IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

MELISSA MCFADDEN, 

Case No. 2:18-cv-544

Plaintiff, Judge Edmund A. Sargus, Jr.

v. Magistrate Judge Kimberly A. Jolson

CITY OF COLUMBUS,

DEFENDANT CITY OF COLUMBUS’

Defendant. MOTION FOR SUMMARY JUDGMENT

Pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, Defendant City of 

Columbus respectfully moves this Court for summary judgment on all claims asserted against it 

by Plaintiff Melissa McFadden. A memorandum in support of this motion is attached. Supporting 

exhibits have been filed separately.

Respectfully submitted,

/s/ Susan E. Williams

Susan E. Williams (0073375)—LEAD

Westley M. Phillips (0077728)

Assistant City Attorneys

CITY OF COLUMBUS, DEPARTMENT OF LAW

ZACH KLEIN, CITY ATTORNEY

77 North Front Street, Columbus, Ohio 43215

(614) 645-7385 / (614) 645-6949 (fax)

sewilliams@columbus.gov

wmphillips@columbus.gov

Attorneys for Defendant City of Columbus

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TABLE OF CONTENTS

TABLE OF CONTENTS .............................................................................................................. i

I. PRELIMINARY STATEMENT ..................................................................................... 1

II. SUMMARY OF THE ARGUMENT .............................................................................. 1

III. STATEMENT OF FACTS............................................................................................... 2

A. THE ALLEGATIONS OF RACIAL DISCRIMINATION .................................................2

B. THE INTERNAL AFFAIRS INVESTIGATION ............................................................10

C. THE TEMPORARY REASSIGNMENT TO THE PROPERTY ROOM............................11

D. THE CHIEF’S RECOMMENDATION.........................................................................15

E. THE SAFETY DIRECTOR’S DECISION....................................................................16

F. PLAINTIFF’S EXPERT WITNESS LOU REITER.......................................................16

G. PLAINTIFF MELISSA MCFADDEN..........................................................................18

IV. LEGAL STANDARD ..................................................................................................... 19

V. LAW & ARGUMENT.................................................................................................... 20

A. PLAINTIFF’S TITLE VII CLAIMS ...........................................................................20

1. Title VII Race Discrimination................................................................ 20

2. Title VII Retaliation................................................................................ 35

B. 42 U.S.C. § 1983 ....................................................................................................37

1. First Amendment Retaliation ................................................................ 39

2. Equal Protection...................................................................................... 39

3. Due Process.............................................................................................. 40

C. PLAINTIFF’S WORK INJURY CLAIM IS PRECLUDED............................41

VI. CONCLUSION ............................................................................................................... 42

CERTIFICATE OF SERVICE ..................................................................................................43

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MEMORANDUM IN SUPPORT

I. PRELIMINARY STATEMENT

This is an employment discrimination and retaliation case brought by Plaintiff Melissa 

McFadden, a lieutenant with the Columbus Division of Police (“CPD”), and arising in large part 

out of an investigation that was conducted into allegations that Plaintiff discriminated against her 

subordinates on the basis of their race. Plaintiff now asserts that she was discriminated against on 

the basis of her race and retaliated against for helping another officer file a racial discrimination 

claim in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title 

VII”), and Ohio Revised Code § 4112.02 (the Ohio Civil Rights Act, or “OCRA”). Plaintiff also 

asserts that Defendant City of Columbus (“the City”) violated her due process and equal protection 

rights and the enjoyment of her employment contract because of her race. For the reasons that 

follow, the City respectfully asks the Court for summary judgment on all of Plaintiff’s claims. 

II. SUMMARY OF THE ARGUMENT

The City is entitled to summary judgment on Plaintiff’s Title VII and OCRA discrimination 

claims. (pp. 20-42). Plaintiff cannot establish a prima facie case of race discrimination because 

she cannot show that she suffered an adverse employment action (pp. 21-24) Burlington Industries, 

Inc. v. Ellerth, 524 U.S. 742 (1999). Plaintiff also cannot show that individuals outside of her 

protected class were treated more favorably (pp. 24-32) Wright v. Murray Guard, Inc., 455 F.3d 

702 (6th Cir. 2006). The City had legitimate, nondiscriminatory reasons for the investigation, the 

temporary reassignment, and the Chief’s recommendation. (pp. 32-35) Newman v. Fed. Express 

Corp., 266 F.3d 401 (6th Cir. 2001). Plaintiff also cannot produce sufficient evidence that the 

City’s reasoning was pretextual. (p. 35) Romans v. Mich. Dep’t of Human Servs., 668 F.3d 826 

(6th Cir. 2012)

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The City is entitled to summary judgment on Plaintiff’s Title VII Retaliation claim. 

Plaintiff cannot present sufficient evidence of a causal connection between the Falacia Dragin 

claim and any alleged adverse employment action or any alleged “severe or pervasive retaliatory 

harassment.” (pp. 35-37) Morris v. Oldham Cnty. Fiscal Court, 201 F.3d 784 (6th Cir. 2000).

Regarding Plaintiff’s claims brought pursuant to 42 U.S.C. § 1983, the City is entitled to 

summary judgment on any First Amendment retaliation claim because Plaintiff cannot present 

sufficient evidence of a causal connection between the Dragin claim and the City’s response to the 

allegations made by Tate, Morefield, and Johnson. (pp. 37-39) Jenkins v. Rock Hill Local Sch. 

Dist., 513 F.3d 580 (6th Cir. 2008). The City is entitled to summary judgment on any Equal 

Protection claim because Plaintiff cannot show a discriminatory purpose. (pp. 39-40) Bennett v. 

City of Eastpointe, 410 F.3d 810 (6th Cir. 2005). The City is entitled to summary judgment on any 

Due Process claim because Plaintiff was not deprived of a property interest and she was provided 

notice and opportunity to be heard. (pp. 40-41) Leary v. Daeschner, 228 F.3d 729 (6th Cir. 2000).

Finally, to the extent that Plaintiff is attempting to re-litigate her work injury claims she is 

precluded by Ohio law. (pp. 41-42) Ritchie v. Dravo Corp., 585 F. Supp. 1455 (S.D. Ohio 1984). 

III. STATEMENT OF FACTS

A. THE ALLEGATIONS OF RACIAL DISCRIMINATION

In early 2017, CPD Commander Rhonda Grizzell was assigned to CPD’s Zone 2. GRIZZELL 

DEP. 10-11 (R.35-4 #1723-24). She began visiting precinct roll calls and learned of second shift’s 

limited staffing concerns. Id. at 42, 59 (R.35-4 #1755, 1772). Plaintiff was Zone 2’s second shift 

lieutenant. Id. at 44-45 (R.35-4 #1757-58). On March 1, 2017, while Commander Grizzell was at 

13 Precinct Substation, CPD Officer Jeffrey Kasza suggested she talk to Officers Levon Morefield 

and Anthony Johnson on why they left Zone 2. Id. at 70 (R.35-4 #1783). Commander Grizzell

provided Kasza her phone number and said if they wished, they could call her. Id. at 70 (R.35-4 

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#1783). That same evening, CPD Sergeant Andre Tate approached Commander Grizzell as she 

was eating in the substation and advised her that on January 25, 2017, while Plaintiff gave him his 

2016 Performance Evaluation, she told him his rating would have been lower, but she did not want 

to put that in his file because she did not “believe in black on black crime.” GRIZZELL DEP. 23-24, 

70 (R.35-4 #1736-37, 1783); TATE DEP. 30-31, 39-41, 44, 49-50 (R.35-12 #2866-67, 2875-77, 

2880, 2885-86). According to Tate, “...she gave me a performance evaluation that was higher than 

it would have been if I was white.” TATE DEP. 28 (R.35-12 #2864). He testified at deposition:

Q. So you believe that what she was talking about was 

discriminating in your favor because you were black; right? That’s 

what you believe?

A. Yes.

Q. Now, and you believed that on January 25, of 2017; correct?

A. Yes.

Q. All right. So what she was doing was a violation of the Division’s 

policies against discrimination; correct?

A. I would guess that was. Yes.

Id. at 34-35 (R.35-12 #2870-71).

Q. What was it that made you feel like you needed to tell 

Commander Grizzell that? Why did you want to tell her?

A. Because it was wrong.

Id. at 44 (R.35-12 #2880).

In response to what she had been told by Sergeant Tate, Commander Grizzell contacted 

CPD’s Human Resources Manager Miranda Vollmer. GRIZZELL DEP. 22-23 (R.35-4 #1735-36, 

1783). Vollmer told Grizzell that the suspected EEO violation needed to be written up and 

reported. Id. at 24 (R.35-4 #1737). According to Grizzell, “And then Anthony Johnson and Levon 

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Morefield called me late on March 1 and into the morning of March 2 and detailed some very 

troubling things to me.” Id. at 69-70 (R.35-4 #1782-83).

Officer Morefield called Commander Grizzell after being told that she wanted to know 

why Morefield “and four other officers who were pretty well respected in that area left the zone.”

MOREFIELD DEP. 63-65 (R.35-9 #2444-2446). Morefield left his Zone 2 assignment in 

approximately December, 2016. Id. at 62 (R.35-9 #2443). Prior to that time, his Zone 2 chain of 

command consisted of Sergeant Christopher Odom, Plaintiff, and Commander Mark Gardner. Id. 

at 81 (R.35-9 #2462). Morefield testified that he knew “pretty early on” that Plaintiff was racist. 

Id. at 87, 91 (R.35-9 #2468, 2472). According to Morefield, during an early conversation with 

Plaintiff, she said something along the lines of, “Nigga, if you don’t call me Melissa.” Id. at 48-49

(R.35-9 #2429-30). “[B]y September 2016, I was in definite belief that she was racist towards 

white people.” Id. at 94 (R.35-9 #2475). Morefield, whose wife is white, testified: 

Q. So at what point could you say in your belief that Lieutenant 

McFadden was a racist?

A. When she would say things to me about white officers not being 

my brothers, and they’re not happy that I’m fucking one of theirs, 

and things along those lines.

Q. And when about was that? Spring 2016, fall 2016?

A. I’d say that was fall of 2016 following my marriage.

Q. And we’ll get into that in a little bit a little more. So it’s safe to 

say by fall 2016, you had made the conclusion that Lieutenant 

McFadden was a racist?

A. Absolutely.

Id. at 92-93, 130 (R.35-9 #2472-73, 2511).

Q. So did you consider this at the time it was made to be a racist 

statement?

A. Absolutely.

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Id. at 130 (R.35-9 #2511). When Morefield left Zone 2, Plaintiff told him, “Don’t forget you’re 

nothing but a stupid nigga, and they’re going to treat you like the stupid nigga you are!” Id. at 153-

154 (R.35-9 #2534-35).

