defendants. (Badalamenti, Raechel) (Entered: 11/27/2020)

12/04/2020

39 SCHEDULING ORDER: Discovery due by 3/1/2021, Dispositive Motion Cut-off set for 4/30/2021, Final Pretrial Conference set for 8/17/2021 at 2:00 PM before District Judge George Caram Steeh, Bench Trial set for 8/31/2021 at 9:00 AM before District Judge George Caram Steeh. Signed by District Judge George Caram Steeh. (Refer to image for additional dates) (BSau) (Entered: 12/04/2020)

12/30/2020

40 MOTION to Compel Production of Discovery by Linda DeVooght, Dawn McLean, Jennifer Piper, Tressa Sinha. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5) (Wagner, Robin) (Entered: 12/30/2020)

01/08/2021

41 TRANSCRIPT of Motion Hearing held on 11/12/2020. (Court Reporter/Transcriber: Robert L. Smith) (Number of Pages: 43) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 1/29/2021. Redacted Transcript Deadline set for 2/8/2021. Release of Transcript Restriction set for 4/8/2021. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Smith, R.) (Entered: 01/08/2021)

01/13/2021

42 RESPONSE to 40 MOTION to Compel Production of Discovery filed by All Defendants. (Attachments: # 1 Index of Exhibits Index of Exs. A-H, # 2 Exhibit A: July 20 2020 Correspondence, # 3 Exhibit B: July 21 2020 Request for Court Conference, # 4 Exhibit C: Dec. 22 2020 Correspondence, # 5 Exhibit D: Dec. 23 2020 Correspondence, # 6 Exhibit E: Dec. 29 2020 Correspondence, # 7 Exhibit F: Resp to Subj Discov and Affidavit, # 8 Exhibit G: Jan. 7-8 2021 Correspondence, # 9 Exhibit H: Jan. 11 2021 Correspondence) (Badalamenti, Raechel) (Entered: 01/13/2021)

01/14/2021

43 MOTION to Quash Subpoenas to WPCOA and WPOA by All Defendants. (Attachments: # 1 Index of Exhibits Index of Exs. A-B, # 2 Exhibit A: July 2020 Subpoenas, # 3 Exhibit B: December 2020 Subpoenas) (Badalamenti, Raechel) (Entered: 01/14/2021)

01/14/2021 44 NOTICE of Appearance by James M. Moore on behalf of City of Warren. (Moore, James) (Entered: 01/14/2021)

01/14/2021 45 MOTION to Quash Subpoena by City of Warren. (Moore, James) (Entered: 01/14/2021)

01/28/2021

46 SECOND STIPULATED ORDER Extending Scheduling Order Deadlines. Discovery due by 4/30/2021, Dispositive Motion Cut-off set for 6/29/2021, Final Pretrial Conference reset for 10/25/2021 at 10:00 AM before District Judge George Caram Steeh, Bench Trial reset for 11/8/2021 at 9:00 AM before District Judge George Caram Steeh) Signed by District Judge George Caram Steeh. (BSau) (Entered: 01/28/2021)

01/28/2021

47 JOINT STIPULATION AND PROPOSED ORDER REGARDING DISCOVERY MATTERS. Signed by Magistrate Judge David R. Grand. (EBut) (Entered: 01/28/2021)

02/25/2021

48 STIPULATED ORDER of Dismissal as to Plaintiff Tressa Sinha, only. Signed by District Judge George Caram Steeh. (BSau) (Entered: 02/25/2021)

03/10/2021

49 MOTION to Compel Dep of Dwyer and Production of Documents by Linda DeVooght, Dawn McLean, Jennifer Piper. (Attachments: # 1 Index of Exhibits Index, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13) (Wagner, Robin) (Entered: 03/10/2021)

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 Case 2:20-cv-10812-GCS-DRG ECF No. 2 filed 03/27/20 PageID.31 Page 1 of 30

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Linda DeVooght, Tressa Sinha,

Jennifer Piper, Donna Tripi, Suzanne

Chaffin, and Cheryl Osowski,

Case: 20-10812

Plaintiffs, v. City of Warren,

Hon. George Caram Steeh United States District Judge
Hon. David R. Grand United States Magistrate Judge

Defendant.

MOTION FOR PRELIMINARY INJUNCTIVE RELIEF AND TEMPORARY RESTRAINING ORDER AND BRIEF IN SUPPORT OF MOTION

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Contents
i
INTRODUCTION ............................................................................................ 1 Statement of Relevant Facts:............................................................................ 2 Preliminary Injunction and TRO Standard.................................................... 9 ANALYSIS .......................................................................................................10
Likelihood of Success....................................................................................10 Plaintiffs will Suffer Irreparable Injury Absent Injunctive Relief ............16 Defendant will suffer no Harm under this Injunction; Whereas, Plaintiffs will Suffer Great Harm without it ...............................................................19 The Public Interest is Served by Granting Injunctive Relief to Plaintiffs .20 CONCLUSION AND RELIEF REQUESTED ..............................................21
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Cases ACLU of Kentucky v. McCreary County, 354 F.3d 438, 445 (6th Cir. 2003) .........18 Bays v. City of Fairborn, 668 F.3d 814, 825 (6th Cir. 2012) .................................22 City of Pontiac Retired Employees Ass’n v. Schimmel, 751 F.3d 427, 430 (6th Cir.
2014) (en banc) ..................................................................................................10 Craig v. Boren, 429 U.S. 190, 197 (1976).............................................................11 Deja Vu of Nashville, Inc. v. Metro. Gov’t of Nashville & Davidson County, 274
F.3d 377, 400 (6th Cir. 2001).......................................................................21, 22 Florence v. Bd. of Chosen Freeholders of Cty. of Burlington, 566 U.S. 318, 330–31
(2012) ................................................................................................................20 Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 133 (1976) .............................................12 Hamad v. Woodcrest Condo. Ass’n, 328 F.3d 224, 230 (6th Cir. 2003..................10 Int'l Union, United Auto., Aerospace & Agr. Implement Workers of Am., UAW v.
Johnson Controls, Inc., 499 U.S. 187, 202, 111 S. Ct. 1196, 1205, 113 L. Ed. 2d 158 (1991) .........................................................................................................16 Mayerova v. E. Michigan Univ., 346 F. Supp. 3d 983, 991 (E.D. Mich. 2018)......10 McDaniels v. Plymouth-Canton Comm. Sch., 755 Fed. App’x 461, 469 n.3 (6th Cir. 2018) ..........................................................................................................15 Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 154 (6th Cir. 1991) .............................................................................................18, 19 Obama for America v. Husted, 697 F.3d 423, 436 (6th Cir. 2012) ........................11 Reed v. County of Casey, 184 F.3d 597, 599 (6th Cir. 1999) .................................15 Tyson Foods v. McReynolds, 865 F.2d 99, 103 (6th Cir. 1989) .............................21 United States v. Virginia, 518 U.S. 515, 524 (1996)..............................................12 W. Michigan Family Homes LLC v. United States Dep't of Agric., 2013 WL 12109437, at *1 (W.D. Mich. Nov. 26, 2013) ....................................................10
Statutes 42 U.S.C. § 1983.................................................................................................... 1 M.C.L. § 37.2202(1)(a).........................................................................................15 MCL 37.2101 ........................................................................................................ 1
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MOTION FOR PRELIMINARY INJUNCTIVE RELIEF AND TEMPORARY RESTRAINING ORDER
This is a lawsuit brought by six women who have each worked for many years—ranging from five to over 28 years—as dispatchers for the City of Warren’s Police Department. Plaintiffs bring this emergency action requesting a Temporary Restraining Order and Preliminary Injunction to bring an immediate end to Defendant’s ongoing violation of their Equal Protection rights and rights under the Elliott-Larsen Civil Rights Act.1 Specifically, Plaintiffs, are suffering ongoing violations of their rights as follows:
1. Plaintiffs, solely because of their sex, are required by General Order of the City of Warren’s Police Department to perform the extremely dangerous and noxious task of conducting custodial searches of the female prisoners arrested by male police officers.
2. Male dispatchers are never under any circumstances required or asked to perform such searches.
3. The City of Warren has other means of accomplishing its objectives—safely processing arrestees—yet, instead orders Plaintiffs, civilian
1 Plaintiffs have also filed charges under Title VII of the Civil Rights Act of 1964 with the EEOC arising out of the same core operative facts and will amend their Complaint once they have exhausted their administrative requirements with the EEOC.
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employees whom it has not adequately trained or equipped, to conduct searches of prisoners.
4. These searches require direct contact with the prisoners, including when necessary strip searches, and in performing these searches, Plaintiffs are exposed to body fluids, belligerent and intoxicated conduct, foul odors, and highly toxic drugs and dangerous weapons concealed within these prisoners’ body and garment folds.
Plaintiffs bring their lawsuit now and seek emergency relief because they are being exposed to a vastly heightened risk of COVID-19 solely because of their sex.
Preliminary injunctive relief and a Temporary Restraining Order are warranted because (A) Plaintiffs are likely to succeed on the merits of their Constitutional and ELCRA claims listed above, (B) absent this immediate relief Plaintiff will continue to suffer irreparable harm—namely, the risk of death or grave illness from exposure to COVID-19—(C) no harm to others will result from entry of the Preliminary Injunction and Temporary Restraining Order, and (D) this relief is in the public interest.
Plaintiffs specifically request the following Preliminary Injunctive relief and Temporary Restraining Order:
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1. An ORDER requiring Defendant City of Warren immediately to end its policy and practice of directing female dispatchers to perform custodial searches of female prisoners.
2. An ORDER that Defendant City of Warren protect Plaintiffs from any and all forms of retaliation by any members of Defendant’s Police Department.
3. An ORDER requiring Defendant City of Warren to submit to the Court, within 14 days, a detailed report documenting its steps taking and ongoing plan to ensure that no female dispatchers or dispatch supervisors are ever again called upon to conduct custodial searches of prisoners.
In support of this motion, Plaintiffs refer the Court to their accompanying brief and exhibits.
As required by Local Rule 7.1, Plaintiffs have sought concurrence from Defendant in the relief sought. On March 26, 2020, Plaintiffs’ counsel contacted the City of Warren Attorney and presented him with draft copies of their Complaint and this Motion and Brief in Support for a Preliminary Injunction and Temporary Restraining Order. On March 27, 2020, the City’s attorney offered concessions that did not adequately address Plaintiffs’ concerns because the City only offered to provide safety gear and training to those who
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request it. Plaintiffs countered with demands that would satisfy their immediate concerns—suspension of search duties until there was independent confirmation that there had been training equivalent to what sworn officers receive for searching arrestees and adequate protective gear, protection of the Women Dispatchers against retaliation, and a provision that anyone who herself or a household member was in a high-risk group for COVID-19 would be exempted from the search duties until conclusion of the state of emergency; however, Defendant rejected these demands.
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BRIEF IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTIVE RELIEF AND TEMPORARY RESTRAINING ORDER
INTRODUCTION This is a civil rights action in which Plaintiffs seek relief for the violation
of their rights as secured by 42 U.S.C. § 1983, the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, and the ElliottLarsen Civil Rights Act, MCL 37.2101 et seq.2
Plaintiffs seek emergency relief from the Court because they have been and continue to be subjected to the potentially deadly and heightened risk of exposure to COVID-19. Plaintiffs are women who are employed by the City of Warren’s Police Department as dispatchers and dispatch supervisors. Solely because of their sex, Defendant requires these women to perform the highly dangerous and odious task of conducting custodial searches on female prisoners upon intake to the City of Warren Police Department. Male dispatchers are never under any circumstances required to conduct such prisoner searches.
2 Plaintiffs have concurrently filed charges with the EEOC arising out of the same core of operative facts, alleging violations of Title VII of the Civil Rights Act of 1964, and will amend their Complaint once that process has been completed and they have been issued a Notice of their Right to Sue.
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Plaintiffs are not provided any additional remuneration or compensation for assuming this dangerous work, which exposes them to body fluids, belligerent and intoxicated conduct, foul odors, and highly toxic drugs and dangerous weapons concealed within these prisoners’ body and garment folds. Furthermore, the City of Warren has neither adequately trained Plaintiffs nor provided them with adequate protection to conduct these intimate searches of prisoners. At least one of the Plaintiffs is scheduled to work on each day from now going forward and thus faces a continuing and heightened risk of exposure to the deadly COVID-19 virus.
For the following reasons, Plaintiffs respectfully request an Order from this Court issuing a Preliminary Injunction and Temporary Restraining Order enjoining Defendant from continuing its practice of imposing dangerous conditions and terms of employment on Plaintiff because of their sex, in violation of the Equal Protection Clause and the ELCRA.
Statement of Relevant Facts: Plaintiffs Linda DeVooght, Tress Sinha, Jennifer Piper, Donna Tripi,
Suzanne Chaffin, and Cheryl Ostrowski are all women who are employed as dispatchers by Defendant City of Warren’s Police Department. (Complaint ¶¶ 13-18). The City of Warren employs 22 dispatchers and dispatch supervisors, of whom 17 are female. (Id. at ¶ 11.) These dispatchers are paid according to
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two collective bargaining agreements—one for the dispatchers and one for the supervisors—and these agreements contain no distinctions in pay or terms of employment based on whether a dispatcher is a male or a female. (Id. at ¶ 12.)
General Order 17-10 of Defendant’s Police Department governs Arrest Procedures for prisoners taken into custody. (Ex. 1: General Order 17-10.) According to Section G of this General Order, “Prisoner Searches,” “the arresting/transporting officers will conduct an initial search for weapons and contraband.” (Id. at 9.) The General Order continues, that “If a male prisoner is arrested by a female officer, an available male officer who is on duty and in the station when the arrest is made shall be called upon to conduct the search.” (Id..) By contrast, “If a female prisoner is arrested by a male officer, an available officer who is on duty and in the station when the arrest is made shall be called upon to conduct the search prior to calling upon a dispatcher to perform the search.” (Id.) This General Order further directs that “A female dispatcher will conduct the search of a female prisoner in the detention facility when: 1) a female is arrested by a male officer; and 2) there are no female officers on duty and in the station at the time of booking.” (Id. at 10.) There is no provision for male dispatchers to ever search a prisoner.
The job descriptions for dispatchers and dispatch supervisors are governed by Defendant’s Police Department General Order 02-01. (Ex. 2:
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General Order 02-01.) This General Order does not mention prisoner searches. (Id.) Neither does the collective bargaining agreement governing the terms of employment for the dispatchers and dispatch supervisors mention prisoner searches. (Ex. 3: Collective Bargaining Agreement.)
Nonetheless, Plaintiffs and their fellow female dispatchers conduct custodial searches of female prisoners on a regular, frequent basis. According to a log begun in late May of 2019 and recording most, but not all, of the custodial searches Plaintiffs and some of their fellow female dispatchers were ordered to perform, no less than 180 such searches were performed the past ten months. (Ex. 4: Search log.) This amounts to 4-5 searches each week. (Complaint ¶ 31.) Even though the General Order 17-10 calls for a female officer who is on duty and in the station to conduct the search, as a practice and policy of the department and its commanding officers, female officers are not ordered to perform these searches, even when they are on duty and in the station. (Complaint ¶ 32.) Rather, it is nearly always the case that when a male officer brings in a female prisoner, a female dispatcher is ordered to report to the intake area and conduct the search. (Complaint at ¶ 33.)
The General Order No. 17-10 on Arrest Procedures defines the full custodial search that must be conducted of a prisoner being arrested as requiring the person conducting the search to remove and inventory all
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personal property, check the prisoner’s garments, remove all medications, contraband, and potential weapons, and remove and inspect all headwear such as wigs, toupees, weaves, or barrettes. (Ex. 1 General Order No. 17-10 at 6.) When a female dispatcher is performing the search, the arresting/assisting officer is required by the General Order No. 17-10 to “stand by in close proximity in the booking area until the search has been completed and the prisoner has been turned over to detention personnel.” (Id. at 10.) However, in practice, the arresting/assisting officer will commonly leave the proximity of the female dispatcher and the prisoner she has been ordered to search. (Complaint ¶ 38.)
Sworn police officers receive extensive training to perform all parts of their job requirements, including how to safely conduct a custodial search of a prisoner, disarm prisoners, and remove contraband. (Complaint ¶ 40.) However, the City of Warren’s Police Department has failed to provide any training in five years for the female dispatchers to conduct a custodial search of a prisoner, disarm prisoners, or remove contraband from a prisoner. (Complaint ¶ 41.) Approximately once a year, the City of Warren’s Police Department has its female dispatchers watch a training video regarding custodial searches of prisoners. (Complaint ¶ 42.) Watching a training video is woefully inadequate training for conducting a search that can expose the
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person conducting the search to infectious diseases such as COVID-19, potential weapons the prisoner is holding that evaded the original pat-down, highly toxic narcotics the prisoner may yet have concealed on her person, as well as lice, scabies, fleas and other pests that may have infested a prisoner. (Complaint ¶ 43.) Ironically, this training video even demonstrates a male officer conducting the custodial search of a female prisoner—a practice that the Defendants do not allow. (Complaint ¶ 44.) Male dispatchers, unlike their female counterparts, are never asked or ordered to perform custodial searches of prisoners; therefore, the male dispatchers are never subjected to the risks associated with conducting custodial searches of prisoners. (Complaint ¶ 45.) Plaintiffs face Heightened Risks of COVID-19 Exposure
On March 10, 2020, the first COVID-19 case in Michigan was confirmed and Governor Whitmer declared a State of Emergency directing that steps be taken to prevent the spread of the disease.3 Since March 10, 2020, Plaintiffs and their fellow Female Dispatchers have been ordered to conduct custodial searches of female prisoners on no fewer than 12 separate occasions. (Ex. 4: Log of Searches.) The United States Centers for Disease Control and Prevention
3 Executive Order No. 2020-4 – Declaration of State of Emergency, available at https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-521576-,00.html (last visited March 25, 2020.)
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(“CDC”) has issued guidance regarding the measures to be taken at workplaces to avoid and protect against transmission of COVID-19. 4 Among the recommendations provided for law enforcement personnel is maintain a distance of 6 feet from individuals whenever possible.5 Additionally, the CDC has proscribed the following as minimally acceptable Personal Protective Equipment to Wear when one must be within 6 feet of another individual to perform operational duties6:
a. A single pair of disposable examination gloves, b. Disposable isolation gown or single-use/disposable
coveralls, c. Any NIOSH-approved particulate respirator (i.e., N-95 or
higher-level respirator); Facemasks are an acceptable alternative until the supply chain is restored, and d. Eye protection (i.e., goggles or disposable face shield that fully covers the front and sides of the face)
4 “What Law Enforcement Personnel Need to Know About Coronavirus Disease 2019 (COVID-19),” CDC, available at https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-lawenforcement.html (Last visited 3-23-2020). 5 Id. 6 Id.
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While disposable gloves and face masks have been made available to Plaintiff and their fellow Female Dispatchers, at no time has Defendant provided isolation gowns or eye protection to them. (Complaint ¶50.) Indeed, on March 22, 2020, Plaintiff Cheryl Osowski expressed her grave concerns about performing a custodial search without such protective equipment because she lives with three family members who are in high-risk categories for COVID-19 exposure—diabetes, cancer treatment, and asthma. (Complaint ¶51.) The Watch Commander told Osowski that all she needed was the mask and the gloves. He denied her a protective gown and eye protection. (Complaint ¶52.) Osowski was required to perform the custodial search on this female prisoner notwithstanding her concerns and the lack of proper protective equipment, and the fact that a female officer was due to come on duty at the station in 15 minutes. (Complaint ¶53.) By stark contrast, Defendant provides its police officers are provided with eye protection and protective gowns to perform custodial searches. (Complaint ¶54.)
Of its nearly 200 sworn officers, Defendant City of Warren’s Police Department employs 13 female police officers, which is approximately 7% of the sworn officers. (Complaint ¶79.) Nationally, women represent 14 percent
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of all police officers.7 Defendant has failed to consider or adopt other procedures, such as recruiting and hiring more female police officers, scheduling their female police officers to ensure that one is available to perform searches if female prisoners, or compensating the female dispatchers with hazard pay. (Complaint ¶77-81.)
From today and ongoing into the foreseeable future, at least one of the Plaintiffs is scheduled to work on each day at Defendant’s Police Department. Therefore, Plaintiffs’ risk of a heightened exposure—that is, far in excess of their male counterparts who work in dispatch and are never required to conduct prisoner searches—to the deadly COVID-19 virus solely on the basis of their sex.
Preliminary Injunction and TRO Standard “The court analyzes four factors when considering a motion for
preliminary injunction: (1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served
7 Data USA, “Police Officers”, available at https://datausa.io/profile/soc/333050/#demographics (last visited March 24, 2020).
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by issuance of the injunction.” Mayerova v. E. Michigan Univ., 346 F. Supp. 3d 983, 991 (E.D. Mich. 2018)(Steeh, J.)(citation omitted); see also City of Pontiac Retired Employees Ass’n v. Schimmel, 751 F.3d 427, 430 (6th Cir. 2014) (en banc)). “The four considerations applicable to preliminary injunction decisions are factors to be balanced, not prerequisites that must be met.” Hamad v. Woodcrest Condo. Ass’n, 328 F.3d 224, 230 (6th Cir. 2003)(quoting Michigan Bell Telephone Co. v. Engler, 257 F.3d 587, 592 (6th Cir. 2001)).
The same standard applies to a motion for temporary restraining order as to a motion for preliminary injunction. W. Michigan Family Homes LLC v. United States Dep't of Agric., 2013 WL 12109437, at *1 (W.D. Mich. Nov. 26, 2013) (citing Summit County Democratic Central and Executive Committee v. Blackwell, 388 F.3d 547, 550 (6th Cir. 2004)).
ANALYSIS This case satisfies all four factors for requiring preliminary injunctive relief. Likelihood of Success Defendant’s practice of intentional gender discrimination is enshrined in its
own policies. “When a party seeks a preliminary injunction on the basis of a potential constitutional violation, the likelihood of success on the merits often
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will be the determinative factor.” Obama for America v. Husted, 697 F.3d 423, 436 (6th Cir. 2012).
Plaintiff will likely succeed on the merits of both their Equal Protection and ELCRA claims.
Plaintiffs Will Succeed on their Equal Protection Claim It is well established law that in cases arising under the Equal Protection
Clause of the Fourteenth Amendment, the actions of the governmental entity that discriminates on the basis of sex are subjected to heightened scrutiny. Craig v. Boren, 429 U.S. 190, 197 (1976). The Supreme Court has held that
a party seeking to uphold government action based on sex must establish an ‘exceedingly persuasive justification’ for the classification. Mississippi Univ. for Women, 458 U.S. [718, 724 (1982)]. To succeed, the defender of the challenged action must show ‘at least that the classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.’ Ibid. (internal quotation marks omitted).
United States v. Virginia, 518 U.S. 515, 524 (1996). “The justification must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.” Id. at 533 (citing cases). The analysis of claims regarding sex discrimination under the Equal Protection
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Clause and Title VII of the Civil Rights Act of 1964 is largely the same. Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 133 (1976).
Here, Defendant’s express policy, General Order 17-10, commands female dispatchers, but never male dispatchers, to conduct custodial searches of prisoners brought in by a male arresting or assisting officer. Additionally, it is Defendant’s pattern and practice to bypass an available female officer—even though she is appropriately trained, equipped, and compensated to take on the risks of close contact with prisoners—and instead call upon Plaintiffs, whom the City of Warren has inadequately trained, failed to provide with appropriate protective gear, and paid far less than police officers, to conduct these dangerous searches.
The harm to Plaintiffs is exceedingly and intolerably high now, given the state of emergency regarding the highly contagious COVID-19 virus. Solely because of their sex, Plaintiffs are being forced by Defendant’s express policy and practice to come into close physical contact with persons who have been arrested; whereas, their similarly situated male colleagues are spared this grave danger. Even without the immediate COVID-19 crisis, Plaintiffs can establish that the terms and conditions of their employment are far more dangerous and odious than those of the male dispatchers. Only female dispatchers are ordered to conduct custodial searches and these searches
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expose them to prisoners’ body fluids, pest infestations, and concealed dangerous contraband, among other dangers.
The City of Warren cannot provide a genuine, “exceedingly persuasive justification” that its intentionally discriminatory policy is substantially related to important government objectives. The City of Warren has no legitimate need to discriminate between male and female dispatchers in the terms and conditions of their work assignments in order to accomplish the admittedly important objective of searching prisoners. First, the City of Warren uses a video to “train” the female dispatchers on custodial searches that shows a male police officer searching a female prisoner. This alone demonstrates that male officers could search their own arrestees, as the policy requires when an officer arrests a prisoner of the same sex. Second, Defendant could organize and schedule its female officers so that one is available at the station or easily recalled to the station to conduct a prisoner search. Third, the City of Warren has failed to recruit and employ numbers of female police officers commensurate with national averages, and it is neither “genuine” nor “exceedingly persuasive” that inadequately protected and trained civilian employees like Plaintiffs should be called upon to perform the dangerous work of a police officer merely because their employer has not taken seriously its responsibility to expand the ranks of female sworn officers.
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Plaintiffs are likely to prevail on the merits of their Equal Protection claim that Defendant’s policy and practice of requiring them to conduct the highly distasteful work of prisoner searches—at great personal risk—while their male counterparts have no such requirement.8
Plaintiffs will also prevail on their ELCRA claims The Elliott-Larsen Civil Rights Act prohibits discrimination in the terms
and conditions of employment on the basis of sex. M.C.L. § 37.2202(1)(a). Claims brought under Michigan’s ELCRA “involve the same analysis as Title VII claims.” McDaniels v. Plymouth-Canton Comm. Sch., 755 Fed. App’x 461, 469 n.3 (6th Cir. 2018)(citing Sutherland v. Mich. Dep’t of Treasury, 344 F.3d 603, 614 n.4 (6th Cir. 2003)).
When a facially discriminatory employment policy is challenged, as is the case here, “the systemic discrimination is in effect ‘admitted’ by the employer, and the case will turn on whether such overt disparate treatment is for some reason justified under Title VII.” Reed v. County of Casey, 184 F.3d 597, 599 (6th Cir. 1999). Defendant bears the burden of establishing that a legally permissible reason or BFOQ justifies the disparate treatment. Id. at 600. “Our cases have
8 Under similar reasoning, once Plaintiffs amend their Complaint to add unlawful and intentional discrimination in the terms and conditions of employment because of sex in violation of Title VII, Plaintiffs will also prevail because of the largely similar analysis applied. See Gilbert, 429 U.S. at 133.
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stressed that discrimination on the basis of sex because of safety concerns is allowed only in narrow circumstances.” Int'l Union, United Auto., Aerospace & Agr. Implement Workers of Am., UAW v. Johnson Controls, Inc., 499 U.S. 187, 202, 111 S. Ct. 1196, 1205, 113 L. Ed. 2d 158 (1991).
The City of Warren cannot provide a bona fide justification for discriminating between male and female dispatchers in a way that subjects female dispatchers—civilian employees whom the City of Warren has neither adequately trained nor properly protected—to the extremely dangerous and noxious task of conducting prisoner searches, while male dispatchers have no such expectation. What is most apparent about the failure of any BFOQ defense is that there is no bona fide occupational qualification here at all, given that 1) all Plaintiffs are qualified for the job of dispatcher, but not police officer, 2) there is no distinction based on sex among dispatcher duties laid out in their job descriptions, and 3) prisoner searches are not part of the General Order laying out dispatcher job duties. The order for women dispatchers to conduct prisoner searches falls entirely outside their duties and is imposed on them solely because of their sex. Male dispatchers are never required to do these searches.
The City of Warren has not and cannot show that its operations demand such a facially discriminatory policy imposed on female dispatchers, given that
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there exist reasonable and rational means of accomplishing its goal of searching prisoners. The City of Warren could have the male arresting officer conduct the search—excluding the rare instances when a strip search is necessitated. But even granting a legitimate policy need to have searches carried out by an individual of the same sex as the prisoner, the City of Warren could address this by scheduling the female officers’ assignments and duties so that one is available or can be called upon with only a minor delay to perform these searches. Finally, the fact that a scant 7% of the Warren police force is female begs the question of why Defendant has not sought to recruit and employ women to serve as sworn officers in numbers more commensurate with national averages.
For the above reasons, Plaintiff have demonstrated that they are likely to prevail in their ELCRA claim because they have established a facially discriminatory policy for which the City has no defense.
Plaintiffs will Suffer Irreparable Injury Absent Injunctive Relief Defendant’s job requirements for women dispatchers, including
Plaintiffs, puts Plaintiff directly in harm’s way and subjects them to ongoing legal and physical injury. “[T]here is ‘a presumption of an irreparable injury when a plaintiff has shown a ‘violat[ion] [of] a civil rights statute.’” Mayerova, 346 F. Supp. 3d 983, 998 (E.D. Mich. 2018)(citations omitted). Thus, with
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regard to the irreparable-harm inquiry, the Sixth Circuit has held that “when reviewing a motion for a preliminary injunction, if it is found that a constitutional right is being threatened or impaired, a finding of irreparable injury is mandated.” ACLU of Kentucky v. McCreary County, 354 F.3d 438, 445 (6th Cir. 2003). Irreparable harm must be “both certain and immediate, rather than speculative or theoretical.” Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 154 (6th Cir. 1991).
Because of Defendant’s discriminatory policy, which requires women dispatchers to perform custodial searches of women arrestees, Plaintiffs will continue to experience two discrete forms of ongoing, concrete, and irreparable injury: (1) continuing violations of their right to be free from intentional gender discrimination in the workplace; and (2) continuing exposure to the dangers of conducting custodial searches without proper training or protective equipment, which includes continuing exposure to physical violence and injury, unsanitary conditions, and—above all other considerations as a grave and imminent danger—exposure to infection by contagious diseases such as COVID-19.
The Supreme Court has recognized the inherent dangers at this stage of taking an arrestee into custody:
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Correctional officials have a significant interest in conducting a thorough search as a standard part of the intake process. The admission of inmates creates numerous risks for facility staff, for the existing detainee population, and for a new detainee himself or herself. The danger of introducing lice or contagious infections, for example, is well documented. See, e.g., Deger & Quick, The Enduring Menace of MRSA: Incidence, Treatment, and Prevention in a County Jail, 15 J. Correctional Health Care 174, 174–175, 177– 178 (2009); Bick, Infection Control in Jails and Prisons, 45 Healthcare Epidemiology 1047, 1049 (2007). The Federal Bureau of Prisons recommends that staff screen new detainees for these conditions. See Clinical Practice Guidelines, Management of Methicillin–Resistant Staphylococcus aureus (MRSA) Infections 2 (2011); Clinical Practice Guidelines, Lice and Scabies Protocol 1 (2011). Persons just arrested may have wounds or other injuries requiring immediate medical attention. It may be difficult to identify and treat these problems until detainees remove their clothes for a visual inspection. See Prison and Jail Administration: Practice and Theory 142 (P. Carlson & G. Garrett eds., 2d ed.2008) (hereinafter Carlson & Garrett).
Florence v. Bd. of Chosen Freeholders of Cty. of Burlington, 566 U.S. 318, 330–31
(2012).
These injuries are irreparable and cannot be addressed through money
damages alone. Indeed, by the time any of the Plaintiffs were to know that they
have been injured, for example, through COVID-19 infection, it would likely be
impossible and too late for them to obtain an adequate remedy in court. An
injunction, and only an injunction, can stop the practice from continuing to
injure Plaintiffs.
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Defendant will suffer no Harm under this Injunction; Whereas, Plaintiffs will Suffer Great Harm without it As a matter of law, Defendant will suffer no harm from the enjoinment of
its unlawful policy because it has no right to apply an unconstitutional job requirement to Plaintiffs. See Tyson Foods v. McReynolds, 865 F.2d 99, 103 (6th Cir. 1989) (“[Defendant] has suffered no injury as a result of the preliminary injunction [because it] has no right to the unconstitutional application of state laws.”). Thus, the Sixth Circuit has held that “if the plaintiff shows a substantial likelihood that the challenged law is unconstitutional, no substantial harm to others can be said to inhere in its enjoinment.” Deja Vu of Nashville, Inc. v. Metro. Gov’t of Nashville & Davidson County, 274 F.3d 377, 400 (6th Cir. 2001). And, as demonstrated above, Defendant has other means of accomplishing its objectives—safely processing arrestees—yet, instead orders Plaintiffs, civilian employees whom it has not adequately trained or equipped, to conduct searches of prisoners.
On the other hand, Plaintiffs face imminent and irreparable injury if Defendant is not enjoined from forcing them to conduct custodial searches of arrestees. Plaintiffs are currently working under unconstitutional terms and conditions of employment because Defendant imposes on them the duty to perform custodial searches, without imposing any such requirement on
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Plaintiffs’ male counterparts. Consequently, because of this intentionally discriminatory practice, Plaintiffs are currently exposed and will continue to be exposed to the dangers and risks of conducting physical searches of arrestees without proper training and equipment.
The Public Interest is Served by Granting Injunctive Relief to Plaintiffs Just as the likelihood of a constitutional violation mandates a finding of
irreparable harm, the public-interest factor is also automatically satisfied when a constitutional violation is likely. The Sixth Circuit has held that “it is always in the public interest to prevent violation of a party’s constitutional rights.” Deja Vu of Nashville, 274 F.3d at 400; accord Bays v. City of Fairborn, 668 F.3d 814, 825 (6th Cir. 2012). Here, since Defendant’s policy is facially discriminatory and unconstitutional, it is in the public interest to order Defendants to simply end the ongoing constitutional violations.
Furthermore, Plaintiffs are dispatchers for all the City’s police, fire, and emergency medical services. The public is harmed if the City of Warren subjects its civilian employees to needless risk of injury or infection by requiring them to perform physical custodial searches of arrestees. First, Plaintiffs and their co-workers could be exposed to infection, further accelerating and spreading infectious disease. Second, the public is harmed if Plaintiffs and their coworkers are sickened or disabled from working as dispatchers and in other
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capacities, which could jeopardize the full and effective operation of the City of Warren police, fire, and emergency medical functions. Third, the public is harmed if Plaintiffs are injured or infected and take those infections home with them, resulting in irreparable harm to their friends, family, and the public.
CONCLUSION AND RELIEF REQUESTED For the foregoing reasons, the Court should grant Plaintiffs the
Preliminary Injunction and Temporary Restraining Order as requested in the form of:
• An ORDER requiring Defendant City of Warren immediately to end its policy and practice of directing female dispatchers to perform custodial searches of female prisoners.
• An ORDER that Defendant City of Warren protect Plaintiffs from any and all forms of retaliation by any members of Defendant’s Police Department.
• An ORDER requiring Defendant City of Warren to submit to the Court, within 14 days, a detailed report documenting its steps taking and ongoing plan to ensure that no female dispatchers or dispatch supervisors are ever again called upon to conduct custodial searches of prisoners.
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Dated: March 27, 2020

PITT McGEHEE PALMER & RIVERS
By: /s/ Robin B. Wagner Michael L. Pitt (P24429) Robin B. Wagner (P79408) Kevin M. Carlson (P67704) Attorneys for Plaintiffs 117 W. Fourth Street, Suite 200 Royal Oak, MI 48067 248-398-9800 248-268-7996 (fax) mpitt@pittlawpc.com rwagner@pittlawpc.com kcarlson@pittlawpc.com

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CERTIFICATE OF SERVICE The undersigned certifies that a copy of the foregoing document And Verified Complaint was served upon all Ethan Vinson, City of Warren attorney via e-mail to his e-mail address of evinson@cityofwarren.org on March 27, 2020.
/s/ Kathy Prochaska
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Case 2:20-cv-10812-GCS-DRG ECF No. 2-1 filed 03/27/20 PageID.61 Page 1 of 1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Linda DeVooght, Tressa Sinha,

Jennifer Piper, Donna Tripi, Suzanne

Chaffin, and Cheryl Osowski,

Case: 20-10812

Plaintiffs, v. City of Warren,

Hon. George Caram Steeh United States District Judge
Hon. David R. Grand United States Magistrate Judge

Defendant.

