Johnny Strickland v. City of Detroit, MI, et al

Cincinnati, Ohio- Civil Rights lawyer represented Plaintiff-Appellant with a violation of Title VII of the Civil Rights Acts of 1964, and retaliation against him for reporting racial discrimination charge.

Plaintiff is an African American police officer. He has been employed by the Detroit

Police Department ("the Department”) since January 2008. He was promoted to sergeant during

the pendency of this case. Plaintiff argues that he has been subjected to harassment based on race

throughout his tenure as a police officer. His claims also focus on a January 22, 2017 incident

when he was arrested by fellow Detroit police officers and the Department's response to his

complaint about that incident.

1. Workplace Harassment

Plaintiff points to a number of incidents, social media posts, and Department reports as

contributing to or confirming the existence of a racially hostile workplace during his career as a

Detroit police officer. These include the following:

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• An African American friend and co-worker was called "boy” by a white police

officer.

• A statement in 2015 by Assistant Chief Steve Dolunt that: "Some whites don't

like blacks, some blacks don't like whites. Some men don't like women, some

women don't like blacks. I've dealt with racial tension before. And I'm not the

most PC person, but get over it. You're wearing blue.” (News Article, R. 36-16,

Page ID #945.)

• A social media post by a Department employee stating: "The only racists here are

the piece of shit black Lives Matter terrorists and their supporters . . . .” (EEOC

Charge, R. 36-15, Page ID #939.)

• An online post by a Department employee stating: "Getting rid of residency was

the best thing that ever happened to the Detroit Police!!! We have to police the

garbage but you can't make us live in the garbage.” (Id.)

• A Snapchat video that surfaced in 2019 depicting Detroit police officers mocking

a stranded African American female motorist with captions including: "What

black girl magic looks like” and "Celebrating Black History Month.” (Sixth

Precinct Environmental Audit, R. 39-2, Page ID #1025.)

• A Snapchat post of a uniformed officer captioned: "Another night to Rangel [sic]

up these zoo animals.” (News Article, R. 39-3, Page ID #1045.)

• Body camera footage showing Corporal Gary Steele and Officer Michael

Garrison referring to African Americans as "Keishas” and "Homies.” (Sixth

Precinct Environmental Audit, R. 39-2, Page ID #1030.)

These alleged instances only represent a portion of the racial harassment that Plaintiff has

observed in over a decade at the Department. In addition, he claims he has directly experienced

racial discrimination. He contends that he was denied desired shift assignments and trainings in

favor of white officers. At one point, he worked in the same precinct as Steele and Garrison,

who were responsible for a number of racial incidents, and despite his efforts to talk to them,

they would not speak to him and isolated him. Plaintiff personally observed white supervisors

disrespecting African American officers throughout his tenure as a police officer and was

disrespected himself.

Two Department reports recognized racial issues in the Detroit police force. In response

to concerns about inequality related to race, gender, and sexual orientation, Police Chief James

Craig formed the Committee on Race and Equality ("CORE”). The CORE report was submitted

to Chief Craig on January 12, 2017. The committee concluded "that the department has a

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growing racial problem.” (CORE Report, R. 39-4, Page ID #1048.) It reached this conclusion

after its investigation uncovered discriminatory practices like segregated units, which were

predominantly staffed by white officers in a majority African American police force. Moreover,

the CORE committee also found that African American officers who complained about bias in

appointments and training were retaliated against.

Similarly, in response to the Snapchat post of officers stranding and mocking an African

American motorist that surfaced in February 2019, Chief Craig ordered an environmental audit

of the Department's Sixth Precinct. Although Plaintiff never worked in the Sixth Precinct, a cochair of the CORE committee, retired police officer John Bennett, affirmed that "[t]he problems

that Chief Craig is at long last addressing in the Sixth Precinct were observed in varying degrees

throughout the police department by the CORE committee in 2016.” (Bennett Aff., R. 39-5,

Page ID #1057.) As a result of the audit, "the Department conclude[d] that the 6th Precinct is

racially divided. Although this racial division does not appear to be widespread throughout the

entire precinct, the amount of racial division exists at a level warranting further corrective

measures.” (Sixth Precinct Environmental Audit, R. 39-2, Page ID #1030.)