Officer Johnson was assigned to Zone 2 from roughly 2012 until 2017 and worked under 

Plaintiff on second shift. JOHNSON DEP. 10-11 (R.35-6 #2062-63). Johnson testified at deposition:

A. [Meetings with Plaintiff] were extremely unusual. You know, she

would make comments such as we have to stick together, which is 

unusual. She said—made comments that I shouldn’t call my 

coworkers on 13 precinct family because they will hang me out to 

dry the first chance that they get, unusual.

*******

A. [I]t was followed by the statement we have to stick together. 

When you make a statement that we have to stick together, you are 

putting me and you in the same boat, meaning that we have 

something in common. We were not officers. She is a lieutenant, so 

we can throw that out the window. She is a female. I’m a male. So 

it is not that. We can throw that out the window. Only thing that we 

had in common is our race. So when you make a comment such as 

we have to stick together, and it is safe to assume that we in that 

statement is race and then you make another comment referring to

Caucasian officers that they are not your brothers and they will hang 

you out to dry the first moment they get, I would say it is safe to say 

that that’s a race related comment.

Q. This may seem like an obvious question. You found that 

comment to be racist, correct?

A. I found that comment to be race related.

Q. Is that a discriminatory comment?

A. Yeah, I would say it is discriminatory in nature, absolutely.

Id. at 57-60 (R.35-6 #2109-12).

Q. [W]ere any of [the] orders, policies, whatever you want to call 

them, directives that Lieutenant McFadden issued, did you find any 

of those to be racist?

A. Yeah, I mean, she—at one point she said that she didn’t want 

officers being proactive. And she specifically told me that she didn’t 

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want officers being proactive because it gives white officers more 

chances to oppress minorities.

*******

Q. And at the time she made that comment, were you—did you 

determine that was a racist comment?

A. Yes.

Id. at 75-77 (R.35-6 #2127-29).

Q. Do you believe that Lieutenant McFadden was a micro-manager?

A. Absolutely.

Q. And do you believe she was a micro-manager based on race?

A. I would say so.

Q. And why do you say that?

A. Because every conversation I ever had with her went back to race.

Q. And you believe that permeated her management decisions?

A. Yeah, if she is going to make a comment that I don’t want 

proactive officers being proactive because it gives them a chance to 

oppress minorities and then puts a standing order in place, I would 

say absolutely.

Id. at 80 (R.35-6 #2132).

Q. And why did you wait until five years in to make that complaint?

A. I was no longer under her chain of command. I was no longer 

terrified that she was going to retaliate against me. 

Id. at 81 (R.35-6 #2133).

After receiving this information, Grizzell met with Vollmer and CPD Chief Kimberly 

Jacobs and Ken Kuebler and briefed the Chief about the information she had been told. GRIZZELL 

DEP. 66, 149-150 (R.35-4 #1779, 1862-63). According to Grizzell, “I am required to consult my 

deputy chief and inform them if there is potential misconduct, so I told them the information that 

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came to me.” Id. at 21-22 (R.35-4 #1734-35). Chief Jacobs told Grizzell “to obtain the information 

from Tate, Morefield, and Johnson in writing, and that if what they said in writing mirrored what 

they told me on the phone and what Tate told me in person, that I was to write this letter and send 

it through the chain, ask for an internal affairs investigation.” Id. at 151-152 (R.35-4 #1864-1865).

As instructed, Commander Grizzell reached out to Sergeant Tate and Officers Johnson and 

Morefield and asked if they would be willing to write detailed statements. Id. at 165, 197-198

(R.35-4 #1878, 1910-11).

On March 2, 2017, Sergeant Tate sent Commander Grizzell the e-mail that is marked as 

GRIZZELL DEP. EX. F (R.36-6 #3170). GRIZZELL DEP. 31 (R.35-4 #1744); TATE DEP. 30 (R.35-12 

#2866). Notably, Tate wrote that during his January 25th performance evaluation: 

[Lieutenant McFadden] told me that some of my ratings would have 

been lower, but she didn’t want to put that in my file because she

does not “believe in black on black crime.” While our conversation 

continued, that statement stuck with me. I felt that, while this is 

advantageous to me, it is unfair and discriminatory to all those being 

evaluated by her. My interpretation was that I was getting a better 

evaluation based on the color of my skin. I believe that one can 

easily imply that Lieutenant McFadden would have rated me 

differently if I were not black. I feel that her evaluation was 

inappropriately low based on my performance, but I would rather 

her have rated me even lower and explained what my deficiencies

(perceived or otherwise) were in official documentation. There 

should not be a separate rating scale for people based on the color 

of their skin. 

GRIZZELL DEP. EX. F (R.36-6 #3170). 

On March 6, 2017, Officers Morefield and Johnson emailed Commander Grizzell their 

written statements as requested. GRIZZELL DEP. 196-197 (R.35-4 #1909-1910); GRIZZELL DEP.

EXS. G, H (R.36-7 #3171; R.36-8 #3174-76);JOHNSON DEP. 94-95 (R.35-6 #2146-47); MOREFIELD

DEP. 74 (R.35-9 #2455).

Morefield’s email to Commander Grizzell included the following allegations: 

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Following The Dallas Police Department Ambush, I engaged in 

conversation with Lieutenant McFadden regarding body cameras. 

Lieutenant McFadden expressed her feelings about how body 

cameras are a good thing as they will decrease the number of black 

men killed by police in America. I respectfully disagreed. The 

Dallas Police Department Ambush Incident came about during the 

conversation and Lieutenant McFadden stated her thoughts on the 

Incident. Lieutenant McFadden stated, “There have been white men 

killing black people in this country for a long time. More recently, 

white Officers have been killing black men. If it takes a few officers 

having to die (referring to Dallas PD’s Slain Officers) in order for 

this country to realize that we have an issue with white officers 

killing black men, then so be it.” When this toxic militant verbiage 

spewed from her mouth, I was very disgusted by it, troubled by it, 

and most of all hurt by it. I wondered how someone who wears a 

badge on their chest could say something so foul, a person with rank

nonetheless. That statement made me realize that I’m probably just 

a number and I’m expendable, as a Ranking Official in my Chain of 

Command stated that it was justifiable for Police Officers to be 

killed to prove a point that White Officers wrongly kill black men 

in America, which is a false narrative. I felt unsafe to continue 

working for a lieutenant that doesn’t value my life or my Brothers’

and Sisters’ lives within our department and within our country.

Following my wedding in August 2016, Lieutenant McFadden 

stated to me that the people I consider to be my brothers and my 

friends, referring to white officers on 13B who attended my 

wedding, really aren’t my friends and that I need to be careful as 

they (white officers on 13B) are not happy that I married one of 

theirs and that I am sleeping with one of theirs, referring to my white 

wife.

******

Once Lieutenant McFadden became aware that I was leaving Zone 

2, I was told by her, “Don’t forget, you’re nothing but a dumb nigga 

to them and they’re going to treat you like the dumb nigga you are!”

During the 90 days that I have been on Zone 5, I haven’t been treated 

like anything except for an adult and a Police Officer, which is more 

than I can ever ask for.

Something I’ve witnessed since being on this department is that 

minority officers, mainly Black American Officers, are lured to 

some extent, some as early as the academy, to Zone 2, under 

Lieutenant McFadden. There is a very “us vs them” mentality 

regarding Black Officers and Supervisors vs White Officers and 

Supervisors. What I’ve noticed is that when dealing with Lieutenant 

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McFadden, she tries to reel you in to trust only her, and I believe the 

reason being is so that she can be in full control. I feel that 

Lieutenant McFadden attempts to alienate new younger Black 

Officers. From my experience, being a Black Officer, if you don’t 

follow her, if you don’t agree with her, if you have a differing 

opinion than her, if you oppose her, then you aren’t considered 

Black or Black enough. This kind of behavior and militancy has and 

will cause issues as its intent is to create a divide within the 

department. Being the highest ranking Black Official on the entire 

Division of Police; Lieutenant McFadden has had the opportunity to 

impact all races and genders of Officers within our department, 

however, she has failed to do so and has earned one of the worst 

reputations because of her actions as a Lieutenant.

No Officer on our department should be led by someone with as 

much hatred for them as Lieutenant McFadden has for White 

Officers.

GRIZZELL DEP. EX. G (R.36-7 #3171-73). 

Officer Johnson’s email to Commander Grizzell included the following allegations: 

I met with LT McFadden in and outside of her office multiple times

per her request. During these meetings LT McFadden made 

comments such as “we have to stick together” and “those Officers 

on 13 aren’t your brothers” insinuating that because of my race I 

should only trust other African American Officers. LT McFadden 

did not like that I worked under a “white” supervisor and attempted 

to recruit me to 9pct so she could “keep an eye on me”. I informed 

LT McFadden that I appreciated her concerns but did not agree with 

her views. This upset her and started a chain of events that would 

ultimately result in my move to zone 5.

******

I left Zone 2 because I was ordered by a Lieutenant to not respond 

on Officer in trouble calls. I left Zone 2 because I felt I didn’t 

deserve to be disrespected and cursed at anymore. I left because the 

target on my back became too heavy to bare and began to effect my 

health. I left because Zone 2 became a hostile environment to work. 

I left because I was tired of hearing Officers and Supervisors tell me 

how much my Lieutenant didn’t like me. I left because I couldn’t 

take hearing how my brothers and sisters in blue couldn’t be trusted 

just because the color of their skin... And most of all I left because I 

couldn’t stand to see the Community I’ve grown to love so much 

slowly be destroyed and infested with crime.

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GRIZZELL DEP. EX. H (R.36-8 #3174-76). 

B. THE INTERNAL AFFAIRS INVESTIGATION

On March 9, 2017, Commander Grizzell wrote a letter to her chain of command requesting 

an Internal Affairs investigation. GRIZZELL DEP. 214-215 (R.35-4 #1927-28); GRIZZELL DEP. EX.

HH (R.36-34 #3503-08). On March 14, 2017, the matter was assigned to the Internal Affairs

Bureau. WEAVER AFF. ¶ 3 (attached as Exhibit A). I.A.B. Database #201703-1015 (“the IAB 

Investigation”) was assigned to IAB Sergeant and Investigator Daniel Weaver. Id. Sergeant

Weaver interviewed a number of witnesses and prepared a number of documents as he investigated 

the following allegations: 

Allegation I—Lt. McFadden violated E.E.O. laws when she issued 

CPD Sergeant Andre Tate his 2016 performance ratings based upon 

her statement that she did not believe “in black on black crime;”

Allegation II—Lt. McFadden did not rate Sergeant Tate according 

to his demonstrated performance for his 2016 Performance 

Evaluation; and 

Allegation III—Lt. McFadden violated E.E.O. laws by creating a 

Hostile Work Environment on Zone 2 B Company. 