INDEX OF EXHIBITS TO MOTION FOR PRELIMINARY INJUNCTIVE RELIEF AND TEMPORARY
RESTRAINING ORDER AND BRIEF IN SUPPORT OF MOTION
1 General Order 17-10 2 Dispatcher Duties Order 3 CBA for dispatch 4 Log of searches 2019-2020 5 W. Michigan Family Homes case

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 Case 2:20-cv-10812-GCS-DRG ECF No. 2-2 filed 03/27/20 PageID.62 Page 1 of 15
EXHIBIT 1

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Donna Tripi
From: Sent: To: Subject: Attachments:

Jill Finch Wednesday, October 04, 2017 8:55 AM Warren PD New General Order 17-10 - Arrest Procedures.pdf

Please click on the attachment or go to Document Management to view/print G.O . #17-10: Arrest Procedures. This rescinds G.O. #15-01 of the same title. The changes are under 111.G.10, 11, and 14. If you have any questions, please contact Training.

Jill Finch Office Coordinator Administrative Services Bureau Warren Police Department (586) 574--4-801

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General Order

Date of Issue

Subject

4 October 2017

ARREST PROCEDURES

Reference

Rescinds

15-01

I.

PURPOSE:

Effective Date
4 OCTOBER 2017
File Code
"A"
Amends

Number
17-10
Distribution
All

The purpose of this General Order is to provide a uniform procedure for the handling, booking, and processing of prisoners taken into custody by members of the Warren Police Department.

II. POLICY:

It shall be the policy of the Warren Police Department that all members comply with the uniform practices set forth in this General Order in order to ensure the safety and individual protections guaranteed to each person taken into custody.

Ill. PROCEDURE:

A. Custodial Responsibility:

Once a person has been arrested or otherwise taken into custody, the Department assumes all responsibility for the safety and welfare of that person. This primary responsibility rests with the officer who has taken physical custody of the individual; however, that responsibility shall shift to any other officer to whom the individual is transferred. Officers effectuating an arrest or otherwise responsible for an individual in custody shall:

1. Never, under any circumstances, subject a prisoner to any unnecessary or excessive application of force.

2. Conduct a thorough custodial search of every prisoner upon arrest and upon taking custody of a prisoner from another officer.

3. Retain physical control of their prisoner at the scene of arrest as well as during any transport or conveyance.

4. Always refrain from using profanity and/or derogatory remarks when communicating with prisoners.

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5. Bring the prisoner to police headquarters or other lawfully approved destination as soon as practicable and without undue delay.
6. Whenever relinquishing custody of a prisoner to another officer, make proper notation of that officer's name and badge number within a supplemental incident report as well as on the daily activity log.
8. Vehicle Inspection:
When assigned a department vehicle, officers shall:
1. Conduct a thorough search of the entire vehicle interior for weapons, narcotics, or other contraband: a. At the beginning of each tour of duty. b. At the end of each tour of duty. c. Immediately after a prisoner or citizen exits.
2. Properly seize, tag, and log any weapons, narcotics, or contraband found and complete an appropriate incident report.
C. Taking Custody:
Upon taking custody of an individual pursuant to a lawful arrest, officers shall:
1. Handcuff every arrestee prior to transport.
2. Handcuff the arrestee with their hands positioned behind their back.
3. Utilize reasonably appropriate alternative devices and/or handcuffing methods if: a. The arrestee is obviously pregnant. b. The arrestee has a physical disability that would prevent proper handcuffing or render them completely immobile. c. The arrestee has an injury that would be aggravated by standard handcuffing procedures. d. The arrestee is violently resisting . e. The arrestee is exhibiting behavior characteristic of mental illness that reasonably threatens themselves or others.
4. Properly space and double-lock the handcuffs and appropriately report when and why double-locking is not possible.
5. At no time shall any arrestee be handcuffed to any part of a vehicle.
6. Perform a proper custodial search of the arrestee's person: a. By an officer of the same sex when practicable. b. By a trained employee of the same sex upon arrival at police headquarters .
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c. By an officer of the opposite sex only when failure to search would present an unreasonable safety risk to an officer or another person present.
D. Prisoner Transport and Conveyance:
1. When transporting prisoners, officers shall notify Dispatch of: a. The location from where the transport is being made. b. The destination of the transport. c. The number of prisoners being transported. d. Whether the prisoner is male, female, or juvenile.
2. When transporting a juvenile or prisoner of the opposite sex, officers shall notify Dispatch of: a. The starting mileage when beginning the transport. b. The ending mileage upon arrival at the destination.
3. Wheelchairs, crutches, and medication should be transported with the prisoner, but not in the possession of the prisoner.
4. Prisoners shall not be left unattended during transport.
5. Prisoners will be transported in the rear seat of a vehicle equipped with a protective screen when available and praticable.
6. A prisoner may be transported in a vehicle without a protective screen and/or by plainclothes officers as long as there are two officers in the vehicle.
7. If the transport vehicle is so equipped, officers shall insure the in-car video recording equipment is properly positioned on the prisoner.
8. Prisoners should be transported with the available seatbelt properly secured.
9. An adult prisoner should be transported by two officers in a single vehicle: a. When the prisoner is arrested on a felony or misdemeanor that is violent in nature. b. When the prisoner's conduct demonstrates a reasonable potential for resistance or violence regardless of the arrest charges . c. With the prisoner positioned behind the front passenger seat. d. With the seatbelt properly secured .
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10. An adult prisoner may be transported by a single officer: a. When the prisoner is arrested for a non-violent felony, there is no indication of a potential for violence, and the transporting officer is followed to police headquarters by an additional police unit. b. When the prisoner is arrested on a non-violent misdemeanor. c. With the prisoner positioned behind the front passenger seat. d. With the seatbelt properly secured.
11. The procedure for a juvenile who has been detained for felony or misdemeanor offenses shall be the same as outlined for adult offenders.
12. Officers may deviate from the transport guidelines for a juvenile detainee when the age, nature of the offense, and conduct indicate no risk to safety or potential for violence.
13. Juvenile detainees shall not be transported with adult prisoners unless related by blood.
E. Arrival and Booking at Police Headquarters:
1. Detention Entry: Officers transporting prisoners will enter through the salley port. Once inside, the transport vehicle will be parked to one side of the salley port and removed as soon as possible. Detention officers will close the overhead door before the prisoner is removed from the vehicle.
The salley port, hallway, and main elevator are secure areas. Entrance and exit to these areas is controlled and monitored by detention officers.
Prior to entering onto the main booking floor, officers shall have utilized a gun locker in the salley port hallway or the main elevator vestibule in the detention facility. Officers shall deposit their firearm and any other weapons inside and remove the key after locking the door. The key will remain with the officer and be returned to the lock after the weapon is retrieved. No firearms, pocket knives, or other weapons of any kind will be allowed on the detention facility booking floor.
2. Assisting Other Agencies: Outside agencies will generally enter through the basement and utilize the salley port garage. If an agency enters the lobby, a Warren contact officer will phone the jail and alert the detention officers of the prisoner's arrival. The Warren contact officer will perform a thorough and careful search of the prisoner prior to entry into the detention facility. The Warren contact officer will assist the officer from the outside agency in securing his/her weapon(s) in a gun locker prior to entry into the detention facility.
4

Case 2:20-cv-10812-GCS-DRG ECF No. 2-2 filed 03/27/20 PageID.68 Page 7 of 15
3. Arresting Officer Responsibilities: After arriving at the detention facility with a prisoner, the booking process will begin only after a proper search has been conducted in accordance with Section G of this General Order. a. The arresting officer shall remove and inventory all personal property. Belts and clothing ties will be removed . All garments shall be checked and all valuables shall be removed and inventoried. The items will be heat-sealed along with a copy of the prisoner intake form inside the approved property bag . b. Prisoner property will be separated into property bags with the anticipation of the prisoner being transferred to the Macomb County Jail after arraignment. Property to be transferred to the Macomb County Jail: • Identification • Medication • Eyeglasses • Hearing aids • Clothing (including jackets and hats) • Shoes • Court and legal paperwork
Property to remain at the Warren Police Department: • Money • Purses and wallets • Phones and electronics • Jewelry • Credit cards • Knives or other sharps being held in the control room (other
than those medically necessary) • Underwire brassieres • Any other personal property not specified to be transferred
to the Macomb County Jail c. Prescribed medication shall be inspected to ensure that it is
proper. Properly prescribed medication shall be placed into a bag along with a copy of the prisoner intake and turned over to detention officers to be secured in the medication box located in the control room. Improperly prescribed medication shall be confiscated, properly tagged , and noted in the incident report. All medication shall be noted on the prisoner property receipt. d. All potential weapons (knives, razors, sharps, etc.) will be taken and placed into an approved property bag along with a copy of the prisoner intake and turned over to detention officers for safekeeping. These items shall be properly noted on the prisoner property receipt.
5

Case 2:20-cv-10812-GCS-DRG ECF No. 2-2 filed 03/27/20 PageID.69 Page 8 of 15

e. All jewelry will be removed when practicable and secured with

other property after being inventoried. Jewelry includes but is

not limited to: rings , watches, bracelets, chains, charms, and

decorative items displayed in a body piercing. At no time are

officers authorized to forcefully remove jewelry by prying ,

cutting , snipping , or otherwise using an implement or tool to

facilitate removal. Any questionable item of jewelry that cannot

be readily removed will require consultation with a supervisor

for a final determination .

f. Headwear will be removed when practicable and secured with

other property after being inventoried. Headwear includes but

is not limited to: wigs, toupees, weaves, and beads . Headwear

worn using a temporary method of attachment such as bobby

pins, barrettes, or clips will be removed . At no time are officers

authorized to forcefully remove headwear that is attached by

gluing, braiding , sewing , weaving , or other methods intended

for a more permanent wearing by pulling , cutting, snipping , or

ripping. Any questionable headwear that cannot be readily

removed will require consultation with a supervisor for a final

determination .

g. All money will be counted and properly noted on the prisoner

property receipt. If a prisoner has in excess of $300.00 , the

booking officer shall contact a supervisor for verification. All

paper currency will be sealed in a paper envelope prior to being

placed into the prisoner property bag. All money shall be noted

on the prisoner property receipt. Any money or property seized

or forfeited shall have the appropriate notation made on the

prisoner property receipt.

h. An attempt will be made by the booking officer to obtain the

names of individuals to whom the prisoner's property may be

released . Those names will be properly listed on the prisoner

property receipt.

i.

A copy of the prisoner property receipt shall be given to the

prisoner at the time of booking .

j . If the prisoner property bag requires opening, it shall be done in

the presence of a supervisor or OIC. If any property is

removed, the officer shall make notation on the prisoner

property receipt of what was removed and the reason for

removing it. The supervisor shall initial the re-sealed bag and

the detention officer shall be notified to make entry in the jail

log.

k. The arresting officer shall make inquiry and properly note on

the prisoner intake form any unusual behavior or statements

made by the prisoner including:

(1) Suicidal statements

(2) Previous suicide attempts

(3) Health conditions or medical needs

(4) Use of alcohol and/or drugs

(5) Assaulting, aggressive , resistant, or disruptive behavior

6

Case 2:20-cv-10812-GCS-DRG ECF No. 2-2 filed 03/27/20 PageID.70 Page 9 of 15
(6) Illness requiring isolation (7) Reference to rejection by family or failed relationship (8) Signs of depression, including crying or sudden mood
changes
4. Patrol Supervisor Responsibilities: a. Verification of prisoner money when in excess of $300.00 by counting and making notation on the money envelope and prisoner property receipt. b. Evaluating all requests for the opening of a prisoner property bag and the removal of prisoner property except when conducted by an OIC . c. Evaluating a prisoner's illness or injury and requesting medical assistance for treatment and/or transport to the hospital. d. Notification of the Patrol Services Bureau Captain or Executive Lieutenant of any suicide or attempted suicide within the detention facility. e. Knowledge and notation on the Form #101 regarding the use of the restraint chair, including the duration of use.
5. Detectives and Warrant Officer Responsibilities: a. Notifying a detention officer of a walk-in arrest and advising that they will be proceeding to the detention facility. b. Properly searching and handcuffing the arrested person prior to proceeding to the detention facility. c. Take the prisoner to the detention facility using the main elevator. d. Securing all weapons in a gun locker prior to entry into the booking area. e. Completing the custodial search and property inventory in according with section E(3) above .
F. Juvenile Processing:
1. For federal purposes, a juvenile is considered "locked" if he/she is placed into a locked cell, locked room, or if he/she is handcuffed to a stationary object. a. A juvenile may not be locked unless he/she is an escape risk or has committed a violent felony. b. A juvenile cannot be locked for a status offense, i.e. curfew violation . c. A juvenile shall not be held by the Warren Police Department for longer than six (6) hours. d. Juveniles will enter the security area using the lobby elevator. e. Juveniles who require being locked down shall be either: (1) Placed in the juvenile detention cell located to the rear of the front desk in the lobby. (2) Handcuffed to the juvenile handcuffing bar affixed to the wall directly behind the front desk.
7

Case 2:20-cv-10812-GCS-DRG ECF No. 2-2 filed 03/27/20 PageID.71 Page 10 of 15

f. Juveniles SHALL NOT be handcuffed to a moveable object

such as a chair.

2. Juveniles will be fully processed for all custody contacts, including

LiveScan fingerprints and photographs.

a. Officers and detectives shall coordinate with the Records

Division if processing is needed during regular business hours

for the Records Division .

b. During all other times, the detention officer shall be contacted

and arrangements made for processing prior to arrival in the

detention facility.

c. Detention officers must make entry into the jail log for all

juvenile custody processing.

d. The juvenile shall be pre-booked by the detaining officer or

detective and assigned the holding or detox cell assignment.

Juveniles will not be booked in the main booking area of the

detention facility.

e. All juveniles will be searched and personal property taken and

inventoried on the prisoner property form prior to it being placed

into a juvenile property locker.

f. A copy of the juvenile booking sheet will accompany the

juvenile to the Records Division or the detention facility for

processing .

g. If a petition has been obtained, the detective shall provide the

petition to Records or detention personnel prior to processing in

order to properly enter:

(1) Incident number

(2) Date of offense

(3) Criminal tracking number (CTN)

(4) PACC code

h. If the photo is taken by Records personnel, that photo will be

manually entered into the Picture Link system .

i.

A criminal build will be completed for all reportable criminal

offenses using the LiveScan fingerprint system.

j.

The juvenile will be promptly returned to the first floor after

processing and placed appropriately based on the nature of the

deten tion .

k. The juvenile intake book shall be filled out completely by the

detaining officer.

I.

Officers processing juveniles behind the front desk shall notify

the on-duty desk officer of the detainee prior to leaving the

area . The desk officer is thereafter responsible for the juvenile

until the juvenile is released , including:

(1) Juvenile cell checks .

(2) Notifying detention officers of the number of juveniles to

be fed .

(3) Performing juvenile cell checks at least once per hour

and making an entry on their individual activity log .

(4) Informing and transferring responsibility to an oncoming

officer if shift change occurs.

8

Case 2:20-cv-10812-GCS-DRG ECF No. 2-2 filed 03/27/20 PageID.72 Page 11 of 15
3. Once a juvenile is released, the releasing officer shall complete the juvenile intake book by recording the date and time of release and having the parent or guardian sign the book.
G. Prisoner Searches:
1. Protective gloves are available in the detention facility, and all personnel conducting searches are encouraged to use them as a protective measure.
2. Upon arrival in the booking area of the detention facility, the arresting/transporting officer(s) will conduct an initial search for weapons and contraband while the prisoner is still handcuffed.
3. All prisoner property that can be removed will be removed by the booking officer and placed out of the prisoner's reach.
4. A hand-held metal detector will be used to can the prisoner for any concealed weapons.
5. Once it has been determined that the prisoner has no weapons and it is safe to do so, the handcuffs will be removed and a full custodial search will be performed and property secured in accordance with Section E(3) of this General Order.
6. Prisoners should be handcuffed to the handrail of the bench in the booking area while the booking is being completed and until turned over to detention personnel.
7. Prisoners wearing an underwire bra shall remove it and the bra will be placed into the prisoner's personal property.
8. All bras, regardless of type, will be removed and placed into the prisoner's property if the prisoner is suicidal.
9. If a male prisoner is arrested by a female officer, an available male officer who is on duty and in the station when the arrest is made shall be called upon to conduct the search.
If a female prisoner is arrested by a male officer, an available female officer who is on duty and in the station when the arrest is made shall be called upon to conduct the search prior to calling upon a dispatcher to perform the search.
If a female prisoner is assaultive, combative, or uncooperative at the time of booking, the Watch Commander may authorize an on-duty female officer to be called in from the road to conduct the search.
9

Case 2:20-cv-10812-GCS-DRG ECF No. 2-2 filed 03/27/20 PageID.73 Page 12 of 15

12. All searches will be conducted under video surveillance and within view of the detention officers inside the control room EXCEPT for strip searches.

13. No prisoner will be left unattended while in the detention facility at any time.

Searches Performed by Dispatchers:

a. A female dispatcher will conduct the search of a female

prisoner in the detention facility when :

(1) (2)

A female is liere are

arrested o female

boyffiacemrsaloeno~dffuict:e~-ra.-n-a.~i-n

tne

station

at

t e time of booking .

b. The arresting/booking officer will notify Dispatch of the need for

a search .

c. In the event there are only three (3) dispatchers on duty or if

the Watch Commander deems it necessary, an officer will be

assigned by the Watch Commander to assist in Dispatch until

the search is completed .

d. The prisoner search will not be unnecessarily delayed and the

prisoner will not be un-handcuffed or left unattended in the

booking area of the detention facility awaiting the arrival of a

dispatcher.

e. The arresting/assisting officer will stand by in close proximity in

the booking area until the search has been completed and the

prisoner has been turned over to detention personnel.

f.

Body armor and protective gloves are available for use and

should be worn by dispatchers while conducting the search of a

prisoner.

g. The Watch Commander may order on-duty female officers to

assist with female searches when necessary.

15. Strip Searches: Strip searches are defined as searches that require a person to remove his or her clothing to expose breasts, buttocks, or genitalia. a. Officers that make a physical arrest of a person shall not subject that person to a strip search unless the arresting officer has reasonable cause to believe the arrested person is concealing contraband, weapons, or evidence of a crime. Reasonable cause may be based upon, but not limited to: (1) The nature of the offense charged (i.e., involving violence and/or drug possession) . (2) The appearance and demeanor of the arrested person (unusually nervous, actions or behavior indicative of attempts to conceal items on his or her person).

10

Case 2:20-cv-10812-GCS-DRG ECF No. 2-2 filed 03/27/20 PageID.74 Page 13 of 15
(3) The circumstances surrounding the arrest and statements made by the arrested person (location arrested, threats to officers and other prisoners, resisting arrest, assaultive).
(4) Criminal history (prior arrests for weapons and/or narcotics.
(5) The discovery of evidence (are there items of evidence involving a major offense that have not been located and could be concealed on the arrestee's person?)
(6) Detection of a suspicious object or objects beneath the suspect's clothing during a search incident to arrest.
b. Where reasonable suspicion exists to conduct a strip search, the arresting officer shall make a written request (WPD Form #936) for such action to the Watch Commander or other designated authority that clearly defines and articulates the basis for that suspicion.
c. Upon receipt of written authorization by the supervisor authority, a strip search may be conducted only: (1) By department personnel of the same sex as the prisoner being searched. (2) By the least number of personnel necessary to safely conduct the search. (3) Under conditions that provide privacy from all but those authorized to conduct the search. NOTE: Even partial strip searches need the approval of the Watch Commander.
d. Strip searches will be conducted in the breathalyzer room with the arresting/assisting officer directly outside the door if not conducting the search themselves or if the prisoner becomes violent or uncooperative. (1) Prior to the strip search, the surveillance camera will be turned off by the switch on the wall and the illumination of a red light will confirm that the camera is not recording. (2) The camera will be turned back on once the strip search has been concluded, as confirmed by the illumination of the green light.
e. Following a strip search, the officer shall submit a completed strip search authorization form (WPD Form #936) to the Watch Commander or other approving supervisor which includes: (1) Date and place of the search. (2) Identity of the individual being searched. (3) Identity of the department personnel conducting the search. (4) Those present during the search. (5) Justification for conducting the search. (6) Any weapons, contraband, or evidence found during the search.
11

Case 2:20-cv-10812-GCS-DRG ECF No. 2-2 filed 03/27/20 PageID.75 Page 14 of 15
(7) The supervisor who authorized the search .
16. Body Cavity Searches: a. A warrant must be obtained to conduct a body cavity search. b. Body cavity searches will be conducted by trained medical personnel after the prisoner is transported to a hospital or other approved medical facility.
H. Treatment of Ill or Injured Prisoners:
1. Upon determining that an arrested person is seriously injured, semiconscious, or unconscious, an arresting officer shall take the arrested person to the nearest emergency hospital for examination and treatment without delay and notify the Watch Commander as soon as practicable.
2. When a prisoner arrives at the Warren Police Department detention facility and has a minor injury or complaint of illness or injury, the detention officer shall immediately notify the Watch Commander or detention supervisor, who shall make the determination of transporting the prisoner to the hospital.
3. If doubt arises whether to send a prisoner to the hospital, the Warren Fire Department paramedics shall be requested to evaluate the prisoner's condition and/or treat minor injuries.
4. If a prisoner is to be transported to the hospital: a. Handcuffs and/or other restraining devices shall be used unless the use of those devices would further injure or harm the prisoner. b. An officer shall accompany the prisoner and inform the hospital authorities that the conveyed prisoner is a police prisoner.
5. All complaints of illness or injury by a prisoner shall be documented on an alleged injured prisoner report (WPD Form #5) by the arresting or transporting officer and forwarded to the Watch Commander.
6. If there is an apparent serious injury (cuts, swelling, broken bones, etc.), the prisoner shall be taken to the hospital even though the prisoner informs the Watch Commander they do not want treatment.
7. If a prisoner is incapable of making a decision regarding treatment while under the influence of intoxicants or drugs, particular effort should be made to obtain proper treatment to insure the safety and welfare of that prisoner.
8. Any prisoner refusal for examination or treatment after being taken to the hospital shall be documented .
12

Case 2:20-cv-10812-GCS-DRG ECF No. 2-2 filed 03/27/20 PageID.76 Page 15 of 15 9. In the event that an apparently ill or injured prisoner is brought into our facility processing only without further detention or is bonded out immediately, the aforementioned guidelines shall apply to the extent that the prisoner will be offered treatment. Any refusal for treatment shall be documented on the alleged injured prisoner report (WPD Form #5) . 10. No prisoners shall be transported from our facility to another jurisdiction until all aforementioned guidelines have been followed.
William Dwyer POLICE COMMISSIONER WD/MN/jtf
13

 
 Case 2:20-cv-10812-GCS-DRG ECF No. 2-3 filed 03/27/20 PageID.77 Page 1 of 7
EXHIBIT 2

Case 2:20-cv-10812-GCS-DRG ECF No. 2-3 filed 03/27/20 PageID.78 Page 2 of 7

General Order

Date of Issue

30 April 2002

Subject

DISPATCHER

GENERAL DESCRIPTION OF DUTIES

Reference

Rescinds

91-04

Effective Date
30 APRIL 2002
File Code
"D"
Amends

Number
02-01
Distribution
All

GENERAL STATEMENT, DESCRIPTION AND QUALIFICATIONS:
A. Receives and transmits messages over a radio communication system.
B. Receives complaints and relays information or instructions from and to remote units.
C. Receives incoming telephone calls and makes independent judgment relative to the kind of action necessary.
D. Receives, types and sends LEIN messages and broadcasts to appropriate units.
E. Enters information into Computer Aided Dispatch consoles.

II

SUPERVISION RECEIVED:

Work is under the general superv1s1on of the commanding officer of the Communications Center and the direct supervision of the Dispatch Supervisor.

Ill TYPICAL EXAMPLES OF WORK:
A. Receives incoming calls from the public requesting police, fire and/or emergency medical assistance.
B. Classifies nature of calls , determines the priority of calls , determines appropriate response through the questioning process.
C. Refers non-emergency calls to appropriate agencies or departments.

Case 2:20-cv-10812-GCS-DRG ECF No. 2-3 filed 03/27/20 PageID.79 Page 3 of 7

D. Utilizes the Enhanced 911 Positron, Computer Aided Dispatch consoles, LEIN/NCIC , CopShop/Microsoft and all other available resources to gather, secure and verify information as necessary for the appropriate field units.

E. Records and maintains information in manual and automated record systems.

F. Records information manually on dispatch cards when the systems are not available .

G. Receives and dispatches , via radio transmissions, the appropriate units to the scene of emergencies, service requests and report calls .

H. Transmits , receives and relays local, county, state and federal radio transmissions and phone messages to alert or coordinate the activities of the police and fire units in assisting with agencies involved .

I.

Dispatches using the established 10-codes, phonetic alphabet and following

all department policies.

J. Coordinates the assistance of police, fire, medical, utilities and other agencies as necessary.

K. Assists in the training and evaluation process of probationary employees , as deemed necessary, in the absence of the dispatch supervisor and an assigned CTO (Communications Training Officer).

L. Assists in the processing of arrested persons in the station , as necessary, at the direction of a supervisor.

The above statements are intended to describe the general nature and level of work being performed by people assigned this classification. They are not to be construed as an exhaustive list of all job duties performed by personnel as so classified.

IV DESIRABLE QUALIFICATIONS FOR EMPLOYMENT:
A. Ability to answer multiple calls and process the information gathered through questions asked in a courteous and professional manner while maintaining control.
B. Ability to function in a multifaceted position while processing and completing job tasks timely, efficiently and effectively.
C. Ability to operate radio equipment; transmitting clear, complete and accurate information.

2

Case 2:20-cv-10812-GCS-DRG ECF No. 2-3 filed 03/27/20 PageID.80 Page 4 of 7
D. Ability to track and recall the locations of field units. E. Ability and knowledge of computer operations, including the CAD and LEIN
along with the ability to operate office equipment. F. Ability to utilize resources , such as maps and manuals, to assist in the
completion of job tasks. G. Ability to follow directions , oral and written instructions and display
willingness toward learning new elements of the position. H. Ability to establish and maintain satisfactory working relationships with other
employees .
V. PRELIMINARY QUALIFICATIONS: An applicant shall possess, upon application, based upon the closing date of the posting, the following education and experience or its satisfactory equivalent as outlined and cetified by the Civil Service Commission . • High school diploma or G.E.D. equivalent • Ability to type th irty (30) words per minute

LJN/dd

Louis J. Nardi POLICE COMMISSIONER

3

Case 2:20-cv-10812-GCS-DRG ECF No. 2-3 filed 03/27/20 PageID.81 Page 5 of 7

General Order

. D3te of Issue

9 October 2002

&.Jbjed:
DISPATCH SUPERVISOR- GENERAL

DESCRIPTION OF DUTIES

Reference

Resdrds

91-03

Effedive D3te
9 OCTOBER 2002
RleCcx:le
"D"
M"ellds

t--lJrrrer
02-31
Dstri b..rtion
All

I.

GENERAL STATEMENT. DESCRIPTION AND QUALIFICATIONS:

A. The Dispatch Supervisor serves as the shift supervisor of the Dispatch operation and the immediate supervisor of dispatchers and any other personnel assigned. This employee also performs general dispatching duties.

B. Supervision Received :

Work is performed under the general supervision of the Administrative Executive Lieutenant.

C. Supervision Exercised :

An employee in this classification will supervise the activities of employees working in the Communications Center.

1. Dispatch Supervisors shall have the authority to issue disciplinary action to dispatchers similar to that of a first-line supervisor (Police Sergeant) as detailed in Rules of Conduct General Order.

2. Such discipline, if issued , will be reported to the Office of the Police Commissioner through the normal chain of command.

D. Examples of Work Performed:

1. Supervises the operations of Dispatch and the Enhanced 9-1-1 Emergency Telephone System .

2. Performs general dispatch duties. Completes schedules or assignments, attendance reports, activity logs and any other administrative reports as required by the Administrative Executive Lieutenant.

3. May issue disciplinary action to dispatchers.

Case 2:20-cv-10812-GCS-DRG ECF No. 2-3 filed 03/27/20 PageID.82 Page 6 of 7

4. Insures that all logs, activity or shift reports or other dispatch-related documents prepared by subordinate employees are accurate and complete. Seeks clarification of questionable areas and causes corrections to be made.

5. Advises police , fire and emergency medical agency supervisors directly or through the Watch Commander of problems, concerns and critical events .

6. Insures that all dispatch equipment is in good operating condition and causes emergency repairs to be made by qualified service technicians .

7. Supervises and coordinates the work of dispatchers and while serving

as a key member of the Telecommunications Training Program Team

a. Supervises the training and evaluation of all probationary

dispatchers at the shift level during the program. Monitors the

progress of all probationary dispatchers on the shift, attempting

to detect and correct, in a timely manner, any deficiencies

related to knowledge performance.

b. Shall inform the other shift supervisors/command personnel of

progress of the dispatchers assigned to the shift.

c. Serves as a liaison between other shift supervisors/command

personnel and the CTO's on a shift to resolve training-related

difficulties or questions.

d. Shall make certain that the "Supervisor's Weekly Training

Report" is completed and placed in the probationary

dispatcher's "DOR Notebook."

e. Reviews all Daily Observation Reports (DOR's) and other

written material relevant to the progress and performance of all

probationary dispatchers on the shift. Discusses probationary

dispatchers' performance on a regular and frequent basis with

the CTO.

f.

Reviews all reports written by the probationary dispatcher on

the shift, giving special attention to appropriateness of content,

completeness , grammar, spelling and neatness.

g. Works closely with the CTO's on the shift to assure that

program standards are being met; that training and evaluation

is being done in a fair, consistent and uniform manner; and that

appropriate instructional techniques are being utilized .

8. Ensures that all emergency calls for service are answered in a courteous and timely manner. Coordinates activities with neighboring cities and companies as necessary.

9. Dispatches police, fire and E.M.S. units.

10. Retrieves data from the computer for information checks and enters data as necessary.

11 . Explains and interprets new and existing policies and procedures.
2

Case 2:20-cv-10812-GCS-DRG ECF No. 2-3 filed 03/27/20 PageID.83 Page 7 of 7
12. Maintains office supplies. The above statements are intended to describe the general nature and level of work being performed by people assigned in this classification . They are not to be construed as an exhaustive list of all job duties performed by personnel as so classified . E. Desirable Qualifications for Employment:
1. Skilled ability to answer calls and questions with a well modulated and pleasant voice.
2. Skilled ability to operate radio equipment in transmitting and receiving messages in accordance with Federal Communication Commission Rules and Regulations.
3. Skilled ability to keep records , prepare reports and other related work assigned.
4. Demonstrates good color perception and finger dexterity. 5. Demonstrates ability to operate Law Enforcement Information Network
(LEIN) terminal at a typing rate from plain copy of thirty (30) words per minute . F. Preliminary Qualifications : An applicant shall possess, upon application , based upon the closing date of the posting , the following education and experience or its satisfactory equivalent as outlined and certified by the Civil Service Commission : 1. High school diploma or G.E.D. equivalent. 2. Ability to type thirty (30) words per minute. 3. Three (3) years dispatching experience in a Police or Fire environment.
Louis J. Nardi COMMISSIONER OF POLICE LJN/dd
3

Case 2:20-cv-10812-GCS-DRG ECF No. 2-4 filed 03/27/20 PageID.84 Page 1 of 62
EXHIBIT 3

Case 2:20-cv-10812-GCS-DRG ECF No. 2-4 filed 03/27/20 PageID.85 Page 2 of 62
COLLECTIVE BARGAINING AGREEMENT BETWEEN
CITY OF WARREN AND
WARREN POLICE COMMAND OFFICERS ASSOCIATION
JULY 11 2017 THROUGH JUNE 301 2020

Case 2:20-cv-10812-GCS-DRG ECF No. 2-4 filed 03/27/20 PageID.86 Page 3 of 62

TABLE OF CONTENTS ARTICLE 1. Recognition 2. Deduction of Dues 3. Agency 4. Management Rights 5. Union Responsibilities 6. Wages and Cost of Living 7. Working Hours and Overtime 8. Shift Premium 9. Holidays 10. Sick Leave 11. On the job Injury 12. Sickness and Accident Insurance 13. Vacations (Furlough) 14. Clothing and Cleaning Allowance 15. Longevity Pay 16. Life Insurance 17. Hospitalization 18. Dental Insurance/Vision Care Coverage 19. Insurance Advisory Committee 20. Civil Liability 21. Funeral Leave 22. Leave of Absence 23. Jury Duty 24. Educational Incentive Program 25. Gun Allowance/Hazard Pay 26. Retirement 27. Promotion Examination Procedure 28. Trial Board Hearings

PAGE NUMBER
1 1
3 3 6 6 8
12
13 14 16 16 17 18 19
20 21
24 24 25 25 26 28
29 29 30
38 38

i.

Case 2:20-cv-10812-GCS-DRG ECF No. 2-4 filed 03/27/20 PageID.87 Page 4 of 62

29. Grievance Procedures

38

30. Union Business

42

31. Seniority

43

32. Layoffs

44

33. Transfers and Shift Assignments

44

34. Employee Rights

49

35. Random Drug and Alcohol Testing

51

36. Exempt Positions

52

37. General Provisions

53

38. Re-opening of Contract

53

39. Savings

53

40. Duration of Contract

54

APPENDIX "A" -VACATION ACCRUAL SCHEDULE

55

APPENDIX "B" -VISION CARE COVERAGE

56

APPENDIX "C" - BUY AMERICAN PLEDGE

58

ii.

Case 2:20-cv-10812-GCS-DRG ECF No. 2-4 filed 03/27/20 PageID.88 Page 5 of 62
BARG81NING AGREEMENT
This Agreement is entered into as of this _ _ _ day of December, 2018, by and between the City of Warren, hereinafter referred to as "Employer," and the Warren Police Command Officers Association, hereinafter referred to as the "Union," acting on behalf of the employees within the unit for which the Union has been recognized as sole bargaining agent. For the purpose of promoting and perpetuating friendly relations between the Employer and the employees covered by the Agreement and to establish conditions of employment, it is mutually agreed as follows:
RECOGNITION A. The Employer recognizes the Warren Police Command Officers Association as the
exclusive representative for the purpose of collective bargaining in respect to pay, wages, hours of employment, and other terms and conditions of employment as listed in this Agreement for the term of this Agreement for employees in the classification and/or rank of Dispatch Supervisor, Sergeant, Lieutenant, and Captain.
B. The term "officer" when used in this Agreement shall mean employees in the rank of Sergeant, Lieutenant, and Captain. The term "employee" shall mean anyone in the bargaining unit. Dispatch Supervisors are not law enforcement officers, either on or off duty.
ARTICLE 2
DEDUCTION OF DU.E5 The City hereby agrees to deduct dues assessments and/or voluntary deductions as
authorized by the laws of the State of Michigan and by such employee upon the following terms and conditions:
A. Each employee who desires to have such dues assessments and/or voluntary deductions removed from his earnings shall execute the "Authorization for Deduction of Union Dues" form as set forth below in full.
B. The City shall place such deduction or deductions in effect at the second pay period of the month following receipt of same and continue same in accordance with the terms and conditions set forth in the authorization.