2. January 22, 2017 Incident

On January 22, 2017, Plaintiff was berated, handcuffed, and arrested by his fellow

officers. Shortly after his shift had ended that morning, Plaintiff pulled into a gas station off

Jefferson Avenue near his home in Detroit. Unbeknownst to him, the gas station was the site of

an active police investigation of a reported incendiary device. Due to a thick fog, Plaintiff could

not see the firetrucks that were at either end of the street or the police cars with their lights on

before he pulled into the gas station.

When he exited his vehicle, Plaintiff heard a commotion, but, again, due to the fog, he

could not see the source. Someone, who did not identify himself, yelled, "What the fuck are you

doing? Get the fuck out of there. Get the hell away from there.” (Strickland Dep., R. 36-3, Page

ID #764.) Once Plaintiff saw a uniformed Sergeant Rodney Ballinger emerge from the fog, he

immediately identified himself as a police officer. Sergeant Ballinger continued to scream and

yell at Plaintiff, said he did not care if Plaintiff was a police officer, and ordered Plaintiff to put

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his hands up. Sergeant Ballinger then placed handcuffs on Plaintiff that were extremely tight and

did not double lock them, which is a technique used to prevent the handcuffs from tightening

further. Sergeant Ballinger then walked Plaintiff out of the gas station, belittling him as stupid

and dumb.

Eventually they reached Sergeant Ballinger's scout car, where they were met by Officer

Casey Schimeck and Officer Lawrence Blackburn. Sergeant Ballinger continued to mock

Plaintiff in front of the other officers. Sergeant Ballinger then left Plaintiff with Officer

Schimeck. She grabbed a hold of his handcuffs, lifting them up, and tightening them further.

Plaintiff told Officer Schimeck that the handcuffs were too tight, and she did not respond.

Eventually, Officer Blackburn loosened the handcuffs. Plaintiff was diagnosed with a bilateral

wrist contusion after the incident.

3. Disciplinary Action Against Plaintiff

Plaintiff was disciplined as a result of the January 22, 2017 incident and suspended for

three days without pay or benefits. Plaintiff testified that on the scene, now-Commander Mark

Bliss told him that if he complained about the incident there would be consequences.

Plaintiff did complain to the Department that Sergeant Ballinger, Officer Blackburn, and

Officer Schimeck had mistreated him during the January 22, 2017 incident. An internal affairs

investigation was initiated, and Plaintiff eventually became its prime target. Sergeant Deanna

Wilson, the lead internal affairs officer on the investigation, concluded "that the actions of all

[officers] on scene inclusive of Officer Strickland were improper from the verbiage utilized by

the responding officers to the refusal of a direct order from a law enforcement officer which

perpetuated the events that followed.” (Internal Affairs Report, R. 36-7, Page ID #889.)

Formally, Plaintiff was charged with three violations of the Department's code of conduct. First,

he was charged with abusing his authority and position as a police officer to obtain access to the

gas station's video of the January 22, 2017 incident. Second, he was charged with withholding

information related to an ongoing investigation by failing to provide that video to the

Department. Third, Plaintiff was charged with neglect of duty for failing to document his

viewing of the video in his activity log.

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B. Procedural History

Plaintiff sued the City for creating a hostile workplace and the City and Sergeant Wilson

for illegal retaliation, both in violation of Title VII. He also sued the City, Chief Craig,

Commander Bliss, Sergeant Ballinger, Officer Steven Murdock, and Officer Schimeck under

§ 1983, claiming an unlawful search and seizure and the use of excessive force in connection

with the January 22, 2017 incident. His last claim was under § 1981 for interference with

contractual rights. Following discovery, Defendants moved for summary judgment on each of

Plaintiff's claims, and the district court granted the motion in its entirety. Plaintiff now appeals

the district court's grant of summary judgment on his Title VII hostile workplace and retaliation

claims. He also appeals the district court's grant of summary judgment on qualified immunity

grounds to Officer Schimeck with regard to his excessive force claim. He does not appeal the

dismissal of his search and seizure or § 1981 claims.