Id. The IAB Investigation has been submitted into evidence. WEAVER AFF. EXS. 1-18; AUDIO1

001-060, 062-071; WEAVER AFF. ¶¶ 9-84, 93-102. A review of the IAB Investigation shows the 

thoroughness of Sergeant Weaver’s job. 

Regarding Allegation I, Weaver determined that the alleged conduct was supported by a 

preponderance of the evidence and was in violation of the Rules of Conduct. WEAVER AFF. ¶ 6. 

Accordingly, he recommended a finding of Sustained. Id. Regarding Allegation II, Weaver

determined that it was logical and reasonable to determine the alleged conduct was supported by 

 

1 The audio files cited in this memorandum are contained on a flash drive that was manually filed with the Clerk’s 

Office on January 26, 2021 in accordance with leave granted by the Court. (R.32).

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a preponderance of the evidence and was in violation of the Rules of Conduct. Id. Accordingly, he

recommended a finding of Sustained. Id. Weaver determined that Allegation III was supported by 

a preponderance of evidence and was in violation of the Rules of Conduct. Id. ¶ 8. Accordingly, 

he recommended a finding of Sustained. Id.

C. THE TEMPORARY REASSIGNMENT TO THE PROPERTY ROOM

Plaintiff was temporarily reassigned to CPD’s property room while the IAB Investigation 

took place. MCFADDEN DEP. 40-41 (R.33-1 #150-51). Chief Jacobs was responsible for 

reassigning Plaintiff to the property room and she doesn’t recall ever hearing that Plaintiff 

participated in discrimination complaints prior to the reassignment taking place. JACOBS DEP. 63-

69 (R.35-5 #1996-2002); MCFADDEN DEP. 72 (R.33-1 #182). Deputy Chief Kuebler recalls the 

discussions regarding Plaintiff’s reassignment occurring as follows: 

A. I remember that it was a difficult situation to figure out where to 

put the Lieutenant because we're directed to—to move...[t]he focus 

of that complaint so as to not have contact with the complainers. 

And being a patrol lieutenant, that was a complicated decision

because patrol personnel move around everywhere. So we wanted 

to ensure for the safety of those complaining that we would protect 

them by moving the Lieutenant in a manner that would reduce the

likelihood of future contact while the investigation continued, as 

directed by City HR and City EEO direction.

KUEBLER DEP. 31 (R.35-8 #2317).

Q. What were the options at that point in time?

A. That was the sticky part, was there was a small number of 

options. There would be perhaps options to move her to different 

shifts, but there are contractual problems with that. We could

reassign the complainers, which was counter to City direction and 

HR direction. Or there was to find a place where the Lieutenant 

could be successful and work somewhere else and provide 

additional benefit to the City while her complaint—while the

complaint against her was being investigated.

Id. at 32-33 (R.35-8 #2318-19).

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Q. [A]nd it was the Chief's decision that Lieutenant McFadden 

should be assigned to the property room, correct?

A. Yes, yes.

Id. at 37 (R.35-8 #2323).

The property room was chosen because CPD needed help in that location disassembling 

ballistic vests that needed to be destroyed pursuant to a contract. DUNLAP DEP. 44-45, 49-50 (R.35-

2 #1605-06, 1610-11). According to Deputy Chief Gary Dunlap: 

A. It came up as a subject in a staff meeting with the Chief, and at 

that time, we needed some help down at the property room with 

some ballistic vests, and I said we could—if you're looking for a

place to put somebody, I could use some extra help down at the 

property room.

Q. Did you explain that you needed the help there with the ballistic 

vests during that meeting?

A. I believe I did.

Q. And you said, you know, Deputy Chief Kuebler was in that 

meeting and Chief Jacobs was in that meeting. Was Commander 

Grizzell in that meeting?

A. I don't believe so. I think this came up in a staff meeting that the 

Chief held with her deputy chiefs.

Id. at 44-45 (R.35-2 #1605-06).

A. [W]e had to take the ballistic panels out of the carrier, separate 

them from the vest carrier so that we could get them disposed of, 

because at that time, the vest manufacturer that we had did not take

responsibility for disposing of the old vests. I guess now they do 

under the new contract. At that time, they didn't. They just piled up 

down there at the property room.

Q. And you told Chief Jacobs that that was what you would need 

Lieutenant McFadden to do?

A. Yeah. Whoever she sent down there, that's what they would be 

doing. They would be separating the ballistic inserts from the 

carrier, the vest carrier.

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Id. at 49-50 (R.35-2 #1610-11). According to Commander Mark Gardner, “Chief Dunlap had said, 

‘Look, we’ve got those vests that need to be prepped for destruction. Could we have her do that?’

‘Absolutely we could have her do that. It’s something that needs to be done.’ So it probably was 

something Chief Dunlap and I through our discussion made the determination that that’s what she 

would be doing.” GARDNER DEP. 47-48 (R.35-3 #1672-73).

Thus, Plaintiff was temporarily reassigned to the property because it was determined to be 

the best place to limit her contact with the multiple complainants and there was a need in the 

property room to complete a particular task. GARDNER DEP. 47 (R.35-3 #1672); JACOBS DEP. 99

(R.35-5 #2032). And despite Plaintiff’s speculation on the matter, Deputy Chief Knight had no 

involvement in reassigning Plaintiff to the property room. KNIGHT DEP. 45 (R.35-7 #2234). (“Q. 

Have you ever been involved in a decision to involuntarily assign a member of the sworn personnel 

to the property room? A. I don’t believe so.”). 

Both sworn and unsworn personnel are assigned to the property room on first, second and 

third shifts and it is seen as a coveted job within CPD. GARDNER DEP. 30-31 (R.35-3 #1655-56).

During the time that Plaintiff was temporarily reassigned to the property room, she maintained her 

rank as lieutenant, her seniority level in CPD did not change, her salary did not change, and she 

maintained all health benefits. MCFADDEN DEP. 44 (R.33-1 #154). In addition, she received 

additional perks which included free on-site parking and the ability to wear casual clothing. Id. at

46 (R.33-1 #156). Plaintiff was also given the option to select her own duty hours. GARDNER DEP.

80 (R.35-3 #1705). She went from working a second shift assignment from 3 p.m. to 11 p.m., with 

Fridays and Saturdays off, to working a first shift assignment from 8 a.m. to 4 p.m. with Saturdays 

and Sundays off. MCFADDEN DEP. 45-46 (R.33-1 #155-56). She was also provided a private 

office, with the desk, located in the back of the property room, to work from during her duty hours. 

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GARDNER DEP. 83-84 (R.35-3 #1708-09). Plaintiff not only continued to attend law school classes 

during her temporary reassignment, the City also continued to reimburse her tuition for the classes 

she attended. MCFADDEN DEP. 75-76 (R.33-1 #185-86). Notably, Plaintiff applied for a permanent 

assignment in the property room under the supervision of Commander Gardner on January 14, 

2019. Id. at 80 (R.33-1 #190). 

To the extent that Plaintiff may take issue with not having supervisory authority over 

subordinates while temporarily reassigned to the property room, that was not because of where she 

was specifically reassigned, but was instead a direct result of being relieved of her assignment 

pending an investigation into her misconduct. DUNLAP DEP. 27-29 (R.35-2 #1588-90).

Plaintiff’s witness Donna Alexander suggested that instead of the property room, Plaintiff 

should have been temporarily assigned to the patrol administrative unit. ALEXANDER DEP. 52

(R.37-1 #3921). Alexander testified as follows:

Q. And you were talking earlier about when you saw sergeant level 

folks in the patrol administrative unit, they were provided offices, 

correct?

A. Correct.

Q. And I'm talking about, just for clarity sake, sergeant level folks 

who were involuntarily reassigned to the patrol administrative unit, 

correct?

A. Correct.

Q. And when they were reassigned involuntarily there, were they 

provided their own office, or did they 18 have to share an office with 

a civilian employee?

A. They were provided their own office. There's two—at any given 

shift—there's three—there’s three patrol administration offices, 

okay, that are by first shift, second shift, third shift. And if a person 

is there on third shift, they can go into the first shift and the second 

shift offices of the other sergeants. And not only that, it's private. 

You can close the door. You can watch TV. You could do whatever 

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you wanted to do and not be seen or heard and then leave at your 

respectful time.

ALEXANDER DEP. 149-50 (R.37-1 #4018-19).

Plaintiff alleges that she injured her shoulder while performing work in the property room. 

MCFADDEN DEP. 72 (R.33-1 #182). She currently has an open Ohio workers’ compensation claim 

for that alleged injury. Id. 

D. THE CHIEF’S RECOMMENDATION

On May 15, 2018, Plaintiff presented herself at a disciplinary conference held in Chief 

Jacobs’ office to answer charges that she violated Division Rule of Conduct 1.48 and Division 

Directives 8.08, and 7.02.2 That hearing was recorded and has been submitted in the record. 

JACOBS DEP. 49 (R.35-5 #1982); JACOBS DEP. EX. KK (R.36-37 #3537-61); WEAVER AFF. ¶ 90;

AUDIO 061. After reviewing the facts relevant to the disciplinary charges served upon Plaintiff 

 

2 As noted in Plaintiff’s letter of departmental charges (WEAVER AFF. ¶ 89; WEAVER AFF. EX. 23): 

Rule of Conduct 1.48-Compliance with EEO Laws, Rules, Orders, Policies, and Directives, states, “Division personnel 

shall obey federal, state, and local antidiscrimination statutes and Division rules, orders, directives, and policies 

pertaining to EEO.”

Division Directive 8.08, “Equal Employment Opportunity, Nondiscrimination, and Americans with Disabilities Act,” 

subsection (III)(A) states, “Discrimination in employment with regard to race, color, religion, sex (including sexual 

harassment), national origin, disability, ancestry, age, genetic information, sexual orientation, or military status is 

prohibited.”

Division Directive 8.08, “Equal Employment Opportunity, Nondiscrimination, and Americans with Disabilities Act,” 

subsection (III)(B) states, “Any conduct, whether verbal or physical, that is unwelcome and so severe or pervasive as 

to materially affect an individual's terrms or conditions of employment is prohibited.”

Division Directive 8.08, “Equal Employment Opportunity, Nondiscrimination, and Americans with Disabilities Act,” 

subsection (III)(C) states, “While the Division cannot dictate how a person must feel about another individual or group 

and may not be able to change negative attitudes, it does insist on proper behavior on the part of its employees toward 

both the public and other employees.”