Case 2:20-cv-10812-GCS-DRG ECF No. 2-4 filed 03/27/20 PageID.89 Page 6 of 62

DEDUCTION OF DUES, Continued

C. The City shall transmit such deductions, together with a list of the employees paying

same, to the Secretary/Treasurer of the Union designated in writing by the Union, and shall do so

within seven(?) days of such deductions.

D. The "Authorization for Deduction of Union Dues" hereinafter set forth, when

executed, shall be binding upon the employee for the duration of this contract, except that any

employee may revoke, alter, or amend such "Authorization for Deduction of Union Dues" by notice

in writing to the City within the thirty (30) day period prior to the expiration of this contract, failing

in which, the original authorization shall be automatically renewed under the same terms and

conditions for the life of the subsequent contract.

E. The City shall notify the Union of the termination of employment of the dues paying

employee. No "Authorization for Deduction of Union Dues" forms shall be accepted by the City

unless they are forwarded through the office of the Union Secretary/Treasurer.

F.

It is understood and agreed that the provision for deduction of Union dues is for the

benefit of the employees requesting same, and the City is under no obligation to demand or

request that employees authorize such deduction as a condition of employment, and further that

the obligation of the City does not extend beyond that hereinbefore set forth.

G. The following form, to be furnished by the Union, shall be utilized as authorization

for such deduction of Union dues assessments and/or voluntary contributions:

AUTHOR!ZATION FOR DEDUCTION OF UNION [)UES

I,

, the undersigned, as an employee of the Police

Department of the City of Warren, do hereby request and authorize the City of Warren to deduct the

following sum of money from my earnings every other pay period and do so every other pay period

thereafter:

Supervisors Dues or Fee Equivalent to one-half (1/2) per cent of monthly base wage

TOTAL DEDUCTION

and pay same to the Warren Police Command Officers

Association, 29900 Civic Center Drive, Warren, Michigan for voluntary contributions and/or dues as

the representative selected by me and as the exclusive bargaining representative for all employees in

the above unit. The foregoing authorization shall continue in full force and effect unless and until my

employment is terminated or until thirty (30) days prior to the expiration of this contract, during

which thirty-day period the undersigned shall have the right to revoke, alter, or amend the above

authorization, failing in which, the same shall be automatically renewed under the same terms and

conditions for the life of the subsequent contract.

Employee's Signature

2

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AGENCY

ARTICLE3

To the extent that the laws of the State of Michigan permit, it is agreed that any employee

covered by this Agreement, who is not a member of the Warren Police Command Officers

Association at the time this Agreement becomes effective, shall be required as a condition of

employment to either become a member of the Association or pay a service fee to the Association,

which shall be equivalent to the Association dues and initiation fee in accordance with the

constitution and bylaws of the Warren Police Command Officers Association, for the duration of

this Agreement. Any employee, who fails to comply with the aforementioned requirement, shall

be deemed not to be in compliance with the aforementioned condition of employment and the

City shall terminate his employment at the conclusion ofa grace period of sixty (60) days following

notification by the Warren Police Command Officers Association that the employee is not in

compliance with this Article.

ARTICLE4

MANAGEMENT RIGHTS

Consistent with the express terms of this Agreement:

A. The Union recognizes the prerogatives of the City to operate and manage its

business, in all respects in accordance with its responsibilities and powers of authority, except as

specifically abridged, delegated, granted or modified by this Agreement or any supplementary

agreements. All remaining rights, powers, and authority the City had prior to the signing of this

Agreement, and all other rights normally, usually and customarily retained by management, are

retained by the City and remain exclusively and without limitations within the rights of the City.

Except as specifically limited by this Agreement, the City may exercise these reserved, retained

and residual rights, and those specifically enumerated in Section B hereof, without previously

bargaining the same with the Union; provided, however, that such actions shall not conflict with

the terms of this Agreement, and shall not be exercised arbitrarily or capriciously.

B. Among the rights, powers and authority provided to the City by law, including by

way of example and not in limitation of the foregoing, the City hereby retains and reserves unto

itself the right:

3

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MANAGEMENT RIGHTS ·.Continued
1. To manage its affairs efficiently and economically, including the determination of the quality and quantity of services to be rendered; the control of materials, tools and type of equipment to be used; and the discontinuance of any services, materials, processes or methods of operation.
2. To establish, determine and re-determine the method or processes by which the work is to be performed and to introduce new equipment, methods, machinery or processes; change or eliminate existing equipment or methods and institute technological changes; decide on materials, supplies, equipment and tools to be used.
3. To determine the number, location, and type of facilities and installations. 4. To determine the size of the work force and increase or decrease its size. 5. To recruit, hire, assign, transfer, promote and lay off employees consistent with this Agreement and Act 78; and establish and determine the workweek and workday, and effect changes in the hours worked or scheduled. 6. To direct the work force, assign work and determine the number of employees assigned to operations. 7. To determine and re-determine job content; provided, however, that the City will not arbitrarily and capriciously change established job descriptions without a legitimate business reason. 8. To determine lunch periods, break periods, shifts, clean-up times, starting and quitting times and the number of hours to be worked. 9. To decide the scheduling of services and establish reasonable work schedules to maintain order and efficiency in its divisions including the scheduling of overtime work. 10. To discipline and discharge employees for just cause. 11. To adopt, revise and enforce reasonable working rules and regulations as it may from time to time deem best for the purposes of maintaining good order, safety and/or effective operation of City services. 12. To manage the City business and to decide the services to be provided and the manner of providing them, provided at the time of signing the agreement on June 18, 2013, it is not the City's intention to eliminate all roll calls.
4

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MANAGEMENT RIGHTS - Continued
13. To effect necessary reductions in departmental force by eliminating budgeted positions through City Council and making corresponding reductions in rank consistent with applicable provisions of this Agreement. In the event a reduction in the bargaining unit becomes necessary, the City agrees to make a reasonable effort to implement said reductions through attrition or retirement before displacing bargaining unit members. If there is more than one position in a particular rank being reduced, reductions shall be made consistent with seniority, i.e. the least senior Sergeant shall be displaced. Employees in the classification of Captain and Lieutenant reduced in rank under this section shall be returned to their previous position. Employees in the rank of Sergeant reduced in rank under this section shall be returned to an available position in their former rank. Bargaining unit members reduced in rank shall be recalled to the next available vacancy in the rank from which they were reduced in inverse order of their reduction notwithstanding the existence of any Act 78 eligibility list.
14. To take whatever actions are necessary in emergencies in order to insure the proper functioning of the Department.
C. The foregoing management rights are not intended to be all inclusive but indicate the type of matters arising which belong to and are inherent in management, and shall not be deemed to exclude other rights of the Employer not specifically set forth but established by law, charter, ordinance, or other action by the City Council not inconsistent with the terms of this Agreement. The Employer acknowledges that such rights have been limited by the specific provisions of this Agreement, and agrees to exercise such rights in such a fashion so as not to violate any of the specific terms and provisions of this Agreement. Similarly, the City agrees that during the entire term of this Agreement, it will deal with the employees in good faith and that the rules and regulations of the Department will be interpreted and applied in a fair, just, and nondiscriminatory manner.
D. The Union shall be notified in advance of anticipated major changes in working
'
conditions having the potential effect on an entire bureau, or division within a bureau, or unit within a bureau, and conferences in good faith shall be held thereon before they are placed in effect. Emergency situations shall be exempt from this provision.
5

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8RTICLE5
.UNION RESPONSIBILITIES A. Recognizing the crucial role of law enforcement in the preservation of the public
health, safety and welfare of a free society, the bargaining unit agrees that it will take all
UNION RESPONSIBILITIES, continued
reasonable steps to cause the employees covered by this Agreement, individually and collectively, to perform all police duties, rendering loyal and efficient service to the very best of their abilities.
B. The Union therefore agrees that there shall be no interruption of these services for any cause whatsoever by the employees it represents; nor shall there be any concerted failure by them to report for duty; nor shall they absent themselves from their work or abstain, in whole or in part, from full, faithful, and proper performance of all the duties of their employment.
C. The Union further agrees that it shall not encourage any strikes, work stoppages, slowdowns, or any acts that interfere in any manner or to any degree with the continuity of the police services. The Union recognizes that participation by any employee it represents as the exclusive bargaining agent in a strike or work stoppage is unlawful and shall subject the employee to disciplinary action up to and including discharge.
8.RTICLE Q WAGES
A. A ten percent (10%) wage differential will be maintained between the ranks of Corporal and Sergeant, Sergeant and Lieutenant, Lieutenant and Captain as has been customary. Dispatch Supervisor shall receive fifteen percent (15%) above the base wage of the nonsupervisory Dispatcher. A ten percent (10%) wage differential shall be continuously maintained despite the status of contract negotiations between the parties, the expiration of the Collective Bargaining Agreement, and/or the existence of an Act 312 petition.

B. Wages:

July 1, 2017

2.5%

July 1, 2018

2.0%

July 1, 2019

0.0%

6

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WAGES continued
Dispatch Supervisor Sergeant Lieutenant Captain

7hb1
63,747 89,196 98,114 107,926

7hbB
65,022
90,979 100,077 110,085

C. Paydays: All employees shall be paid every other Thursday for the two weeks prior to the payment. When the payday falls on a legal holiday, the employees shall be paid on the preceding day. Effective, July 1, 2011, the City has the rightto implement mandatory direct deposit for all wages and benefit payments.
D. Whenever a Patrol Sergeant is assigned the full range of duties and responsibilities of a watch commander or lieutenant because of the temporary absence of the incumbent, then such employee shall be compensated at the higher rate for the performance of said duties if said assignment lasts for more than one (1) full shift. An employee other than a Sergeant who is required to perform the work of a higher rank shall receive the pay scale of such higher rank when such assignment is to fill a vacancy created by resignation, retirement or death. Whenever an employee, not necessarily the same employee, but excluding Executive Lieutenants and Captains, has been assigned for more than a total of thirty (30) consecutive workdays to perform the duties and responsibilities of a higher classification because of the temporary absence of the incumbent, then any employee, except Executive Lieutenants and Captains, thereafter assigned the duties and responsibilities of such higher classification because of the temporary absence of the incumbent shall be compensated at the higher rate. Provided, however, if said assignment exceeds thirty (30) consecutive workdays, then such employee shall be compensated at the higher rate for all time worked. For purposes of this Article, the term "workday" includes both "calendar day" schedules and regular "workday" schedules. Any employee appointed within the Department to serve in an acting position of a higher classification shall receive all benefits incident to that classification.

7

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WAGES - Continued
E. Deferred Compensation Plan: Employees shall be permitted to participate in the deferred compensation plan currently offered to any other City employees. Employees may elect to defer compensation in addition to their regular biweekly deductions by submitting written notice (form to be provided) to the Controller's Office within thirty (30) days of the anticipated deduction. Sign-up periods remain biannual.
F. The Reserve Program shall be supervised by members of this bargaining unit. The Sergeant of any Police Officer assigned to scout car and/or walking beat duty with a Reserve Officer shall receive a ten percent (10%) wage supplement during the time he is assigned to supervise such Police Officer.
ARTICLE]
WORKING HOURS AND OVERTIME A. Hours of Work: Employees' workweek shall be forty (40) hours, consisting of five 8-hour workdays. Each
employee shall be allowed one-half hour for lunch within each 8-hour workday. Dispatch Supervisors shall also receive two 15-minute paid breaks. The employees' two days off shall be consecutive subject to the emergency requirements of the Department. The parties will implement a twelve-hour work schedule if the parties meet and can agree on a mutually acceptable terms. Opt-out same as WPOA.
In the event there are only three (3) Dispatchers, including the Dispatch Supervisor, working on a particular shift and there are no volunteers to work overtime for lunch relief, the Dispatch Supervisor working on that particular shift shall remain in the immediate vicinity of her work station and eat lunch as time permits. In this event, the Dispatch Supervisor working shall be compensated for her thirty (30) minute lunch period at one and one-half (1-1/2) times her current rate of pay. This provision is to be effective with the date of ratification of this Agreement.
B. Overtime: (1.) An employee shall be credited with compensatory time for all overtime worked at the rate of time and one-half. The employee has the option of taking compensatory time off or allowing his time to accumulate and turn it in for cash payment. A one hundred fifty (150) hour maximum shall be placed on the amount of overtime that may be accumulated. When converted
8

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WQRKING HOURS AND .OVERTIME - Continued
to pay, compensatory time shall be paid at the rate in effect when payment is made. Provided, however, that the above provision shall not apply to employees above the rank of Lieutenant. When it becomes necessary to schedule an employee to work in excess of forty (40) hours a week due to an emergency as stipulated in Chapter 7, Section 7.18 of the Warren City Charter, all employees shall be paid time and one-half for all time over forty (40) hours.
(2.) At the time of signing this agreement, on November _14_, 2018, it is not the City's intention to eliminate all roll calls. ·
C. Call-in Time: For the purpose of this section, "call-in-time" is defined as the call in of an employee after he has reported off duty and before his next following tour of duty. "Call-in-time" is further defined to include off-duty police actions in which officers may become involved. An employee shall be credited with one and one-half (1-1/2) hours for each hour on duty on a call-in, with a minimum of four (4) hours credit at straight time for each such call-in. Provided, however, that this minimum shall not apply to any call-in situation where an employee is involved in off-duty police
actions which take place one (1) hour or less before said employee's starting time. In this situation,
said employee shall receive time and one-half up to the start of his regular shift. D. Court Time: If an employee is required to appear in court off duty, in either civil or criminal matters, as a
result of his duties as a police officer, he shall be credited with a minimum of three (3) hours at straight time or time and one-half, whichever is greater. All witness fees paid to officers appearing in civil cases on City time or for which court time is paid shall be turned into the City, except for mileage allowance if the employee uses his own vehicle. Parking expense shall be reimbursed. For purposes of this section only, employees receiving workers' compensation payments shall be considered to be assigned to the day shift Monday through Friday. Effective July 1, 2011 through July 1, 2013, court time is reduced to two (2) hours minimum for district court matters, and three (3) hours for all others.
E. Employees shall not receive call-in time for a court appearance that requires the travel time plus the appearance time to be one (1) hour or less before the employee's start time.
9

Case 2:20-cv-10812-GCS-DRG ECF No. 2-4 filed 03/27/20 PageID.97 Page 14 of 62
WORKING 1-!0URS.AND OVERTIME - Continued
The parties agree that travel time is ten (10) minutes to 3ih District Court; thirty (30) minutes to Mount Clemens; forty-five (45) minutes to Pontiac; sixty (60) minutes to Lincoln Park. The parties also recognize that an employee must first report to police headquarters in accordance with the travel time requirements noted above.
.[XAMPLE:: Employee starting at 4:00 p.m. and is required to be at court at 3:30 p.m. Travel time from the station to court is thirty (30) minutes or less. There is no call-in time. Employee receives the time and one-half for the one (1) hour or less period before his shift.
EXAMPLE: Employee starts at 3:30 p.m. and is required to be at 3ih District Court at 3:00 p.m. No call-in time is paid. Employee receives the time and one-half for the forty (40) minute period before his shift.
EXAMPLE: Employee starts at 4:00 p.m. and is required to be at court at 3:00 p.m. Travel time to court or agency is forty-five (45) minutes. The employee is required to report at 2:15 p.m. for duty. Employee receives four (4) hours call-in time.
This provision will be effective on the date of ratification of this Agreement, and shall apply to (C) and (D) above.
F. In the event that either Federal or State statutes reducing the workweek of municipal police department employees becomes effective, or should other Federal or State legislation require the reduction of the hours of work or substantially change the method of overtime payment resulting in monetary or other benefit to such employees, the City shall have the right to reopen this Agreement by written notice.
G. 1. Voluntary Off-Duty Overtime shall be defined as the following: An agency which will contract with the City of Warren/Warren Police Department and request a specified number of officers and supervisors to police a specific function. These functions are described as, but not limited to, school dances, football and basketball games, graduation exercises, and church festivals. Notice to the officers who shall work the voluntary off-duty assignments shall be given at least forty-eight (48) hours prior to the assignment.
2. Scheduled Off-Duty Overtime shall be defined as a request by the City of Warren or Warren Police Department for a specific number of officers and supervisors to police a specific function. This function is described as, but not limited to, the Thanksgiving Day Parade. The cost
IO

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WORKING HOURS ANO OVERTIME· Continued
of this overtime will be the sole responsibility of the City of Warren and shall be paid at the rate of a guaranteed four (4) hour minimum or time and one-half, whichever is greater. Notice to the officers who shall work the scheduled off-duty overtime shall be given at least forty-eight (48) hours prior to the assignment.
3. Unscheduled Overtime: When it becomes necessary to call in supervisory personnel, overtime shall first be offered to the supervisors of the affected shift on an equalized overtime basis. In the event none are available, supervisors from the preceding shift will be called on an equalized overtime basis. In the event none are available, supervisors from the proceeding shift will be called on an equalized overtime basis. Employees who refuse the call-in shall have the amount equal to the overtime worked placed in the equalized overtime book. Employees who are absent on sick leave, disability, or funeral leave shall not be called in. Employees who are on furlough may be called in, but if they refuse, the hours shall not be charged.
a. Voluntary off-duty overtime and scheduled off-duty overtime assignments within each division or bureau which are posted shall be as nearly as possible equally distributed among all members within said division or bureau. When three (3) or more patrol officers are assigned to an assignment, then the Department shall post the assignment for the necessary supervisory personnel. In the event there are insufficient volunteers, then the Department may order the least senior off-duty Sergeant or Lieutenant to work the assignment. Any supervisor ordered in to work the assignment shall be compensated at his appropriate overtime pay rate.
Employees who are on furlough, funeral leave, sick or disability leave shall not be ordered in for said assignments. Overtime will be equalized Department-wide amongst sergeants first.
b. Overtime shall be equalized as often as practicable, but not later than five (5) working days after the assignment. The overtime equalization book for the voluntary off-duty overtime and for the scheduled off-duty overtime shall be located in an accessible location within each bureau so that members shall be able to check their own figures.
c. Unscheduled overtime shall be as nearly as possible equally distributed among members of said platoon, division or bureau. The overtime equalization book for the unscheduled overtime shall be centrally located so as to allow accessibility for the purpose of call-in.
11

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WORKING HOURS AND OVERTIME - Continued
d. The parties agree to confer with respect to administration of overtime assignments and overtime policy not otherwise covered by this Article.
4. In the event overtime is worked by an employee other than the employee having the lowest hours, the person having the lowest hours shall not be paid for hours not worked, but shall be given the next opportunity to equalize hours. Said employee may, thereafter, pursue subsequent violations of this section through the grievance procedure.
a. The City shall not be required to equalize overtime hours between bureaus, divisions or shifts.
b. For purposes of equalization, on July 1 of each year all employees shall be deemed to have worked zero (o) hours overtime.
H. Posting of leave days shall occur according to the following procedure. The Employer shall post leave days by the 18th day of the 28-day cycle preceding the 28-day cycle in which the days are to be taken for all employees. For those employees who select their leave days, the Employer shall issue leave day selection slips to said employees seven (7) days prior to the end of each 28-day cycle. The employees shall be required to submit the selection slip on or before the 5th day of the following 28-day cycle. If an employee fails to submit the selection slip to the Employer within the above-stated period, the Employer shall have the right to assign leave days for that employee. Afterthe posting by the 18th day of the 28-day cycle, leave days forthe following 28-day cycle may be changed or modified for good cause. When it becomes necessary to cancel a leave day due to an emergency as stipulated in Chapter 7, Section 7.18 of the Warren City Charter, all employees affected shall be paid overtime and/or call-in pay as provided for in Sections Band Cof this Article. Certain areas, such as the Detective Bureau or other bureaus of the Department, may work different 28-day schedules upon mutual agreement of the City and the Association.
ARTICLEH
SHIFT PREMIUM Employees assigned by the Department for work on afternoons, midnights, and the split
shift shall be paid shift premium at the following rates:
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SHIFT PREMIUM, continued
1. Premium pay of four percent (4%) of base pay per hour for the afternoon shift.
2. Premium pay of five percent (5%) of base pay per hour for the split shift. 3. Premium pay of six percent (6%) of base pay per hour for the midnight
shift. Such shift premium shall be paid in addition to the base rate of pay for each employee. When an employee is absent from his regular tour of duty on compensatory time off, he shall be eligible for shift premium pay. When an employee is absent from his regular tour of duty due to sickness, disability leave, or furlough, he shall not be eligible for shift premium pay. For the purpose of this section, "shifts" are defined as follows: A. Afternoon Shift: Afternoon shift is hereby defined as any full-time shift commencing at the hour of 2:00 p.m. or between the hours of 2:00 p.m. and 6:00 p.m., which terminates not later than two (2) hours after midnight. B. Split Shift: Split shift is hereby defined as any full-time shift commencing at 6:00 p.m. or between the hours of 6:00 p.m. and 10:00 p.m., which terminates not more than six (6) hours after the hour of 12:00 midnight. C. Midnight Shift: Midnight shift is hereby defined as any full-time shift commencing at the hour of 10:00 p.m. or between the hours of 10:00 p.m. and 4:00 a.m., which terminates not more than twelve (12) hours after the hour of 12:00 midnight. D. In the event that the WPOA negotiates or is awarded through Act 312 concessions in shift premium, the WPCOA agrees to recognize those reductions upon promotion into the bargaining unit.
ARTICLL9
HOLIDAYS A. Each employee shall be paid for fourteen (14) holidays per year at the employee's
base rate of pay. These holidays shall be July 41 Labor Day, Veterans Day, Thanksgiving Day, Day after Thanksgiving, Christmas Eve, Christmas Day, New Year's Eve, New Year's Day, Martin Luther King Day, President's Day, Good Friday, Easter Sunday, and Memorial Day. The employees will be paid twice a yearfortheir holidays. Five (5) holidays, July 41 Labor Day, Veterans Day, Thanksgiving
13

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HOLIDAYS-J;:ontinued Day and the Day after Thanksgiving, will be paid on the first pay in December and the other nine (9) holidays will be paid on the first pay in June.
B. Double time shall be paid for overtime hours worked on the holidays specified in Section A above. Employees working any of the above holidays shall receive time and one-half (11/2) for all regular hours worked on the holiday. An employee shall be deemed to have worked on the holiday when his shift began on the holiday.
ARTICLE 10 SICK LEAVE
A. Sick leave days shall be earned and granted at the rate of one (1) day for each calendar month worked; one day shall be considered as an 8-hour period of time worked. Effective July 1, 2013, sick days will be converted into hours, the same as the WPOA.
Employees hired prior to January 1, 1984 can accumulate a maximum of two hundred twenty-five (225) sick days. Upon death, an employee's beneficiary shall receive one hundred percent (100%) of the accumulated sick bank. Upon retirement, an employee shall receive eighty percent (80%) of his accumulated sick bank. Upon resignation from the City in good standing after five (5) years of service, an employee shall be paid twenty-five percent (25%) of his accumulated sick bank.
Effective for all employees hired between January 1, 1984 and December1, 1986, sick leave days may not accumulate in excess of two hundred twenty-five (225) days for sick leave use purposes. Provided, however, pay out percentages shall be applied to a maximum bank of one hundred forty (140) days. Upon death, an employee's beneficiary shall receive one hundred percent (100%) of the accumulated sick bank (100% of 140 days maximum). Upon retirement, an employee shall receive eighty percent (80%) of his accumulated sick bank (80% of 140 days maximum). Upon resignation from the City in good standing after five (5) years of service, an employee shall be paid twenty-five percent (25%) of his accumulated sick bank (25% of 140 days maximum).
Effective for employees hired after December1, 1986, sick leave days may not accumulate in excess of one hundred forty (140) days. Upon death, an employee's beneficiary shall receive one
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SICK LEAVE- Continued hundred percent (100%) of the accumulated sick bank (100% of 140 days maximum). Upon retirement, an employee shall receive eighty percent (80%) of his accumulated sick bank (80% of 140 days maximum). Upon resignation from the City in good standing after five (5) years of service, an employee shall be paid twenty-five percent (25%) of his accumulated sick bank (25% of 140 days maximum).
Sick leave shall be granted for absence from duty because of personal illness or legal quarantine. Sick leave also may be used for some emergencies; it may be used as emergency leave for short periods in case of serious illness in an employee's immediate family or spouse's immediate family.
Immediate family includes husband, wife, children, stepchildren, mother, father, brothers, sisters, mother-in-law, father-in-law, sons-in-law, daughters-in-law, and grandparents of an employee. When an employee reports for work on his regular tour of duty and during the course of this tour of duty becomes sick, this sick time shall not be deducted from compensatory time. If the employee becomes sick prior to four (4) hours of work, he shall take one (1) sick day and the time worked shall be added as compensatory time. If an employee shall become sick after four (4) hours of work, he shall be charged with one-half (1/2) sick day and the time worked in excess of four (4) hours shall be added as compensatory time. If an officer reports for duty and needs to utilize sick time the hours missed will be deducted from his sick bank.
B. An employee shall be allowed to use four (4) accumulated sick days per year for personal business. The employee must receive permission from his supervisor prior to taking a personal leave day off with at least three (3) days prior notice, unless the personal leave is to be used for an immediate emergency. Said personal leave days may be taken consecutively and may be attached to scheduled leave or furlough days.
C. By January 31, each year, employees shall have the option of redeeming up to onehalf (1/2) of unused sick days earned the pervious year. Days charged against sick leave shall not include personal leave days but shall include sick days, and one-quarter (1/4) sick days used to supplement sickness and accident insurance benefits.
1. Request must be made prior to January 31 in the year following in which the days were earned;
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SICK LEAVE - Con_tinued 2. Maximum of six (6) sick days shall be paid; 3. Payment shall be made at the rate in effect when money is paid; 4. Days paid shall be deducted from the employee's sick bank; 5. City shall pay for all redeemed sick days on the first pay in March.
D. Effective January 1, 2007, the City shall allow the redemption of an additional six (6) unused sick days earned the previous year, deducted from the employee's sick leave bank if they have taken no sick days off the previous year. This payment will not be included in final average compensation. This provision is to be effective for payments beginning in 2007 based upon attendance in calendar year 2006, subject to the provision in paragraph C above.
8RTICLE 11 ONcTHE-J0.6 INJURY
A. The City of Warren will continue to pay the difference between workers' compensation and base pay to each employee qualifying under this section up to a maximum of six (6) months. The Union may apply to the City Council for an extension. It is not intended that employees receive more than full pay as a result of this clause in conjunction with the vacation plan.
B. The Employer will not pay such an employee his sick day bank without his written consent.
C. In the event of a disputed workers' compensation claim, the City will pay the difference between workers' compensation and base pay for the period, if any, that the claim is settled or recognized as compensable under workers' compensation, as subject to the provisions of Section A above.
ARTICLE12 SICKNESS AND ACCIDENT INSURANCE
The City shall provide a sickness and accident insurance plan whereby employees will be provided with benefits amounting to fifty percent (50%) of their base pay for a maximum of fiftytwo (52) weeks upon the first (1st) day of accident or inpatient hospitalization (includes outpatient surgery) or the sixteenth (16th) calendar day of sickness. On the sixteenth (16th) day of such
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SICKNESS AND AC::CIDENT INSURANCE - Continued absence, employees may choose to be covered by the insurance provided herein or may, at their option, continue to utilize their sick bank. While receiving insurance benefits, employees may choose to have a deduction of one-quarter(1/4) of a sick day or one-quarter (1/4) of a vacation day for each day of benefits to supplement the insurance payments.
88.TICLE 13 'i8CATIONS (FURLOUGH)
A. All employees shall receive two 10-day vacation periods with pay after one year of continuous service with the Department.
B. The summer vacation period shall be May 1through October 31. The winter vacation period shall be November 1through April 30. Vacations shall be picked within the individual watch or platoon and within the division or unit by seniority in rank with each rank picking separately. There shall be at least one separate vacation slot available for each rank. This provision shall apply to all personnel in the bargaining unit, except for the Captain in Administration who shall select together, and Executive Lieutenants who shall not select a vacation which conflicts with the Captain to whom they are assigned.
C. All employees shall be eligible for vacations according to the following schedule: 1through10 years of service................................... two 10-day furloughs 11 years of service................................one 10-day and one 11-day furlough 12 years of service................................one 10-day and one 12-day furlough 13 years of service................................one 10-day and one 13-day furlough 14 years of service................................one 10-day and one 14-day furlough 15 years of service................................one 10-day and one 15-day furlough 16 years of service................................one 11-day and one 15-day furlough 17 years of service................................one 12-day and one 15-day furlough 18 years of service................................one 13-day and one 15-day furlough 19 years of service................................one 14-day and one 15-day furlough 20 years of service or more .................................... two 15-day furloughs Notwithstanding the above schedule, Dispatch Supervisors shall receive the number of vacation days as provided in the GELC Local 227 contract for continued or continuous service employees
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VACATION5_(FURLOUGH)- Continued as of June 30, 1987. Said days shall be frozen and there shall be no reduction. Provided, however, any further increases in Dispatch Supervisor vacation days after July 1, 1987 shall be in accordance with the W.P.C.O.A. schedule. Single furlough days do not constitute a dispatcher being on vacation.
D. An employee shall not be permitted to bank vacation time from one period for use in the next without permission from his designated commanding officer, which permission will not be unreasonably withheld, except that any employee who is off due to illness of any nature during his regularly scheduled vacation may carry over his last due vacation if he cannot reschedule his vacation. Provided further, permission will not be unreasonably withheld to enable an employee to achieve maximum vacation fold-in under Article 13(E)(2) prior to retirement.
E. Vacation Accrual System: 1. Employees shall accrue vacation time in accordance with the formula set
forth in Appendix A. All employees on the payroll as of July 1, 1982 shall receive retroactively from date of hire an adjustment for any vacation time they did not receive but should have accumulated under this biweekly accrual method. Adjustments to employees' vacation banks shall be made as of August 16, 1984. Each employee shall be provided no later than the 30th day of each month with an updated vacation bank status report which accurately reflects the employee's vacation bank as of the 15th day of each such month.
2. In the event employment is terminated, or an employee is otherwise separated from employment, the employee shall be paid for all unused and accrued vacation time, not to exceed a total of thirty (30) days or the number of days an employee had banked on April 30, 1989, whichever is greater, which shall be folded into final average compensation. The Union shall be provided with documentation on accrued vacation time for all retirees.
ARTICLE 14 CLOTHING AND CLEANING ALLOWANCE
A. Effective July 1, 2017, All officers shall receive seven hundred fifty dollars ($750.00) annually for uniforms and equipment. Effective July 1, 2013, the maximum balance an officer will be allowed to accumulate in their clothing allowance will be a total of three (3) years of their earned credit. Uniforms and equipment shall mean all police-related items offered by the clothing
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{:LOTHING AND CLEANING ALLOWANCE- Continued vendor and approved by the Department.
B. All newly-hired officers shall be furnished the initial uniforms and equipment designated for their rank. On the first anniversary date of their employment, officers shall receive a · prorated amount for the balance of the fiscal year in which their first anniversary date falls.
C. Officers working in plainclothes, regardless of rank, shall receive the annual clothing allowance. Clothing allowance for plainclothes officers shall be on a reimbursement basis. To insure prompt payment, requests for reimbursement must be made in accordance with the Cutoff Date Schedule for the City Council List of Bills procedure. Payment will be made within three (3) days of date of approval of such payment by City Council.
D. The Union may create a Clothing Committee, which Committee shall be empowered to meet with the Police Department administration from time to time to make recommendations with respect to uniforms and equipment.
E. All officers shall receive six hundred dollars ($600.00) annually as a cleaning allowance to be paid in the last pay period of each June. In the event that an employee is off duty for at least sixty (60) workdays during any fiscal year, this allowance shall be paid on a prorated basis. Upon termination, an employee shall receive payment of all cleaning allowance monies due.
F. The parties agree the uniform allowance for all Dispatch Supervisors shall mirror the uniform allowance received by Dispatchers in the Letter of Understanding dated December 18, 2017, between the City of Warren and the Warren Police Officers Association.
ARTICLE 15 LONGEVITY PAY
A. Longevity pay shall be paid on the following basis: Two percent (2%) of base pay after five (5) years of service. Four percent (4%) of base pay after ten (10) years of service. Six percent (6%) of base pay after fifteen (15) years of service. Eight percent (8%) of base pay after twenty (20) years of service. Ten percent (10%) of base pay after twenty-five (25) years of service.
"Years of service" shall be defined to include service from date of hire as an employee of the City of Warren.
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LONGEVITY· Continued
B. Longevity payments shall be computed upon the base pay of each employee up to a maximum base of thirty-one thousand dollars ($31,000) per year. The maximum base shall be increased effective July 1, 2007 to thirty-three thousand ($33,000) dollars per year. Effective July 1, 2008, the maximum base shall be increased to thirty-four ($34,000) dollars per year.
C. Employees shall receive longevity payments on their first paycheck following completion of the service year with all payments based upon anniversary date.
D. Upon separation of employment, an employee will be_ entitled to receive a prorated longevity payment of one-twelfth (1/12) of the annual longevity payment for each completed month of service since the last payment.
ARTICLE 16
LIFE INSURANCE The Employer shall provide all employees with a life insurance policy with a double indemnity clause without cost to the employees. The amount of the policy shall be in an amount equal to the current base pay of the individual member rounded to the nearest $1,000.00. A four thousand dollar ($4,000.00) policy shall be provided for employees who retire in the future at no cost to the retirees.
In addition to the base amount of group life insurance provided above, employees shall be offered the opportunity to apply for additional protection at competitive group rates with the City's insurance company. The City will contribute fifty percent (50%) of the premium with respect to these benefit amounts up to one hundred thousand dollars ($100,000) of additional coverage. If available from the insurance carrier, the City will also make available coverage as stated below:
1. The Employees can apply for additional coverage in increments of ten thousand dollars ($10,000) to a maximum of five hundred thousand dollars ($500,000). Coverage for the spouse is available in increments of five thousand dollars ($5,000) to a maximum of two hundred fifty thousand dollars ($250,000). Additional coverage for dependent children is available in the amount of five thousand dollars ($5,000) per child.
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2. The portion of the premium amounts to be paid by the employee shall be deducted from the Employee's paycheck as a payroll deduction. Enrollment meetings and forms shall be made available to Employees by the City.
ARTICLE 17 HOSPITALIZATION JNSU.RANCE
A. Effective October 1, 2011 and continuing until July 1, 2013, the Employer shall provide a medical insurance plan providing benefits no Jess than the benefits provided in the Blue Cross-Blue Shield Hospitalization Medical Plan known as Community Blue 3, with a $20.00 office visit/chiropractic benefit; $100 ER benefit and a $5/$25/$50 drug card with three tier formulary. Effective July 1, 2013, the Employer shall provide a medical insurance plan providing benefits no less than the benefits provided in the Blue Cross-Blue Shield Hospitalization Medical Plan known as Community Blue 4, with a $20.00 office visit/chiropractic benefit; $100 ER benefit and a $5/$25/$50 drug card with three tier formulary.
Prior to October 1, 2011, the Employer shall provide a medical insurance plan providing benefits no Jess than the benefits provided in the Blue Cross-Blue Shield Hospitalization Medical Plan known as MVF-1 with Master Medical, and including present riders plus a five dollar ($5.00) prescription rider. The change from a two dollar ($2.00) to a five dollar ($5.00) prescription rider shall take effect on date of ratification. As soon as possible following ratification of this agreement, the prescription drug rider shall be a five dollar ($5.00) prescription deductible for generic prescriptions and twenty ($20.00) for all non-generic or dispensed as written (DAW) prescriptions for current employees and also individuals in the bargaining unit who retire prior to October 1, 2011. Additionally, the prescription rider increase is not applicable to current retirees who retired prior to ratification. This plan, along with the riders, is to be provided for all employees and their families and retired employees and their families at no cost to the employees or retirees. Effective upon ratification of this Agreement, the one hundred fifty dollar ($150.00) annual deductible for one person members under Master Medical shall be increased to two hundred dollars ($200.00), and the three hundred dollar ($300.00) annual deductible for two or more person members under Master Medical shall be increased to four hundred dollars ($400.00) for current employees and also individuals in the bargaining unit who retire prior to October1, 2011.
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ttOSPJTALIZATION INSURANCE - Continued
B. Prior to July 1, 2013, the Employer shall provide all employees with the ML, IMB-OB, and OPC-OPPC Blue Cross-Blue Shield riders, with the premium paid for by the City. One annual routine "non-diagnostic" Pap test shall be provided to employees and retirees which shall not include the cost of the office visit. One annual routine "non-diagnostic" mammogram or prostate exam by a physician and diagnostic facility participating in the City's plan shall be provided to the employee and retirees, not to include the cost of the office visit. If the exams are administered by a non-participating physician or diagnostic facility, the City shall pay for a portion of the exams which shall not exceed forty dollars ($40.00) and not include the cost of the office visit.
C. The hospital and medical service plan shall provide for coordinated coverage between any available Federal program (Medicare), benefit, or plan which will in total result in benefits at least the same as those provided under the Blue Cross-Blue Shield Plan presently in effect at no cost to the retiree.
D. Employees and retirees shall have the option once a year, during the open enrollment period, to have medical/hospitalization coverage set forth herein or the Health Maintenance Organization. The Employer will have no obligation to give notice regarding the open enrollment period for retirees; notification will be the obligation of the retiree. Should the cost of the Health Maintenance Organization coverage be higher than said medical/health coverage, the employee or retiree shall pay the difference.
E. The health insurance benefits provided for in this contract are subject to the terms and conditions of the medical insurance plan selected by, or provided to, the employee. The terms and conditions of the HMO's and the City of Warren Medical Benefit Plan dated October1, 1986, as amended, and the Operating Agreements which have been provided to the Union are incorporated into the contract by reference. The benefits provided by the City of Warren Medical Benefit Plan dated October1, 1986, as amended, shall not be less than the benefits provided by the terms and conditions of the Blue Cross Plans referred to in Sections (A) through (D), but in the event any benefit of the City of Warren Plan is less than a benefit of said Blue Cross Plans, the City shall provide such improved benefit.
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J-IOSPITALIZATION INSURANCE - Continued F. The HMO, currently HAP, is eliminated effective July 11 2013. Effective October 11 2011
through July 11 20131 the HMO shall mirror Community Blue 3 co-pays and have the same drug card.