DISCUSSION

A. Standard of Review

We review a district court's grant of summary judgment de novo. George v. Youngstown

State Univ., 966 F.3d 446, 458 (6th Cir. 2020). Summary judgment is proper "if the movant

shows that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). "A dispute of material fact is genuine so

long as 'the evidence is such that a reasonable jury could return a verdict for the non-moving

party.'” Jackson v. VHS Detroit Receiving Hosp., Inc. ("Jackson-VHS”), 814 F.3d 769, 775 (6th

Cir. 2016) (citation omitted).

A court must view the evidence in the light most favorable to the party opposing the

motion for summary judgment. Kirilenko-Ison v. Bd. of Educ. of Danville Indep. Schs., 974 F.3d

652, 660 (6th Cir. 2020). "This includes drawing 'all justifiable inferences' in the nonmoving

party's favor.” George, 966 F.3d at 458 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

255 (1986)). "[T]he judge's function is not himself to weigh the evidence and determine the

truth of the matter but to determine whether there is a genuine issue for trial.” Jackson-VHS,

814 F.3d at 775 (quoting Anderson, 477 U.S. at 249).

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B. Hostile Workplace Claim

Plaintiff claims that the City created a hostile work environment based on race under

Title VII. To establish liability for a hostile work environment, a plaintiff must show that (1) he

belongs to a protected group; (2) he was subject to unwelcome harassment; (3) that harassment

was based on race; (4) the harassment was sufficiently severe or pervasive to alter the conditions

of his employment; and (5) the employer knew or should have known about the harassment and

failed to take appropriate remedial action. Khalaf v. Ford Motor Co., 973 F.3d 469, 482 (6th Cir.

2020).

The district court granted the City's motion for summary judgment after determining that

"a reasonable jury could not find that the January 22 incident was based on race,” and therefore

could not constitute racial harassment supporting Plaintiff's hostile workplace claim. Strickland

v. City of Detroit, No. 18-12640, 2019 WL 5737577, at *5 (E.D. Mich. Nov. 5, 2019). The

district court also questioned whether some of the racially charged social media posts relied upon

by Plaintiff could be considered in evaluating his hostile workplace claim because they postdated

the filing of Plaintiff's lawsuit, and it appeared that Plaintiff only learned of them in the course of

this litigation. Id. at *6. The district court ultimately considered these posts as actionable racial

harassment, although it discounted their weight because of the ambiguity in how Plaintiff

became aware of them. Id. at *8–*9. It granted summary judgment to the City on the ground

that Plaintiff had failed to demonstrate a genuine issue of material fact that the racial harassment

he experienced was sufficiently severe or pervasive to alter the conditions of his employment.

Id. at *9.

For the reasons that follow, we find that the district court correctly held that the January

22, 2017 incident was not racial harassment actionable under Title VII and that summary

judgment was appropriately granted to the City on Plaintiff's hostile work environment claim.

1. Harassment Based on Race

Plaintiff challenges the district court's finding that the January 22, 2017 gas station

incident was not racial harassment. Under Oncale v. Sundowner Offshore Services, Inc.,

523 U.S. 75, 80–81 (1998), a plaintiff can demonstrate discriminatory harassment by either

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pointing to the use of race-specific and derogatory terms or by "offer[ing] direct comparative

evidence about how the alleged harasser treated members” of other races. With respect to the

January 22, 2017 incident, Plaintiff explicitly disclaims that the officers used any race-specific

language. He also offers no relevant "direct comparative evidence” of differential treatment. For

example, in Smith v. Rock-Tenn Services, Inc., 813 F.3d 298, 308–09 (6th Cir. 2016), this Court

affirmed that a defendant was not entitled to judgment as a matter of law because of testimony

that the harassing employee had touched at least seven coworkers, "all of them male,” in a

mixed-sex workplace. Here, Plaintiff urges the Court to consider the January 22, 2017 incident in

the context of the CORE report, which was published ten days before and documented

discrimination, intimidation, and retaliation against African American officers. Such a

perspective, according to Plaintiff, "leads to the logical conclusion that the actions of the white

officers [on January 22, 2017] were consistent with an institutional culture that not only

condones but encourages routine disrespect for black officers.” (Appellant's Br. 22.) This

inference does not create a genuine issue as to whether the January 22, 2017 incident was

harassment based on race under Oncale. See Oncale, 523 U.S. at 81 (holding that "[w]hatever

evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at

issue was not merely tinged with offensive . . . connotations”). The district court did not err in

refusing to consider the January 22, 2017 incident when evaluating Plaintiff's hostile workplace

claim.