Division Directive 8.08, “Equal Employment Opportunity, Nondiscrimination, and Americans with Disabilities Act,” 

subsection (III)(D) states, “The Division shall work toward and give full support to all efforts that lead to the 

achievement of harmony within the Division.”

Division Directive 7.02, “Duties and Responsibilities of Personnel,” subsection (III)(A)(l)states Division Personnel, 

“Enforce and uphold the Constitution and laws of the United States of America, the State of Ohio, and the City of 

Columbus; the rules and regulations of the Division of Police; and the Oath of Office.”

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and Plaintiff’s statement relating to those charges, Chief Jacobs sustained the charges and made a

recommendation to the City’s Director of Public Safety that Plaintiff receive a 240 hour 

suspension, a demotion to police officer, and termination of her employment. MCFADDEN DEP. 72 

(R.33-1 #182); MCFADDEN DEP. EX. 38 (R.33-14 #512-516). According to Chief Jacobs, “The 

basis for my recommendation of termination to the Director was that Lieutenant McFadden created 

a hostile work environment.” JACOBS DEP. 49 (R.35-5 #1982). 

E. THE SAFETY DIRECTOR’S DECISION

Despite her recommendation, the Police Chief had no authority to terminate Plaintiff. 

Rather, the City’s Director of Public Safety is the appointing authority and ultimately makes the 

decision for hiring and firing of individuals within the Division of Police. VAN PELT DEP. 44 (R.35-

13 #2980). Plaintiff had a hearing before Ned Pettus, Jr., the City’s Director of Public Safety, on 

July 26, 2018. MCFADDEN DEP. 160 (R.33-1 #160). On August 22, 2018 Director Pettus issued a 

decision in which he did not uphold the Chief’s recommendation for termination. MCFADDEN DEP.

160 (R.33-1 #160); MCFADDEN DEP. EX. XXX (R.36-75 #3856-58). Plaintiff ultimately received 

no discipline whatsoever as she was not terminated, nor suspended, nor issued a written reprimand. 

MCFADDEN DEP. 160, 208 (R.33-1 #160, 318). 

F. PLAINTIFF’S EXPERT WITNESS LOU REITER

Lou Reiter is presented by Plaintiff as a police procedures expert. Reiter does not opine 

that CPD’s policies, as written, were in any way deficient. REITER DEP. 21 (R.34-1 #1095). But 

Reiter is critical of what he describes as “(1) the unwilling transfer of Lieutenant McFadden from

her patrol function to the assignment in the Property Room and (2) the EEO complaint 

investigation conducted regarding allegations against Lieutenant McFadden.” Id. at 30 (R.34-1 

#1104).

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According to Reiter, a police agency’s failure to crack down on internal racial 

discrimination or harassment creates a danger to the public. Id. at 27 (R.34-1 #1101). He notes, 

“Everyone is adversely affected if an agency allows any form of harassment, discrimination, or 

retaliation of its employees. If we don’t treat our employees well, how can we expect our officers 

to treat citizens well?” Id. Reiter supports having a zero-tolerance policy for the use of racial slurs 

in a police department. Id. at 28 (R.34-1 #1102). Regarding Morefield’s allegation that Lt. 

McFadden called him a “dumb nigga,” Reiter notes, “If it was said, what it’s basically doing is 

playing into a stereotype and it would be degrading, in my opinion, for anyone of color.” Id. at 77

(R.34-1 #1151). “I don’t care if it’s between black persons, you’re using a term that is not—should 

not be used within the police context.” Id. at 69 (R.34-1 #1143).

Regarding Tate’s performance review allegations, Reiter “think[s] it would be wrong for a 

police lieutenant to give a police sergeant a different evaluation based on the color of his skin[.]”Id. 

at 55 (R.34-1 #1129). According to Reiter, if there was corroborative evidence to support that the 

lieutenant is racist “you would not want that person supervising anybody...because...that would 

demonstrate a racial animus which is not something we can have in the police department.” Id. at 

78 (R.34-1 #1152). “We’re the impartial protectors and the people who are going to serve the 

community, so you can’t have management decisions based on race.” Id. at 73 (R.34-1 #1147).

Reiter also found the following allegations to be either troubling or disturbing: 

1. McFadden’s alleged comments regarding Morefield’s 

interracial marriage [Id. at 78 (R.34-1 #1151)];

2. McFadden’s alleged comments regarding police officers 

being ambushed in Dallas in 2016 [Id. at 75-76 (R.34-1 

#1149-50)];

3. McFadden’s alleged comment that she didn’t want 

proactivity because proactivity gives white officers more of 

an opportunity to harass black suspects [Id. at 105-106

(R.34-1 #1179-80)];

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4. Morefield’s comment that McFadden is antiwhite [Id. at 69-

70 (R.34-1 #1143-44)].

Reiter agrees that once Grizzell received the emails from Tate, Morefield, and Johnson, 

she should have forwarded them to HR, the chain of command, and Internal Affairs for an 

investigation. Id. at 35-36, 94-96, 116 (R.34-1 #1109-10, 1168-70, 1190).

Q. So do you have any criticisms of the way Commander Grizzell 

handled any of this situation?

A. From all the documentation and the depositions and the e-mails 

and the transmittal to HR and to IA, no. Like I say, we’ve already 

talked about the surreptitious recording, tape recording, but, no, 

handling these three allegations, no, I don’t.

Id. at 107-108 (R.34-1 #1181-82). However, instead of temporarily reassigning Plaintiff to the 

property room, Reiter would have handled her situation as follows: 

A. The first thing you do is you would give [the lieutenant] a cease 

and desist order, preferably in writing, to say, I don’t know if this is 

going on, but this is the allegation. If this, in fact, is true, you are 

hereby ordered to cease and desist any comments like this, any 

reference like this, any dealings with your officers when you’re 

dealing with issues that are race-based. And, if necessary, you would 

make a reassignment, if the person still works for that supervisor, to 

ensure that they don’t have any potential of exacerbating the 

allegations that are being made. So if the person is no longer in their 

zone of authority, then you don’t have much to worry, other than 

putting them on formal notice of cease and desist. 

Id. at 95-96 (R.34-1 #1169-70).

Now, if they violate the cease and desist and do it again, now you 

have insubordination for which they can be terminated simply on 

that.

Id. at 97-98 (R.34-1 #1171-72).

G. PLAINTIFF MELISSA MCFADDEN

Plaintiff denies any wrongdoing. However, she admits that she told Officer Morefield, 

“You should be mindful that some people don’t like interracial relationships, so just make sure 

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you watch your back on that.” MCFADDEN DEP. 40 (R.33-1 #150). She also admits to using the 

phrase “black on black crime” during Sergeant Tate’s 2017 performance evaluation. Id. at 29-30

(R.33-1 #139-40).

Plaintiff agrees that the following allegations are concerning: 

1. If an officer is told, “You’re nothing but a stupid nigga, and 

they’re going to treat you like the dumb nigga you are” [Id. 

at 149 (R.33-1 #259)];

2. If an officer is told, “White officers are not your brothers, 

and they’re not happy that you’re fucking one of their own”

[Id. at 149-150 (R.33-1 #259-60)];

3. If an officer believes that he was treated more favorably 

during his performance evaluation because of his race [Id. at 

150 (R.33-1 #260)];

4. If an officer believes that his sergeant hated officers of 

another race [Id. at 150 (R.33-1 #260)].

If Plaintiff had received any of those complaints, she would have written a letter to her 

chain of command reporting it, and she would make sure that the matter gets investigated “and a 

fair, impartial investigation is done, and [the focus supervisor is] not being penalized prior to the 

investigation being completed. Id. at 150-153 (R.33-1 #260-63).

IV. LEGAL STANDARD

Summary judgment is appropriate “if [Defendant shows] that there is no genuine dispute 

as to any material fact and [it is] entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 

Even though the Court must view all of the evidence and draw all reasonable inferences in 

Plaintiff’s favor, Plaintiff must still identify specific facts within the record showing there is a 

genuine issue of material fact. See Muncie Power Prods. v. United Techs. Auto., 328 F.3d 870, 873 

(6th Cir. 2003). Not just any dispute of fact will do. The “dispute must present a genuine dispute 

of material fact.” Rogers v. O’Donnell, 737 F.3d 1026, 1030 (6th Cir. 2013) (emphasis in original). 

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A fact is “material” only if its resolution “might affect the outcome of the suit under the governing 

law,” and a dispute is “genuine” only if the “evidence presents a sufficient disagreement to require 

submission to a jury.” Anderson v. Liberty Lobby, 477 U.S. 242, 248, 251-52 (1986). The evidence 

with respect to a particular factual dispute cannot be “so one-sided that [Defendant] must prevail 

as a matter of law,” and [Plaintiff] cannot rely upon a “mere existence of a scintilla of evidence in 

support of [her] position.” Id. at 251-52.

V. LAW & ARGUMENT

A. PLAINTIFF’S TITLE VII CLAIMS

1. Title VII Race Discrimination

Under Title VII, an employer may not “discriminate against any individual with respect to 

[her] compensation, terms, conditions, or privileges of employment, because of such individual’s 

race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Similarly, with regard to 

individuals in protected classes, the OCRA makes it unlawful for an employer “to discharge 

without just cause, to refuse to hire, or otherwise to discriminate against [a] person with respect to 

hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly 

related to employment.” Ohio Rev. Code Ann. § 4112.02(A). The same analysis generally applies 

to claims under Title VII and the OCRA. Staunch v. Cont’l Airlines, Inc., 511 F.3d 625, 631 (6th 

Cir. 2008); Plumbers & Steamfitters Joint Apprenticeship Comm. v. Ohio Civil Rights Comm’n, 

66 Ohio St. 2d 192, 421 N.E.2d 128, 131 (Ohio 1981).

“Title VII [also] forbids discrimination on the basis of association with or advocacy for a 

protected party.” Barrett v. Whirlpool Corp., 556 F.3d 502, 511 (6th Cir. 2009). Section 4112.02 

of the OCRA similarly prohibits discrimination based on association. Ohio Civil Rights Comm’n. 

v. Lysyj, 38 Ohio St. 2d 217, 313 N.E.2d 3, 6 (Ohio 1974) (holding that discrimination based on

association is forbidden in public accommodations) (superceded by statute on the availability of 

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punitive damages, as recognized in Rice v. CertainTeed Corp., 84 Ohio St. 3d 417, 1999 Ohio 361, 

704 N.E.2d 1217 (Ohio 1999)); see Cole v. Seafare Enters. Ltd., Inc., No. C-950157, 1996 Ohio 

App. LEXIS 440, 1996 WL 60970, at *1-*2 (Ohio Ct. App. Feb. 14, 1996) (applying Lysyj to 

associational employment-discrimination case brought under OCRA § 4112.02).

a. The prima facie case

At the summary-judgment stage, a plaintiff must adduce either direct or circumstantial 

evidence of race discrimination. Upshaw v. Ford Motor Co., 576 F.3d 576, 584 (6th Cir. 2009). 