H. Employees hired before the 25th of the month shall receive medical insurance

coverage on the 1st of the following month. Employees hired on or after the 25th of the month shall

receive medical insurance coverage on the 1st of the second month following date of hire, subject

to the terms and conditions of the plans as provided in Section (F and G) above.

I.

Effective upon the ratification of this Agreement, notwithstanding anything herein

to the contrary, the City and the WPCOA agree to the following for those members of the

bargaining unit who are eligible to receive health insurance benefits under the city's medical plan:

1. Effective July 11 20061 the City will pay a three thousand dollar ($31000.00) cash per year incentive to eligible employees who elect to decline the City's medical plan insurance (health,

vision, dental) during the entire year. (The member shall be allowed to participate in the group

dental program provided they pay the cost of coverage). The payment will be paid to eligible

employees in December of each year. Employees who decline coverage during the year will receive

the sum of two hundred fifty ($250.00) dollars per month payable in December of each year for

each full month they did not have coverage.

2. Employees will be eligible to decline coverage consistent with the criteria established by

the City and its insurance carrier.

3. Employees will be able to re-enroll in the city's medical plan when they are covered under

health insurance from another source and lose that coverage. Re-enrollment shall occur as soon as

allowable under the applicable insurance policy.

4. When an employee makes a decision to re-enroll in the City's medical plan which is not

caused by the loss of health insurance from another source, that employee cannot re-enroll until

the next annual enrollment period.

5. This provision will be effective upon the first day of the second month after ratification

of the agreement. The cash incentive shall be available to eligible retirees until they become

Medicare eligible.

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ARTICLEt8 IlfNTAL INSURANCE/VISION CARE COVERAGE
A. All members shall be covered by a 75/25 Delta dental insurance program, or its equivalent, whereby the City pays the premium for such plan. These benefits shall apply to the employee, the employee's spouse, and the employee's dependent children.
The annual benefit limit for Class I and Class II benefits under the 75/25 Delta Dental Plan shall be increased to one thousand dollars ($1000.00). Effective July 1, 2006, the annual benefit limit for Class Iand Class II benefits shall increase to one thousand five hundred ($1,500.00). The lifetime maximum per eligible person for Class Ill benefits shall be Seven Hundred Fifty Dollars ($750.00). The above improvements will be offered as soon as they are available from the insurance carrier within sixty (60) days of ratification. The increases in the Class Iand II benefits shall not be applied retroactively, or made applicable to current retirees.
For individuals in the bargaining unit who retire after September1, 1994, they shall have fifty percent (50%) of their total monthly premium for 75/25 Delta dental insurance deducted from their monthly pension check should they elect such coverage. The remainder of the 75/25 Delta dental insurance premium shall be paid by the City. This option will be offered to eligible retirees as soon as it is available from the insurance carrier and shall apply to the retiree, the retiree's spouse and the retiree's dependent children.
B. All employees shall be covered by a vision insurance plan, unless a vision plan is provided to the employee by another City insurance program. The coverage under the vision plan is contained in Appendix Eattached to the collective bargaining agreement with a two hundred fifty dollar ($250.00) maximum every two (2) years
ARTICLE_i_9 INSURANCE ADVISORY COMMITIEE
A Health Insurance Advisory Committee shall be established consisting of not more than three (3) representatives from each party. The committee shall meetat least one (1) time quarterly to consider health and dental care issues, including issues pertaining to the existing plans, coverage, complaints, the sick and accident plan, workers compensation and alternative health and dental plans. The committee shall have the authority to make recommendations to the City as warranted. No change in existing health and dental benefits shall occur based on any
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INSURANCE ADVISORY COMMITTEE - Continued

recommendation without the written, mutual consent of the parties. The committee shall not

serve as a substitute for the grievance procedure nor preclude the filing of any grievance. With

the consent of the parties, the committee may meet in joint session with representatives from

other City bargaining units.

P.RTICLE 20

CIVIL LIABILITY

The City of Warren agrees to indemnify, save and hold harmless all employees covered by

this Agreement from and against all claims, or suits, based on negligence, tort, or civil rights

violations and shall include payment of damages, costs, losses and expenses arising out of the

defense of each and every action taken by a police officer in the course of and the performance of

their lawful duties as police officers to the extent of the monetary limits currently maintained in

the liability insurance carried by the City. Said indemnification shall include, but not be limited to,

false arrests, false imprisonment, malfeasance, nonfeasance, assault and battery, negligence, civil

rights violations or any other cause of action which is a result of actions taken by a police officer in

the course of and arising out of the lawful performance of his duties as a police officer. Said

indemnification shall either take the form of insurance coverage, including defense and payment of

judgment or settlement, or by providing of legal counsel and payment of judgment or settlement

at the option of the Employer.

ARTICLE.21

FUNERAL LEAVE

A. In the event of the death of one of the following listed relatives of an employee, the

employee shall be entitled to leave without loss of pay for a period not to exceed three (3) working

days:

Sisters Brothers Father-in-law Mother-in-law Sons-in-law

Daughters-in-law Sisters-in-law Brothers-in-law Grandparent on both sides Grandchildren

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B. If the funeral services are to be held at a place located three hundred (300) miles or more from the City of Warren, two (2) additional working days shall be allowed for a total of five (5) working days without loss of pay.

FUNERAL LEAVE - Continued

C. In the event of the death in the immediate family of an employee, the employee shall

be entitled to leave without loss of pay for a period not to exceed five (5) working days. The

immediate family of an employee is defined as follows:

Husband Wife Children Stepchildren

Mother Stepmother Father Stepfather

D. If a death occurs under these provisions while an employee is on furlough, upon
notice his status shall be changed to funeral leave.
ARTICLE .. 22
LEAV.E OF ABSENCE
A. Eligibility_Bequirements
Employees shall be eligible for leaves of absence after their probationary period is completed. No leave of absence, either paid or unpaid, shall be granted fora period of more than six (6) consecutive months, except as otherwise provided in this Article. Consecutive leaves shall not be granted. An employee shall not be eligible for another leave until twelve (12) months has elapsed since the last day of his preceding leave of absence. No employee on a leave of any type shall accrue vacation, sick leave or other leave time. Requests for all leave time must be approved in advance, in writing, by the department head after the request has been submitted to the employee's immediate supervisor.

B. ARJ:llication for Leave
1. Any request for a paid or unpaid leave of absence shall be submitted in writing by the employee to his immediate supervisor. The request shall state the reason for the leave of absence and the length of time of same.
2. Any request for a leave of absence shall be answered within ten (10) working days.
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LEAVE OF ABSENCE - Continued
C. Paid Leaves
. 1. Jury Duty: Employees shall be granted a leave of absence with pay any time they are required to report for jury duty or jury service. Employees shall be paid the difference between any jury duty compensation they receive and their regular wages for each day of jury service.
2. Witness Duty: Employees shall be granted a leave of absence with pay any time they are required by subpoena to report as a pertinent witness to appear in court in connection with their job or as a witness in a criminal or civil case when their presence serves the public interest.
Payment shall be made for hours actually served as a witness plus reasonable commuting time. No payment shall be made to any employee whose usual job duties involve testifying in court. Employees shall be paid the difference between any witness fees compensation they receive and their regular wages for each day their service is required.
3. Military Leave: Employees who are in any branch of the Armed Forces Reserve and/or the National Guard will be paid the difference in salary that the employee would have earned with the City and that which he earns during the normal fifteen (15) day annual training period and/or any additional service required by the appropriate authorities due to civil disturbances. Provided, however, that the total service time for which employees will not suffer loss of pay shall not exceed thirty (30) days in any one year. The Employer shall not require reimbursement of monies received by the employee for military service on his regular workdays off provided the City is supplied with the military pay voucher necessary to verify rates of compensation.
4. In addition to accruing seniority while on any paid leave of absence granted under the provisions of this Agreement, employees shall be returned to the position they held at the time the paid leave of absence was requested.
D. .Unpaid Leaves
1. Leaves of absence for a period not to exceed six (6) months, except as otherwise provided for herein, may be granted by the Employer for substantial reasons. The term "substantial reasons" shall be interpreted to include, but shall not be limited to, personal illness; injury; or other disability; family illness; active military service; union business; attendance required at a court trial; or education; if it is determined that such reason adversely affects the employee's job performance. Leaves of absence shall not be granted to permit an employee to engage in other employment or self-employment, or for any other reason not related to job performance.
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LEAVE OF ABSENCE - Continued 2. Union Business: Employees elected to any union office or selected by the Union to do work which takes them from their employment with the Employer shall, at the written request of the Union, be granted a leave of absence for the duration of their appointment.
3. Public Office: Employees elected or appointed to any public office which takes them
4. from their employment with the Employer shall, upon written request of the employee, be granted a leave of absence for the duration of their appointment.
5. Education: After completing one (1) year of service, any employee upon request may be granted a leave of absence for educational purposes in accordance with the provisions of Paragraph 1.
6. Military Leave: Any employee who enters into active service in the Armed Forces of the United States while in the service of the Employer shall be granted a leave of absence for the period of his military service in accordance with the Veterans' Preference Act.
7. Employees shall not accrue seniority while on an unpaid leave of absence oversix(6) months. Employees shall not be entitled to any fringe benefits during the period of the leave. Employees shall not accumulate any service time for fringe benefit computation purposes while on an unpaid leave. Employees shall accrue seniority and retirement service credit while on unpaid leaves of six (6) months or less. Nothing in this paragraph shall contravene the Veterans' Preference Act.
Notwithstanding any provision herein to the contrary, employees on leave for union office or public office shall continue to accumulate seniority for duration of the leave.
ARTICLE 23 JURY DUTY
Employees required to serve jury duty may do so without any loss of wages (limited to eight (8) hours of regular pay) or benefits. Provided, however, an employee shall be required to return to work if released from jury duty for the day more than one (1) hour prior to the end of his assigned shift. Any jury duty fees received by the employee shall be assigned to the City.
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EDUCATIONAL INCENTIVE PROGRAM A. All members, including Dispatch Supervisors, shall be entitled to participate in an
educational incentive program under which the City shall pay officers, who have completed four (4) years of service as officers with the Warren Police Department, two hundred dollars ($200.00) for a Certificate, four hundred dollars ($400.00) for an Associate Degree in Police Science and/or Police Administration from an accredited college or university. Notwithstanding any amounts received as a member of the WPOA, there shall be a six hundred dollar ($600.00) annual payment for a Bachelor's Degree. These benefits shall be paid the second payday in August. Upon separation of employment, an employee will be entitled to receive a prorated educational incentive payment.
B. The City will reimburse Dispatch Supervisors for educational costs incurred in furthering educational objectives subject to the following criteria and conditions.
1. Dispatch Supervisors shall obtain prior approval for any educational program from the Commissioner of Police. The Commissioner's decision on which classes are subject to this program shall be final and not subject to the grievance process.
2. The course or program must be reasonably related to the Dispatch Supervisor's work or assignment.
3. Dispatch Supervisors must complete the course with a satisfactory grade of "C". Evidence of successful completion must be submitted along with the request for reimbursement.
4. The City will pay a maximum of five hundred dollars ($500.00) per year for educational improvement per Dispatch Supervisor.
ARTICLE25
{;UN ALLOWANCE/HAZARD PAY All officers in the bargaining unit shall be provided annually with a seven hundred and fifty
dollar ($750.00) allowance representing compensation for carrying their weapon forthe preceding period July 1to June 30, to be paid the last pay in June. Effective July1, 2007, officers shall receive nine hundred fifty ($g50.oo) dollars annually. Officers on sickness and accident may be subject to proration and shall be paid no later than the last pay in July. Jn the event that an officer
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GUN ALLOWANCE/HAZARD PAY CONT, is off duty at least sixty (60) days during any fiscal year, this allowance shall be paid on a prorated basis. Upon termination, an employee shall receive payment of all gun allowance monies due.
ARTIC_l.E 22 RETIREMENT
A. As provided in Chapter16, Section 16.1 of the Warren City Charter, all officers shall be covered by Act 345 of the Public Acts of 1937, as amended. Provided, however, that the annuity factor for officers retiring after July 1, 1982 shall be increased to 2.5% for each year of service for the first twenty-five (25) years and 1.0% for each year thereafter. Final average compensation shall continue to be computed upon the best three (3) of the last ten (10) years of an officer's service. The method of computing final average compensation shall continue in accordance with past practice, except that employees eligible to retire and who do retire between December 1, 2007 through February 28, 2008 shall have their percentage of final average compensation increased by an additional two (2%) percent, notwithstanding any restrictions or limitations contained in this article, or otherwise. Final average compensation shall include base wage, cost of living allowance, overtime, longevity, holidays, shift differential, education allowance, gun allowance, and any other compensation which was received by an employee each year for work done in that year, and shall also include payments for accumulated sick and vacation time, but shall not include clothing and cleaning allowance.
B. Officers shall be entitled to "buy back" military service credit as permitted under Act 345 of the Public Acts of 1937, as amended. Maximum to be up to six (6) years credit. Officer payment into system to be five percent (5%) of his full-time compensation subject to the following rules:
1. Officers who were employed prior to November?, 1977to be allowed five (5) years from July 1, 1977 to exercise this option.
2. Officers who were hired after November 7, 1977 to be allowed three (3) years from the date of hire to exercise this option.
3. Repayment to pension system to be made within three (3) years through monthly payroll deductions.
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RETIREMENT- Continued

4. The City reserves the right to make its pension contribution over the same

number of years as the officer.

5. In no event will the City institute increased pension payments resulting from

military service credit until the entire service credit is paid in full.

Officers shall have until June 10, 1991 to exercise their option to buy back military service

credit as provided herein, at the pay rate in effect on July 1, 1989. Effective June 11, 1991, officers

who have not exercised their option to buy back military service time may buy back prior military

service time at the actual cost as determined by the Retirement System's actuary without cost to

the City.
c.

Officers shall be entitled to "buy back" prior Cadet and Police service time for

purposes of accumulating years of service toward retirement. The "buy back" option may be

exercised in the same fashion as military time "buy back." Maximum to be three (3) years credit.

Ibis optionmust be exercised by June 10, 1991< Repayment to the pension system shall be made

within three (3) years of exercising the "buy back" option through monthly payroll deductions.

Employee payment into system to be five percent (5%) of his full-time compensation, at the pay

rate in effect on July 1, 1989. Effective June11, 1991, officers who have not exercised their option to

buy back time may buy back prior Cadet and Police service time at the actual cost as determined by

the Retirement System's actuary without cost to the City. Effective July 1, 2011, the City will allow

the purchase of layoff time at the employee's sole expense for employees laid off on July 1, 1998.

The WPCOA agrees that the cost of the actuarial reports will be borne solely by the Association.

Members who purchase layoff time and retire prior to October1, 2011 shall receive health insurance

in retirement as if they had retired under the 2006-2009 contract.

D. Effective July 1, 2011, officers shall pay three percent (3%) pension contribution.

Employees to receive refund of excess contributions from July 1, 1986 in lump sum. The City shall

begin reimbursing the Retirement System for the above employee contributions upon the next

regular annual actuarial evaluation. The City's contribution to the defined contribution (annuity)

account is reduced to 2% effective July 1, 2011.

E. The parties hereby further agree that the current pension plan or any of its

provisions may not be changed, except in those areas which are administrative in their function

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RETIREMENT- <:ontinued and do not change the substantive benefits of the employees. No employee shall suffer a reduction of retirement benefits as a consequence of the signing of this Collective Bargaining Agreement.
F. If an officer on a disability pension dies but has failed to elect an option prior to age 55 or before regular retirement, the surviving spouse shall receive a reduced actuarial pension (as defined under Option I, MCLA 38.556(1)(h)) notwithstanding the retiree's death.
G. There shall be no residency requirement for any bargaining unit member. H. Optional Annuity Withdrawal: All officers shall have the right to elect to receive on the effective date of their service retirement a partial or total refund of their accumulated contributions. If an officer makes such an election, the annuity payable under any retirement option shall be reduced proportionately. Such optional annuity withdrawal is intended to give each employee the right to immediately withdraw upon retirement all or part of the employee's accumulated contributions subject to the following provisions:
1. If an officer makes such an election, the retirement allowance shall be reduced to reflect the value of the employee contribution (annuity) withdrawn.
2. The Police and Fire Retirement Commission shall utilize the monthly interest rate reflecting current market conditions as published by the Pension Benefit Guarantee Corporation (PBGC) to be used as the assumed rate of investment return in calculating the forfeited benefits upon annuity withdrawal.
3. The optional annuity withdrawal shall accrue to all officers who become eligible for retirement under the provisions of Act 345 effective July 1, 1982.
4. If an officer retires before twenty-five (25)years of actual service through the use of military service credit, that officer shall not be entitled to withdraw the amount contributed to buy back such military time.
I. The parties agree that the de facto operation of the Retirement System for the employees of the City of Warren, since at least July 1, 1986, consists of a Defined Benefit Plan, commonly referred to as a pension plan and a defined contribution plan, commonly referred to as an annuity plan which plans have been treated by the parties to this Agreement and the Board of Trustees of the Retirement System as qualified plans under the provisions of the Internal Revenue
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RETIREMENT- Continued Code. The parties will continue the qualified status of the two plans within the Pension Trust Fund and agree to take action which may be required by Internal Revenue Service rules and regulations and the tax laws to maintain qualified plan status of the defined benefit plan (pension plan) and the defined contribution plan (annuity plan) under Section 401(a) or any other applicable Section of the Internal Revenue Code. The parties will request, and cooperate with, the Board of Trustees to apply for qualified plan status determination letters for each (i.e., the pension and annuity) of the plans of the Retirement System. It is agreed that, other than additional administrative and processing costs, the actions required by the City pursuant to this Section shall not result in additional costs to the Employer or the Pension Fund. It is further agreed that the provision set forth herein shall not result in diminution or loss of any employee benefits under the Pension Trust Fund.
J. Employees eligible to retire July 1, 2013 through June 30, 2017 with a regular service retirement (voluntary retirement, twenty-five (25) years or more of credited service) and who retire within one hundred twenty (120) days of eligibility or ratification, whichever is longer, shall receive a lump sum payment of five thousand dollars ($5,000.00).
K. Retirement incentive payments made under Paragraph J above shall be made on the second pension check from the Retirement System and shall not be included in the final average compensation. The City shall begin reimbursing the Retirement System for such payments upon the next regular annual actuarial evaluation.
L. Effective July 1, 1992, and ending June 30, 1996, the cost of health insurance for retirees shall be paid by the Retirement System. The City agrees to fund the system at the rate determined by the actuary on a percentage of payroll on an annual basis. Retirees shall continue to receive all health insurance benefits as currently detailed in Article 17.
M. Effective July 1, 1992 and continuing on July 1, each year thereafter, all WPCOA retirees, or their beneficiary if the retiree is deceased, whose pension is below the equivalency of forty percent (40%) of a top-paid Sergeant's salary shall receive two hundred dollars ($200.00) cost of living adjustment per year. One-half (1/2) of such payment shall be paid on the pension check received in December and one-half (1/2) on the pension check received in June of each year. On
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RETIREMENT- Continued

July 1 of each year, any cost of living adjustments made in the previous year will be added to the

retiree's pension and divided into twelve (12) equal payments.

N. Retirement program as outlined in the GELC Local 227 contract will apply to Dispatch

Supervisors. Any pension changes negotiated in the GELC Local 227 contract shall also apply to

Dispatch Supervisors.

0. The following shall apply only to officers hired on or after July 1, 2000:

1.

The employee pension contribution shall be 5%;

2.

Officers retiring with twenty-five (25) years of service shall not receive

annual pension payments in an amount in excess of eighty percent (80%) of

base pay at the time of retirement; eighty-one percent (81%) at twenty-six

(26) years, eighty-two percent (82%) at twenty-seven (27) years, eighty-three

percent (83%) at twenty-eight (28) years, eighty-four percent (84%) at

twenty-nine (29) years, eighty-five percent(85%) at thirty (30) or more years.

3.

It is understood that base pay shall not include any benefits, except that

where an employee is receiving premium pay in a preferred job for at least

twelve (12) months immediately prior to retirement, the applicable base pay

rate shall include the premium pay adjustment.

4.

Employees must have twenty-five (25) years of service to obtain retiree

health insurance, provided that:

(a) Time brought shall equal time served;

(b) An employee who has attained the age fifty-five (55) and retires with

at least ten (10) years of service shall be eligible for the full retiree

health benefit, except that if the employee has other health

insurance, the other insurance shall be primary and the City health

benefit shall be secondary.

(c) There shall be no change with respect to health benefits for

employees eligible for a duty or non-duty disability retirement.

In the calculation of the pension benefit only for members of the bargaining unit, wages and other

FAC includable benefits received retroactively as part of a contract settlement, or resolution, shall,

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RETIREMENT- Continued

where a settlement, or resolution, exceed eighteen (18) months from the expiration of the prior

agreement, be applied to the year in which the wages were earned. Where the settlement, or

resolution, occurs prior to the expiration of eighteen (18) months, the retroactive wages shall be

applied to the year the amounts are paid to the employee. In view of the above, the parties agree

to commence negotiations for a successor agreement, in good faith, on or before March 1, 2006.

This provision shall not effect actual payment of retroactive wages and benefits. This provision will

become effective only upon the expiration of this Agreement.

P. Dispatch Supervisors hired before July 1, 2000 shall have the option to remain in the

existing Defined Benefit Pension Plan applicable to Dispatch Supervisors or to participate in the

Defined Contribution Pension Plan as set forth below and in accordance with the funding options

contained in paragraph 3. The defined benefit program applicable to Dispatch Supervisors is set

forth under the provisions of the General Employees Retirement System as amended, or modified,

by the 1999-2003 AFSCME Local 1250 collective bargaining agreement.

1. Effective July 1, 2000, all newly-hired Dispatch Supervisors shall receive

retirement benefits through 401 (A) Defined Contribution Pension Plan. Such new hires will not be

entitled to the retirement benefits provided in the Defined Benefit Pension Plan. Such defined

contribution pension benefits shall be in lieu of all City of Warren charter and/or ordinance pension

entitlements. The vesting schedule for new hires applied to the Defined Contribution Pension Plan

shall be twenty percent (20%) per year with full vesting upon completion of five (5) years of service.

All City contributions shall be allocated to the savings oriented model portfolio until the new

employee is fully vested in the Defined Contribution Pension Plan. All new employees joining the

service of the City on or after July1, 2000 will be provided the 401 (A) Defined Contribution Pension

Plan with the following options:

10% City contribution

4% Employee contribution

While the 401(A) Defined Contribution Pension Plan benefits are mandatory for new Dispatch

Supervisors, the benefits shall be an option for current dispatcher supervisors who may choose to

convert their defined benefit pension rights to the Defined Contribution Pension Plan. Said plan

shall be in lieu of the defined benefit pension plan benefits. The conversion of benefits to the

Defined Contribution Pension Plan shall be done using the actuarial equivalent of the pension

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.RETIREMENT- Continued
payable at the earliest eligibility date for normal retirement, reduced to the present value at the
time of the transfer. Other assumptions for valuation include the use of the 1984 group annuity
mortality table with a 50/50 unisex mix. Values are discounted to current age, using only interest at
7.5%. Final average compensation for purposes of computing transfers shall be calculated as
follows:
o to 3.0 years credited service - current base pay plus 5% 3.1 to 9.0 years credited service - current base pay plus 10% 9.1to18.0 years credited service - current base pay plus 15% 18.1 or more years credited service - current base pay plus 19%

Current base pay is defined as base wages, as modified by this agreement including

all percentage increases and wage inequities in effect at the time of conversion. It shall also

include any step increases from the pay plan and any other base pay adjustments in effect at the

time of the conversion.

2. Current members who elect to transfer to the 401 (A) Defined Contribution

Pension Plan shall be eligible for immediate unconditional vesting and will have the following

funding options:

15% City contribution

3% Employee contribution

3. The City shall provide a voluntary employee benefit association (VEBA) trust

as a disability fund for the Defined Contribution Pension Plan. A member who transfers into the

Defined Contribution Pension Plan shall retain the same disability pension benefit as presently

exists; however, the City shall have the option of substituting a disability insurance policy with a

benefit that is equivalent to the amount of disability pension that the member is entitled to under

the Defined Benefit Pension Plan. The full premium cost shall be borne by the City, and maintained

in effect until the date the member leaves the employ of the City, or retires. The City's liability for

the disability benefit shall be offset: (1) by any amount which may be payable pursuant to the

Workers' Compensation Act, if applicable; and (2) by the lifetime annuity value of the employee's

401 (A) defined contribution retirement account, determined as of the effective date of the

employee's disability-related separation from service. The member, at his option, may secure

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RETIREMENT- Continued
additional coverage on a contributory basis under a Section 125 flexible benefit plan. The program will expressly be subject to the rules and regulations of the insurance carrier.
4. The Defined Benefit Contribution Plan shall include investment manager and investment options to allow members to direct their accounts. The Plan shall further provide for the regular accounting of member accounts.
5. The Board of Trustees for the Defined Contribution Pension Plan shall consist of the Controller, or his designee; one (1) Mayoral designee, one (1) City Council designee; and two (2) members to be selected from and elected by the membership of the Defined Contribution Plan.
Q. The Retirement System provides benefits in accordance with Public Act 345of1937, as amended, and the Collective Bargaining Agreement. Act 345 recognizes that retirement benefits are a mandatory subject of collective bargaining and that the provision of Act 345 may be amended by agreement of the parties. The parties acknowledge and agree that the payment of pension and health care benefits for retirees are financial obligations of the City for which the City appropriates Act 345 millage assets. The parties agree that the annual Act 345 appropriations shall continue to be allocated to fund the pension obligations with the balance of such amounts to be allocated to pay and pre-fund the costs of retiree health care which funds shall be held in trust and administered by members who serve on the Retirement Board. It is agreed that retiree health insurance becomes a retirement benefit upon the retirement of the employee. Upon retirement, retiree health insurance cannot be changed. The City shall maintain funding for the pension system at the level of one hundred percent (100%). In the event that the actuarial evaluations as of December 31 of any year shows funding to be at a level less than one hundred percent (100%), the
City shall have twelve (12) months from receipt of the evaluation by the City to bring funding back
up to the one hundred percent (100%) level. A special levy for police pensions may be used to fund health care for retired WPCOA members.
R. Any members of the bargaining unit hired by the City of Warren, on or after July 1, 2001, shall maintain any pension or retiree health care benefit brought with them through their affiliation with the WPOA.
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ARTICLE 27 PROMOTION EXAMINATION PROCEDURE
A. All promotional examinations shall be governed by the provisions of Act 78 of the Public Acts of 1935, as amended.
B. Promotions to the rank of Lieutenant shall be predicated upon results of a written examination valued at 60% of the total score; an inside oral valued at 20% of the total score and consisting of a five-person board with high and low scores discarded; and an outside oral valued at 20% of the total score and consisting of a three-person board.
C. Seniority points will be added to the total scores and will be calculated in the following manner: Y, point per year for each year of Department service and an additional Y, point per year for each year in grade/rank to be figured on a monthly basis of 1/24 of a point for each completed month of service.
E. Promotional lists shall run consecutively. A new promotional list shall be deemed effective upon expiration and/or exhaustion of the prior promotional list (no gap).
ARTICLE28 TRIAl.BOARD HIARINGS
All employees appearing before a Department Trial Board shall have the rights of appeal as provided in the grievance procedure of this Agreement.
ARTICLE 2_9 GBIEVANCE PROCEDURE
A. A grievance under this Agreement is a dispute, claim, or complaint arising under and during the term of this Agreement and filed by an employee in the bargaining unit or policy grievances by the Union. Grievances are limited to matters of interpretation or application of express provisions of this Agreement and memorandums of understanding executed by the parties which state that they are subject to the grievance procedure.
B. Every employee in the bargaining unit shall have the right to present grievances in accordance with the procedure provided herein.
C. The parties, recognizing that an orderly grievance procedure is necessary, agree that each step must be adhered to and an earnest effort shall be made to promptly resolve grievances
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GRIEVANCE PROCEDURE - Continued in accordance with the procedure provided herein. Resolution at the lowest possible level of supervision is encouraged.
D. Grievances shall be filed in writing within fifteen (15) days of the event, occurrence, or reasonable knowledge of the facts giving rise to the grievance. Once filed, the time limits provided hereinafter may be extended upon the mutual agreement of the Union and the City. For purposes of this Article, all time periods shall be calendar days.
E. Grievances not appealed in writing by the Union to the next step within fifteen (15) calendar days, except as hereinafter provided for medical grievances, shall be considered settled, without prejudice, on the basis of the last answer (provided that, in cases concerning medical grievances, the Union shall have an additional sixty (60) calendar days from receipt of the first step answer to appeal such answer to the second step). Grievances not answered on time may be moved to the next step. All time limits of the grievance procedure may be shortened or extended by mutual agreement in writing.
F. Grievances shall be processed according to the following procedure:
An employee who believes he has a grievance may discuss his complaint with his immediate supervisor, with or without the presence of his unit representative. The parties shall discuss the grievance in a friendly manner and shall make every effort to reach a satisfactory settlement atthis point. The employee shall have the right to discuss the complaint with his unit representative before any discussion takes place with the supervisor. The supervisor shall make arrangements for the employee to be off his job for a reasonable period of time in order to discuss the complaint with his unit representative.
Step 2. If the matter is not satisfactorily settled by oral discussion at Step 1, a grievance may be submitted in written form by the unit representative to the Commissioner. The written grievance shall set forth the nature of the grievance, the date of the matter complained of, the name(s) of the employee(s) involved, so far as diligent effort will allow, and the provisions of the Agreement, if any, that the grievant claims have been violated. The Commissioner will hold a meeting with the members of the Grievance Committee which will be held within seven (7) days after referral to this
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.GRIEVANCE.PROCEDURE - Continued step to discuss the grievance. If not satisfactorily adjusted at this meeting, the Commissioner shall give his written answer within seven (7) days of the meeting.
St.eJ23.. If not satisfactorily settled at Step 2, the grievance may be referred to the Labor Relations Director. A meeting between the Labor Relations Director and/or his designated representative(s) and members of the Grievance Committee shall be held within seven (7) days after referral to the Labor Relations Director to discuss the grievance. If not satisfactorily adjusted at this meeting, the Labor Relations Director or his designated representative shall give his written answer within fourteen (14) days of the meeting.
1. Any unresolved grievance, having been processed through Step 3 of the grievance procedure, may be submitted to arbitration by either party in accordance with this Article. The right to proceed to arbitration shall exclusively be held by the Union and the City only. Arbitration shall be invoked by filing a demand to arbitrate with the American Arbitration Association or Federal Mediation and Conciliation Service within the time limits hereinafter provided.
2. The arbitrator shall limit his decision strictly to the interpretation, application or enforcement of this Agreement and he shall be without power and authority to make any decision:
a. Contrary to, or inconsistent with, or modifying or varying in any way, the terms of this Agreement.
b. Granting any wage increases or decreases. c. Granting any right or relief for any period of time whatsoever prior to the
execution date of this Agreement. This shall not be the case, however, with regard to grievances over wages, hours, or other terms and conditions of employment which were made effective prior to the execution date of this Agreement. 3. The arbitrator shall be without authority to require the City to delegate, alienate or relinquish any powers, duties, responsibilities, obligations or discretions which by State law or City Charter the City cannot delegate, alienate or relinquish.
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GRIEVANCE PROCEDURE- Continued
4. The decision of the arbitrator in a case shall not require a retroactive wage adjustment in another case, except by express agreement of the parties.
5. The decision of the arbitrator shall be final and binding upon the City, the Union, and the affected employee(s), and there shall be no appeal from the arbitrator's decision, if made in accordance with his jurisdiction and authority under this Agreement.
6. The right of either party to invoke arbitration over an unadjusted grievance is limited to a period of forty-five (45) days from the final action taken on such grievance under Step 3 of the grievance procedure, and any grievance not submitted within such period shall be deemed settled on the basis of the last answer given by the City.
7. In the event a case is appealed to the arbitrator and he finds that he has no power to rule on such case, the matter shall be referred back to the parties without decision or recommendation on the merits of the case.
8. The expenses of the arbitrator shall be the responsibility of the City and the Union in the following manner. The City and the Union shall individually make arrangement for, and pay the expense of, their respective witnesses who are called by them. The expenses of the arbitrator shall be shared equally by the City and the Union.
9. The aggrieved, a local representative, and witnesses testifying before such proceeding shall not lose pay for the time off the job while attending the arbitration proceedings.
10. All records, reports and other information pertaining to a grievance which the requesting party seeks to utilize in an arbitration proceeding shall be made available for inspection by the requesting party within ten (10) days from written request to the Labor Relations Director for the Employer or the President for the Union, or twenty (20) days prior to the arbitration hearing, provided a request for a specific document(s) is made in a timely manner. Failure to provide the requested information shall preclude the party from whom it was requested from introducing it as evidence in arbitration. Provided, however, this provision shall not preclude either party from making subsequent requests or providing additional information. Neither party shall have ex-parte communications with the arbitrator at any time concerning the factual merits of the case, and copies of all written correspondence between a party and the arbitrator shall be provided in a timely manner to the other party.
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GRIEVANCE PROCEDURE - Continued
11. The City and the Union may mutually agree to submit a case to expedited arbitration under procedures agreeable to the parties, where both parties agree that expedited arbitration would be beneficial.
G. Notwithstanding any other provisions herein, individual employee(s) may present their own grievances to the Employer and have them adjusted without the intervention of the Union; providing, however, that the Employer has given the Union notice and an opportunity to be present at such adjustment. In no event shall any such adjustment be contrary to or inconsistent with the terms of this Agreement.
H. Policy grievances may be submitted by the Union to the second or third step of the grievance procedure.
I. In instances where the subject matter of the grievance lies within the jurisdiction of specific City agencies (e.g., Payroll, etc.), the grievance steps may be reduced in order to bring the grievance to the agency's immediate attention for a recommendation as to the action to be taken at Step 3; provided, however, that in such cases an informational copy of the grievance will also be filed with the Labor Relations Department.
ARTICLE Jo UNION BUSJNESS
A. The City agrees to provide three (3) days per contract year for three (3) representatives of the Union to attend conventions and/or labor seminars without loss of pay.
B. The Union shall be represented in contract negotiations with the City by a committee comprised of not more than five (S) members of the Union, plus, if it chooses, any outside person or organization designated by the Union as its official representative. No more than one (1) of the Union members of the committee may be from the Investigative Services Bureau. Not more than one (1) of the Union members of the committee may be from the same platoon of the Uniform Division of the Road Patrol Division. Voluntary transfers shall be permitted to accommodate the provisions of this Article. If voluntary transfers cannot be accommodated, the members shall be permitted to remain on the bargaining committee. Members of the bargaining unit shall be excused from their regularly scheduled shift on the days which have been scheduled (as agreed to by both the WPCOA and the City) for bargaining meetings. Platoon One bargaining committee
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!.INION BUSINESS· Ymtinued
members will be excused the following day after negotiations. If negotiations go into other than normal hours, the City will make the proper arrangements. In the event a negotiation meeting is canceled by the City more than twenty-three (23) hours from its scheduled time or canceled by the Union at any time, the bargaining unit members who are otherwise scheduled to work shall report to their regular shift.
C. The Association shall be provided a total of five (5) days with no loss of pay to conduct Association business.