In contrast, other conduct cited by Plaintiff that lacked explicit racial animus nevertheless

constitutes racial harassment under Title VII. Plaintiff testified that an African American

colleague had been called "boy” by a white officer. Although not explicitly racial, a white

officer referring to an adult African American colleague as "boy,” without "modifiers or

qualifications” can qualify as evidence of impermissible racial bias. Ash v. Tyson Foods, Inc.,

546 U.S. 454, 456 (2006). Likewise, referring to residents of Detroit as "garbage” is not

explicitly racial, but Detroit is a majority African American city and could be understood, as it

was by Plaintiff, as harassment based on race.

The City's argument that a former Department assistant chief's comments dismissing

concerns of racial tension "include race, but is not specific to a single race,” is belied by the

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statement itself which focuses on relationships between white and African American officers.1

(Appellee's Br. 17.) The City's suggestion that the Committee on Race and Equality's report,

which concluded "that the department has a growing racial problem,” was exclusively concerned

with gender issues is equally unavailing. (CORE Report, R. 39-4, Page ID #1048.)

These instances of racial harassment, as well as a social media post denigrating Black

Lives Matter protesters, may be considered in evaluating Plaintiff's hostile work environment

claim even though none were directed at him. It is well-established that incidents of racial

harassment that a plaintiff learns of secondhand and did not personally experience may

"contribute to a work environment that was hostile . . . .” Jackson v. Quanex Corp. ("JacksonQuanex”), 191 F.3d 647, 661 (6th Cir. 1999).

On appeal and in addition to the events specified in the complaint, Plaintiff contends that

he was personally the subject of racial harassment outside of the January 22, 2017 incident.

These other examples of direct harassment were not asserted in the district court, and this Court

generally does not consider issues raised for the first time on appeal. Frazier v. Jenkins, 770

F.3d 485, 497 (6th Cir. 2014). However, even if this evidence is considered, Plaintiff still fails to

demonstrate a hostile work environment. He describes being ignored by certain white officers

who were responsible for a number of racial social media posts and incidents with members of

the public. This Court has previously found that evidence of racially-based isolation can

constitute harassment that supports a hostile workplace claim. See Moore v. KUKA Welding Sys.

& Robot Corp., 171 F.3d 1073, 1078 (6th Cir. 1999). He also identifies himself as one of the

African American officers described in the CORE report who was denied desired shifts and

training opportunities, as well as disrespected by white officers.

The City argues that other examples of harassment cited by Plaintiff should not be

considered at all in evaluating his hostile work environment claim because they either took place

1The City's briefing presents an amended version of the assistant chief's comments that excises an explicit

reference to race. According to Plaintiff's deposition and a newspaper article on these statements, Assistant Chief

Dolunt said, "Some whites don't like blacks, some blacks don't like whites, some men don't like women, and some

women don't like blacks.” (News Article, R. 36-16, Page ID #945; Strickland Dep. R. 36-3, Page ID #760.) In its

brief, the City amends the comments to "some women don't like [men].” (Appellee's Br. 15.) The City made the

same change before the district court. See Strickland, 2019 WL 5737577, at * 7 n.3.

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after Plaintiff filed this suit and amended complaint or because Plaintiff only learned of them in

the context of this litigation. The harassment challenged on these grounds includes: (1) the

Snapchat video of officers mocking an African American motorist, which was first reported in

January 2019; (2) another Snapchat post with an offensive caption from September 2018;

(3) undated body camera footage of officers referring to African American members of the

public as "Keishas” and "Homies”; and (4) the April 2019 Bennett affidavit indicating that issues

in the Sixth Precinct had been observed throughout the Department by CORE. In his reply brief,

Plaintiff does not argue that this evidence should be considered, noting only that the Sixth

Precinct Environmental Audit and Bennett affidavit were offered as corroboration for Plaintiff's

claims and background information. Accordingly, this Court will not consider the offensive

Snapchat posts or body camera footage in evaluating Plaintiff's hostile workplace claim. See