No direct evidence of race discrimination exists in this case. It is well settled that absent direct 

evidence, a plaintiff must first establish a prima facie case of discrimination. McDonnell Douglas 

Corp. v. Green, 411 U.S. 792 (1973). Under the familiar McDonnell Douglas burden shifting 

framework, a plaintiff must first establish that: (1) she was a member of a protected class; (2) she 

suffered an adverse employment action; (3) she was qualified for the position; and (4) a similarly 

situated individual was treated more favorably. Id. 

Once a prima facie case is established, the burden shifts to the defendant to produce 

evidence of a legitimate, non-discriminatory reason for its action. If the defendant satisfies this 

burden, plaintiff must demonstrate that the proferred reason was a pretext for discrimination. 

McDonnell Douglas Corp. at 804-805; Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 

1083 (6th Cir. 1994). The burden of proof always remains with the plaintiff. McDonnell Douglas 

Corp. v. Green; St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). 

In this case, Plaintiff cannot establish a prima facie case of race discrimination because she 

cannot show that she suffered an adverse employment action or that individuals outside of her 

protected class were treated more favorably.

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(1) Plaintiff did not suffer an adverse employment action

To satisfy this element, a plaintiff must demonstrate that she suffered a materially adverse 

change in the terms and conditions of employment. Burlington Industries, Inc. v. Ellerth, 524 U.S. 

742 (1999); Kocsis v. Multi-Care Mgmt., 97 F.3d 876, 885 (6th Cir. 1996). An adverse 

employment action “constitutes a significant change in employment status, such as hiring, firing, 

failing to promote, reassignment with significantly different responsibilities, or a decision causing 

a significant change in benefits.” Burlington Indus. v. Ellerth, 524 U.S. 742, 761, 118 S. Ct. 2257, 

141 L. Ed. 2d 633 (1998) (citations omitted). As Plaintiff’s criticisms pertain to the investigation 

into her alleged misconduct, her temporary reassignment to the property room, and her 

recommendation for termination, all three matters will be addressed below.

(a) The investigation into Plaintiff’s alleged wrongdoing

The Sixth Circuit has repeatedly held that neither an internal investigation into suspected 

wrongdoing by an employee nor that employee’s placement on paid administrative leave pending 

the outcome of such an investigation constitutes an adverse employment action. See Peltier v. 

United States, 388 F.3d 984, 988 (6th Cir. 2004) (collecting cases); Dendinger v. Ohio, 207 Fed. 

Appx. 521, 527 (6th Cir. 2006). The Sixth Circuit has also held that an investigation alone is not 

sufficient to establish an adverse employment action. Virostek v Liberty Twp. Police 

Dept./Trustees, 14 F.Appx 493 (6th Cir. 2001); Jackson v. City of Columbus, Lusaka, Rice, 194 

F.3d 737 (6th Cir. 1999). 

Here, the investigation at issue occurred in direct response to the allegations of hostile work 

environment and racial discrimination made by Sergeant Tate and Officers Morefield and Johnson. 

Once the allegations of potential misconduct were made, the City had an affirmative obligation to 

conduct an investigation. See Arnold v. City of Columbus, S.D. No.2:08-cv-0031, 2011 U.S. Dist.

LEXIS 35807, at *56 (Mar. 31, 2011), citing Ohio Faragher v. City of Boca Raton, 524 U.S. 775, 

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806, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998) (in which the U.S. Supreme court held that in line 

with the "primary objective" of Title VII "not to provide redress but to avoid harm," employers 

have an "affirmative obligation to prevent violations" of Title VII). Plaintiff was neither suspended 

nor placed on administrative leave during her investigation. Consequently, the investigation into 

her alleged misconduct did not constitute an adverse employment action. 

(b) Plaintiff’s temporary reassignment to the property room

Plaintiff maintains her temporary reassignment to the property room resulted in a reduction 

in job responsibilities, reassignment to menial or degrading work, and to humiliation. COMPLAINT 

⁋⁋ 62, 68 (R.1 #21-22). Simply because Plaintiff was unhappy by her temporary reassignment 

does not mean she has identified an adverse employment action. Jiashin Wu v. Northeast OhioMed. 

Univ., 2019-Ohio-2530, 140 N.E.3d 100 (10th Dist.) quoting Smart v. Ball State Univ., 89 F.3d 

437, 441 (7th Cir. 1996). Employment actions causing humiliation, hurt feelings, and bruised egos 

do not rise to the level of an adverse employment action. Harrison v. P&G Distrib., LLC, 290 F. 

Supp. 3d 723, 734 (S.D. Ohio 2017). Generally, a temporary reassignment without a reduction in 

salary or benefits, changes to work hour, or significantly diminished material responsibilities, will 

not constitute an adverse employment decision. See Kocsis v Multi-Care Mgmt., Inc., 97 F3d 876

(6th Cir. 1996); Yates v. Avco Corp., 819 F.2d 630 (6th Cir. 1987). However, a reassignment with 

no change in salary or work hours, may be considered an adverse employment action, if it 

“constitutes a demotion evidenced by ‘a less distinguished title, a material loss of benefits, 

significantly diminished material responsibilities, or other indices that might be unique to a 

particular situation.’” White v. Burlington N. & Santa Fe Ry., 364 F.3d 789, 797 (6th Cir. 2004) 

citing Kocsis, 97 F.3d 876, at 886.

As stated above, during the time that Plaintiff was temporarily reassigned to the property 

room, she maintained her rank as lieutenant, her seniority level in CPD did not change, her salary 

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did not change, and she maintained all health benefits. She received free on-site parking, a private 

office, the ability to wear casual clothing, and the option to select her own duty hours. She 

continued to receive tuition reimbursement from the City to attend law school classes. She later 

applied for a permanent assignment in the property room under the same supervisor. While she 

temporarily lost her supervisory authority over subordinates, that was not because of her temporary 

reassignment to the property room, but was instead a direct result of being relieved of her 

assignment pending an investigation into her misconduct. Based on all of the foregoing, Plaintiff’s 

temporary reassignment did not constitute an adverse employment action.

(c) The Chief’s recommendation for termination

Chief Jacobs’ recommendation for Plaintiff’s termination also did not amount to an adverse 

employment action. As stated above, Chief Jacobs had no authority to terminate an employee as 

that decision can only be issued by the Public Safety Director. “[T]he threat of discipline, or even 

discharge, is not an adverse action for purposes of a discrimination claim.” Evergin v. City of 

Columbus, S.D. Ohio No. 2:09-cv-1069, 2012 U.S. Dist. LEXIS 197375, at *18-19 (June 14, 2012) 

citing Plautz v. Potter, 156 Fed. Appx. 812, 817 (6th Cir. 2005). 

(2) No similarly situated employees were treated differently

Plaintiff’s prima facie case of race discrimination also fails because she cannot demonstrate 

that she was treated differently than similarly situated individuals outside the protected class. See 

Wright v. Murray Guard, Inc., 455 F.3d 702, 710 (6th Cir. 2006). To establish that similarly situated 

employees were treated differently, Plaintiff must show that the comparables are similar in all 

respects. Mitchell v. Toledo Hospital, 964 F.2d 577, 583 (6th Cir. 1992). Thus, “the individuals 

with whom the plaintiff seeks to compare his/her treatment must have dealt with the same 

supervisor, have been subject to the same standards and have engaged in the same conduct without 

such differentiating or mitigating circumstances that would distinguish their conduct or the 

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employer’s treatment of them for it.” Id. However, these factors are not exclusive. Rather, the Sixth 

Circuit has instructed district courts to “make an independent determination as to the relevancy of 

a particular aspect of the plaintiff’s employment status and that of the non-protected employee.”

Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998).

To support an inference of unlawful discrimination, Plaintiff identifies Caucasian 

comparators she insists are similarly situated. Plaintiff’s proposed comparators are Lieutenant 

Christine Nemchev, Lieutenant Duane Mabry, Lieutenant Lowell Rector, Commander Rhonda 

Grizzell, Sergeant Jason Grunkemeyer and Sergeant Eric Moore. MCFADDEN DEP. 214, 217 (R.33-

1 #324, 327). Plaintiff contends that unlike herself, these individuals were afforded what she 

characterizes as “proper” internal investigations into their alleged misconduct, were not 

temporarily reassigned during their investigations to the property room and were not recommended 

for discipline. Defendant’s motion follows with an analysis of each comparator. 

(a) Lieutenant Christine Nemchev

In August 2017, Sergeant Kim Edley, African-American female, alleged her supervisor, 

Lieutenant Nemchev, Caucasian female, created a hostile work environment and discriminated 

against her because of her race. BERNHARDT AFF. ¶ 2 (attached as Exhibit B). Sergeant Edley 

claimed that her lieutenant gave her orders that no other sergeants were given and caused her to 

miss out on training opportunities. Id. Upon becoming aware of the allegations, the Division 

initiated an investigation. Id. During the investigation, Lieutenant Nemchev was ordered to work 

a different shift, and change her work hours to avoid contact with Sergeant Edley. The Lieutenant 

was also not permitted to enter police headquarters during Sergeant Edley’s work hours. VOLLMER

DEP. 87 (R.35-14 #3081). Sergeant Edley was reassigned to a different lieutenant. Id. at 43 (R.35-

14 #3037). The investigation determined that Sergeant Edley did not like how she was being 

supervised and she was unsatisfied with orders she receives from her Lieutenant. BERNHARDT AFF.

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¶ 2. As a result of the investigation, the charges against Lieutenant Nemchev were unfounded and 

no further action was taken. Id. At the time of the incident, Lieutenant Nemchev’s direct supervisor 

was Commander Suzanne Curmode. Id.

(b) Lieutenant Duane Mabry

In November 2018, Officer Nicholas Reaper, Caucasian male, alleged his supervisor, 

Lieutenant Duane Mabry, a Caucasian male, created a hostile work environment when Lieutenant 

Mabry told the officer it was inappropriate for him to “talk black” after footage from the officer’s 

body worn camera showed Officer Reaper purposely changing his dialect when communicating 

with African-American citizens. Id. ¶ 3. Officer Reaper also alleged that Lieutenant Mabry called 

his father a “piece of shit.” Id. Upon becoming aware of the allegations, the Division initiated an 

investigation. Id. During the investigation, Lieutenant Mabry did not supervise Officer Reaper. Id. 