SENIORITY

A. Seniority shall be determined first by the employee's rank, date of rank, and finally

by the officer's length of service in the Department. Provided, however, that if time in rank is equal

then the Police and Fire Civil Service eligibility list by which those officers were promoted shall

prevail regardless of Department seniority. In the case of Dispatch Supervisor, seniority

commences with the date of hire as a Dispatch Supervisor with the City of Warren. Dispatch

Supervisors shall serve a six (6) month probationary period from date of hire as a Dispatch

Supervisor. Time spent in the Armed Forces on military leaves of absence and time lost because of

duty-connected disabilities shall be included, except as provided in Article 22 herein.

For the purposes of this Agreement, new employees shall acquire seniority upon

completion of their probationary period.

B. An employee shall forfeit seniority rights for the following reasons only:

1.

He is reduced in rank for cause (in-grade seniority only).

2.

He resigns.

3. He is dismissed and not reinstated.

5. He retires.

C. The seniority provisions of this Article shall apply for purposes of transfers, shift

assignments, and matters of similar import, but shall not apply where inconsistent with other

Articles of this Agreement incorporating certain provisions of Act 78 of the Public Acts of 1935, as

amended.

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SENIORITY - Continued
C. Notwithstanding the provisions of this Article, the person who is elected as President of the Warren Police Command Officers Association shall be considered to stand as number one on the seniority list for shift selection purposes only.
ARTICLE32
LAYOFFS A. When there is an impending reduction in force within the bargaining unit, the City
shall immediately inform and consult with the Union as soon as there is any possibility of said reduction in force.
B. Layoff and recall shall be subject to the provisions of Act 78 of the Public Acts of 1935, as amended. Or, in the case of Dispatch Supervisor, layoff and recall shall be in accordance with the present provisions of City Civil Service.
ARTICLE33
TRANSFERS AND SHIFT ASSIGNM.ENTS The Department shall make job assignments within the ranks of Police Lieutenants and
Sergeants on the following basis: A. Job assignments shall be made in order of rank seniority, except as provided in
Section J, from a list established for this purpose by the Department. B. When the department anticipates an assignment opening, it shall post the
assignment for a period of ten (10) days. The eligibility list shall be effective for a period of thirty (30) days. The department shall fill the posted job by seniority from the posted list. In the event that there are no transfer requests the position will be filled by reverse seniority.
The Department shall, at its discretion, conduct an interview and/or an objective written pass/fail test for the purpose of determining whether the applicants meet the posted qualifications. Notification of a written objective test shall be included in the job posting. Said posting shall also identify the materials from which said written objective test is based. The Department shall provide said materials to the applicants in an equalized fashion. The Department shall determine whether or not an applicant either meets or fails to meet the posted qualifications. Any applicant who fails to meet the qualifications may submit the matter to the grievance procedure in order to show that said determination was unfair, arbitrary or capricious. In the event
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TRANSFERS AND SHIFT ASSIGNMENTS - Continued
the Department determines it will administer an objective written pass/fail test, it may be given more than once if it is given in two (2) consecutive sessions (no time gap between sessions). The Department will take all reasonable steps to preserve the integrity of the test. Employees taking the test off duty shall receive call-in time. If more than fifteen (15) employees sign up forthe test, only the top fifteen (15) seniority employees would be permitted to take the test.
If none of the fifteen (15) most senior applicants passes the test or accepts the assignment, the remaining applicants (15 at a time) shall be given the opportunity for testing. The list (from original posting of eligibility list) shall remain in effect for one (1) year or until all applicants have had the opportunity for testing and the list has been exhausted, whichever occurs first. Testing under Paragraph B shall take place among persons on the assignment lists only when it is anticipated that there shall be a position vacancy.
C. In posting for each job, the Department agrees to create and maintain job descriptions including rank designations clearly specifying the functions, duties and requisite skills and abilities for each supervisory position.
D. Any officer accepting a job assignment may be removed for unsatisfactory performance during an initial one hundred twenty (120) day performance evaluation period. Any officer removed from the position during said period shall, upon request, be advised of the reasons for same in writing.
E. Except as provided above, any officer accepting a job assignment shall remain in that assignment for a minimum period of at least one (1) year unless otherwise agreed by the Employer and the Union.
F. 1. The listing of officers filing written requests for the job for each posting as set forth above shall remain in effect for a period of one (1) year from the date the job was initially posted.
2. From among applicants who have met the posted qualifications for an assignment, a list shall be established in order of rank seniority, with the highest rank seniority applicant receiving the assignment.
3. The officer entitled to an assignment must provide his/her acceptance to the office of the Chief of Police within twenty-four (24) hours after actual notice. The failure to accept or
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TRANSFERS AND SHIFTASSIGN_MENTS- Continued
respond within the time period shall be deemed a rejection. Issues regarding actual notice may be presented at a special conference attended by the Commissioner or designee, and the W.P.C.O.A. President, or designee. If a dispute over actual notice is not resolved at the special conference, the matter may be submitted to the grievance procedure by the W.P.C.O.A.
4. When an officer declines a position he/she is removed from the eligibility list and the position is offered to the next eligible officer.
5. All officers who have filed written requests for a job and are on an established list shall, upon notification by the Department, accept or decline the position offered. Failure to reply will be considered a declination.
6. The Department will notify at least the first officer from an established list, and may, at the Employer's discretion, notify additional officers from the established list. When an officer declines a position, he or she will be removed from the eligibility list and the position will be offered to the next eligible officer. Those officers who accept in writing, but are not selected, shall not be considered as having declined the position.
G. The Department may make temporary assignments of officers which shall be limited to ninety (90) days. Such temporary assignments shall not create a preference for that officer in permanently filling the position. In no event will temporary assignments be used to evade the posting and selection procedure set forth below.
H. 1. Shift assignments shall be made in accordance with the preference of each individual member as controlled by seniority, except in those cases where the effectiveness and efficiency of the Department require otherwise. The Department may assign the member of the Patrol Services Bureau having the least seniority in excess of one (1) year. In any departure from stated preferences, any member shall upon request be informed of the reasons for same in writing.
2. When a member transfers into a division where shift selections apply, that member shall be allowed to complete a "Shift Preference Sheet," and then be considered along with other applicants based on seniority in rank and shift preference.
3. In the event there are openings available on more than one shift, the same procedure shall apply.
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JRANSFERS AND SHIFT ASSIGNMENTS - Continued
4. Once a member has been placed on his primary shift selection, he is to remain in that shift until the following shift selection.
5. If there are no openings available on a particular shift, no members shall "bump" a member of that shift, regardless of seniority in rank, until the following shift selection period. For example, if there is an opening on the midnight shift, and no members apply for that opening, the member transferring in must go to the midnight shift opening and cannot "bump" a member with less seniority in rank from one of the other two shifts until the next shift selection period.
6. Officers who transfer into the Road Patrol Division of the Patrol Services Bureau after the shift selection period, and prior to the implementation of the shift assignment, shall be allowed an opportunity to select a primary and secondary shift choice as if they had been assigned to the Road Patrol Division of the Patrol Services Bureau during the shift selection period.
The Department shall then realign to accommodate the shift preference of the officer who is transferring into the Road Patrol Division of the Patrol Services Bureau, based upon that officer's seniority as it affects the shift selection process.
Officers who were assigned to the Road Patrol Division of the Patrol Services Bureau during
the shift selection period, and who were offered an opportunity to select a primary and secondary shift selection, are to be held to their primary and secondary choice. No changes in the document submitted will be allowed after the date specified by the Department ending the shift selection period.
For purposes of clarification, the following definitions are provided: Shift Selection Period: That time period, as determined by the Department, where officers are offered an opportunity to select a primary and secondary shift selection. Shift Assignment: A one (1) year period, to begin on a date determined by the Department, that an officer works on a designated shift as determined by seniority through the shift selection process. I. 1. All officers shall be provided with reasonable advance notice before any transfer or shift assignment is effectuated. In any case where an officer is denied a transfer after having requested same, or is transferred without having requested same, the written reasons for same shall be provided and discussed with the officer, if so requested.
47

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TRANSFERS AND SHIFT ASSIGNMENTS - Continued 2. When an officer is involuntarily transferred for reasons beyond his control such as
job elimination, that officer shall be allowed to return to the position he previously held, providing he has more seniority in rank than the officer presently holding that position.
3. The above guidelines are intended for transfers in general but situations may arise that do not fit these guidelines. In those situations, the transfers will be decided on their own merits.
J. Captains and their Executive Lieutenants, SID Lieutenant, SID Sergeant, Sergeant(s) in the Detective Bureau, Special Operations Supervisor, Staff Sergeant and one (1) of two (2) SRT Sergeants are exempt from this Article and may be filled with the Employer's discretion subject to the procedure contained in Section M below. Should the Employer decide to create a separate position of Internal Affairs Lieutenant or the position known as COMET, they shall be filled under Sections J and M.
K. In the event that any new positions are created, the parties shall negotiate whether the new position falls under Section A or Section J of this Article.
L. Notwithstanding any section of this Article to the contrary, in the event an employee becomes handicapped to the extent he cannot perform his regular job, a reasonable effort will be made to place the employee in an assignment within the bargaining unit. It is understood that employees receiving job assignments under this section must be able to perform the duties of the position. The bargaining unit and the City will work in conjunction in finding a suitable position. The parties acknowledge this may result in the displacement of personnel from existing assignments.
M. 1. In the event the Employer selects a less senior officer to fill a position under Section J above (except Captains) and an officer with greater seniority who has filed a written request for that position is bypassed in the selection, that bypassed, senior officer may demand that a Transfer Board be impaneled to decide if the selection for said transfer was valid or invalid. The Board shall be impaneled forthwith. An employee not given a transfer to a position covered by Article 34(J) who requests a Transfer Board, shall be given the opportunity to appear before the Board and make such oral comments as the employee deems advisable. If more than one employee is affected by the transfer, their cases may be consolidated before one Transfer Board.
48

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TRANSFERS AND SHIFT ASSIGNMENTS - Continued
2. The Transfer Board shall be selected by the Commissioner and shall consist of two (2) officers maintaining the same rank as the contested position and two (2) other command or supervisory officers within the bargaining unit. Members shall not serve on two consecutive Transfer Boards.
3. The Transfer Board may affirm or reverse the original selection. In the event of a tie vote by four (4) members, the Commissioner will act as the fifth vote. The decision of the Panel or the Commissioner (in the event of a tie) shall not be a matterforthe grievance procedure and shall be binding on all parties.
EMPLOYEE RIGHTS Each member of the bargaining unit shall be guaranteed the following rights, but this
Article shall not be construed as a section of limitation: A. 1. The City shall not discriminate against members of this bargaining unit on the basis
of race, creed, color, sex, national origin, political affiliation, age or handicap as prohibited in any applicable federal, state or local statutes, ordinances or policies. Further, the City shall not discriminate against members of the bargaining unit in the administration of the terms and conditions contained in this Collective Bargaining Agreement.
2. Notwithstanding the above provisions, the Commissioner shall have the right to assign members of the bargaining unit to additional training at his sole discretion.
B. No member of the bargaining unit shall be removed, discharged, reduced in rank or pay, suspended or otherwise disciplined except for just cause, and in no event until he shall have been furnished with a written statement of the charges and the reasons for such actions, and, notwithstanding the language contained in Section 14 of Act 78, MCL 38.514, pertaining to the filing of disciplinary charges, all charges shall be void unless filed within ninety (90) days from the date the Department had knowledge, or should have had knowledge, that the violations occurred.
Before a written reprimand is placed in an employee's file or other discipline imposed, it shall be explained by the supervisor to the employee and receipt of a copy thereof shall be acknowledged by the employee on the file copies. Written reprimands shall be removed from the employee's file upon the request of the employee, (which request shall not become part of the
49

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EMl'_LOYEE RIGHTS. continued
employee's file), after two (2) years if there is no additional disciplinary action taken within the said two-year period. The request and written reprimand shall be returned to the employee within ten (10) days of request. Regardless of whether a request for removal of a written reprimand has been made, the Employer shall not consider any written reprimand more than two (2) years old, provided no additional disciplinary action has been taken within said two-year period. Any employee upon retirement may request to have written reprimands, but no other disciplinary action, removed from his personnel file, notwithstanding the two-year rule.
C. Any disciplinary action taken by the Commissioner of Police or his representative may be appealed by the employee as a grievance which shall be entered at Step 2 of the grievance procedure. In the event the matter is not satisfactorily resolved, the employee shall have fifteen (15) days to appeal the matter, either through the grievance procedure at Step 3 or to the Civil Service Commission, but not both, as provided in Section I herein. In the event the Union elects the grievance procedure, the Union shall decide whether the grievance be submitted to arbitration.
D. Every appeal shall be a total review of guilt or innocence as well as severity of penalty, but in no event shall any penalty be increased from that originally rendered.
E. In all cases of disciplinary proceedings, the employee to be interrogated may, if he so desires, have a Union representative present during such interrogation as an observer/advisor.
Such representative shall not, however, impede the progress of the interrogation. In all cases the Employer shall advise the employee of his right to have a Union representative present. Nothing in the foregoing shall abridge the right of the commanding officer to counsel, advise or admonish in a civil tone an employee under his command in private.
Employees shall acknowledge receipt of oral reprimands used in the progressive disciplinary process as set forth herein. Oral reprimands received within six (6) months of a written reprimand may be included in an employee's personnel file. They shall be considered part of the written reprimand. Oral reprimands shall not be included in an employee's personnel file unless accompanied by a subsequent written reprimand.
The Employer shall be precluded from introducing any employment information in any disciplinary proceeding, unless said information is maintained in the employee's Police Department
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J:MPLOYEE RIGHTS,

personnel file, or is specialized information maintained by other departments (Controller, Civil

Service, Insurance, Retirement). Dismissed probationary employees, disciplined employees,

retiring employees, or other employees separating employment, shall receive without cost a copy

of their personnel file upon submitting a written request. This shall not preclude the past practice

of employees receiving without cost copies of specific documents regarding their employment.

F. Any employee being questioned as part of an official Department investigation shall

have the same rights granted to police officers in the lower unit.

G. An employee shall have the right to have counsel present at any disciplinary

proceeding where testimony is given, to have counsel cross-examine all witnesses against the

employee.

H. Any employee shall have the right to examine any and all personnel files maintained

by the Employer in accordance with the provisions of the Bullard-Plawecki Employee Right to

Know Act, being Act 397 of the Public Acts of 1978.

I.

Provided, however, that an employee shall have the option to appeal any disciplinary

action taken by the Commissioner by following the procedures set forth in the provisions of Act 78,

Public Acts of 1935, as amended, or in the case of Dispatch Supervisors, City Civil Service, as

amended, or the aforementioned grievance/arbitration appeal provision, but not both. If an

employee files a grievance involving an issue within the jurisdiction of the Civil Service Commission,

either the City or the Union may reject the decision of the Commission, and if the Union wishes to

pursue the matter, the Union shall within ten days, submit the grievance to arbitration for de novo

hearing. The Arbitrator shall not be made aware of the prior Civil Service proceedings.

ARTICLE 35

RANDOM DRUG AND .ALCOHOL TESTING The City of Warren Police Department Random Drug and Alcoho!Testing Policy will be published as a separate document, but incorporated herein by reference.

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ARTICLE 36
EXEMPT POSITION
A. The parties agree that the Deputy Commissioner (formerly Police Chief) will be an exempt position from the bargaining unit.
B. Beginning on July 1, 2002, the Mayor shall be entitled to appoint all Captains in the event of a vacancy or retirement. The appointment shall be made internally and from no lower than the rank of Lieutenant. The position, and the employee appointed to that position, shall remain part of the bargaining unit and shall otherwise be subject to all rights and conditions contained in the collective bargaining agreement except that the employee so appointed shall have his or her seniority in the Lieutenant's rank frozen for all time spent in the appointed position.
Within ten (10) working days' notice a Lieutenant, appointed hereunder to the Captain's position, may withdraw or be removed from that position either voluntarily or involuntarily. He/she shall be returned to his/her former Lieutenant's rank. The return of said officer to his/her former Lieutenant's rank shall not result in any other bargaining unit officer suffering a reduction in rank. The returning officer may use his/her previously frozen seniority in rank to select an open position but current postings will prevail. Upon an officer's return to his/her Lieutenant's rank, he/she shall be paid the prevailing contractual wage for the rank and position.
C. The Mayor shall have the right to appoint either the Police Commissioner or the Deputy Police Commissioner from outside the City of Warren Police Department. In the event that the Mayor chooses to appoint the Police Commissioner from inside the city of Warren Police Department then he shall have the right to appoint the Deputy Police Commissioner from outside the City of Warren Police Department.
It is understood that in the event that a Police Commissioner or Deputy Police Commissioner who was appointed from the bargaining unit, is voluntarily or involuntarily removed from their exempt position, they will be afforded the same rights to return to the bargaining unit as currently exists for an appointed Captain in Article 36, Paragraph B.
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ARTICLE 37

GENERAL PROVISIONS

A. For the purposes of any and all benefit calculations relevant hereto, a member shall

be considered to have worked a full month if the member has worked through the 15th day of any

such month.

B. Pronouns of masculine and feminine gender include each other.

ARTICLE38

REOPENING OF CONTRACT

It is hereby agreed by the Employer and the Union that any and all terms of this contract

shall be opened for additions or omissions at any time before its expiration upon agreement of

both parties. This Agreement shall supersede any Department rules, regulations and/or policy

statements, as well as City ordinances or resolutions which are inconsistent therewith.

SAVINGS

ARTICLE39

Should any part of this Agreement or any supplement thereto be rendered or declared

illegal or invalid by legislation or decree of a court of competent jurisdiction, such invalidation shall

not affect the remaining portions of this Agreement, and the parties shall enter into immediate

collective bargaining negotiations for the purpose of arriving at a mutually satisfactory

replacement for such article or section.

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DURATION OF CONTRACT

It is agreed between the respective parties that this contract shall continue in full force and

effect from 12:01 a.m., July 1, 2017 until 11:59 p.m. on June 30, 2020.

:2_L IN WITNESS THERETO, the undersigned parties have set their hands this

day of

December, 2018.

WARREN POLICE COMMAND OFFICERS ASSOCIATION

Lawrence Garner,

Kenneth Marsee, Vice President
g;;:_
Cortland Larry, Lieutenant

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Case 2:20-cv-10812-GCS-DRG ECF No. 2-4 filed 03/27/20 PageID.142 Page 59 of 62

APPENDIX A

Length of service o through 10 years of service At beginning of 11th year of service At beginning of 12th year of service At beginning of 13th year of service At beginning of 14th year of service At beginning of 15th year of service At beginning of 16th year of service At beginning of 1ih year of service At beginning of 18th year of service At beginning of 19th year of service At beginning of 20th year of service

Vacation Accrual Schedule

Daily

In 12 Months

.054794521

20

.057534247

21

.060273973

22

.063013699

23

.065753425

24

.068493151

25

.071232877

26

.073972603

27

.076712329

28

.079452055

29

.082191781

30

55

Case 2:20-cv-10812-GCS-DRG ECF No. 2-4 filed 03/27/20 PageID.143 Page 60 of 62
APPENDIX B VISION CARE COVERAGE
Your vision care coverage is designed to encourage regular eye examinations and to help pay the cost of corrective eye wear.
Participating providers have signed agreements with our current PPO Providers to accept the approved amount plus your co-payment as payment in full.
Non-participating providers have not signed agreements with our current PPO Providers and may or may not accept the approved amount plus your co-payment as payment in full. Co-payments
When you or your dependents receive vision care from a participating provider, you are responsible only for:
$5.00 co-payment for vision exams. $7.50 co-payment for lenses and frames or medically necessary contact lenses. When you receive vision care from a nonparticipating provider, payment is limited to: 75% of the approved amount (usual and customary), less your $5.00 co-payment for vision exams. A predetermined amount for lenses and frames. Vision Care 8.enefits Vision care benefits are payable once every 24 months. Vision care benefits include: Internal and external eye exams. Glaucoma testing. Cost and fitting of one of the following, but not both:
standard size lenses and frames (single, bifocal or trifocal vision); or contact lenses (maximum payment for non-medically necessary lenses is $35.00). Any additional cost for the following items is your responsibility: Contacts, tinted or special lenses (greater than 65mm in diameter). Oversized or, "fashion" lenses (greater than 65mm in diameter). Anti-reflective, photo-sensitive lenses or sunglasses. Special or "designer" frames (greater than $14.75 acquisition cost)
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COVERAGE CONT.
Note: If your frames or lenses cost more than your coverage allows, you are responsible for all additional costs. Always ask your provider if there are additional costs to you. Exclusions The following vision care exclusions are in addition to your health care coverage exclusions and limitations. Medical or surgical treatment. Lenses and frames or contact lenses ordered prior to your effective date of coverage or delivered more than 60 days after your coverage ends. Drugs or medications for any purpose other than a vision examination. Special procedures such as vision training or subnormal vision aids. Vision testing, lenses or frames for any conditions, disease, ailment or injury related to your employment or an act of war.
57

Case 2:20-cv-10812-GCS-DRG ECF No. 2-4 filed 03/27/20 PageID.145 Page 62 of 62

APPENDIXC

BUY AMERICAN PLEDGE

This Letter of Understanding is made and entered into this 15th day of July, 2013, by and between the City of Warren (hereinafter "City") and GELC Local 227 (hereinafter "Union").

Due to circumstances beyond the City's control, the City is unable to purchase U.S. savings bonds for employees who purchase or lease American made vehicles. As an alternative to the previously agreed to savings bond program, the parties have agreed to the following:

Buy American - The parties agree that in an effort to support the domestic auto and supplier industry and dealerships help revitalize the U.S. auto industry, every time any bargaining unit member purchases or leases a domestically made Chrysler, General Motors or Ford Motor Company vehicle while this Letter of Understanding is in effect, the City shall pay to said bargaining unit member one $100, up to a maximum of two (2) vehicle purchases, through the employee's payroll check.

/sf Mark R. Simlar
Mark R. Simlar Human Resources Director

ls/Lawrence Garner Lawrence Garner President Warren Police Command Officers Association

58

 
 Case 2:20-cv-10812-GCS-DRG ECF No. 2-6 filed 03/27/20 PageID.180 Page 1 of 2
EXHIBIT 5

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EXHIBIT 4

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 Case 2:20-cv-10812-GCS-DRG ECF No. 9 filed 04/01/20 PageID.193 Page 1 of 5

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Linda DeVooght, Tressa Sinha, Jennifer Piper, Donna Tripi, Suzanne Chaffin, and Cheryl Osowski,

Case: 20-10812

Plaintiffs, v. City of Warren,

Hon. George Caram Steeh United States District Judge
Hon. David R. Grand United States Magistrate Judge

Defendant.

SUPPLEMENTAL NOTICE OF FACTS SUPPORTING PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
Plaintiffs Linda DeVooght, Tressa Sinha, Jennifer Piper, Donna Tripi,
Suzanne Chaffin, and Cheryl Osowski, by and through their attorneys Pitt McGehee
Palmer & Rivers, provide the following additional facts and legal argument in
support of the Motion for Preliminary Injunctive Relief and Temporary Restraining
Order (Dkt No. 2).
Plaintiffs’ counsel sought Defendant’s concurrence in filing this motion to
supplement their motion and it was granted as to form.

1

Case 2:20-cv-10812-GCS-DRG ECF No. 9 filed 04/01/20 PageID.194 Page 2 of 5
Additional Relevant Facts: On the evening of Monday, March 30, 2020, the Macomb Daily reported that
a City of Warren police officer had tested positive for COVID-19 and had already been in quarantine for several days. (Ex. 1 Macomb Daily article.) Nine other patrol officers and one civilian employee are also in quarantine for possible exposure, according to this report. (Id.) Prior to that report, the infected officer had shared this news of his having contracted the virus with his union, the Warren Police Officers Association, and Union President Michael Sauger sent an email to the members informing them that an officer had tested positive and was in quarantine. (Ex. 2: Union Email.) Sauger advised his members, “At this point, assume that everyone we deal with is infected [with COVID-19] or a carrier.” (Id.) From then, the news spread informally through social networks and emails from the union members to inform Plaintiffs and the other dispatchers that there was exposure within the Police Department.
Following all this communication among the union members and the publication of the news in the Macomb Daily, on March 31, 2020, at 8:41 am, City of Warren Police Commission William Dwyer wrote to all personnel, including Plaintiffs, regarding the news that an officer had tested positive for COVID-19.1
1 Defendant has objected to public disclosure of this document. The parties can produce the document if requested.
2

Case 2:20-cv-10812-GCS-DRG ECF No. 9 filed 04/01/20 PageID.195 Page 3 of 5
Dwyer was quoted in the earlier Macomb Daily report that he had known for “several days” about the officer’s positive test and that he had spoken with the infected officer on Saturday, March 28, 2020. (Ex. 1.)
It is also the case that there has been an order in place since March 19, 2020, that the dispatch area be limited to “essential personnel and required inquiries” in order to limit the amount of exposure. (Ex. 3: March 19, 2020 Order.) Plaintiffs’ counsel and Defendant’s counsel have been in extensive communications seeking some interim agreement; however, at the time this notice is being filed, there is still no agreement in place. Impact of These Additional Facts on Plaintiffs
As Plaintiffs argued in their Brief in Support of their Motion for a Preliminary Injunction and Temporary Restraining Order, Plaintiffs will suffer irreparable injury absent injunctive relief. (Pls Brief, Dkt 2 at PageID #53-55.)
At least one City of Warren police officer has now tested positive for COVID19. At least nine other employees of the Warren Police Department are in quarantine for possible exposure. Plaintiffs face immediate and irreparable harm from the performance of their duties—namely, exposure to the COVID-19 virus from having to leave their secure communications area to work in close proximity to police officers, arrestees, and others who may have been exposed.
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Adding to the urgency is the fact that when female dispatchers are summoned to the jail to perform searches, they are comingling with the rest of the employees as well as the arrestees. As the Union President explained, each individual should be treated as a potential carrier or infected person. Therefore, the risk to Plaintiffs is even more heightened than it was a few days ago. Moreover, when a male patrol officer comes to the Communication room to relieve the female dispatcher who is being ordered to conduct a search, he is further introducing potential exposure to the dispatchers. This violates the March 19 order to limit exposure to the personnel in the dispatch area.
The City of Warren has demonstrated by its actions that it will not act without a court order act to protect Plaintiffs from irreparable injury. Plaintiffs first reached out to the City of Warren on Thursday, March 26, 2020 to seek interim measures to protect Plaintiffs. (Dkt 2 at PageID #36-37.) These efforts failed on March 27, 2020 and Plaintiffs filed their Complaint and Motion for TRO later that day. (Id.) Shortly thereafter, likely on March 28, 2020, Defendant learned that an officer had contracted the COVID-19 virus and that several other members of the Police Department were also in quarantine for possible exposure.
Defendant, despite facing an emergency court action to protect Plaintiffs from imminent danger of exposure to COVID-19, failed to act to alleviate Plaintiffs’ risk or even inform Plaintiffs in a timely way of their increased risks. Based on these new
4

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facts, as well as all facts and arguments presented in Plaintiffs’ Motion and Brief in Support of their Motion, Plaintiffs request the Court to grant them the emergency TRO and injunctive relief set forth in their Motion.

Dated: April 1, 2020

PITT McGEHEE PALMER & RIVERS
By: /s/ Robin B. Wagner____ Michael L. Pitt (P24429) Robin B. Wagner (P79408) Kevin M. Carlson (P67704) Attorneys for Plaintiffs 117 W. Fourth Street, Suite 200 Royal Oak, MI 48067 248-398-9800 248-268-7996 (fax) mpitt@pittlawpc.com rwagner@pittlawpc.com kcarlson@pittlawpc.com

CERTIFICATE OF SERVICE The undersigned certifies that a copy of the foregoing document was served upon counsel for Defendant via the Court’s electronic filing system on April 1, 2020.
/s/ Kathy Prochaska

5

Case 2:20-cv-10812-GCS-DRG ECF No. 9-1 filed 04/01/20 PageID.198 Page 1 of 1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Linda DeVooght, Tressa Sinha,

Jennifer Piper, Donna Tripi, Suzanne

Chaffin, and Cheryl Osowski,

Case: 20-10812

Plaintiffs, v. City of Warren,

Hon. George Caram Steeh United States District Judge
Hon. David R. Grand United States Magistrate Judge

Defendant.

INDEX OF EXHIBITS TO SUPPLEMENTAL NOTICE OF FACTS SUPPORTING PLAINTIFFS’
MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
1 Macomb Daily Article 2 Union mail 3 3-19 Directive

6

Case 2:20-cv-10812-GCS-DRG ECF No. 9-2 filed 04/01/20 PageID.199 Page 1 of 6
EXHIBIT 1

Warren police officer tests positive for COVID-19 | Coronavirus | macombdaily.com

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Case 2:20-cv-10812-GCS-DRG ECF No. 9-2 filed 04/01/20 PageID.200 Page 2 of 6

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Warren police officer tests positive for COVID-19
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Warren Police Commissioner William Dwyer, foreground, at a press conference Jan. 23, 2020.
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A Warren police officer who has been under quarantine for several days has tested positive for COVID-19.
The officer, whose name was not revealed, had been on quarantine for several days while awaiting the outcome of his test result, which came back Saturday, Warren Police Commissioner William Dwyer said Monday.
The positive test for that coronavirus may be the first of its kind in the Macomb County law enforcement community.
“I talked to him Saturday. He’s still (remaining) in quarantine for a period of time,” Dwyer said. “We’re concerned, obviously, about him.”
Nine other Warren patrol officers plus one civilian employee are in various lengths of quarantine, he said. Not all of the officers have been tested for the coronavirus. A few have some symptoms consistent with COVID-19 but others have been quarantined for possible exposure.

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Among those in the latter group are two officers who went to the residence of a woman shortly after she died while under hospice care but police officials later learned the woman had contracted COVID-19, police said.

An unspecified number of Warren officers will remain off-duty for approximately seven to 10 days, Dwyer said. However, about three to four officers are scheduled to return to active duty late this week if they remain symptom-free, the police commissioner said.

“We’re taking all the safety precautions we can,” said Dwyer, noting the police administration has been working with the Warren Police Officers Association on safety measures.

At the start of each shift in the Police Department, a commander takes the temperature of each officer. Individuals with a temperature of 100 or higher are sent home and told to actively monitor their symptoms. They will not be allowed to return to work for at least seven days and until remaining fever-free for at least three days without the benefit of medication.

Offices also have been provided with masks – 1,500 surgical masks were delivered last week – plus gloves, hand sanitizer and spray disinfectant for wiping down the interior of each patrol vehicle twice per day.

Dwyer hopes the city can soon acquire full facial shields. Patrol officers are no longer

riding in 2-man units, and the lobby of police headquarters and the police mini-station

inside Civic Center South, on Van Dyke Avenue near Nine Mile Road, are closed to the

public.

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Get unlimited access for $.0.99 first month! “So far, I think we’ve been very fortunate. It’s unfortunate that we have the one that

tested positive,” he added.

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Case 2:20-cv-10812-GCS-DRG ECF No. 9-3 filed 04/01/20 PageID.205 Page 1 of 3
EXHIBIT 2

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EXHIBIT 3

Case 2:20-cv-10812-GCS-DRG ECF No. 9-4 filed 04/01/20 PageID.209 Page 2 of 2

 
 Case 2:20-cv-10812-GCS-DRG ECF No. 10 filed 04/06/20 PageID.210 Page 1 of 2

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

LINDA DeVOOGHT, TRESSA SINHA, JENNIFER PIPER, DONNA TRIPI, SUZANNE CHAFFIN, and CHERYL OSOWSKI,
Plaintiffs,

Case No. 2:20-cv-10812-GCS-DRG Hon. George Caram Steeh Mag. Judge David R. Grand

vs.

CITY OF WARREN,

Defendant.

_____________________________________________________________________________/

PITT McGEHEE PALMER & RIVERS

KIRK, HUTH, LANGE & BADALAMENTI, PLC

By: MICHAEL L. PITT (P24429)

By: ROBERT S. HUTH, JR. (P42531)

ROBIN B. WAGNER (79408)

RAECHEL M. BADALAMENTI (P64361)

KEVIN M. CARLSON (P67704)

ELIZABETH P. ROBERTS (P76017)

Attorneys for Plaintiffs

Attorneys for Defendant

117 W. Fourth St., Ste. 200

19500 Hall Road, Suite 100

Royal Oak, MI 48067

Clinton Township, MI 48038

(248) 398-9800

Fax: (248) 268-7996

(586) 412-4900 Fax: (586) 412-4949

mpitt@pittlawpc.com

rhuth@KirkHuthLaw.com

rwagner@pittlawpc.com

rbadalamenti@KirkHuthLaw.com

kcarlson@pittlawpc.com

eroberts@KirkHuthLaw.com

_____________________________________________________________________________/

STIPULATION AND ORDER REGARDING DK #2 AND SCHEDULING

The Court having held a Conference on April 3, 2020 on Plaintiffs’

Motion for Preliminary Injunctive Relief and Temporary Restraining Order

(the “Motion”); the parties having stipulated to certain terms to resolve all

emergency or preliminary requests for relief and which shall stay in force and

effect during pendency of this case unless stipulated or ordered otherwise; the

parties further desiring to set a schedule for the proceedings in lieu of

attending a Rule 26 Conference; and the Court being otherwise advised;

1

Case 2:20-cv-10812-GCS-DRG ECF No. 10 filed 04/06/20 PageID.211 Page 2 of 2

IT IS HEREBY STIPULATED AND AGREED that (1) Plaintiffs hereby

withdraw the Motion at Dk #2; (2) the Parties shall submit a stipulated

proposed scheduling order by April 9, 2020 if possible; and (3) in the event

the parties cannot agree to a scheduling by April 9, 2020 they may requests a

court teleconference in lieu of a Rule 26 Conference.

s/Michael L. Pitt ____________ MICHAEL L. PITT (P24429) ROBIN B. WAGNER (P79408) KEVIN M. CARLSON (P67704) Attorneys for Plaintiffs

s/Raechel M. Badalamenti________ RAECHEL M. BADALAMENTI (P64361) Attorneys for Defendant

PURSUANT TO STIPULATION; IT IS SO ORDERED that (1) the Motion at Dk #2 is withdrawn; and (2) a
proposed stipulated scheduling order shall be submitted or a teleconference requested by April 9, 2020.