Armstrong v. Whirlpool Corp., 363 F. App'x 317, 329–30 (6th Cir. 2010) (holding that "district

court correctly excluded evidence of discrimination that [a plaintiff] neither witnessed nor

learned of outside the context of this litigation” in affirming summary judgment on hostile work

environment claim). Even if the videos were actionable in this suit, as the district court appeared

to accept for the sake of argument, the Court would affirm its holding that the racial harassment

for which Plaintiff provides evidence was not sufficiently severe or pervasive to survive

summary judgment for the reasons explained below. See Strickland, 2019 WL 5737577, at *8

(reviewing occurrences from 2015 to January 2019).

2. Whether the Harassment Created a Hostile Work Environment

To proceed on his claim that the City maintained a hostile work environment, Plaintiff

must show that "the workplace is permeated with 'discriminatory intimidation, ridicule, and

insult' that is 'sufficiently severe or pervasive to alter the conditions of the victim's employment

and create an abusive working environment . . . .'” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21

(1993) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 67 (1986)). The work

environment must be both objectively and subjectively hostile. These dual standards require

"that the plaintiff not only perceived the work environment as hostile, but that a reasonable

person would have found it hostile or abusive as well.” Smith, 813 F.3d at 309 (citing Harris,

510 U.S. at 21–22). The harassing conduct cannot be viewed in isolation, but "we must consider

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the totality of the circumstances in determining whether the harassment was sufficiently severe

and pervasive.” Randolph v. Ohio Dep't of Youth Servs., 453 F.3d 724, 733 (6th Cir. 2006)

(citing Black v. Zaring Homes, Inc., 104 F.3d 822, 826 (6th Cir. 1997)). "Specifically, we must

consider 'the frequency of the discriminatory conduct; its severity; whether it [was] physically

threatening or humiliating, or a mere offensive utterance; and whether it unreasonably

interfere[d] with an employee's performance.” Id. (alterations in original) (quoting Harris,

510 U.S. at 23).

Once the effects of the January 22, 2017 incident are put aside for purposes of Plaintiff's

hostile workplace claim, he does not allege any physical invasion. This Court has held,

following Harris, that "harassment involving 'an element of physical invasion' is more severe

than harassing comments alone.” Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 334 (6th Cir.

2008) (quoting Williams v. Gen. Motors Corp., 187 F.3d 553, 563 (6th Cir. 1999)).

As discussed above, incidents of harassment not directed at a plaintiff may be considered

in evaluating a hostile work environment claim. Meritor, the Supreme Court case that first

recognized such claims approvingly cited the Fifth Circuit's decision in Rogers v. EEOC,

454 F.2d 234 (5th Cir. 1971), disapproved of on other grounds, EEOC v. Shell Oil Co., 466 U.S.

54, 62 n.11 (1984), which held that a "complainant could establish a Title VII violation by

demonstrating that her employer created an offensive work environment for employees by giving

discriminatory service to its Hispanic clientele.” Meritor, 477 U.S. at 65–66. Nearly three

decades later, the Supreme Court in Vance v. Ball State University, 570 U.S. 421, 426 (2013),

continued to describe Rogers as a "leading case” for discriminatory work environment claims.

Explicitly relying on Rogers and Meritor, this Court has held that a district court errs "when it

deem[s] irrelevant the overwhelming evidence [the plaintiff] proffered documenting

discriminatory conduct towards other African-American employees . . . .” Jackson-Quanex,

191 F.3d at 660.

We have also held, however, that if the conduct that forms the basis of a plaintiff's hostile

work environment claim is not directed at that plaintiff, that fact "diminishes [its] severity.”

Ladd v. Grand Trunk W. R.R., Inc., 552 F.3d 495, 501 (6th Cir. 2009) (citing Black, 104 F.3d at

826). For example, in Black, "we emphasize[d] that [harassing] comments need not be directed

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at a plaintiff in order to constitute conduct violating Title VII,” but since most of the comments

in that case had not been directed at the plaintiff, that "contribute[d] to our conclusion that the

conduct . . . was not severe enough to create an objectively hostile environment.” Black,

104 F.3d at 826. In contrast, "comments or conduct of which a plaintiff had no knowledge

cannot be said to have made her work environment hostile.” Barrett v. Whirlpool Corp.,

556 F.3d 502, 515 (6th Cir. 2009); see also Abeita v. TransAmerica Mailings, 159 F.3d 246, 249

n.4 (6th Cir. 1998) (recognizing that if there is no evidence that a plaintiff was aware of certain

conduct, that conduct is irrelevant to the evaluation of a hostile work environment claim).