Additionally, weeks into the investigation, Lieutenant Mabry went out on personal leave followed 

by military leave for months. Id. At the conclusion of the investigation, it was determined the 

allegations did not amount to a hostile work environment or discriminatory conduct. However, 

Lieutenant Mabry was issued positive corrective action by his chain of command for telling his 

subordinate not to “talk black” and received discipline for the remaining allegations. Id. At the 

time of the incident, Lieutenant Mabry’s direct supervisor was Commander Terry Moore. Id.

(c) Lieutenant Lowell Rector and Commander Rhonda Grizzell

In November 2017, Sergeant Christopher Odom, African-American male, alleged his 

temporarily assigned lieutenant, Lowell Rector, a Caucasian male and Commander Rhonda 

Grizzell, a Caucasian female, created a hostile work environment, engaged in retaliatory conduct 

and discriminatory behavior. Id. ¶ 4. Sergeant Odom claimed that an email he received from 

Commander Grizzell addressing issues she had with his work performance, unapproved absences 

and incomplete assignments were sent because of his race. Id. Under Commander Grizzell’s 

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direction, Lieutenant Rector investigated Sergeant Odom’s performance issues. Id. After his 

completed investigation determined Sergeant Odom had several performance issues, Sergeant 

Odom accused Lieutenant Rector of creating a hostile work environment. Id. Upon becoming 

aware of Sergeant Odom’s allegations, the Division initiated an investigation into the matter. Id. 

During the investigation, Sergeant Odom was permitted to report to a different chain of command. 

He was given a different lieutenant to supervise him, as well to whom to report. Id. Though 

Commander Grizzell was two ranks above him, Sergeant Odom was also afforded a different 

commander in his chain of command. Id. At the conclusion of the investigation, it was determined 

the allegations against Commander Grizzell and Lieutenant Rector were unfounded and no further 

action was taken. Id. At the time of the incident, Lieutenant Rector’s supervisor was Commander 

Grizzell. Commander Grizzell’s supervisor was Deputy Chief Richard Bash. Id.

(d) Sergeant Jason Grunkemeyer

In August 2016, civilian support clerk, Christine Hutton, a Caucasian female, alleged her 

direct supervisor Sergeant Grunkemeyer, a Caucasian male, created a hostile work environment 

when he gave her a written reprimand for insubordination and another written reprimand for being

absent without leave. Id. ¶ 5. Ms. Hutton also alleged that Sergeant Grunkemeyer spoke to her in 

a rude manner and made inappropriate comments about her medical condition. Id. Upon becoming 

aware of the allegations, the Division initiated an investigation. Id. During the investigation, Ms. 

Hutton reported to a different sergeant until she eventually took a position in another City 

department. Id. The investigation determined the allegations against Sergeant Grunkemeyer were 

unfounded and did not amount to a hostile work environment. Id. However, Sergeant Grunkemeyer 

was ordered to attend additional management training. Id. Sergeant Grunkemeyer’s supervisor was 

Lieutenant William Morrison. Id.

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(e) Sergeant Eric Moore:

In August 2014, Officer Wes Sorrell, a Caucasian male, told a superior in his chain of 

command that Sergeant Eric Moore, also a Caucasian male, had engaged in falsifying overtime. 

DECKER AFF. ¶ 2 (attached as Exhibit C). A month later in September 2014, Officer Sorrell made 

an additional allegation that during a one-on-one conversation he had with Sergeant Moore back 

in April 2014, Sergeant Moore called Officer Eric Cornett and Sergeant Doug Williams, both 

African-American males, “niggers” and told Officer Sorrell that he should kill them. Id. Neither 

Officer Cornett or Sergeant Williams were present when the comments were made. Both learned 

of the comments five months later in September 2014. Id. Officer Cornett was notified of the 

comments while he was out on scheduled military leave. Id.

When the Division became aware of the allegations, an investigation was immediately 

initiated in September 2014. Id. At the onset of the investigation, Officer Sorrell was not in 

Sergeant Moore’s chain of command. He did not report to nor was he supervised by Sergeant 

Moore. Id. Likewise, neither Officer Cornett nor Sergeant Williams were supervised by or reported 

to Sergeant Moore. Id.

The investigation outlined fifteen charges against Sergeant Moore. Id. ¶ 3. At the 

conclusion of the investigation, twelve of the fifteen charges were sustained. Id. The investigation 

determined Sergeant Moore had used a racist slur, however the investigation was unable to 

corroborate Officer Sorrell’s claim that Sergeant Moore made a threat against Officer Cornett and 

Sergeant Williams. Id. For seven of the charges, Sergeant Moore received documented 

constructive counseling. Id. For the racist slur he received a written reprimand. Id. Four charges 

related to falsifying overtime, interfering with Division property and for being deceptive during 

hos interviews with Internal Affairs were forwarded to Chief Jacobs for departmental charges. Id. 

Chief Jacobs recommended Sergeant Moore be terminated and suspended. Id. The Public Safety 

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Director upheld Chief Jacob’s recommendation and terminated Sergeant Moore’s employment. Id. 

However, after challenging his termination at arbitration, the arbitrator overturned his discharge. 

Id. Sergeant Moore direct supervisor was Lieutenant Ty Brust. Id. ¶ 2.

Plaintiff is not similarly situated to any of her proposed comparators. None of them dealt 

with or reported to the same supervisor as Plaintiff. In addition to not dealing with the same 

supervisor, Sergeant Grunkemeyer and Sergeant Moore were an entire rank below Plaintiff. And 

Commander Grizzell was classified in a rank above Plaintiff. 

Regarding Moore, Plaintiff received no discipline whatsoever, including for her alleged 

racist slur. Moore was disciplined for his alleged racist slur and was fired by the City for his other 

transgressions. 

Regarding the others, even if Plaintiff’s proposed comparators shared the same rank and 

dealt with the same supervisor as Plaintiff, none can be deemed to have engaged in the same 

egregious misconduct in which Plaintiff engaged. None of her comparators were accused by 

multiple subordinates of creating a hostile work environment by telling them, “you’re nothing but 

a dumb nigga, and they’re going to treat you like the dumb nigga you are;” MOREFIELD DEP. 153-

54 (R.35-9 #2534-35); or “white officers are not your brothers, and their not happy that you’re 

fucking one of their own.” Id. at 92 (R.35-9 #2473). None of her comparators were accused of 

telling subordinate officers that officers on other precincts should not be considered family because 

they (referring to Caucasian officers) “will hang you out to dry the first moment they get.” 

JOHNSON DEP. 59 (R.35-6 #2111). Or, telling subordinate officers that they did not want officers 

to be proactive because being proactive gave “white officers more chances to oppress minorities.” 

Id. at 75 (R.35-6 #2127). Furthermore, none of her comparators were alleged to have given a direct 

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report a more favorable performance evaluation based on the subordinate’s race because she did 

not believe in “black on black crime.” TATE DEP. 44 (R.35-12 #2880).

Since none of Plaintiff’s comparators engaged in conduct that was similar to that of 

Plaintiff, Plaintiff cannot establish that she was treated differently from similarly situated nonprotected individuals. Macy v. Hopkins Cnty. School Bd. of Edu., 484 F.3d 357, 370 (6th Cir. 2007) 

(in which the 6th Circuit held that where incidents of misconduct giving rise to discipline form the 

crux of the similarities between employees, the degree of their misconduct is a factor to be given 

great weight). 

Plaintiff’s complaint that the investigations of those individuals she asserts to be similarly 

situated were done “properly” compared her own does not establish that she was differently than 

her comparators. Plaintiff does not dispute that the alleged misconduct of the comparators she 

identified in her deposition were investigated. MCFADDEN DEP. 217 (R.33-1 #327). In fact, 

although Plaintiff and her expert criticize the manner in which the investigation was performed, 

they both agree that the allegations needed to be written up and investigated. MCFADDEN DEP.

152-53 (R.33-1 #262-63); REITER DEP. 35-36, 94-96 (R.34-1 #1109-10, 1168-70). 

Instead, Plaintiff argues the investigations of her comparators were done “correctly 

compared to [her own], which was done differently.” MCFADDEN DEP. 217 (R.33-1 #327). In 

support of her claim, Plaintiff testified that her investigation lacked “interviewing witnesses, of 

following up or including any exculpatory evidence...” MCFADDEN DEP. 194 (R.33-1 #304). 

However, Plaintiff does not explain how the investigations of her proposed comparators 

specifically differed from her own. Plaintiff offers nothing more than her own self-serving 

deposition testimony which is speculative and has no basis in fact. Moreover, her unsubstantiated 

allegations are not objective evidence. See, Bradley v. Rhema-Northwest Operating LLC, No. 16-

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2493, 2017 U.S. App. LEXIS 19522, at *13 (6th Cir. Oct. 3, 2017) (holding that conclusory

testimony is not sufficient to raise such a genuine issue of material fact as to whether the plaintiff

was treated less favorably than similarly situated employees outside the protected class.).

Plaintiff also asserts that her Caucasian counterparts were treated differently because they 

were not reassigned during the investigations into their misconduct. However, unlike Plaintiff, 

none of the comparators had several allegations from multiple complainants who were assigned to 

different patrol zones throughout the Division. Each of her proposed comparators had a single 

complainant assigned to a single zone or bureau section. As a result, the Division could easily take 

necessary steps to control complainants from having any contact with the comparators. 

Plaintiff, on the other hand had multiple complainants assigned to different patrol zones. As an 

active Lieutenant, Plaintiff could potentially be called to respond to multiple runs on a number of 

different patrol zones or to oversee a different zone at any time. KUEBLER DEP. 58 (R.35-8 #2344).

As such, there is a greater likelihood Plaintiff could come into contact with any of her 

complainants. Keeping Plaintiff on Zone 2 or reassigning her to a different patrol zone would make 

no sense. 

Furthermore, merely because her comparators were not reassigned specifically to the 

property room does not satisfy a claim that she was treated differently than similarly situated 

individuals. Plaintiff’s reassignment is not determined by her personal desires or preferences. It is 

determined by the needs of the Division. As a lieutenant, if the Division has a need in “HR, if it’s 

the property room, if it’s narcotics, if it’s out at AIU as a receptionist” that is where she would be 

assigned. DUNLAP DEP. 35 (R.35-2 #1596). As noted earlier, Plaintiff’s subjective desire to be 

reassigned to a certain assignment or bureau is insufficient as a matter of law to establish a claim 

that she was treated differently than similarly situated individuals.

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Finally, Plaintiff’s argument that her counterparts were treated differently because they 

were not recommended for termination also does not prove that she was treated differently than 

her similarly situated counterparts. The allegations brought against most of the individuals Plaintiff 

believed to be similarly situated were determined to be unsubstantiated or unfounded. As result, 

no further action was warranted. Sergeant Moore’s investigation however did result in a number 

of sustained charges that went before the Chief for a hearing. At the conclusion of that hearing, 

the Chief recommended Sergeant Moore’s termination and the Public Safety Director upheld the 

Chief’s recommendation. Plaintiff admittedly was not suspended or terminated for her misconduct. 