Dated: April 6, 2020

s/George Caram Steeh GEORGE CARAM STEEH United States District Judge

2

 
 Case 2:20-cv-10812-GCS-DRG ECF No. 12 filed 04/10/20 PageID.216 Page 1 of 32

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Linda DeVooght, Tressa Sinha, Jennifer Piper, Donna Tripi, Suzanne Chaffin, Cheryl Osowski, Dawn McLean, Amber Mavis,
Plaintiffs,

Case: 20-10812
Hon. George Caram Steeh United States District Judge

v. City of Warren,

Hon. David R. Grand United States Magistrate Judge

Defendant.

FIRST AMENDED VERIFIED COMPLAINT FOR DAMAGES, DECLARATORY JUDGMENT, INJUNCTIVE RELIEF AND JURY DEMAND Plaintiffs Linda DeVooght, Tressa Sinha, Jennifer Piper, Donna Tripi, Suzanne Chaffin, Cheryl Osowski, Dawn McLean, and Amber Mavis, , by their attorneys Pitt McGehee Palmer & Rivers, are women dispatchers employed by the City of Warren Police Department. They bring this lawsuit against their employer, the City of Warren, alleging violations of their 14th Amendment Equal Protection rights and their rights under the Elliott-Larsen Civil Rights Act because they are subjected to unlawfully adverse conditions of employment that have now placed them in dire and immediate danger because of the COVID-19 global pandemic and public health emergency.
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Specifically, Plaintiffs are required to conduct pat-down and, on occasion, strip searches of women arrestees at considerable risk to their health and safety; whereas, similarly situated male dispatchers have no such work demand. Plaintiffs have been ordered to conduct these dangerous activities without adequate protective gear and thus are regularly exposed to the risk of the deadly COVID-19 virus; whereas, their male counterparts are never expected to take on such risks.
Plaintiffs’ claims of discrimination on the basis of sex in violation of Title VII are pending before the EEOC, and this Complaint will be amended once the EEOC has conducted its responsibilities under Title VII.
JURISDICTION, PARTIES AND VENUE 1. This Court has jurisdiction pursuant to 28 U.S.C. § 1331, which authorizes federal courts to decide cases concerning federal questions; 28 U.S.C. § 1343(a)(3) and (4), which authorize federal courts to hear civil rights cases; and 28 U.S.C. § 2201, the Declaratory Judgment Act. 2. This Court has jurisdiction pursuant to 28 U.S.C. § 1367 over the statelaw claims under the Elliott-Larsen Civil Rights Act, MCL 37.2101 et seq (“ELCRA”) arising from the same core operative facts as the federal questions. 3. Plaintiff Linda DeVooght is a 48-year-old woman who resides in Sterling Heights, County of Macomb, Michigan.
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Case 2:20-cv-10812-GCS-DRG ECF No. 12 filed 04/10/20 PageID.218 Page 3 of 32
4. Plaintiff Tressa Sinha is a 35-year-old woman who resides in Troy, County of Oakland, Michigan.
5. Plaintiff Jennifer Piper is a 46-year-old woman who resides in Warren, County of Macomb, Michigan.
6. Plaintiff Donna Tripi is a 46-year-old woman who resides in Sterling Heights, County of Macomb, Michigan.
7. Plaintiff Suzanne Chaffin is a 38-year-old woman who resides in Sterling Heights, County of Macomb, Michigan.
8. Plaintiff Cheryl Osowski is a 48-year-old woman who resides in Chesterfield, County of Macomb, Michigan.
9. Plaintiff Dawn Mclean is a 48-year-old woman who resides in Warren, County of Macomb, Michigan.
10. Plaintiff Amber Mavis is a 38-year-old woman who resides in Shelby Township, County of Macomb, Michigan.
11. Defendant City of Warren is an incorporated municipality under Michigan’s Home Rule Cities Act and located in Macomb County, Michigan.
12. Venue is proper in this Court as Defendant is located in the Eastern District of Michigan.
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Statement of Facts 13. The City of Warren Police Department employs 22 dispatchers, 17 of whom are women. 14. The dispatchers employed by the City of Warren Police Department are paid according to two collective bargaining agreements—one for the dispatchers and one for the supervisors—and these agreements make no distinction in pay between male and female dispatchers. 15. Plaintiff Linda DeVooght began working as a dispatcher for Defendant City of Warren’s Police Department on or about April 6, 1999. She was promoted to a Supervisor of Dispatch on or about February 20, 2015. 16. Plaintiff Tressa Sinha began working as a dispatcher for Defendant City of Warren’s Police Department on or about May 27, 2015. 17. Plaintiff Jennifer Piper began working a dispatcher for Defendant City of Warren’s Police Department on or about January 24, 2005. 18. Plaintiff Donna Tripi began working as a dispatcher for Defendant City of Warren’s Police Department on or about July 29, 1996. 19. Plaintiff Suzanne Chaffin began working as a dispatcher for Defendant City of Warren’s Police Department on or about December 13, 2010. 20. Plaintiff Cheryl Osowski began working as a dispatcher for Defendant City of Warren’s Police Department on or about November 19, 1991.
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21. Plaintiff Dawn McLean began working as a dispatcher for Defendant City of Warren’s Police Department on or about May 1997.
22. Plaintiff Amber Mavis began working as a dispatcher for Defendant City of Warren’s Police Department on or about May 23, 2006. A. The City of Warren Police Department Maintains a Long-Standing Policy
that Requires Women Dispatchers to Conduct Custodial Searches of Prisoners; whereas, Male Dispatchers Have No Such Requirement
23. On October 4, 2017, the City of Warren Police Department issued General Order No. 17-10 for Arrest Procedures and the “handling, booking, and processing of prisoners taken into custody.”
24. According to Section G, “Prisoner Searches,” of this 2017 General Order:
a. “the arresting/transporting officers will conduct an initial search for weapons and contraband.”
b. “If a male prisoner is arrested by a female officer, an available male officer who is on duty and in the station when the arrest is made shall be called upon to conduct the search.”
c. “If a female prisoner is arrested by a male officer, an available officer who is on duty and in the station when the arrest is made shall be called upon to conduct the search prior to calling upon a dispatcher to perform the search.”
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25. This General Order further directs that “A female dispatcher will conduct the search of a female prisoner in the detention facility when: 1) a female is arrested by a male officer; and 2) there are no female officers on duty and in the station at the time of booking.”
26. This General Order further directs that when only 3 dispatchers are on duty “or if the Watch Commander deems it necessary, an officer will be assigned by the Watch Commander to assist in Dispatch until the search is completed.”
27. There is no provision for male dispatchers to ever search a prisoner. 28. This policy of ordering female dispatchers to perform body searches of female prisoners has been in effect, with some minor variations, since at least 2002. 29. An earlier version of this General Order, which was in effect from May 17, 2011 until October 4, 2017, ordered that “When a female officer is not available to conduct a search of a female prisoner, a female Dispatcher will be called upon to conduct the search.” 30. The version of the General Order for Prisoner Processing that became effective on August 4, 2005, directs that “when a female officer is not available to conduct a search of a female prisoner, a female Dispatcher will be called upon to conduct the search.”
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31. The City of Warren Police Department General Order No. 02-01 regarding the General Description of Duties for Dispatchers became effective on April 30, 2002 and remains in effect today.
32. This General Order regarding the Duties for Dispatchers only passingly mentions that a dispatcher “assists in the processing of arrested persons in the station, as necessary, at the direction of a supervisor.”
33. The General Order describing the duties of Dispatch Supervisors, which became effective on October 9, 2002 and remains in effect today, makes no mention of prisoner searches as a responsibility, but does indicate that he or she performs general dispatch duties.
34. The collective bargaining agreements relevant to Dispatchers and Dispatch Supervisors make no mention of prisoner searches as a responsibility of any dispatcher. B. Plaintiffs and the Other Female Dispatchers Regularly and Frequently
Conduct Custodial Searches of Female Arrestees who are Being Detained at the Warren Jail
35. On numerous occasions in any given week—averaging four to five times in a week—Defendant orders a female dispatcher to leave her duties and perform a custodial search of a prisoner.
36. Even though the applicable orders direct a female officer who is on duty and in the station to conduct the search, as a practice and policy of the department
7

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and its commanding officers, female officers are not ordered to perform these searches, even when they are on duty and in the station.
37. Rather, it is nearly always the case that when a male officer brings in a female prisoner, a female dispatcher is ordered to report to the intake area and conduct the search.
38. Of its nearly 200 sworn officers, Defendant City of Warren’s Police Department employs 14 female police officers.
39. One of these female officers is assigned during the days from Monday to Friday at the station and yet she has rarely if ever been ordered to conduct the full custodial search of a female arrestee brought in by a male officer. C. Custodial Searches Involve Extensive Physical Contact with the Prisoner’s
Body, Clothing, and Personal Effects; However, the City of Warren has Failed to Properly Train or Protect the Female Dispatchers it Orders to Conduct these Searches
40. The City’s General Order No. 17-10 on Arrest Procedures defines the full custodial search that must be conducted of a prisoner being arrested as requiring the person conducting the search to remove and inventory all personal property, check the prisoner’s garments, remove all medications, contraband, and potential weapons, and remove and inspect all headwear such as wigs, toupees, weaves, or barrettes.
41. When a female dispatcher is performing the search, the arresting/assisting officer is required by the General Order No. 17-10 to “stand by in
8

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close proximity in the booking area until the search has been completed and the prisoner has been turned over to detention personnel.”
42. In practice, the arresting/assisting officer will commonly leave the proximity of the female dispatcher and the prisoner she has been ordered to search.
43. Indeed, on March 12, 2020, Plaintiff Suzanne Chaffin was ordered to conduct a custodial search on a female prisoner who was arrested on a two-felony warrant—assault and concealing a dangerous weapon—yet the male arresting/assisting officer left Chaffin alone with this prisoner for at least two minutes during the search.
44. Sworn police officers receive extensive training to perform all parts of their job requirements, including how to safely conduct a custodial search of a prisoner, disarm prisoners, and remove contraband.
45. However, the City of Warren’s Police Department has failed to provide adequate training in five years for the female dispatchers to conduct a custodial search of a prisoner, disarm prisoners, or remove contraband from a prisoner.
46. Approximately once a year, the City of Warren’s Police Department has its female dispatchers watch a training video regarding custodial searches of prisoners.
47. Watching a training video is woefully inadequate training for conducting a search that can expose the person conducting the search to infectious
9

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diseases such as COVID-19, potential weapons the prisoner is holding that evaded the original pat-down, highly toxic narcotics the prisoner may yet have concealed on her person, as well as lice, scabies, fleas and other pests that may have infested a prisoner.
48. This training video even demonstrates a male officer conducting the custodial search of a female prisoner.
49. Male dispatchers, unlike their female counterparts, are never asked or ordered to perform custodial searches of prisoners; therefore, the male dispatchers are never subjected to the risks associated with conducting custodial searches of prisoners.
D. Since March 10, 2020, when the First COVID-19 Case in Michigan was Confirmed, Female Dispatchers have been Ordered to Continue to Conduct Custodial Searches of Prisoners
50. On March 10, 2020, the first COVID-19 case in Michigan was confirmed and Governor Whitmer declared a State of Emergency directing that steps be taken to prevent the spread of the disease.
51. Since March 10, 2020, Plaintiffs and their fellow Female Dispatchers have been ordered to conduct custodial searches of female prisoners on no fewer than 12 separate occasions.
52. The United States Centers for Disease Control and Prevention (“CDC”) has issued guidance regarding the measures to be taken at workplaces to avoid and
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protect against transmission of COVID-19. Among the recommendations provided for law enforcement personnel is maintain a distance of 6 feet from individuals whenever possible.1
53. Additionally, the CDC has proscribed the following as minimally acceptable Personal Protective Equipment to Wear when one must be within 6 feet of another individual to perform operational duties2:
a. A single pair of disposable examination gloves, b. Disposable isolation gown or single-use/disposable coveralls, c. Any NIOSH-approved particulate respirator (i.e., N-95 or
higher-level respirator); Facemasks are an acceptable alternative until the supply chain is restored, and d. Eye protection (i.e., goggles or disposable face shield that fully covers the front and sides of the face) 54. While disposable gloves and face masks have been made available to Plaintiff and their fellow Female Dispatchers, at no time has Defendant provided isolation gowns or eye protection to them.
1 “What Law Enforcement Personnel Need to Know About Coronavirus Disease 2019 (COVID-19),” CDC, available at https://www.cdc.gov/coronavirus/2019ncov/community/guidance-law-enforcement.html (Last visited 3-23-2020). 2 Id.
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55. Indeed, on March 22, 2020, a female dispatcher expressed her grave concerns about performing a custodial search without such protective equipment because she lives with three family members who are in high-risk categories for COVID-19 exposure—diabetes, cancer treatment, and asthma.
56. The Watch Commander told this dispatcher that all she needed was the mask and the gloves. He denied her a protective gown and eye protection.
57. This dispatcher was required to perform the custodial search on this female prisoner notwithstanding her concerns and the lack of proper protective equipment, and the fact that a female officer was due to come on duty at the station in 15 minutes.
58. Police officers are provided with eye protection and protective gowns to perform custodial searches.
59. Male Dispatchers are never expected to perform custodial searches of prisoners.
60. It is not apparent from the Dispatcher job description that any Dispatcher would be expected to perform custodial searches of prisoners.
61. Nonetheless, when Plaintiff Jennifer Piper took a medical leave in the fall of 2019, the City of Warren required her to demonstrate that she was physically able to conduct custodial searches of prisoners before she was cleared to return to work.
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62. No male dispatcher has ever had to demonstrate that he was physically able to conduct custodial searches in order to be cleared to return to work. E. In Addition to the Immediate Concerns of COVID-19 Exposures, Custodial
Searches of Prisoners Expose Female Dispatchers to Other Dangerous and Odious Conditions
63. Plaintiffs and their fellow Female Dispatchers have been ordered to conduct searches in which they must touch and handle women who:
a. are extremely intoxicated; b. are belligerent and make direct threats to the female dispatchers; c. have urinated, vomited, and/or defecated on themselves; d. are known or believed to be infected with highly contagious
diseases; e. show obvious signs of lice, bed bugs, flea, and/or scabies
infestation; and/or f. may have sharp objects such as drug paraphernalia and/or
weapons. 64. Plaintiffs and their fellow Female Dispatchers have been ordered to conduct strip searches of women who are believed to be:
a. concealing weapons in the folds and cavities of their bodies; b. concealing highly toxic controlled substances in the folds and
cavities of their bodies;
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c. are known or believed to be infected with highly contagious diseases;
d. show obvious signs of lice, bed bugs, flea, and/or scabies infestation.
65. Plaintiffs and their fellow Female Dispatchers have been ordered to conduct searches of women who are obviously ill.
66. Plaintiffs and other Female Dispatchers have been exposed directly to the body fluids of women prisoners during these searches.
67. Plaintiffs and other Female Dispatchers have been left alone with multiple female prisoners during the custodial search or left with only an inexperienced rookie officer while the female dispatcher conducted the search.
68. Plaintiffs and other Female Dispatchers have even been left alone to search prisoners who were arrested on violent felony charges. F. Plaintiffs Have Been Required to Search Prisoners even when Female
Officers were on Duty and in the Station 69. The General Order governing custodial searches of prisoners requires
that a female officer present in the station and on duty conduct the search, and that a female dispatcher only be ordered to conduct the search when that is not the case.
70. However, on numerous occasions Plaintiffs and their fellow female dispatchers have been ordered to conduct the custodial search of female prisoners even though there were female officers on duty in the station. For example:
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a. On June 24, 2019, a female prisoner was brought in by a male officer. A female officer was on duty and in the station at the time but she rejected the page to conduct the search. Instead, Plaintiff Linda DeVooght was ordered to conduct the search.
b. On October 4, 2019, a female prisoner was brought in by a male officer. At the time, two female officers were on duty at the station; however, they did not respond to their commanding officer’s page. Instead, Plaintiff Cheryl Osowski was ordered to report to the booking area and conduct the search.
c. On October 28, 2019, a female prisoner was brought in by a male officer. At the time, two female officers were on duty and at the station, but their commanding officers were not. As a result, Plaintiff Donna Tripi was ordered to conduct the search.
d. On February 26, 2020, a female prisoner was brought in by a male officer. At the time, a female officer was on duty and in the station, but Dispatch was informed that this officer was “unavailable” without any additional clarification. Instead, Plaintiff Donna Tripi was ordered to search the prisoner.
e. On February 27, 2020, a female prisoner was brought in by a male officer. At the time, a female officer was on duty in the
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building and Plaintiff Donna Tripi actually saw this officer by the elevator when Tripi responded to the order to report to the booking area and conduct the custodial search. f. On March 13, 2020, a female prisoner was brought in by a male officer. At the time, a female officer was in the station and on duty. Nonetheless, Plaintiff Jennifer Piper was ordered to conduct the search of the prisoner. g. On March 16, 2020, a female prisoner was brought in by a male officer. At the time, a female officer was on duty and in the station; however, the watch commander informed dispatch that this officer was “unavailable” with no further elaboration. Instead, Plaintiff Tressa Sinha was ordered to conduct the search of the prisoner. G. When Female Dispatchers are Ordered to Report to Booking and Conduct a Search, Dispatch is Left Understaffed 71. The General Order governing prisoner processing indicates that to prevent understaffing of the dispatch unit, a male officer will provide relief for the female dispatcher when she is ordered to conduct a custodial search of a prisoner. 72. However, the male officers sent to relieve female dispatchers do not have training to perform the functions of the dispatch, leaving the dispatch unit short of staff.
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73. On June 13, 2019, a female dispatcher was ordered to conduct a custodial search. While she was conducting the search, the male police officer sent to cover this dispatcher’s duties talked with colleagues nearby instead of answering the phones at dispatch.
74. On October 19, 2019, when a female dispatcher was ordered to report to booking and conduct a search, the male officer who replaced her at dispatch sat at a computer that was not logged in and worked on his own paperwork instead of answering the phones at dispatch. H. Plaintiffs Face Immediate and Ongoing Threats to their Physical Health
Because of Defendant’s Unlawful Policy 75. The policy and practice of the City of Warren’s Police Department on
its face imposes conditions and terms of employment on the women who work as dispatchers and dispatch supervisors that are far more dangerous and odious than the terms and conditions of employment enjoyed by the male dispatchers.
76. Because of this facially discriminatory policy and practice, Plaintiffs have endured the risk and danger of exposure to infectious diseases, including notably COVID-19, solely because of their sex.
77. Indeed, on March 23, 2020, the dispatch unit received a memo entitled “Friendly Reminders During the COVID-19 Pandemic” explicitly confirming that “Searches of female prisoners when an officer is not available remains status quo.”
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78. Even before the COVID-19 Pandemic, Plaintiffs have regularly and frequently been subjected to belligerence and hostility by the female prisoners they have been ordered to search, and Plaintiffs suffer these indignities and stresses solely because of their sex.
79. Plaintiff have also regularly and frequently been subjected to the risk of being exposed to noxious infestations like scabies, bed bugs, lice, and fleas, as well as the dangers of toxic drugs and weapons hidden on these female prisoners’ bodies, and Plaintiffs have been forced to face these dangers solely because of their sex.
80. Plaintiffs receive no remuneration nor compensation of any sort for the additional dangers, risks, and unpleasantness of being regularly and frequently ordered to conduct custodial searches solely because of their sex. I. There Exist Other Reasonable Operational Procedures That Would Allow
for the Processing of Female Prisoners without Violating Plaintiffs’ Equal Protection Rights
81. The City of Warren’s Police Department has failed to consider or adopt alternative procedures that would allow for the processing of female prisoners without imposing on Plaintiffs and their fellow female dispatchers unfair, dangerous, and noxious terms and conditions of employment because of their sex.
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82. For instance, Plaintiffs have requested many times and been denied on each and every occasion that they be paid a form of “hazard compensation” for being ordered to conduct these dangerous and odious custodial searches of prisoners.
83. It is also the case that while nationally, women comprise over 14 percent of all police officers3, the City of Warren employs only 14 female police officers, which is approximately 7% of the police force. Therefore, the City of Warren has failed to adequately recruit and employ reasonable numbers of female officers. If the City of Warren had female police officers in numbers commensurate with the national averages, it would have twice the female officers it currently employs—at least 28.
84. As alleged above, even when female officers are on duty and in the station, they do not report to the jail to conduct searches of female prisoners. Therefore, the City of Warren’s Police Department has failed to rely upon its female officers, who are properly trained to handle prisoners and compensated commensurate to the risks and dangers they must face as sworn officers, to conduct custodial searches—an integral part of their own job descriptions while not a component of Plaintiffs’ job descriptions.
3 Data USA, “Police Officers”, available at https://datausa.io/profile/soc/333050/#demographics (last visited March 24, 2020).
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85. The City of Warren’s Police Department has failed to organize its staffing schedules to ensure that a female officer is on duty and available to conduct female prisoner searches.
86. For the immediate future, from today through the next month, at least one of the Plaintiffs is scheduled to work on each day; therefore, Plaintiffs face immediate and ongoing risks of exposure to COVID-19 if and when they are ordered to conduct a custodial search of a female prisoner.
Count One: 42 U.S.C. § 1983, Monell-based Violation of Plaintiffs’ Rights Under the Equal Protection Clause of the 14th Amendment
87. Plaintiffs incorporate all the above allegations by reference here. 88. 42 U.S.C. § 1983 allows for a municipality to be sued when it enacts and promulgates a law or policy that violates the Constitution or Laws of the United States. Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658 (1978) 89. The 14th Amendment of the United States Constitution forbids the denial of any person the equal protection of the laws. 90. Included within the 14th Amendment is the guarantee that a government may not treat a group of persons less favorably because of their sex. 91. As set forth above, the City of Warren, through its Police Department, has promulgated and enforced a General Order that treats Plaintiffs, a group of female dispatchers, less favorably in the terms and conditions of their employment with the City of Warren because of their sex.
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92. As set forth above, Plaintiffs now face imminent and real danger of exposure to COVID-19—a danger amplified far above the danger faced by the male dispatchers who are their co-workers—because of their sex.
93. Pursuant to 42 U.S.C. §§ 1983, 1988 and other applicable laws, Plaintiffs seek the following relief:
a. Issue a Temporary Restraining Order banning the policy and practice of requiring Plaintiffs and their fellow female dispatchers to conduct custodial searches of female prisoners:
b. a declaratory judgment that Defendant’s General Order, policy, and practice of requiring Plaintiffs and their fellow female dispatchers to conduct custodial searches of female prisoners violates Plaintiffs’ Equal Protection rights guaranteed by the 14th Amendment;
c. monetary damages to compensate Plaintiffs for the many years of extremely dangerous and odious terms and conditions of employment that have been imposed upon them unlawfully because of their sex;
d. an award of Plaintiffs’ attorney’s fees and costs; e. other relief that the Court may deem appropriate.
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Count Two: Violation of the Elliott-Larsen Civil Rights Act, M.C.L. § 37.2101 et seq., Disparate Treatment in the Terms and Conditions of Employment on the Basis of Sex 94. Plaintiffs incorporate all the above allegations by reference here. 95. The ELCRA prohibits employers from discriminating in the terms and
conditions of employment on the basis of sex. M.C.L. § 37.2202. 96. Municipalities and governmental entities are covered employers under
the ELCRA. 97. As set forth above, the City of Warren, through its Police Department,
has promulgated and enforced a General Order that treats Plaintiffs, a group of female dispatchers, less favorably in the terms and conditions of their employment with the City of Warren because of their sex.
98. As set forth above, Plaintiffs now face imminent and real danger of exposure to COVID-19—a danger amplified far above the danger faced by the male dispatchers who are their co-workers—because of their sex.
99. Pursuant to M.C.L. § 37.2801 and other applicable laws, Plaintiffs seek the following relief:
a. immediate injunctive relief banning the policy and practice of requiring Plaintiffs and their fellow female dispatchers to conduct custodial searches of female prisoners:
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b. a declaratory judgment that Defendant’s General Order, policy, and practice of requiring Plaintiffs and their fellow female dispatchers to conduct custodial searches of female prisoners violates Plaintiffs’ rights under the ELCRA;
c. monetary damages to compensate Plaintiffs for the many years of extremely dangerous and odious terms and conditions of employment that have been imposed upon them unlawfully because of their sex;
d. an award of Plaintiffs’ attorney’s fees and costs; e. other relief that the Court may deem appropriate.

Dated: April 10, 2020

PITT McGEHEE PALMER & RIVERS
By: /s/ Robin B. Wagner____ Michael L. Pitt (P24429) Robin B. Wagner (P79408) Kevin M. Carlson (P67704) Attorneys for Plaintiffs 117 W. Fourth Street, Suite 200 Royal Oak, MI 48067 248-398-9800 248-268-7996 (fax) mpitt@pittlawpc.com rwagner@pittlawpc.com kcarlson@pittlawpc.com

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DEMAND FOR JURY TRIAL

Plaintiffs hereby demand a trial by jury of the facts and issues involved in this

matter.

PITT McGEHEE PALMER & RIVERS

Dated: April 10, 2020

By:_/s/ Robin B. Wagner Michael L. Pitt (P24429) Robin B. Wagner (P79408) Kevin M. Carlson (P67704)
Attorneys for Plaintiffs 117 W. Fourth Street, Suite 200 Royal Oak, MI 48067 248-398-9800 248-268-7996 (fax) mpitt@pittlawpc.com rwagner@pittlawpc.com kcarlson@pittlawpc.com

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Case 2:20-cv-10812-GCS-DRG ECF No. 12 filed 04/10/20 PageID.244 Page 29 of 32
SIGNATURE AND VERIFICATION OF COMPLAINT BY PLAINTIFF
I declare under penalty of perjury that the facts stated in this First Amended Complaint are true and accurate to the best of my knowledge and information.
Signed: ___________________________________ Suzanne Chaffin
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 Case 2:20-cv-10812-GCS-DRG ECF No. 15 filed 05/01/20 PageID.252 Page 1 of 23

KIRK, HUTH, LANGE & BADALAMENTI, P.L.C.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

LINDA DeVOOGHT, TRESSA SINHA, JENNIFER PIPER, DONNA TRIPI, SUZANNE CHAFFIN, CHERYL OSOWSKI, DAWN MCLEAN, and AMBER MAVIS

Case No. 2:20-cv-10812-GCSHon. George Caram Steeh Mag. Judge David R. Grand

Plaintiffs, vs. CITY OF WARREN,

Defendant.

_____________________________________________________________________________/

PITT McGEHEE PALMER & RIVERS

KIRK, HUTH, LANGE & BADALAMENTI, PLC

By: MICHAEL L. PITT (P24429)

By: ROBERT S. HUTH, JR. (P42531)

ROBIN B. WAGNER (79408)

RAECHEL M. BADALAMENTI (P64361)

KEVIN M. CARLSON (P67704)

ELIZABETH P. ROBERTS (P76017)

Attorneys for Plaintiffs

Attorneys for Defendant

117 W. Fourth St., Ste. 200

19500 Hall Road, Suite 100

Royal Oak, MI 48067

Clinton Township, MI 48038

(248) 398-9800

Fax: (248) 268-7996

(586) 412-4900 Fax: (586) 412-4949

mpitt@pittlawpc.com

rbadalamenti@KirkHuthLaw.com

rwagner@pittlawpc.com

eroberts@KirkHuthLaw.com

kcarlson@pittlawpc.com

_____________________________________________________________________________/

DEFENDANT CITY OF WARREN’S ANSWER TO FIRST

AMENDED VERIFIED COMPLAINT (DK #12)

Now Comes Defendant City of Warren (hereinafter “Defendant” or

“Warren”), by and through its attorneys, Kirk, Huth, Lange & Badalamenti, PLC,

and in Answer to the First Amended Verified Complaint for Damages, Declaratory

Judgment, Injunctive Relief and Jury Demand, states as follows:

Defendant denies the introductory paragraphs in their entirety.

KIRK, HUTH, LANGE & BADALAMENTI, P.L.C.

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1. Answering paragraph 1, Defendant neither admits nor denies the allegations contained in this paragraph for the reason that it is without sufficient information or knowledge upon which to form a belief and leaves Plaintiffs to their proofs.
2. Answering paragraph 2, Defendant neither admits nor denies the allegations contained in this paragraph for the reason that it is without sufficient information or knowledge upon which to form a belief and leaves Plaintiffs to their proofs.
3. Answering paragraph 3, Defendant admits the allegation. 4. Answering paragraph 4, Defendant admits the allegation. 5. Answering paragraph 5, Defendant admits the allegation. 6. Answering paragraph 6, Defendant admits the allegation. 7. Answering paragraph 7, Defendant neither admits nor denies the allegations contained in this paragraph for the reason that it is without sufficient information or knowledge upon which to form a belief and leaves Plaintiffs to their proofs. In further response, Defendant states that Ms. Chaffin was voluntarily dismissed from this lawsuit (ECF #13-14). 8. Answering paragraph 8, Defendant admits the allegation. 9. Answering paragraph 9, Defendant admits the allegation.

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10. Answering paragraph 10, Defendant neither admits nor denies the allegations contained in this paragraph for the reason that it is without sufficient information or knowledge upon which to form a belief and leaves Plaintiffs to their proofs. In further response, Defendant states that Ms. Mavis was voluntarily dismissed from this lawsuit (ECF #13-14).
11. Answering paragraph 11, Defendant admits the allegation. 12. Answering paragraph 12, Defendant admits the allegation to the extent this Court has jurisdiction.
Statement of Facts 13. Answering paragraph 13, Defendant admits the allegation. 14. Answering paragraph 14, Defendant admits that the dispatchers employed by the City of Warren are covered by the terms of the WPOA and WCOA Collective Bargaining Agreements but deny that individual pay is specified in the same. 15. Answering paragraph 15, Defendant admits the allegations contained therein. 16. Answering paragraph 16, Defendant admits the allegations contained therein. 17. Answering paragraph 17, Defendant admits the allegations contained therein.

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18. Answering paragraph 18, Defendant admits the allegations contained therein.
19. Answering paragraph 19, no response is required. 20. Answering paragraph 20, Defendant admits the allegations contained therein. 21. Answering paragraph 21, Defendant admits the allegations contained therein. 22. Answering paragraph 22, no response is required. 23. Answering paragraph 23, Defendant admits the allegations contained therein. 24. Answering paragraph 24, including sub-paragraphs (a)-(c), Defendant states that the General Order referenced therein speaks for itself and denies that the allegations contained in this paragraph accurately or completely describe the policies of Warren in respect to dispatcher duties, dispatch supervisor duties, or prisoner searches. 25. Answering paragraph 25, Defendant states that the General Order referenced therein speaks for itself and denies that the allegations contained in this paragraph accurately or completely describe the policies of Warren in respect to dispatcher duties, dispatch supervisor duties, or prisoner searches.

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26. Answering paragraph 26, Defendant states that the General Order referenced therein speaks for itself and denies that the allegations contained in this paragraph accurately or completely describe the policies of Warren in respect to dispatcher duties, dispatch supervisor duties, or prisoner searches.
27. Answering paragraph 27, Defendant denies the allegations contained therein as untrue in the manner and form alleged.
28. Answering paragraph 28, Defendant admits that all dispatchers, including female dispatchers, have been required to perform searches of prisoners as necessary since before 1999 when the first of the Plaintiffs secured employment as a Dispatcher with the City of Warren.
29. Answering paragraph 29, Defendant admits only that several City of Warren Police Department General Orders covered the subject of Dispatcher searches prior to 2017 including General Order No. 11-03: Prisoner Processing (effective May 17, 2011) which is not accurately or completely described in this paragraph.
30. Answering paragraph 30, Defendant admits only that several City of Warren Police Department General Orders covered the subject of Dispatcher searches prior to 2011 including General Order No. 05-02: Prisoner Processing (effective August 4, 2005) which is not accurately or completely described in this paragraph.

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31. Answering paragraph 31, Defendant admits the allegations contained therein.
32. Answering paragraph 32, Defendant admits that General Order No. 0201 specifically details all dispatchers’ duty to assist in the processing of prisoners in the Warren Jail.
33. Answering paragraph 33, Defendant denies the allegation given the job description and General Order regarding duties of Dispatch Supervisors expressly is required to “Perform[] general dispatch duties.”
34. Answering paragraph 34, Defendant states that no response is required as the collective bargaining agreements referenced speak for themselves.
35. Answering paragraph 35, Defendant denies the allegations contained therein as they are untrue in the manner and form alleged.
36. Answering paragraph 36, Defendant denies the allegations contained therein as they are untrue in the manner and form alleged.
37. Answering paragraph 37, Defendant denies the allegations contained therein as they are untrue in the manner and form alleged.
38. Answering paragraph 38, Defendant admits the allegations contained therein.
39. Answering paragraph 39, Defendant denies the allegations contained therein as they are untrue in the manner and form alleged.

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40. Answering paragraph 40, Defendant states that no response is necessary as the General Order 17-10 referenced therein speaks for itself.
41. Answering paragraph 41, Defendant states that no response is necessary as the General Order 17-10 referenced therein speaks for itself.
42. Answering paragraph 42, Defendant denies the allegations as untrue in the manner and form alleged.
43. Answering paragraph 43, Defendant neither admits nor denies the allegations contained in this paragraph for the reason that it is without sufficient information or knowledge upon which to form a belief and leaves Plaintiffs to their proofs.
44. Answering paragraph 44, Defendant admits the allegation. 45. Answering paragraph 45, Defendant denies the allegations as untrue in the manner and form alleged. 46. Answering paragraph 46, Defendant admits that part of dispatcher training includes the review of training videos on a continuing basis. 47. Answering paragraph 47, Defendant state no response is required where the conclusory statement is based on inaccurate facts. 48. Answering paragraph 48, Defendant admits that training of dispatchers includes in-person and video demonstrations by male police officers.

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49. Answering paragraph 49, Defendant denies that there is a policy that precludes male dispatchers from prisoner searches.
50. Answering paragraph 50, Defendant admits the allegations contained therein.
51. Answering paragraph 51, Defendant neither admits nor denies the allegations contained in this paragraph for the reason that it is without sufficient information or knowledge upon which to form a belief and leaves Plaintiffs to their proofs.
52. Answering paragraph 52, Defendant admits the allegations but notes that general CDC-issued guidance provisions have no bearing on the need, duty or obligation incumbent upon the Warren Police Department and its employees, including Plaintiffs, to search prisoners in the Warren Jail to ensure public and coworker safety.
53. Answering paragraph 53, including sub-paragraphs (a)-(d), Defendant admits that the CDC has issued guidance regarding personal protection equipment but notes that this guidance is ever-changing to meet, among other things, demand in the medical community.
54. Answering paragraph 54, Defendant denies the allegations as untrue. In fact, separate and multiple boxes of all CDC-recommended Personal Protection Equipment (“PPE”) including glasses and gowns was provided to the dispatchers

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prior to initiation of this lawsuit and at the same time such PPE became available to the rest of Warren Police Department personnel. This averment was pled in bad faith where written confirmation and photographs of this PPE was transmitted to counsel for Plaintiffs days prior to this suit being filed and weeks prior to the filing of the Amended Complaint at Dk #12.
55. Answering paragraph 55, Defendant denies the allegations contained therein as untrue in the manner and form alleged.
56. Answering paragraph 56, Defendant denies the allegations contained therein as untrue in the manner and form alleged.
57. Answering paragraph 57, Defendant denies the allegations contained therein as untrue in the manner and form alleged.
58. Answering paragraph 58, Defendant denies that officers are privy to additional PPE. In fact, separate and multiple boxes of all CDC-recommended Personal Protection Equipment (“PPE”) including glasses and gowns was provided to the dispatchers prior to initiation of this lawsuit and at the same time such PPE became available to the rest of Warren Police Department personnel. This averment was pled in bad faith where written confirmation and photographs of this PPE was transmitted to counsel for Plaintiffs days prior to this suit being filed and weeks prior to the filing of the Amended Complaint at Dk #12.