Accordingly, the incidents of a colleague being called "boy” and the assistant chief dismissing

racial tension, as well as online posts by Department personnel referring to residents of Detroit as

garbage and characterizing Black Lives Matter supporters as racist terrorists, that were not

directed at Plaintiff, but that there is evidence he was aware of during the period at issue, will be

considered as evidence of a hostile work environment, but given less weight.

The evidence of personal discrimination that Plaintiff raises on appeal also does not

require reversing the district court's dismissal of his hostile work environment claim. Plaintiff

testified in his deposition that he tried to speak to notoriously racist officers Steele and Garrison

and that they ignored him. While this Court has found that accounts of racial or gender isolation

can support hostile workplace claims, those cases involved isolation of a different magnitude

than Plaintiff's. In Moore v. KUKA Welding Systems & Robot Corp., the "[p]laintiff testified that

a couple of weeks after he filed the [EEOC] complaint, his supervisor and other employees

began to avoid him and would not talk to him.” Moore, 171 F.3d at 1078. The plaintiff's

supervisor instructed other employees to move their equipment, so they would have no reason to

go near the plaintiff, and also rearranged staffing so that the plaintiff was left as the only

employee in his department. Id. Moore's isolation lasted for over a year until he quit. Id. Other

cases where this Court has found isolation to constitute harassment supporting a hostile

workplace claim have been characterized by similarly concerted and pervasive efforts to

segregate the plaintiff from the rest of the workforce. See Waldo v. Consumers Energy Co.,

726 F.3d 802, 815–16 (6th Cir. 2013) (describing isolation of female employee from work,

dining, and transportation); Jordan v. City of Cleveland, 464 F.3d 584, 589–90 (6th Cir. 2006)

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(affirming denial of the defendant's Fed. R. Civ. P. 50 motion for judgment as a matter of law in

part because African American plaintiff had experienced "general isolation”).

Plaintiff's contention that the limited number of incidents of racial harassment he cites is

remedied by general allegations that he has experienced disrespect throughout his tenure as a

police officer is unavailing. This Court has held that "[m]ere disrespect or antipathy will not be

actionable under the statute unless a plaintiff can prove that such was motivated by

discriminatory animus.” Khalaf, 973 F.3d at 484 (citing Oncale, 523 U.S. at 80); see Phillips v.

UAW Int'l, 854 F.3d 323, 325 (6th Cir. 2017) (affirming grant of summary judgment on racially

hostile work environment claim where the plaintiff presented evidence of "a smattering of

offensive conduct,” general allegations of violent behavior, "frequent racial comments,” and the

use of a condescending tone when speaking with African American union members).

Considering Plaintiff's evidence of racial harassment under the totality of the

circumstances, he has not demonstrated a genuine factual dispute as to whether the harassment

was sufficiently severe or pervasive to alter the conditions of his employment. He has provided

evidence of approximately five incidents of racial harassment over more than ten years. This is

not frequent conduct. See Smith, 813 F.3d at 310–11 (finding frequency of conduct when

evidence of four incidents over six months). Moreover, most of the harassing conduct was in the

form of online posts or comments directed at others. This Court's precedents require that such

conduct be afforded less weight in the hostile work environment analysis because of its nonphysical and non-direct nature. Accordingly, the district court did not err in granting summary

judgment to the City on Plaintiff's hostile work environment claim. See Phillips, 854 F.3d at

328 ("The misconduct alleged here—a handful of offensive comments and an offensive meeting

over a two-year period—does not” add up "to actionable discriminatory conduct under a hostile

work environment theory.”).

C. Excessive Force Claim

Plaintiff appeals the district court's grant of summary judgment to Officer Schimeck on

his excessive force claim based on tight handcuffing. The district court erred in dismissing this

claim and granting qualified immunity to Officer Schimeck.