MCFADDEN DEP. 208-09 (R.33-1 #318-19). Plaintiff’s outcome was more favorable than Sergeant 

Moore, because unlike his case, the Chief’s recommendation to terminate Plaintiff was overturned 

by the Public Safety Director. 

Plaintiff cannot establish a prima facie case of race discrimination. Plaintiff has presented no 

evidence that a similarly situated individual outside the protected class was treated more favorably 

than she. Accordingly, Plaintiff has failed to create a genuine of material fact to support her prima 

facie case. 

b. Legitimate, Nondiscriminatory Reason

Once a prima facie case has been established, “[t]he burden then shifts to the employer ‘to 

articulate some legitimate, nondiscriminatory reason’ for its actions.” Newman v. Fed. Express 

Corp., 266 F.3d 401, 405 (6th Cir. 2001) (quoting McDonnell Douglas, 411 U.S. at 802). In this 

case, the City had legitimate, nondiscriminatory reasons for the investigation, the temporary 

reassignment, and the Chief’s recommendation. The City’s burden at this stage is one of 

production, not persuasion, and “it does not involve a credibility assessment.” Smith v. Interim 

Health Care of Cincinnati, Inc., S.D. Ohio No. 1:10-cv-582, 2011 U. S. Dist., LEXIS 13885, at 

*31-32 (Dec. 2, 2011) citing, Upshaw v. Ford Motor Co., 576 F.3d 576, 585 (6th Cir. 2009).

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The City had a legitimate, nondiscriminatory reason for investigating Plaintiff. The City

had an obligation to act once it became aware of Plaintiff’s alleged misconduct against Sergeant 

Tate, Officer Morefield, and Officer Johnson. The City would be remiss if it did not investigate 

their claims that Plaintiff committed multiple acts of racial discrimination and harassment while 

working as their police lieutenant. Plaintiff’s own expert witness testified that it was appropriate 

for Commander Grizzell to forward the allegations to Internal Affairs for an investigation. REITER 

DEP. 35-36, 94-96, 116 (R.34-1 #1109-10, 1168-70, 1190). According to Mr. Reiter’s testimony, 

“[e]veryone is adversely affected if an agency allows any form of harassment, discrimination or 

retaliation of its employees.” REITER DEP. 27 (R.34-1 #1101). It would be entirely unacceptable 

for the Division to turn a blind eye and simply ignore the allegations of potential misconduct of 

one of its Division members. 

The City also had a legitimate, nondiscriminatory reasons for temporarily reassigning 

Plaintiff to the property room. As noted earlier, Plaintiff was temporarily reassigned to the property 

room because the Division had to place her in an assignment that would limit her contact with the 

complainants. The Chief of Police testified that according to her training, “it is most appropriate 

to move the person being complained of if you needed to move that person.” JACOBS DEP. 99 

(R.35-5 #2032). She went on to testify that, “[i]f there is a potential for those persons to have 

contact with each other or to still be in a supervisory position of those or potentially generate more 

allegations, lots of different things can happen.” JACOBS DEP. 99 (R.35-5 #2032). Moreover, the 

location of Plaintiff’s temporary reassignment was driven by whatever bureau within the Division 

had work that could be done at that time. DUNLAP DEP. 30-32 (R.35-2 #1591-94). Essentially, 

Plaintiff could be reassigned wherever there was a need. In this case, Deputy Chief Dunlap 

expressed during an executive staff meeting with the Chief of Police that he needed some help 

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with ballistic vests in the property room. He told the Chief, “if you’re looking for a place to put 

somebody, I could use some extra help down at the property room.” DUNLAP DEP. 45 (R.35-2

#1606).

Lastly, Defendant has a legitimate, nondiscriminatory reason for the Chief’s 

recommending Plaintiff’s termination. After hearing the evidence presented at the Chief’s Hearing 

and after reviewing the entire internal investigation, the Chief sustained the allegations against 

Plaintiff. The Chief’s recommendation for Plaintiff’s termination was based on her belief that 

Plaintiff had created a hostile work environment as related to Sergeant Tate, Officer Morefield, 

and Officer Johnson. JACOBS DEP. 49 (R.35-5 #1982). Notably, Reiter testified that he would have 

issued Plaintiff a cease and desist order and would have terminated her for insubordination if she 

violated that order. REITER DEP. 95-98 (R.34-1 #1169-72). Regardless, as stated above, the Chief’s 

recommendation is not an adverse employment action and was overturned by the Public Safety 

Director. Plaintiff received no discipline whatsoever. 

Plaintiff cannot create an issue of fact merely by challenging the judgment of her employer. 

An employer “may make employment decisions ‘for a good reason, a bad reason, a reason based 

on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory 

reason.’” Brown v. Renter’s Choice, Inc., 55 F. Supp.2d 788, 795 (N.D. Ohio 1999) quoting Nix 

v. WLCY Radio/Rahall Commc’ns, 738 F.2d 1181, 1187 (11th Cir. 1984). Furthermore, “it is 

inappropriate for the judiciary to substitute its judgment for that of management....Rather, our 

inquiry is limited to whether the employer gave an honest explanation of its behavior.” Hedrick 

v. Western Reserve Care System, 355 F.3d 444, 462 (6th Cir. 2004) (internal citations and 

quotations omitted); see also Johnson v. Middle Metro. Gov. of Nashville and Davidson Cty., 

Tenn., 502 F. App’x 523, 539 (6th Cir. 2012) (federal courts do not act as a “’super personnel 

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department,’ overseeing and second-guessing employers’ business decisions.” (citations 

omitted). 

For all of the reasons stated above, the City has satisfied its burden of production in this 

case and has articulated a legitimate, nondiscriminatory reason for its actions. Therefore, the City 

is entitled to summary judgment. 

c. Pretext

Because the City has articulated legitimate, nondiscriminatory reasons for the investigation 

and the temporary reassignment, the burden shifts back to Plaintiff to “prove by a preponderance 

of the evidence that the reasons offered by the employer were a pretext for discrimination.”

Gribcheck v. Runyon, 245 F.3d 547, 550 (6th Cir. 2001). Plaintiff may show pretext by showing: 

(1) that the proffered reason had no basis in fact, (2) that the proffered reason did not actually 

motivate the employer’s action, or (3) that the reason was insufficient to motivate the employer’s 

action. Romans v. Mich. Dep’t of Human Servs., 668 F.3d 826, 839 (6th Cir. 2012) (quoting Chen 

v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009)). A reason cannot be shown to be pretext 

unless it is both, “false, and that discrimination was the real reason.” Griffin v. Finkbeiner, 689 

F.3d 584, 594 (6th Cir. 2012).

Plaintiff cannot produce any evidence of pretext. Therefore, the City is entitled to summary 

judgment on her discrimination claims.

2. Title VII Retaliation

To establish a prima facie case of retaliation, a plaintiff must demonstrate that (1) she 

engaged in protected activity; (2) her employer knew about her exercise of protected rights; (3) the 

employer thereafter took adverse employment action against her or a supervisor subjected her to 

severe or pervasive retaliatory harassment; and (4) there was a causal connection between her

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protected activity and the adverse employment action or the retaliatory harassment. Morris v. 

Oldham Cnty. Fiscal Court, 201 F.3d 784, 792 (6th Cir. 2000).

Plaintiff alleges that in retaliation for representing Officer Falacia Dragin in her capacity 

as a union representative, Commander Grizzell requested Plaintiff be investigated, Plaintiff was 

temporarily reassigned to the property room, and the Chief recommended Plaintiff’s termination. 

For the same reasons Plaintiff cannot establish an adverse action in her race discrimination claim, 

Plaintiff also cannot show an adverse action in her retaliation claim. Moreover, Plaintiff’s 

retaliation claim also fails because she cannot establish a causal connection between her 

representation of Officer Dragin and any alleged adverse action.

To support her allegation of retaliation, Plaintiff claims that in January 2017, Officer Larry 

Gauthney told her that Commander Grizzell was going to “come after” Plaintiff and run her off 

Zone 2. MCFADDEN DEP. 141-42 (R.33-1 #251-52); COMPLAINT ¶ 38 (R.1 #18). However, Plaintiff 

admits that Officer Gauthney never told her that Commander Grizzell was going to run her off the 

zone in retaliation for representing Officer Dragin or because Deputy Chief Knight was reassigned 

from the Internal Affairs Bureau. MCFADDEN DEP. 148 (R.33-1 #258). In fact, Commander

Grizzell testified she did not learn that Officer Dragin filed a complaint of discrimination until 

after Plaintiff filed her charge of discrimination with the Ohio Civil Rights Commission on May 

3, 2017. GRIZZELL DEP. 140 (R.35-4 #250). Indeed, since Commander Grizzell was not aware that 

Plaintiff engaged in any protected activity until May 2017, Plaintiff’s temporary reassignment to 

the property room and Commander Grizzell’s request to initiate an investigation, both of which 

occurred two months earlier, could not have been taken but for Plaintiff’s engagement in her 

protected activity. 

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Plaintiff also alleges Sergeant Smith-Hughes told her Deputy Chief Knight was, “going to 

take[her] out.” MCFADDEN DEP. 86 (R.33-1 #196). However, Sergeant Smith-Hughes testified he 

never personally heard Deputy Chief Knight say that. SMITH-HUGHES DEP. 30-31 (R.35-4 #2728-

29). Likewise, both Sergeant Smith Hughes and Chief Jacobs testified that Sergeant Smith-Hughes 

never told Chief Jacobs that Deputy Chief Knight had threatened to take Plaintiff out. SMITHHUGHES DEP. 35 (R.35-4 #2733); JACOBS DEP. 92 (R.35-5 #2025). Lastly, Plaintiff’s claim that 

Deputy Chief Knight was reassigned from the Internal Affairs Bureau because of Plaintiff’s work 

with Officer Dragin is purely speculative and based on conjecture, as Plaintiff admits no one told 

her the reason why Deputy Chief Knight was reassigned. MCFADDEN DEP. 95-96 (R.33-1 #205-

06). Plaintiff’s conclusory allegations for why she believes she was retaliated against are 

insufficient to support her claim.

Despite her allegations, Plaintiff cannot offer any admissible evidence to substantiate her 

claim that her investigation, temporary reassignment, or recommendation for termination was the 

result of her representation of Officer Dragin. As there is insufficient evidence to establish a causal 

connection, Defendant is entitled to summary judgment on this claim.