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59. Answering paragraph 59, Defendant denies the allegations contained therein as untrue in the manner and form alleged.
60. Answering paragraph 60, Defendant denies the allegations contained therein as untrue in the manner and form alleged.
61. Answering paragraph 61, Defendant admits the allegation and that all dispatchers are trained and required to be physically able to perform custodial searches as described in the written job duties provided at the time they are hired and in WPD General Orders.
62. Answering paragraph 62, Defendant denies the allegations contained therein as untrue in the manner and form alleged.
63. Answering paragraph 63, including sub-paragraphs (a)-(f), Defendant neither admits nor denies the allegations contained in this paragraph for the reason that it is without sufficient information or knowledge upon which to form a belief and leaves Plaintiffs to their proofs.
64. Answering paragraph 64, including sub-paragraphs (a)-(d), Defendant neither admits nor denies the allegations contained in this paragraph for the reason that it is without sufficient information or knowledge upon which to form a belief and leaves Plaintiffs to their proofs.
65. Answering paragraph 65, Defendant neither admits nor denies the allegations contained in this paragraph for the reason that it is without sufficient

KIRK, HUTH, LANGE & BADALAMENTI, P.L.C.

Case 2:20-cv-10812-GCS-DRG ECF No. 15 filed 05/01/20 PageID.262 Page 11 of 23
information or knowledge upon which to form a belief and leaves Plaintiffs to their proofs.
66. Answering paragraph 66, Defendant neither admits nor denies the allegations contained in this paragraph for the reason that it is without sufficient information or knowledge upon which to form a belief and leaves Plaintiffs to their proofs.
67. Answering paragraph 67, Defendant denies the allegations contained therein as untrue in the manner and form alleged.
68. Answering paragraph 68, Defendant denies the allegations contained therein as untrue in the manner and form alleged.
69. Answering paragraph 69, Defendant denies that this paragraph accurately or completely described the job duties or General Orders of the City of Warren Police Department regarding dispatcher search obligations.
70. Answering paragraph 70, including sub-paragraphs (a)-(g), Defendant denies that it has been put on notice of any instance of a policy violation regarding dispatcher searches to the extent that any of the identified instances amount to such a violation of the actual policies in place in the Warren Police Department – which are not accurately or completely described in the pleading.

KIRK, HUTH, LANGE & BADALAMENTI, P.L.C.

Case 2:20-cv-10812-GCS-DRG ECF No. 15 filed 05/01/20 PageID.263 Page 12 of 23
71. Answering paragraph 71, Defendant generally admits that the policy provides for “coverage” in the dispatch center in the event a dispatcher is needed for a prisoner search.
72. Answering paragraph 72, Defendant denies it has ever been put on notice of such an issue and, further, neither admits nor denies the specific suballegations contained in this paragraph for the reason that it is without sufficient information or knowledge upon which to form a belief and leaves Plaintiffs to their proofs.
73. Answering paragraph 73, Defendant denies the allegations as untrue in the manner and form alleged.
74. Answering paragraph 74, Defendant denies the allegations as untrue in the manner and form alleged.
75. Answering paragraph 75, Defendant denies the allegations as untrue in the manner and form alleged.
76. Answering paragraph 76, Defendant denies the allegations as untrue in the manner and form alleged.
77. Answering paragraph 77, Defendant states that no response is necessary as the memo referenced therein speaks for itself.
78. Answering paragraph 78, Defendant denies the allegations as untrue in the manner and form alleged.

KIRK, HUTH, LANGE & BADALAMENTI, P.L.C.

Case 2:20-cv-10812-GCS-DRG ECF No. 15 filed 05/01/20 PageID.264 Page 13 of 23
79. Answering paragraph 79, Defendant denies the allegations as untrue in the manner and form alleged.
80. Answering paragraph 80, Defendant denies the allegations as untrue in the manner and form alleged.
81. Answering paragraph 81, Defendant denies the allegations as untrue in the manner and form alleged.
82. Answering paragraph 82, Defendant denies the allegations as untrue in the manner and form alleged.
83. Answering paragraph 83, Defendant denies the allegations as untrue in the manner and form alleged.
84. Answering paragraph 84, Defendant denies any suggestion that it has an insufficient number of female officers or inadequate recruitment efforts for female officers. In further response, Defendant denies that its average of female employees is below the average of other police departments.
85. Answering paragraph 85, Defendant denies the allegations as untrue in the manner and form alleged.
86. Answering paragraph 86, Defendant denies the allegations as untrue in the manner and form alleged.

KIRK, HUTH, LANGE & BADALAMENTI, P.L.C.

Case 2:20-cv-10812-GCS-DRG ECF No. 15 filed 05/01/20 PageID.265 Page 14 of 23
Count One: 42 U.S.C. §1983 Monell-based Violation of Plaintiffs’ Rights Under the Equal Protection Clause of the 14th Amendment 87. Defendant incorporates all preceding paragraphs hereof as though fully restated herein. 88. Answering paragraph 88, Defendant denies that this paragraph accurately or completely describes the applicable legal authorities. 89. Answering paragraph 89, Defendant denies that this paragraph accurately or completely describes the applicable legal authorities. 90. Answering paragraph 90, Defendant denies that this paragraph accurately or completely describes the applicable legal authorities. 91. Answering paragraph 91, Defendant denies the allegations as untrue in the manner and form alleged. 92. Answering paragraph 92, Defendant denies the allegations as untrue in the manner and form alleged. 93. Answering paragraph 93, including sub-paragraph (a)-(e), Defendant states that no response is necessary as the paragraph is a mere prayer for relief. To the extent that a response is required, Defendant denies that the requested relief is available or appropriate.

KIRK, HUTH, LANGE & BADALAMENTI, P.L.C.

Case 2:20-cv-10812-GCS-DRG ECF No. 15 filed 05/01/20 PageID.266 Page 15 of 23
WHEREFORE, Defendant respectfully requests this matter be dismissed for lack of merit with prejudice and that its costs and fees so wrongfully incurred defending it be awarded.
Count Two: Violation of Elliot-Larsen Civil Rights Act, MCL 37.2101 et. seq. Disparate Treatment in the Terms and Conditions of Employment on the Basis of Sex
94. Defendant incorporates all preceding paragraphs hereof as though fully restated herein.
95. Answering paragraph 95, Defendant denies that this paragraph accurately or completely describes the applicable legal authorities.
96. Answering paragraph 96, Defendant admits the allegations contained therein.
97. Answering paragraph 97, Defendant denies the allegations as untrue in the manner and form alleged.
98. Answering paragraph 98, Defendant denies the allegations as untrue in the manner and form alleged.
99. Answering paragraph 99, including sub-paragraph (a)-(e), Defendant states that no response is necessary as the paragraph is a mere prayer for relief. To the extent that a response is required, Defendant denies that the requested relief is available or appropriate.

Case 2:20-cv-10812-GCS-DRG ECF No. 15 filed 05/01/20 PageID.267 Page 16 of 23

WHEREFORE, Defendant respectfully requests this matter be dismissed for

lack of merit with prejudice and that its costs and fees so wrongfully incurred

defending it be awarded.

Respectfully submitted, KIRK, HUTH, LANGE & BADALAMENTI, PLC

Dated: May 1, 2020

By: s/ Raechel M. Badalamenti RAECHEL M. BADALAMENTI (P64361) rbadalamenti@KirkHuthLaw.com Attorneys Defendant 19500 Hall Road, Suite 100 Clinton Township, MI 48038 (586) 412-4900

KIRK, HUTH, LANGE & BADALAMENTI, P.L.C.

Case 2:20-cv-10812-GCS-DRG ECF No. 15 filed 05/01/20 PageID.268 Page 17 of 23

KIRK, HUTH, LANGE & BADALAMENTI, P.L.C.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

LINDA DeVOOGHT, TRESSA SINHA, JENNIFER PIPER, DONNA TRIPI, SUZANNE CHAFFIN, CHERYL OSOWSKI, DAWN MCLEAN, and AMBER MAVIS

Case No. 2:20-cv-10812-GCSHon. George Caram Steeh Mag. Judge David R. Grand

Plaintiffs, vs. CITY OF WARREN,

Defendant.

_____________________________________________________________________________/

PITT McGEHEE PALMER & RIVERS

KIRK, HUTH, LANGE & BADALAMENTI, PLC

By: MICHAEL L. PITT (P24429)

By: ROBERT S. HUTH, JR. (P42531)

ROBIN B. WAGNER (79408)

RAECHEL M. BADALAMENTI (P64361)

KEVIN M. CARLSON (P67704)

ELIZABETH P. ROBERTS (P76017)

Attorneys for Plaintiffs

Attorneys for Defendant

117 W. Fourth St., Ste. 200

19500 Hall Road, Suite 100

Royal Oak, MI 48067

Clinton Township, MI 48038

(248) 398-9800

Fax: (248) 268-7996

(586) 412-4900 Fax: (586) 412-4949

mpitt@pittlawpc.com

rbadalamenti@KirkHuthLaw.com

rwagner@pittlawpc.com

eroberts@KirkHuthLaw.com

kcarlson@pittlawpc.com

_____________________________________________________________________________/

DEFENDANT CITY OF WARREN’S RELIANCE UPON JURY DEMAND

Now Comes Defendant City of Warren, by and through its attorneys, Kirk,

Huth, Lange & Badalamenti, PLC, and hereby relies on Plaintiff’s Jury Demand

previously filed in this matter.

Respectfully submitted, KIRK, HUTH, LANGE & BADALAMENTI, PLC

Dated: May 1, 2020

By: s/Raechel M. Badalamenti RAECHEL M. BADALAMENTI (P64361) Email: rbadalamenti@KirkHuthLaw.com Attorneys for Defendant

Case 2:20-cv-10812-GCS-DRG ECF No. 15 filed 05/01/20 PageID.269 Page 18 of 23

KIRK, HUTH, LANGE & BADALAMENTI, P.L.C.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

LINDA DeVOOGHT, TRESSA SINHA, JENNIFER PIPER, DONNA TRIPI, SUZANNE CHAFFIN, CHERYL OSOWSKI, DAWN MCLEAN, and AMBER MAVIS

Case No. 2:20-cv-10812-GCSHon. George Caram Steeh Mag. Judge David R. Grand

Plaintiffs, vs. CITY OF WARREN,

Defendant.

_____________________________________________________________________________/

PITT McGEHEE PALMER & RIVERS

KIRK, HUTH, LANGE & BADALAMENTI, PLC

By: MICHAEL L. PITT (P24429)

By: ROBERT S. HUTH, JR. (P42531)

ROBIN B. WAGNER (79408)

RAECHEL M. BADALAMENTI (P64361)

KEVIN M. CARLSON (P67704)

ELIZABETH P. ROBERTS (P76017)

Attorneys for Plaintiffs

Attorneys for Defendant

117 W. Fourth St., Ste. 200

19500 Hall Road, Suite 100

Royal Oak, MI 48067

Clinton Township, MI 48038

(248) 398-9800

Fax: (248) 268-7996

(586) 412-4900 Fax: (586) 412-4949

mpitt@pittlawpc.com

rbadalamenti@KirkHuthLaw.com

rwagner@pittlawpc.com

eroberts@KirkHuthLaw.com

kcarlson@pittlawpc.com

_____________________________________________________________________________/

DEFENDANT CITY OF WARREN’S AFFIRMATIVE AND/OR

SPECIAL DEFENSES AND RESERVATION OF DEFENSES

Now Comes Defendant City of Warren (hereinafter “Defendant” or

“Warren”), by and through its attorneys, Kirk, Huth, Lange & Badalamenti, PLC,

and state that they will assert the following Affirmative and/or Special Defenses

and Reservation of Defenses in this matter:

1. Plaintiffs failed to state a claim upon which relief may be granted.

2. Plaintiffs’ claims fail, in whole or in part, because they are not ripe.

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Case 2:20-cv-10812-GCS-DRG ECF No. 15 filed 05/01/20 PageID.270 Page 19 of 23
3. Plaintiffs’ claims fail based on their failure to satisfy conditions precedent to suit including, but not limited to, obtaining a Right to Sue letter from the Equal Employment Opportunity Commissioner, pursuing the relief sought in union negotiations and/or complying with the 4-step grievance process required under the applicable Collective Bargaining Agreements.
4. Plaintiffs’ claims fail, in whole or in part, where they failed to exhaust their administrative remedies prior to commencement of this action.
5. Plaintiffs’ claims fail where based on knowingly false averments. 6. Plaintiffs’ claims fail where any gender-based classifications, if any, are genuine and serve an important governmental objective and the policies in question are substantially related to the achievement of those objectives. 7. Plaintiffs’ claims are barred by release, waiver and/or consent. 8. Plaintiffs’ claims are barred, in whole or in part, by the statute of limitations and/or the doctrine of laches. 9. Plaintiff’s claims fail, in whole or in part, because the allegations of the Complaint are false, inaccurate and grossly exaggerated. 10. Plaintiffs’ claims are barred to the extent Plaintiffs lack standing. 11. Plaintiffs’ claims, including but not limited to any demand for punitive damages or attorney fees, against Defendant the City of Warren are barred

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Case 2:20-cv-10812-GCS-DRG ECF No. 15 filed 05/01/20 PageID.271 Page 20 of 23
by the application of qualified immunity, absolute governmental immunity and/or other immunity provided by federal or state law.
12. Plaintiff’s claims fail, in whole or in part, because there was no discrimination or unequal treatment based on gender or other protected class status.
13. Plaintiffs’ claims fail because Plaintiffs have not suffered any adverse employment action.
14. There was no deprivation of any of Plaintiffs’ federally protected rights, privileges, or immunities secured by United States Constitution or federal law by the Defendant.
15. Defendant, at all times, acted in good faith. 16. Plaintiffs at all times had notice of their job duties and the City of Warren agreed to compensate Plaintiffs only for performance of all of those job duties. 17. Defendant’s actions and/or inactions were not deliberately indifferent. 18. The City of Warren cannot be liable where Plaintiffs were adequately trained with respect to prisoner searches. 19. There is no causal connection between the harm claimed by Plaintiffs in the current pandemic and any acts or omissions of Defendants, if any.

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Case 2:20-cv-10812-GCS-DRG ECF No. 15 filed 05/01/20 PageID.272 Page 21 of 23
20. Plaintiffs have failed to state a claim against Defendant City of Warren as there is no governmental liability for an alleged failure to train and/or supervise employees.
21. Plaintiffs’ damages and/or injuries, if any, are the result of Plaintiffs’ own negligence and/or wrongful conduct.
22. Plaintiffs are barred from maintaining this action under the terms of the Warren Police Officer Collective Bargaining Agreement and/or Warren Command Officer Collective Bargaining Agreement.
23. There exists no unlawful or improper policy, practice or custom in the City of Warren that led to any alleged deprivation of Plaintiff’s Constitutional or other rights to sustain a claim against the Defendant under 42 USC 1983.
24. Any claims predicated on respondeat superior liability under either state or federal law fail.
25. Plaintiffs failed to mitigate their damages. 26. Plaintiffs’ claims are barred, in whole or in part, to the extent they are or they become moot. 27. Plaintiffs’ claims are barred, in whole or in part, by their failure to elect their remedies. 28. Plaintiffs’ claims fail where Plaintiffs, female dispatchers, were treated equally on the basis of sex with their male counterparts.

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KIRK, HUTH, LANGE & BADALAMENTI, P.L.C.

29. Plaintiffs’ claims fail given that female dispatchers search of female

prisoners is a bona fide occupation qualification reasonably necessary to the

normal operation of the Warren Jail.

30. Plaintiffs’ claims fail where no reasonable alternatives exist to

requiring female dispatchers to search female prisoners given state and federal

protections imposed upon Defendant regarding prisoner’s right to privacy

including under MCL 764.25a(3).

31. Plaintiffs’ claims for injunctive relief fail, in whole or in part, because

(A) Plaintiffs are not likely to succeed on the merits of their claims, (B) Plaintiffs

will not suffer irreparable harm absent injunctive relief; (C) harm to others will

result from issuance of the injunctive relief requested; and (D) injunctive relief is

not in the public interest.

32. Defendant reserves the right to plead additional Affirmative Defenses

as they become known through discovery.

Dated: May 1, 2020

Respectfully submitted, KIRK, HUTH, LANGE & BADALAMENTI, PLC
By: s/ Raechel M. Badalamenti RAECHEL M. BADALAMENTI (P64361) rbadalamenti@KirkHuthLaw.com Attorneys Defendant 19500 Hall Road, Suite 100 Clinton Township, MI 48038 (586) 412-4900

Case 2:20-cv-10812-GCS-DRG ECF No. 15 filed 05/01/20 PageID.274 Page 23 of 23
CERTIFICATE OF SERVICE
I hereby certify that on May 1, 2020, I electronically filed the foregoing paper with the Clerk of the Court using the ECF system which will send notification of such filing to all ECF participants in this case. I hereby certify that I have mailed by United States Postal Service the paper to the following non-ECF participants: None.
s/Raechel M. Badalamenti RAECHEL M. BADALAMENTI (P64361) rbadalamenti@KirkHuthLaw.com 19500 Hall Road, Suite 100 Clinton Township, MI 48038 (586) 412-4900

KIRK, HUTH, LANGE & BADALAMENTI, P.L.C.

 
 Case 2:20-cv-10812-GCS-DRG ECF No. 36, PageID.1529 Filed 11/13/20 Page 1 of 30

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Linda DeVooght, Tressa Sinha, Jennifer Piper, and Dawn McLean,
Plaintiffs,
v.

Case: 20-cv-10812
Hon. George Caram Steeh United States District Judge

City of Warren, Defendant.

Hon. David R. Grand United States Magistrate Judge

PLAINTIFFS’ STIPULATED SECOND AMENDED VERIFIED COMPLAINT FOR DAMAGES, DECLARATORY JUDGMENT, INJUNCTIVE RELIEF AND JURY DEMAND 1. Plaintiffs Linda DeVooght, Tressa Sinha, Jennifer Piper, and Dawn McLean are women dispatchers employed by the City of Warren Police Department. They originally brought this lawsuit against their employer, the City of Warren alleging violations of their 14th Amendment Equal Protection rights and their rights under the Elliott-Larsen Civil Rights Act. Plaintiffs have been subjected to unlawfully adverse conditions of employment because of their sex, and now Plaintiffs add to their Complaint charges under Title VII of the 1964 Civil Rights Act. 2. Plaintiffs, who are civilian employees, are required to conduct patdown searches of women arrestees, which is universally understood to be a
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responsibility properly left to trained sworn police officers; whereas, similarly situated male dispatchers have no such work demand. Defendants, the City of Warren and its Police Commissioner, require Plaintiffs and their fellow women dispatchers, but not their similarly situated male dispatchers, to conduct these inherently unsafe searches of arrestees instead of assigning the task to one of the City’s on-duty female police officers who have been properly trained to conduct the searches, or requesting the assistance of a female office from a neighboring jurisdiction.
JURISDICTION, PARTIES AND VENUE 3. This Court has jurisdiction pursuant to 28 U.S.C. § 1331, which authorizes federal courts to decide cases concerning federal questions; 28 U.S.C. § 1343(a)(3) and (4), which authorize federal courts to hear civil rights cases; and 28 U.S.C. § 2201, the Declaratory Judgment Act. 4. This Court has jurisdiction pursuant to 28 U.S.C. § 1367 over the statelaw claims under the Elliott-Larsen Civil Rights Act, MCL 37.2101 et seq (“ELCRA”) arising from the same core operative facts as the federal questions. 5. Plaintiff Linda DeVooght is a 48-year-old woman who resides in Sterling Heights, County of Macomb, Michigan. 6. Plaintiff Tressa Sinha is a 35-year-old woman who resides in Troy, County of Oakland, Michigan.
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7. Plaintiff Jennifer Piper is a 46-year-old woman who resides in Warren, County of Macomb, Michigan.
8. Plaintiff Dawn Mclean is a 48-year-old woman who resides in Warren, County of Macomb, Michigan.
9. Defendant City of Warren is an incorporated municipality under Michigan’s Home Rule Cities Act and located in Macomb County, Michigan.
10. On October 15, 2020, Plaintiffs received their Notices of Right to Sue from the EEOC on their charges of discrimination in violation of Title VII of the 1964 Civil Rights Act:
a. DeVooght, Charge Number 471-2020-02481 b. Sinha, Charge Number 471-2020-02484 c. Piper, Charge Number 471-2020-02483 d. McLean, Charge Number 471-2020-02604 11. Venue is proper in this Court as Defendant City is located in the Eastern District of Michigan, all parties live and work in the Eastern District of Michigan, and all the events alleged herein occurred in the Eastern District of Michigan.
Statement of Facts 12. The City of Warren Police Department employs approximately 20 dispatchers, 4 of whom are men and the rest of whom are women.
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13. The dispatchers employed by the City of Warren Police Department are paid according to two collective bargaining agreements—one for the dispatchers and one for the supervisors—and these agreements make no distinction in pay between male and female dispatchers or dispatch supervisors.
14. Plaintiff Linda DeVooght began working as a dispatcher for Defendant City of Warren’s Police Department on or about April 6, 1999. She was promoted to a Supervisor of Dispatch on or about February 20, 2015.
15. In September of 2020, Ms. DeVooght accepted a settlement agreement negotiated through the unions with Defendants to accept a demotion to dispatcher and an unpaid suspension.
16. On October 7, 2020, the City issued a personnel order reinstating DeVooght to the position of dispatcher.
17. On October 9, 2020, Ms. DeVooght resumed employment with the City of Warren as a dispatcher.
18. Plaintiff Tressa Sinha began working as a dispatcher for Defendant City of Warren’s Police Department on or about May 27, 2015.
19. Plaintiff Jennifer Piper began working a dispatcher for Defendant City of Warren’s Police Department on or about January 24, 2005.
20. Plaintiff Dawn McLean began working as a dispatcher for Defendant City of Warren’s Police Department in or about May 1997.
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A. The City of Warren Police Department Maintains a Long-Standing Policy that Requires Women Dispatchers to Conduct Custodial Searches of Prisoners; whereas, Male Dispatchers Have No Such Requirement 21. On October 4, 2017, the City of Warren Police Department issued
General Order No. 17-10 for Arrest Procedures and the “handling, booking, and processing of prisoners taken into custody.”
22. According to Section G, “Prisoner Searches,” of this 2017 General Order:
a. “the arresting/transporting officers will conduct an initial search for weapons and contraband.”
b. “If a male prisoner is arrested by a female officer, an available male officer who is on duty and in the station when the arrest is made shall be called upon to conduct the search.”
c. “If a female prisoner is arrested by a male officer, an available officer who is on duty and in the station when the arrest is made shall be called upon to conduct the search prior to calling upon a dispatcher to perform the search.”
23. This General Order further directs that “A female dispatcher will conduct the search of a female prisoner in the detention facility when: 1) a female is arrested by a male officer; and 2) there are no female officers on duty and in the station at the time of booking.”
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24. This General Order further directs that when only 3 dispatchers are on duty “or if the Watch Commander deems it necessary, an officer will be assigned by the Watch Commander to assist in Dispatch until the search is completed.”
25. There is no provision for male dispatchers to ever search a prisoner. 26. This written policy of ordering female dispatchers to perform body searches of female prisoners has been in effect since 2011. 27. Earlier versions of the prisoner search policy have, with only a few short exceptions, also spelled out that only female dispatchers would be called upon to perform prisoner searches. 28. On April 4, 2020, in response to initial negotiations regarding Plaintiffs’ filing of their initial Complaint and a since-withdrawn Motion for Preliminary Injunction and Temporary Restraining Order (Dkt. 2), Defendants issued General Order 20-03, which altered the policy’s language to require a dispatcher to conduct a prisoner search when a same-sex patrol officer is unavailable. 29. There is no known instance dating back at least three decades and including since the revised directive issued on April 4, 2020, of a male dispatcher conducting a prisoner search. 30. The City of Warren Police Department General Order regarding the General Description of Duties for Dispatchers was last revised in August of 2003.
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31. This General Order regarding the Duties for Dispatchers mentions as the last of a long list of duties that a dispatcher “assists in the searching/processing of arrested persons in the station, as necessary, at the direction of a supervisor.”
32. The General Order describing the duties of Dispatch Supervisors, which became effective on October 9, 2002 and remains in effect today, makes no mention of prisoner searches as a responsibility, but does indicate that he or she performs general dispatch duties.
33. The collective bargaining agreements relevant to Dispatchers and Dispatch Supervisors make no mention of prisoner searches as a responsibility of any dispatcher. B. Defendants Maintain a Policy and Practice that Requires Plaintiffs and the
Other Female Dispatchers, but Never Male Dispatchers, to Regularly Conduct Custodial Searches of Female Arrestees
34. On numerous occasions in any given week—averaging four to five times in a week—Defendants order a female dispatcher to leave her duties and perform a custodial search of a prisoner.
35. Even though the applicable orders direct a female officer who is on duty and in the station to conduct the search, as a practice and policy of the department and its commanding officers, female officers are not ordered to perform these searches, even when they are on duty and in the station.
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36. Rather, it is nearly always the case that when a male officer brings in a female prisoner, a female dispatcher is ordered to report to the intake area and conduct the search.
37. Of its nearly 200 sworn officers, Defendant City of Warren’s Police Department employs 14 female police officers, which is only 7%.
38. The average across the United States of women as a percentage of a police force is over 12%, and in comparable Michigan police departments, women comprise over 10% of the sworn officers.
39. One of the Warren PD female officers is assigned during the days from Monday to Friday at the station and yet she is rarely ordered to conduct the full custodial search of a female arrestee brought in by a male officer.
40. Plaintiffs and their female colleagues in dispatch have regularly been called upon to conduct a prisoner search even though a female sworn officer is either available in the station or could be readily summoned from the road to perform the search.
41. Searching a prisoner or arrestee is inherently dangerous work that requires the specialized training of a sworn police officer.
42. The Warren Police Department’s policy indicates that women dispatchers should wear bullet-proof vests when conducting prisoner searches.
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43. This policy of prescribing bullet-proof vests serves as Defendants’ admission that conducting prisoner searches is inherently dangerous work not suitable for civilians.
44. Acceptable practices for searching arrestees include: a. Having a sworn officer of the sex requested by the prisoner conduct the search; b. Having a sworn officer of the sex that matches the apparent sex of the prisoner conduct the search; c. Summoning from a neighboring jurisdiction a sworn officer of the sex matching the apparent or requested sex of the prisoner to conduct the search; d. Having a sworn officer of any sex conduct the search in a situation that can be monitored through security cameras.
45. It is not considered an acceptable policing practice to allow civilians who are not trained or sworn officers to search a prisoner or arrestee.
46. Defendant City of Warren has in the past dispatched its own female officers to a neighboring jurisdiction to search a female arrestee.
47. Defendant City of Warren borders the City of Detroit, which employees approximately 500 female police officers who could be summoned to assist with a search when no female officer is on duty in Warren.
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48. The City of Warren is compact in geographical scope so that a female officer on duty anywhere in the city could be summoned to the jail to perform a search in less than twenty minutes. C. Female and Male Dispatchers are Held to Different Qualifications for
Employment 49. Defendants require that female dispatchers be physically able to
perform prisoner searches, but do not hold male dispatchers to the same physical job requirements.
50. When Plaintiff Jennifer Piper took a medical leave in the fall of 2019, Defendants would not clear her to return to work until she could demonstrate that she was physically able to conduct custodial searches of prisoners.
51. No male dispatcher has ever had to demonstrate that he was physically able to conduct custodial searches to be cleared to return to work.
52. Indeed, a male dispatcher during the same time took time off work for hernia surgery, but was allowed to return to his job, which for him was considered light duty, even though he was not physically able to conduct custodial searches. D. Custodial Searches Involve Extensive Physical Contact with the Prisoner’s
Body, Clothing, and Personal Effects; However, the City of Warren has Failed to Properly Train or Protect the Female Dispatchers it Orders to Conduct these Searches
53. The City’s General Order No. 17-10 on Arrest Procedures defines the full custodial search that must be conducted of a prisoner being arrested as requiring
10

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the person conducting the search to remove and inventory all personal property, check the prisoner’s garments, remove all medications, contraband, and potential weapons, and remove and inspect all headwear such as wigs, toupees, weaves, or barrettes.
54. When a female dispatcher is performing the search, the arresting/assisting officer is required by the General Order No. 17-10 to “stand by in close proximity in the booking area until the search has been completed and the prisoner has been turned over to detention personnel.”
55. In practice, the arresting/assisting officer will commonly leave the proximity of the female dispatcher and the prisoner she has been ordered to search.
56. Indeed, on March 12, 2020, one female dispatcher was ordered to conduct a custodial search on a female prisoner who was arrested on a two-felony warrant—assault and concealing a dangerous weapon—yet the male arresting/assisting officer left this dispatcher alone with this prisoner for at least two minutes during the search.
57. Sworn police officers receive extensive training to safely conduct a custodial search of a prisoner, disarm prisoners, and remove contraband.
58. However, the City of Warren’s Police Department has failed to provide adequate training in five years for the female dispatchers to conduct a custodial search of a prisoner, disarm prisoners, or remove contraband from a prisoner.
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59. One video Defendants have used to provide “training” to Plaintiffs and other female dispatchers on conducting searches even demonstrates a male officer conducting the custodial search of a female prisoner.
60. Watching a training video is woefully inadequate training for conducting a search that can expose the person conducting the search to infectious diseases such as COVID-19, potential weapons the prisoner is holding that evaded the original pat-down, highly toxic narcotics the prisoner may yet have concealed on her person, as well as lice, scabies, fleas and other pests that may have infested a prisoner.
61. Male dispatchers, unlike their female counterparts, are never asked or ordered to perform custodial searches of prisoners; therefore, the male dispatchers are never subjected to the risks associated with conducting custodial searches of prisoners.
E. On March 10, 2020, when the First COVID-19 Case in Michigan was Confirmed, Defendants Ordered Female Dispatchers to Continue to Conduct Custodial Searches of Prisoners
62. On March 10, 2020, the first COVID-19 case in Michigan was confirmed and Governor Whitmer declared a State of Emergency directing that steps be taken to prevent the spread of the disease.
63. After March 10, 2020, Defendants continued to order Plaintiffs and their fellow Female Dispatchers to conduct custodial searches of female prisoners.
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64. The United States Centers for Disease Control and Prevention (“CDC”) has issued guidance regarding the measures to be taken at workplaces to avoid and protect against transmission of COVID-19. Among the recommendations provided for law enforcement personnel is maintain a distance of at least 6 feet from individuals whenever possible.1
65. Additionally, the CDC has advised the following as minimally acceptable Personal Protective Equipment to Wear when one must be within 6 feet of another individual to perform operational duties2:
a. A single pair of disposable examination gloves, b. Disposable isolation gown or single-use/disposable coveralls, c. Any NIOSH-approved particulate respirator (i.e., N-95 or
higher-level respirator); Facemasks are an acceptable alternative until the supply chain is restored, and d. Eye protection (i.e., goggles or disposable face shield that fully covers the front and sides of the face)
1 “What Law Enforcement Personnel Need to Know About Coronavirus Disease 2019 (COVID-19),” CDC, available at https://www.cdc.gov/coronavirus/2019ncov/community/guidance-law-enforcement.html (Last visited 3-23-2020). 2 Id.
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66. While disposable gloves and face masks have been made available to Plaintiff and their fellow Female Dispatchers, Defendants initially failed to provide isolation gowns or eye protection to them.
67. Indeed, on March 22, 2020, a female dispatcher, who has since withdrawn her claims against Defendant, expressed her concerns about performing a custodial search without such protective equipment because she lives with three family members who are in high-risk categories for COVID-19 exposure—diabetes, cancer treatment, and asthma.
68. The Watch Commander told this dispatcher that all she needed was the mask and the gloves. He denied her a protective gown and eye protection.
69. This dispatcher was required to perform the custodial search on this female prisoner notwithstanding her concerns and the lack of proper protective equipment, and the fact that a female officer was due to come on duty at the station in 15 minutes.
70. Male Dispatchers are never expected to perform custodial searches of prisoners. F. Custodial Searches of Prisoners Expose Female Dispatchers to Other
Dangerous and Odious Conditions 71. Plaintiffs and their fellow Female Dispatchers have been ordered to
conduct searches in which they must touch and handle women who: a. are extremely intoxicated; 14

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b. are belligerent and make direct threats to the female dispatchers; c. have urinated, vomited, and/or defecated on themselves; d. are known or believed to be infected with highly contagious
diseases; e. show obvious signs of lice, bed bugs, flea, and/or scabies
infestation; and/or f. may have sharp objects such as drug paraphernalia and/or
weapons. 72. Plaintiffs and their fellow Female Dispatchers have been ordered to conduct strip searches of women who are believed to be:
a. concealing weapons in the folds and cavities of their bodies; b. concealing highly toxic controlled substances in the folds and
cavities of their bodies; c. are known or believed to be infected with highly contagious
diseases; d. show obvious signs of lice, bed bugs, flea, and/or scabies
infestation. 73. Plaintiffs and their fellow Female Dispatchers have been ordered to conduct searches of women who are obviously ill.
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74. Plaintiffs and other Female Dispatchers have been exposed directly to the body fluids of women prisoners during these searches.
75. Plaintiffs and other Female Dispatchers have been left alone with female prisoners during the custodial search or left with only an inexperienced rookie officer while the female dispatcher conducted the search.
76. Plaintiffs and other Female Dispatchers have even been left alone to search prisoners who were arrested on violent felony charges. G. Plaintiffs Have Been Required to Search Prisoners even when Female
Officers were on Duty and in the Station 77. The General Order governing custodial searches of prisoners requires
that a female officer present in the station and on duty conduct the search, and that a female dispatcher only be ordered to conduct the search when that is not the case.
78. However, on numerous occasions Plaintiffs and their fellow female dispatchers have been ordered to conduct the custodial search of female prisoners even though there were female officers on duty in the station. For example:
a. On June 24, 2019, a female prisoner was brought in by a male officer. A female officer was on duty and in the station at the time but she rejected the page to conduct the search. Instead, Plaintiff Linda DeVooght was ordered to conduct the search.
b. On March 13, 2020, a female prisoner was brought in by a male officer. At the time, a female officer was in the station and on 16

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duty. Nonetheless, Plaintiff Jennifer Piper was ordered to conduct the search of the prisoner. c. On March 16, 2020, a female prisoner was brought in by a male officer. At the time, a female officer was on duty and in the station; however, the watch commander informed dispatch that this officer was “unavailable” with no further elaboration. Instead, Plaintiff Tressa Sinha was ordered to conduct the search of the prisoner. H. When Female Dispatchers are Ordered to Report to Booking and Conduct a Search, Dispatch is Left Understaffed 79. The General Order governing prisoner processing indicates that to prevent understaffing of the dispatch unit, a male officer will provide relief for the female dispatcher when she is ordered to conduct a custodial search of a prisoner. 80. However, the male officers sent to relieve female dispatchers do not have training to perform the functions of the dispatch, leaving the dispatch unit short of staff. 81. On June 13, 2019, a female dispatcher was ordered to conduct a custodial search. While she was conducting the search, the male police officer sent to cover this dispatcher’s duties talked with colleagues nearby instead of answering the phones at dispatch.
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82. On October 19, 2019, when a female dispatcher was ordered to report to booking and conduct a search, the male officer who replaced her at dispatch sat at a computer that was not logged in and worked on his own paperwork instead of answering the phones at dispatch. I. Plaintiffs Face Immediate and Ongoing Threats to their Physical Health
Because of Defendant’s Unlawful Policy 83. The policy and practice of the City of Warren’s Police Department on
its face imposes conditions and terms of employment on the women who work as dispatchers and dispatch supervisors that are far more dangerous and odious than the terms and conditions of employment enjoyed by the male dispatchers.
84. Because of this facially discriminatory policy and practice, female dispatchers, but never their male counterparts, have endured the risk and danger of exposure to infectious diseases, including notably COVID-19, solely because of their sex.
85. Even before the COVID-19 pandemic, Plaintiffs have regularly and frequently been subjected to belligerence and hostility by the female prisoners they have been ordered to search, and Plaintiffs suffer these indignities and stresses solely because of their sex.
86. Plaintiffs have also regularly and frequently been subjected to the risk of being exposed to noxious infestations like scabies, bed bugs, lice, and fleas, as well as the dangers of toxic drugs and weapons hidden on these female prisoners’
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bodies, and Plaintiffs have been forced to face these dangers solely because of their sex.
87. Plaintiffs and the other female dispatchers receive no remuneration nor compensation of any sort for the additional dangers, risks, and unpleasantness of being regularly and frequently ordered to conduct custodial searches solely because of their sex. J. There Exist Other Reasonable Operational Procedures That Would Allow
for the Processing of Female Prisoners without Violating Plaintiffs’ Equal Protection Rights
88. The City of Warren’s Police Department has failed to consider or adopt alternative procedures that would allow for the processing of female prisoners without imposing on Plaintiffs and their fellow female dispatchers unfair, dangerous, and noxious terms and conditions of employment because of their sex.
89. For instance, Plaintiffs have requested and been denied that they be paid a form of “hazard compensation” for being ordered to conduct these dangerous and odious custodial searches of prisoners.
90. It is also the case that while nationally, women comprise nearly 15% of all police officers3, the City of Warren employs only 14 female police officers, which is approximately 7% of the police force.
3 Data USA, “Police Officers”, available at https://datausa.io/profile/soc/333050/#demographics (last visited March 24, 2020).
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91. The City of Warren has failed to adequately recruit and employ reasonable numbers of female officers.
92. Even when female officers are on duty and in the station, Defendants fail to order them to report to the jail to conduct searches of female prisoners.
93. Therefore, the City of Warren has failed to rely upon its female officers, who are properly trained to handle prisoners and compensated commensurate to the risks and dangers they must face as sworn officers, to conduct custodial searches— an integral part of their own job descriptions.
94. The City of Warren’s Police Department has failed to organize its staffing schedules to ensure that a female officer is on duty and available to conduct female prisoner searches.
95. Defendants’ failure to recruit and hire sufficient number of women to serve as sworn officers impedes their ability to staff the department so as to ensure that a female officer is on duty and available to conduct female prisoner searches.
Count One: 42 U.S.C. § 1983, Monell-based Violation of Plaintiffs’ Rights Under the Equal Protection Clause of the 14th Amendment
96. Plaintiffs incorporate all the above allegations by reference here. 97. 42 U.S.C. § 1983 allows for a municipality to be sued when it enacts and promulgates a law or policy that violates the Constitution or Laws of the United States. Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658 (1978).
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98. The 14th Amendment of the United States Constitution forbids the denial of any person the equal protection of the laws.
99. Included within the 14th Amendment is the guarantee that a government may not treat a group of persons less favorably because of their sex.
100. As set forth above, the City of Warren, through its Police Department, have promulgated and enforced a General Order that treats Plaintiffs, a group of female dispatchers, less favorably than the male dispatchers in the terms and conditions of their employment with the City of Warren because of their sex.
101. Defendant has knowingly promulgated a policy and practice that violates the equal protection guarantee of the United States Constitution.
102. Pursuant to 42 U.S.C. §§ 1983, 1988 and other applicable laws, Plaintiffs seek the following relief:
a. a declaratory judgment that Defendant’s General Order, policy, and practice of requiring Plaintiffs and their fellow female dispatchers to conduct custodial searches of female prisoners violates Plaintiffs’ Equal Protection rights guaranteed by the 14th Amendment;
b. monetary damages to compensate Plaintiffs for the many years of extremely dangerous and odious terms and conditions of
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employment that have been imposed upon them unlawfully because of their sex; c. punitive damages reflecting the knowing and deliberate nature of Defendants’ sustained promulgation of an unconstitutional policy and practice that violated Plaintiffs’ equal protection rights; d. an award of Plaintiffs’ attorney’s fees and costs; and e. other relief that the Court may deem appropriate. Count Two: 42 U.S.C. § 2000e, Unlawful Employment Discrimination 103. Plaintiffs incorporate all the above allegations by reference here. 104. Title VII of the Civil Rights act of 1964 makes it unlawful inter alia “to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). 105. Title VII further make it unlawful for an employer to “limit, segregate, or classify his employees . . . in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect [her] status as an employee, because of . . . sex.” 42 U.S.C. § 2000e-2(a)(2). 106. As set forth above, the City of Warren, through its Police Department, has promulgated and enforced a General Order that treats Plaintiffs, a group of
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female dispatchers, less favorably than the male dispatchers in the terms and conditions of their employment with the City of Warren because of their sex.
107. Defendant has knowingly promulgated a policy and practice that violates the equal protection guarantee of the United States Constitution.
108. Pursuant to 42 U.S.C. § 1981a and other applicable laws, Plaintiffs seek the following relief:
a. a declaratory judgment that Defendant’s General Order, policy, and practice of requiring Plaintiffs and their fellow female dispatchers to conduct custodial searches of female prisoners violates Plaintiffs’ Equal Protection rights guaranteed by the 14th Amendment;
b. monetary damages to compensate Plaintiffs for the many years of extremely dangerous and odious terms and conditions of employment that have been imposed upon them unlawfully because of their sex;
c. punitive damages reflecting the knowing and deliberate nature of Defendants’ sustained promulgation of an unconstitutional policy and practice that violated Plaintiffs’ equal protection rights;
d. an award of Plaintiffs’ attorney’s fees and costs; and
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e. other relief that the Court may deem appropriate. Count Three: Violation of the Elliott-Larsen Civil Rights Act, M.C.L. §
37.2101 et seq., Disparate Treatment in the Terms and Conditions of Employment on the Basis of Sex
109. Plaintiffs incorporate all the above allegations by reference here. 110. The ELCRA prohibits employers from discriminating in the terms and conditions of employment on the basis of sex. M.C.L. § 37.2202. 111. Municipalities and governmental entities are covered employers under the ELCRA. 112. As set forth above, Defendant City of Warren, through its Police Department, has promulgated and enforced a General Order that treats Plaintiffs, a group of female dispatchers, less favorably in the terms and conditions of their employment with the City of Warren because of their sex. 113. As set forth above, Plaintiffs face dangerous and odious work conditions not imposed the male dispatchers who are their co-workers—because of their sex. 114. Pursuant to M.C.L. § 37.2801 and other applicable laws, Plaintiffs seek the following relief:
a. immediate injunctive relief banning the policy and practice of requiring Plaintiffs and their fellow female dispatchers to conduct custodial searches of female prisoners:
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b. a declaratory judgment that Defendant’s General Order, policy,

and practice of requiring Plaintiffs and their fellow female

dispatchers to conduct custodial searches of female prisoners

violates Plaintiffs’ rights under the ELCRA;

c. monetary damages to compensate Plaintiffs for the many years

of extremely dangerous and odious terms and conditions of

employment that have been imposed upon them unlawfully

because of their sex;

d. an award of Plaintiffs’ attorney’s fees and costs;

e. other relief that the Court may deem appropriate.

PITT McGEHEE PALMER BONANNI & RIVERS

Dated: November __, 2020

By: /s/ Robin B. Wagner____ Michael L. Pitt (P24429) Robin B. Wagner (P79408) Kevin M. Carlson (P67704)
Attorneys for Plaintiffs 117 W. Fourth Street, Suite 200 Royal Oak, MI 48067 248-398-9800 248-268-7996 (fax) mpitt@pittlawpc.com rwagner@pittlawpc.com kcarlson@pittlawpc.com

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DEMAND FOR JURY TRIAL

Plaintiffs hereby demand a trial by jury of the facts and issues involved in this

matter.

PITT McGEHEE PALMER BONANNI & RIVERS

Dated: November __, 2020

By: /s/ Robin B. Wagner____ Michael L. Pitt (P24429) Robin B. Wagner (P79408) Kevin M. Carlson (P67704)
Attorneys for Plaintiffs 117 W. Fourth Street, Suite 200 Royal Oak, MI 48067 248-398-9800 248-268-7996 (fax) mpitt@pittlawpc.com rwagner@pittlawpc.com kcarlson@pittlawpc.com

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Case 2:20-cv-10812-GCS-DRG ECF No. 36, PageID.1557 Filed 11/13/20 Page 29 of 30
SIGNATURE AND VERIFICATION OF STIPULATED SECOND AMENDED COMPLAINT BY PLAINTIFF
I declare under penalty of perjury that the facts stated in this Plaintiffs’ Stipulated Second Amended Verified Complaint for Damages, Declaratory Judgment, Injunctive Relief and Jury Demand are true and accurate to the best of my knowledge and information.
Signed: ___________________________________ Jennifer Piper
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 Case 2:20-cv-10812-GCS-DRG ECF No. 37, PageID.1559 Filed 11/16/20 Page 1 of 24

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

LINDA DeVOOGHT, TRESSA SINHA, JENNIFER PIPER and DAWN McLEAN,

Plaintiffs, vs. CITY OF WARREN,

Case No. 20-CV-10812 HON. GEORGE CARAM STEEH

Defendant. _____________________________/

OPINION AND ORDER DENYING PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT [ECF No. 26] AND DENYING DEFENDANT’S MOTION TO DISMISS OR FOR SUMMARY JUDGMENT [ECF No. 27] \

Plaintiffs Tressa Sinha, Jennifer Piper and Dawn McLean work as

dispatchers and Linda DeVooght works as a dispatch supervisor for

defendant City of Warren’s Police Department. Plaintiffs each allege that

they are discriminated against based on their gender by defendant’s policy

and practice of requiring female dispatchers to perform searches on

arrestees, while male dispatchers are never required to perform such

searches. In their Amended Complaint, plaintiffs assert that defendant’s

policy and practice violates their rights under the Equal Protection Clause

as provided for by 42 U.S.C. § 1983 (Count I), as well as their rights under

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Michigan law as guaranteed by the Elliott-Larsen Civil Rights Act (“ELCRA”), M.C.L. § 37.2101 et seq. (Count II).
The matter is before the court on plaintiffs’ motion for partial summary judgment [ECF No. 26] in which plaintiffs seek a declaratory judgment that defendant’s policy is unconstitutional and violates the ELCRA. Also before the court is defendant’s motion to dismiss or for summary judgment [ECF No. 27] wherein defendant seeks dismissal of plaintiff’s lawsuit. Oral argument was held on November 12, 2020. For the reasons stated below, plaintiffs’ motion for partial summary judgment is DENIED and defendant’s motion to dismiss or for summary judgment is DENIED.
FACTUAL BACKGROUND1 Defendant City of Warren employs 20 people as dispatchers and dispatch supervisors – 16 women and four men. Three of the plaintiffs are women employed as emergency dispatchers, and one plaintiff, Linda DeVooght, is a woman employed as a dispatch supervisor. The City’s main police station houses the dispatch center where plaintiffs work, as well as a jail.
1 The parties submitted a joint statement of facts for purposes of the pending crossmotions for summary judgment [ECF No. 25]. The Court draws the following recitation of the facts from that document as well as from exhibits attached to the parties’ briefs.
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The City’s General Order 19-04 governs arrest procedures for prisoners taken into custody by the Warren Police. The Order provides that an available male officer shall conduct the search of a male prisoner arrested by a female officer (19-04, III.G.9). By contrast, when a female prisoner is arrested by a male officer, an available female officer who is on duty and in the station shall be called upon to conduct the search prior to calling upon a female dispatcher to perform the search (19-04, III.G.10). The search is to be conducted by a female dispatcher when there are no female officers on duty and in the building at the time of booking (19-04, III.G.14.a.). There is no provision for male dispatchers to ever search a prisoner. The City’s policies have required female dispatchers to conduct prisoner searches since the mid-1970’s.
The job description for dispatchers was last revised in 2003. Earlier versions of the dispatcher’s duties listed “processing” arrested persons, but the revised version provides that dispatchers “[a]ssist[] in the searching/processing of arrested persons in the station, as necessary, at the direction of a supervisor.” Job duties for the position of Dispatcher Supervisor include: “Performs general dispatch duties.” The collective bargaining agreement (“CBA”) governing the terms of employment for the dispatchers does not mention prisoner searches.
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Plaintiffs contend that the City’s General Order discriminates against female dispatchers on the basis of gender, creating two separate and unequal workplaces for its dispatcher employees. On an average day, approximately 9.1 prisoners are brought into the jail with an average of 2.4 being female. City records reveal the number of searches of female prisoners conducted by female dispatchers has increased from about a quarter to over a third of all such searches over the last few years:
2017 - 194 out of 725 searches, or 26.8% of searches, 2018 – 253 out of 978, or 25.9% of searches, 2019 – 300 out of 806, or 37.2% of searches, January to March, 2020 – 69 of 156, or 44.2% of searches. The duty to conduct a prisoner search exposes the dispatcher to significant dangers. Plaintiffs describe instances in which dispatchers were required to conduct searches without officer backup, searched a subject with a knife, struggled with prisoners who are intoxicated and verbally and physically aggressive, searched arrestees with open wounds and sores, or who were high on drugs. Some dispatches came into contact with an arrestee’s blood or urine, and some performed strip searches alone without assistance from an officer.
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Sworn police officers undergo extensive training on how to conduct a custodial search, disarm a prisoner, manage a chain of evidence and remove dangerous articles. Plaintiffs argue the City of Warren has failed to provide training to the civilian female dispatchers that is comparable to the training police officers receive. For example, dispatchers do not receive training in self-defense or in the use of force to subdue a prisoner. Nor have they had training to search, disarm, or remove contraband from a prisoner. The training provided at initial hiring for dispatchers lasts approximately 15 minutes. (Sinha Decl. ¶ 9.) Ms. DeVooght recalls a video, shown approximately once a year, demonstrating custodial searches of prisoners. (DeVooght Decl. ¶ 10.) Ms. Piper and Ms. McLean’s only training in their 15 years and 23 years of employment was a single demonstration provided by a dispatcher. (Piper Decl. ¶ 8; McLean Decl. ¶ 9.)
Plaintiffs argue that in addition to the discriminatory policy of being required to perform searches based on their gender, the City also discriminates by failing to provide additional compensation or benefits to female dispatchers to reflect the work required of them but not of male dispatchers.
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There is a history of complaints by dispatchers to the union regarding the requirement to conduct searches. In 1993, dispatchers, all of whom were female at the time, received a pay increase after a grievance prompted the union to negotiate on their behalf. Defendant does not dispute that today there is no pay differential based on gender despite the difference in duties as it relates to conducting prisoner searches.
There are various unexpected ways in which plaintiffs are treated differently than their male counterparts due to the requirement that they conduct prisoner searches. Plaintiff Piper underwent knee surgery and took a medical leave of absence in the summer and fall of 2019. She attempted to return to work once she was cleared to perform sedentary duty. However, defendant refused to allow Ms. Piper to return to work until she could perform the physical demands of completing a prisoner search. Ms. Piper was not paid until she was able to perform prisoner searches due to the terms of defendant’s General Order. By contrast, a male dispatcher who underwent hernia surgery around the same time, was able to resume work as a dispatcher having only been cleared for sedentary work.
Plaintiffs also maintain that although the General Order requires that a female officer on duty and in the station be called upon to conduct a prisoner search, in practice this policy is not always followed. Plaintiffs
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document 22 occasions from June 2019 through June 2020 where a female dispatcher was required to conduct a prisoner search even though a female officer was available [ECF No. 26-7].
According to the Department of Justice, in 2013 the number of female police officers in municipal police departments averaged 12%. At the Warren Police Department, approximately 7% of the police force is made up of female sworn officers of various ranks (approximately 14 of 200 officers are female).
Plaintiffs’ expert witness, Brandon del Poso, reviewed the Warren Police Department’s policy regarding searches of female prisoners and offered his opinion. In his report, del Poso states that best practices in policing and maintaining a jail at a police station dictate that safe searches of arrested individuals be conducted as follows: 1) direct a sworn officer of the sex requested by the prisoner to conduct the search; or 2) direct a sworn officer who matches the apparent sex of the prisoner; or 3) if no such officer is available, summon a sworn officer from a neighboring jurisdiction who matches the prisoner’s apparent sex or requested sex to conduct the search (del Poso Expert Report at pp. 865-7).
In order to encourage female officers to work full-time in the Warren Jail, WPD offers a shift premium. This results in at least one female officer
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in the Warren Jail on every shift. However, there are times when the officer is not physically present in the jail, such as if she is called to active duty or is on sick or vacation leave. At oral argument, counsel described these instances as “exceptionally rare.”
When plaintiffs filed this case on March 27, 2020, they sought preliminary injunctive relief after expressing concerns regarding the lack of personal protection equipment (“PPE”) necessary to conduct arrestee searches during the coronavirus pandemic. PPE was made available and distributed to all personnel, including dispatchers. In lieu of a preliminary injunction hearing the parties entered a Stipulated Interim Agreement. Pursuant to the Stipulation, General Order 20-03 was issued, which amended the current dispatcher search policy to include gender-neutral language. The manner in which the policy is implemented has not changed.
STANDARD OF REVIEW Federal Rule of Civil Procedure 12(b)(6) allows the Court to make an assessment as to whether the plaintiff has stated a claim upon which relief may be granted. Under the Supreme Court=s articulation of the Rule 12(b)(6) standard in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554-56 (2007), the Court must construe the complaint in favor of the plaintiff,
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accept the allegations of the complaint as true, and determine whether plaintiff=s factual allegations present plausible claims. Even though the complaint need not contain Adetailed@ factual allegations, its Afactual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true.@ New Albany Tractor, Inc. v. Louisville Tractor, Inc., 650 F.3d 1046, 1051 (6th Cir. 2011) (citing Twombly, 550 U.S. at 555).
Federal Rule of Civil Procedure 56(c) empowers the court to render summary judgment "forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." See Redding v. St. Eward, 241 F.3d 530, 532 (6th Cir. 2001). The standard for determining whether summary judgment is appropriate is "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Amway Distributors Benefits Ass’n v. Northfield Ins. Co., 323 F.3d 386, 390 (6th Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 25152 (1986)). The evidence and all reasonable inferences must be construed in the light most favorable to the non-moving party. Tolan v. Cotton, 572
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U.S. 650, 660 (2014); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Redding, 241 F.3d at 532 (6th Cir. 2001).
If the movant establishes by use of the material specified in Rule 56(c) that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law, the opposing party must come forward with "specific facts showing that there is a genuine issue for trial." First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 270 (1968); see also McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). Mere allegations or denials in the non-movant's pleadings will not meet this burden, nor will a mere scintilla of evidence supporting the non-moving party. Anderson, 477 U.S. at 248, 252. Rather, there must be evidence on which a jury could reasonably find for the non-movant. McLean, 224 F.3d at 800 (citing Anderson, 477 U.S. at 252).
ANALYSIS I. Equal Protection Clause
Individuals have a right, protected by the Equal Protection Clause of the Fourteenth Amendment, to be free from discrimination on the basis of sex in public employment. Smith v. City of Salem, Ohio, 378 F.3d 566, 576–77 (6th Cir. 2004) (citing Davis v. Passman, 442 U.S. 228, 234–35 (1979). Individuals may bring Equal Protection claims under 42 U.S.C.
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§1983 asserting unlawful discrimination in the terms and conditions of their employment against public employers. See, e.g., Smith, 378 F.3d at 577; Weberg v. Franks, 229 F.3d 514 (6th Cir. 2000). The City’s decision to impose different duties on male and female dispatchers is codified in its General Orders, which are the official policy, practice, and custom of the City; therefore, municipal liability is established. Pembaur v. City of Cincinnati, 475 U.S. 469, 478 (1986).
In this case, the challenged policy, as well as its application, requires female dispatchers, and never their male counterparts, to perform the potentially dangerous work of searching prisoners. For purposes of stating a claim of unlawful discrimination, “[t]he direct evidence and circumstantial evidence paths are mutually exclusive; a plaintiff need only prove one or the other, not both. If a plaintiff can produce direct evidence of discrimination[,] then the McDonnell Douglas–Burdine paradigm is of no consequence.” Kline v. Tenn. Valley Auth., 128 F.3d 337, 348-49 (6th Cir. 1997)). A facially discriminatory policy serves as direct evidence of discrimination. Heike v Guevara, 519 F. App’x 911, 919 (6th Cir. 2013) (quoting Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000)). By treating female dispatchers differently based on their gender, the policy at issue is indeed facially discriminatory.
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The burden then shifts to defendant to establish a justification for the policy that satisfies the heightened standard for gender-based classifications:
the reviewing court must determine whether the proffered justification is “exceedingly persuasive.” The burden of justification is demanding and it rests entirely on the State. The State must show at least that the challenged classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives. United States v. Virginia, 518 U.S. 515, 532-33 (1996) (citation and quotation marks omitted). It is not necessary to demonstrate “malevolent motive” for a policy to be in violation of the Constitution. UAW v. Johnson Controls, Inc., 499 U.S. 187, 199 (1991). While plaintiffs bring their intentional discrimination claim under § 1983, courts evaluate such claims of disparate treatment by a state employer the same as if brought under Title VII. See Grano v. Dept. of Dev., 637 F.2d 1073, 1082 (6th Cir.1980). Under this analysis, overt discrimination is permissible if the disparate treatment is based on a bona fide occupation qualification (“BFOQ”). Reed v. Cty. of Casey, 184 F.3d 597, 599 (6th Cir. 1999). The BFOQ exception to Title VII was “meant to be an extremely narrow exception to the general prohibition of discrimination . . . .” Dothard v. Rawlinson, 433 U.S. 321, 334 (1977). The
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Supreme Court has framed the exception in various ways. For example, “’discrimination based on sex is valid only when the essence of the business operation would be undermined by not hiring members of one sex exclusively.’” Id. (quoting Diaz v. Pan Am. World Airways, 442 F.2d 385, 388 (5th Cir.) (rejecting the contention that sex was a BFOQ for airline flight attendants because the airline's proposed justification - to provide a “pleasing environment” for passengers - was merely tangential to the airline's primary objective of providing safe transportation)). Courts have also held that “an employer could rely on the BFOQ exception only by proving ‘that he had reasonable cause to believe, that is, a factual basis for believing, that all or substantially all women would be unable to perform safely and efficiently the duties of the job involved.’” Id. (citation omitted).
Where the employer institutes a sex-based policy that is the result of a “reasoned decision-making process,” it may be entitled to a BFOQ defense. See e.g., Everson v. Michigan Department of Corrections, 391 F.3d 737 (6th Cir. 2004); Reed, 184 F.3d 597; Strozier v. Warren Cty., Ohio, No. 1:17-CV-817, 2020 WL 3867316 (S.D. Ohio July 9, 2020). Accepted reasons supporting the decision to institute sex-based polices have included preventing sexual abuse in prisons and protecting the privacy rights of prisoners. Reasons such as these justified excluding male
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correction officers from positions in the housing units at female prisons, Everson, 391 F.3d at 753, and assigning female deputy jailers to undesirable shifts in order to supervise female prisoners, Reed, 184 F.3d at 599.
The Sixth Circuit has held, in order to assert a valid BFOQ defense, the employer bears the burden of showing that it: (1) had a “basis in fact” for its belief that gender discrimination is “reasonably necessary” to the normal operation of its business; (2) the job qualification relates to the essence, or to the central mission, of the employer; and (3) that no reasonable alternatives exist to discriminating based on sex. Everson, 391 F.3d at 748-49.
A. Is Dispatcher’s Gender “Reasonably Necessary” to Normal Operation of WPD?
Defendant must demonstrate that it has a “basis in fact” for its belief that requiring female dispatchers, but not male dispatchers, to conduct searches of female arrestees “is ‘reasonably necessary’ – not merely reasonable or convenient—to the normal operation of its business.” Everson, 391 F.3d at 748 (citations omitted).
Both sides acknowledge that prisoners maintain certain privacy rights that mandate same-sex prisoner intake searches. See Cornwell v. Dahlberg, 963 F.2d 912, 916 (6th Cir. 1992) (Every incarcerated individual
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“maintains some reasonable expectations of privacy while in prison, particularly where those claims are related to forced exposure to strangers of the opposite sex, even though those privacy rights may be less than those enjoyed by non-prisoners.”) It is therefore the case that a female must perform a search on a female prisoner. It can also be said that processing arrestees, which includes searching them at intake, is a task that falls within the normal business of WPD.
The BFOQ defense is routinely analyzed in the jail or prison setting. Both Everson and Reed are cases where the Sixth Circuit concluded that female gender was a BFOQ for correction officers in female correctional facilities as well as in jails where female prisoners are processed. The Court also held that the “reasoned decisions of prison officials are entitled to deference and that the goals of security, safety, privacy, and rehabilitation can justify gender-based assignments in female correctional facilities.” Everson, 391 F.3d at 750.
As has been documented, female officers make up only 7% of WPD’s police force. Faced with a police force made up of very few female officers, and a requirement that female prisoners be searched by a female, WPD took measures to ensure that at least one female officer is on duty at the jail during all shifts. In settling on the challenged policy, WPD struck a
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balance by imposing the female prisoner intake search duty upon female dispatchers only when a female police officer is not available. Defendant has shown that it has a basis in fact for its belief that requiring female dispatchers to conduct searches of female arrestees when a female police officer is not available is reasonably necessary to the normal operation of its business.
B. Does the Requirement that Female Dispatchers Search Female Arrestees Relate to the Essence of the WPD’s Business?
The Supreme Court has stressed that “in order to qualify as a BFOQ, a job qualification must relate to the essence, or to the central mission of the employer's business.” Johnson Controls, 499 U.S. at 203 (internal citations and punctuation omitted). The essence of the WPD’s business can be summed up as ensuring the safety of the community through law enforcement. The Warren Police Station houses both a jail and a dispatch center.
“The ‘essential nature’ of the [jail] is to lodge, keep, transport, feed and care for prisoners.” Reed, 184 F.3d at 599. There is no dispute that it is necessary to conduct a prompt and thorough intake search of each prisoner, including female prisoners, coming into the Warren Jail to recover concealed drugs, weapons, contraband and other items that could be
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dangerous, so that other prisoners and all WPD personnel remain safe and secure in the facility. There is also no dispute that intake searches of female prisoners must be conducted by a female.
However, because the discriminatory policy involves dispatchers, and because the BFOQ defense is “an extremely narrow exception,” Dothard, 433 U.S. at 334, perhaps the essence of defendant’s business should also be viewed more narrowly. If the focus is narrowed, the “essence or central mission” of the dispatch center is to receive calls, dispatch units to respond to emergencies, answer questions, verify information, and process and maintain records related to emergency response. This is gleaned from the statement of duties in the WPD Dispatcher job description:
Receives and transmits messages over a radio communication system. Receives complaints and relays information or instruction from and to remote units. Receives incoming telephone calls and makes independent judgment relative to the kind of action necessary. Receives, types and sends LEIN messages and broadcasts to appropriate units. Enters information into Computer Aided Dispatch consoles. (“Dispatcher” revised 08/03). The job description also lists typical examples of work, the last of which provides: “[a]ssists in the searching/processing of arrested persons in the station, as necessary, at the direction of a supervisor.” While we know that female dispatchers at WPD are required to conduct prisoner searches, when viewed narrowly,
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the “essence” of the dispatch center is a place that receives calls and connects people with appropriate emergency services.
Male dispatchers are not required to conduct searches because that is not central to the job of dispatcher or to the essence of the business of the dispatch center. Nor is there evidence that defendant has a reasonable basis for believing that all male dispatchers would be unable to safely and efficiently perform the duties of dispatcher, such that the job can only be performed by females. See Dothard, 433 U.S. at 334. Indeed, defendant employs male dispatchers.
If the essence of its business is viewed broadly, encompassing all aspects of law enforcement, including prisoner care, defendant has a stronger argument that a dispatcher’s gender relates to its mission. But if the essence of its business is viewed more narrowly, focusing on the central mission of the dispatch center, then defendant has not shown that requiring female dispatchers to conduct intake searches of female prisoners relates to the essence of its business. At this stage, the Court need not decide this point because even assuming the second element of the BFOQ defense has been met, defendant has not satisfied the third element of the defense.
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C. Does a Reasonable Alternative Exist to Requiring Female Dispatchers to Conduct Prisoner Searches? The Sixth Circuit requires employers asserting a BFOQ defense to establish that no reasonable alternatives exist to discrimination on the basis of sex. Everson, 391 F.3d at 749 (citing Reed, 184 F.3d at 600). Plaintiffs propose several alternatives to the current policy. Defendant rejects each one as not being reasonable. Defendant’s position is that the number of female police officers at WPD is insufficient to ensure that one will always be readily available to search female prisoners when they arrive at intake. Defendant explains that because WPD is one of the few local police departments with its own dispatch center in the state of Michigan, and given that dispatchers are located on-site 24 hours a day, 7 days a week, it has chosen to impose the search job duty upon its female dispatchers to ensure that female intake searches are timely done by trained personnel in accordance with prisoner privacy interests. In support of its chosen solution, defendant points out that the policy has been narrowly drafted to provide that a female dispatcher is to be called upon only when a female police officer is not available. General Order 2019-04; General Order 2020-03. It also points to the fact that
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dispatchers were given a raise almost forty years ago to compensate them for this additional job duty.
Plaintiffs’ expert opines that a reasonable alternative is for WPD to have female police officers always search the female prisoners. If WPD ensured that female officers are distributed across shifts, it would contribute to the “good order and efficiency of the department” (Expert Report, p. 7). Defendant points out it is already doing this by offering shift premiums to female officers who are willing to occupy a full-time position at the jail. However, the female officer on duty at the jail does not perform all of the searches at issue. The statistics show that over a third of the searches, amounting to almost one per day, still fall to the female dispatchers.
Plaintiffs’ next proposal is to hold female prisoners in a location separated from others until a female police officer becomes available. Defendant responds that this alternative has several flaws. First is that female inmates may be left waiting for an indeterminate period of time which raises obvious safety concerns if the primary reason for conducting an arrestee search is to confiscate contraband. Second, with only one holding cell and two detox cells, there is not always going to be an available place to hold a female arrestee who has not yet been searched.
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Plaintiffs respond with their next alternative, which is that an on-duty female police officer could be called in from the field when a female arrestee is brought to the station. Defendant’s position on this alternative is that if female officers are subject to being called away from their other duties, they will become ineligible for prized assignments and will therefore not be able to fully participate in their chosen fields. According to defendant, the logical consequence is that female officers will become limited-assignment employees while their male counterparts are able to conduct the full array of police work.
The final alternative offered by plaintiffs is that aid could be solicited from another jurisdiction when necessary. Defendant dismisses this idea as unreasonable by simply saying it is something it cannot impose on its neighboring police departments. But perhaps an agreement between two or more police departments would prove to be mutually beneficial.
It is defendant’s burden to establish that no reasonable alternatives exist. Defendant has not shown any significant effort to examine the alternatives put forth by plaintiff’s expert witness. Nor has defendant adequately explained how the measures undertaken to ensure that a female officer is assigned to the jail during all shifts have nevertheless resulted in female dispatchers doing more searches rather than fewer. The
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Court finds there is an issue of material fact whether there are any reasonable alternatives to the facially discriminatory policy adopted by defendant. II. ELCRA Claim
Claims brought under Michigan’s ELCRA “involve the same analysis as Title VII claims.” McDaniels v. Plymouth-Canton Comm. Sch., 755 Fed. App’x 461, 469 n.3 (6th Cir. 2018) (citing Sutherland v. Mich. Dep’t of Treasury, 344 F.3d 603, 614 n.4 (6th Cir. 2003)); see also Everson, 391 F.3d 748 n.14 (discussing M.C.L. § 37.2208); Reed, 184 F.3d at 599. Therefore, pursuant to the Court’s analysis above, having found genuine issues of material fact remain as to whether the BFOQ defense applies in this case, the parties’ cross-motions for summary judgment on this count are also denied. III. Failure to Exhaust Under CBA
Plaintiffs McLean, Piper and Sinha are part of the Warren Police Officer’s Association (“WPOA”) and covered under the terms of the Collective Bargaining Agreement (“CBA”). Plaintiff DeVooght was promoted to the position of Dispatch Supervisor on February 20, 2015 and is part of the Warren Police Department Command Officer’s Association (“WPCOA”), covered under the terms of the WPCOA CBA. The CBAs do
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not mention prisoner searches by dispatchers. Plaintiffs did not file a formal grievance with the WPOA or WPCOA prior to filing this action.
Defendant argues that exhaustion of internal appeals under the CBA is required before plaintiffs can bring their lawsuit in federal court. Defendant relies on Clayton v. International Union, UAW, 451 U.S. 679 (1981), where the Court held that exhaustion of internal appeals is required before an employee can sue the employer and the union under Section 301 of the Labor Management Relations Act. In § 301 cases, the plaintiff alleges that the union breached its duty of fair representation, and the employer breached the CBA by terminating without just cause. Clayton is expressly limited to § 301 claims, and it does not compel exhaustion of internal union remedies in a case alleging discrimination under state and federal statutes. Bolin v. General Motors, LLC, 2019 WL 196885 (E.D. Mich. Jan. 13, 2019) (rejecting union exhaustion requirement in ADEA case). Another case relied on by defendant involved the imposition of a drug screening requirement that was codified within and implemented through the CBA. Bailey v. Beaver Precision Products, Inc., 678 F. Supp. 684 (E.D. Mich. 1998). Thus, the question of whether the drug screening requirement was discriminatory involved interpretation of the terms of the CBA itself.
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Unlike Bailey, the discriminatory policy in this case is implemented through the City’s General Orders and is not set forth as a term of the CBA. Plaintiffs have not sued the City for violating a CBA and have not asserted that their unions breached any duty of fair representation. Therefore, exhaustion of contractual remedies is not required.
CONCLUSION The Court finds that plaintiffs have stated causes of action for which relief can be granted. The Court further finds that there are issues of fact that preclude the granting of summary judgment. Now, therefore, IT IS HEREBY ORDERED that defendant’s motion to dismiss or for summary judgment [ECF No. 27] is DENIED. IT IS HEREBY FURTHER ORDERED that plaintiffs’ motion for partial summary judgment [ECF No. 26] is DENIED. IT IS HEREBY FURTHER OREDERED that the parties shall consult with each other and submit a proposed scheduling order to the case manager by Friday, December 4, 2020. Dated: November 16, 2020
s/George Caram Steeh GEORGE CARAM STEEH UNITED STATES DISTRICT JUDGE
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