B. 42 U.S.C. § 1983

Plaintiff next alleges that “[b]y reassigning, and recommending suspension, demotion, and 

termination for Plaintiff without due process, and depriving her of equal protection under the law 

because of her race and engagement in protected activity, Defendant violated 42 U.S.C. § 1983.”

COMPLAINT ¶ 92 (R.1 #25). Plaintiff also alleges that “[b]y denying Plaintiff the enjoyment of her 

employment contract because of her race, Defendant violated 42 U.S.C. § 1983.” COMPLAINT ¶ 94

(R.1 #25). 42 U.S.C. § 1983 provides a cause of action for “the deprivation of any rights, privileges, 

or immunities secured by the Constitution and laws” by any person acting “under color of any 

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statute, ordinance, regulation, custom, or usage, of any State or Territory.” The City is entitled to 

summary judgment on these claims as well. 

Plaintiff names the City as the sole defendant. A municipality can be held liable under 42 

U.S.C. § 1983 only when there is 1) a constitutional violation and then 2) only when the 

municipality itself caused the alleged constitutional violation. See City of Los Angeles v. Heller, 

475 U.S. 796, 799 (1986) and Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). The 

doctrine of respondeat superior does not apply; a governmental entity cannot be held liable under 

§ 1983 based solely upon allegations that an employee or agent inflicted an injury. Monell, at 691. 

Municipalities can be held liable under § 1983 for the conduct of an employee only when the 

alleged constitutional violation is caused by the “execution of a government’s policy or custom.”

Id. In order to satisfy the Monell requirements, a plaintiff must “identify the policy, connect the 

policy to the City itself and show that the particular injury was incurred because of the execution 

of that policy.” Coogan v. City of Wixom, 820 F.2d 170, 176 (6th Cir. 1987). The local 

governmental entity “must be the moving force of the constitutional violation in order to establish 

the liability of a governmental holding under § 1983.” Polk County v. Dodson, 454 U.S. 312, 326 

(1981) (citing Monell, 436 U.S. at 694). The Plaintiff does not allege the existence of such custom 

or policy, nor can she identify any evidence pointing to such custom or policy. For this reason 

alone, Plaintiff’s 1983 claims against the City must be dismissed.

Furthermore, “[f]or a municipality to be liable under 42 U.S.C. § 1983, a plaintiff must 

show harm ‘caused by a constitutional violation.’” Thomas v. Columbus, 854 F.3d 361, 367 (6th 

Cir. 2017) (quoting Lee v. Metropolitan Government of Nashville & Davidson County, 432 F. 

App’x 435, 449 (6th Cir. 2011)); Los Angeles v. Heller, 475 U.S. 796, 799 (1986); Stevens-Rucker 

v. Columbus, 739 Fed. App’x 834, 846 (6th Cir. 2018). “No constitutional violation means no 

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municipal liability.” Thomas, 854 F.3d. at 367. In the absence of an underlying violation upon 

which to base municipal liability, this Court does not need to engage in the more vigorous inquiry 

as to whether the “alleged federal violation occurred because of a municipal policy or custom.”

Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013); Stanfield v. Lima, 727 Fed. App’x 841, 851 

(6th Cir. 2018). In this case, Plaintiff cannot establish an underlying constitutional violation.

1. First Amendment Retaliation

To support a First Amendment retaliation claim, a plaintiff must offer proof of three 

elements: (1) the plaintiff was engaged in a constitutionally protected activity; (2) the defendant’s 

adverse action caused the plaintiff to suffer an injury that would likely chill a person of ordinary

firmness from continuing to engage in that activity; and (3) the adverse action was motivated at 

least in part as a response to the exercise of the plaintiff’s constitutional rights. Jenkins v. Rock 

Hill Local Sch. Dist., 513 F.3d 580, 585-86 (6th Cir. 2008) (internal quotation marks and citation 

omitted). As stated above, Plaintiff cannot present sufficient evidence of a causal connection 

between the Dragin claim and the City’s response to the allegations made by Tate, Morefield, and 

Johnson. Thus, any First Amendment retaliation claim fails.

2. Equal Protection

As stated above, Plaintiff alleges that she was reassigned and recommended for suspension, 

demotion, and termination because of her race and engagement in protected activity. She also 

alleges that she was denied the enjoyment of her employment contract because of her race. A 

plaintiff seeking to establish an Equal Protection violation must show that “‘the selective treatment 

was motivated by an intention to discriminate on the basis of impermissible considerations, such 

as race or religion, to punish or inhibit the exercise of constitutional rights, or by a malicious or 

bad faith intent to injure the person.’“ Wright v. MetroHealth Med. Ctr., 58 F.3d 1130, 1137 n.7 

(6th Cir. 1995) (quoting FSK Drug Corp. v. Perales, 960 F.2d 6, 10 (2d Cir. 1992)). “The showing 

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a plaintiff must make to recover on a disparate treatment claim under Title VII mirrors that which 

must be made to recover on an equal protection claim under section 1983.” Gutzwiller v. Fenik, 

860 F.2d 1317, 1325 (6th Cir. 1988).

“To show discriminatory purpose, a plaintiff can proffer ‘evidence that an official chose to 

prosecute or engage in some other action at least in part because of, not merely in spite of, its 

adverse effects upon an identifiable group.’“ Bennett v. City of Eastpointe, 410 F.3d 810, 818 (6th 

Cir. 2005) (quoting King v. City of Eastpointe, 86 F. App’x 790, 802 (6th Cir. 2003)). For the same 

reasons Plaintiff cannot demonstrate that the City’s legitimate reasons for its allegedly adverse 

employment actions are pretext, she cannot show a discriminatory purpose. Accordingly, 

Plaintiff’s Equal Protection claim fails.

3. Due Process

Finally, Plaintiff alleges that her Due Process rights were violated. The Court must answer 

two questions to analyze Plaintiff’s proposed due process violations: (1) does she have a property 

interest sufficient for due process protection; and (2) if she indeed possesses such an interest, what 

is the proper amount process to which she is entitled? Leary v. Daeschner, 228 F.3d 729, 741-42 

(6th Cir. 2000). If an individual does possess a property interest, deprivation of that right must be 

“preceded by notice and opportunity for a hearing appropriate to the nature of the case.” Cleveland 

Bd. of Education v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1986). The query 

of “how much process is due” is one of “federal law and thus is not limited by the procedures that 

the state may have deemed to be adequate when it created the property right.” Id. (citation omitted). 

However, the process does not have to be elaborate and is subject to change depending on the 

competing interests. Higgins v. Jefferson Cnty., Ky., 344 F. Supp. 2d 1004, 1007 (W.D. Ky. 2004) 

(citations omitted). “The specific dictates of due process are determined by considering factors 

such as the employee’s interest in retaining employment, the governmental interest in the 

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expeditious [discipline] of unsatisfactory employees and the avoidance of administrative burdens,

and the risk of an erroneous [discipline].” Id. (describing the process as it applies to termination) 

(citations omitted). In this case, Plaintiff was afforded two separate hearings, one in front of the 

Chief of Police, and one in front of the Safety Director. Plaintiff ultimately received no discipline 

whatsoever. 

Any suggestion that Plaintiff’s temporary reassignment constituted a due process violation 

is also unpersuasive. See e.g., Eggers v. Moore, 257 F. App’x 993, 995 (6th Cir. 2007) (putting 

teacher on paid forced administrative leave did not require due process hearing); Joseph v. City of 

Columbus, No. C2-04-754, 2006 U.S. Dist. LEXIS 69962, 2006 WL 2795195, *6-7 (S.D. Ohio 

Sept. 27, 2006) (“[E]mployers may avoid due process concerns in cases in which immediate 

suspension of an employee is necessary by placing that employee on paid, rather than unpaid, 

leave.” (citing Loudermill, 470 U.S. at 538)); Lynch v. McNamara, 342 F. Supp. 2d 59, 65-66 (D. 

Conn. 2004) (“[R]eassignments and transfers generally do not implicate a protected property 

interest for the purposes of due process, unless accompanied by a loss in pay.”) (citations omitted). 

As Plaintiff received full pay and benefits during her temporary reassignment, such action may not 

form the basis of a due process claim. Accordingly, Plaintiff’s Due Process claim fails.

C. PLAINTIFF’S WORK INJURY CLAIM IS PRECLUDED

As stated above, Plaintiff alleges that she injured her shoulder while performing work in 

the property room and she currently has an open Ohio workers’ compensation claim for that 

alleged injury. MCFADDEN DEP. 72 (R.33-1 #182). To the extent that Plaintiff is attempting to relitigate her work injury claims she is precluded by Ohio law. The Ohio Workers' Compensation 

statute provides that employers "shall not be liable to respond in damages at common law or by 

statute for any injury, or occupational disease, or bodily condition, received or contracted by any 

employee in the course of or arising out of [her] employment[.]" Ohio Rev. Code § 4123.74. Ohio 

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42

courts accordingly recognize the general rule that workers' compensation is the exclusive remedy 

for an employee injured as a result of negligence. Ritchie v. Dravo Corp., 585 F. Supp. 1455, 1456, 

11 Ohio B. 181 (S.D. Ohio 1984); Alessio v. United Airlines, Inc., 2018 U.S. Dist. LEXIS 25120, 

*15, 2018 WL 902334. Thus, to the extent that Plaintiff is seeking reimbursement of her prior 

medical bills, or money to pay for future medical expenses relating to her injury, her remedies are 

limited to those provided by Ohio's workers' compensation statute. Williams v. GM, S.D. Ohio No. 

1:13-cv-336, 2014 U.S. Dist. LEXIS 117216, at *14-15 (July 28, 2014). 

VI. CONCLUSION

For the reasons stated above, Defendant City of Columbus respectfully moves this Court 

for summary judgment on all claims asserted against it by Plaintiff Melissa McFadden.

Respectfully submitted,

/s/ Susan E. Williams

Susan E. Williams (0073375)—LEAD

Westley M. Phillips (0077728)

Assistant City Attorney

CITY OF COLUMBUS, DEPARTMENT OF LAW

ZACH KLEIN, CITY ATTORNEY

77 North Front Street, Columbus, Ohio 43215

(614) 645-7385 / (614) 645-6949 (fax)

sewilliams@columbus.gov

wmphillips@columbus.gov

Attorneys for Defendant City of Columbus

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CERTIFICATE OF SERVICE

I hereby certify that, on January 29, 2021, I electronically filed the foregoing with the Clerk 

of the Court by using this Court’s e-Filing System, which will send a notice of this electronic filing 

to all counsel of record in this matter:

/s/ Susan E. Williams

Susan E. Williams (0073375)

Case: 2:18-cv-00544-EAS-KAJ Doc #: 38 Filed: 01/29/21 Page: 45 of 45 PAGEID #: 4099