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In evaluating whether Officer Schimeck was entitled to qualified immunity on Plaintiff's

§ 1983 claim, we must determine "(1) whether, considering the [facts] in a light most favorable

to the injured party, a constitutional right has been violated, and if so, (2) whether that right was

clearly established.” Campbell v. City of Springboro, 700 F.3d 779, 786 (6th Cir. 2012)

(citations omitted). At issue here is Plaintiff's clearly established right to be free "from

excessively forceful or unduly tight handcuffing . . . .” Baynes v. Cleland, 799 F.3d 600, 613

(6th Cir. 2015). Defendants do not dispute that this right was clearly established as of January

22, 2017, only whether it was violated in this case. See Ouza v. City of Dearborn Heights, 969

F.3d 265, 271, 278 (6th Cir. 2020) (finding right to be free of excessive handcuffing clearly

established by December 2014).

For his excessive handcuffing claim to survive summary judgment, Plaintiff must point to

evidence that (1) he complained the handcuffs were too tight; (2) Officer Schimeck ignored his

complaint; and (3) he experienced "some physical injury” resulting from the handcuffing.

Morrison v. Bd. of Tr. of Green Twp., 583 F.3d 394, 401 (6th Cir. 2009) (citing Lyons v. City of

Xenia, 417 F.3d 565, 575–76 (6th Cir. 2005)). The parties in this case dispute only the second

element.

There is a genuine dispute of fact as to whether Officer Schimeck ignored Plaintiff's

complaint that his handcuffs were too tight. Plaintiff testified in his deposition that "[w]hen I

told [Officer Schimeck] the cuffs were too tight, there wasn't a response.” (Strickland Dep., R.

36-3, Page ID #769.) The district court recognized "there is some question of fact as to how

Defendant Schimeck responded to Plaintiff's complaint that the handcuffs hurt . . . .” Strickland,

2019 WL 5737577, at *14. Qualified immunity should have been denied on that basis.

However, the district court went on to observe that the disputed fact as to how Officer Schimeck

responded to Plaintiff's complaint was not material because "the issue was ultimately addressed:

Plaintiff's handcuffs were loosened and locked into place by Schimeck's partner, and they

were ultimately removed upon Plaintiff giving notice to Bliss that they were too tight.” Id.

It concluded that "Plaintiff's complaints were not ignored” because someone eventually loosened

his handcuffs. Id.

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Officer Schimeck is not immune from suit because it is a disputed fact whether she

ignored Plaintiff's complaint of excessively tight handcuffs. Granting summary judgment

because Plaintiff's handcuffs were loosened at some later point by someone else was not

appropriate. Our decision in Baynes v. Cleland provides much guidance. In Baynes, we

reversed a district court's grant of qualified immunity to sheriff's deputies who had ignored the

plaintiff's complaints that his handcuffs were too tight. The analysis of the excessive force claim

against Deputy Brandon Cleland is particularly instructive. Like Officer Schimeck, Deputy

Cleland did not actually handcuff the plaintiff, instead another officer did so. Baynes, 799 F.3d at

604. As with Officer Schimeck, Deputy Cleland took custody of the plaintiff after the

handcuffing, and there was evidence that he ignored complaints that the handcuffs were too tight.

Id. And just like Officer Schimeck, another law enforcement officer removed the plaintiff's

handcuffs sometime after the complaints had been made to Deputy Cleland. Id. In Baynes, this

was enough for us to conclude that the district court had erred in granting Deputy Cleland

qualified immunity on the plaintiff's excessive force claim based on tight handcuffing. Id. at

617. And the same result is required here. Qualified immunity is inappropriate just because

another officer eventually loosens and removes a plaintiff's handcuffs.

Our decision in Burchett v. Kiefer, 310 F.3d 937 (6th Cir. 2002), is not, as Defendants

contend, to the contrary. In Burchett, the plaintiff was handcuffed after ignoring an officer's

command to get on the ground, opting to flee instead. Burchett, 310 F.3d at 940. Afterwards,

the plaintiff was placed in a police car while the officers executed a search warrant at a nearby

home. Id. All agreed that it was a hot day, and the plaintiff requested that the officers roll down

the windows of the vehicle. Id. His request was denied. Id. There was no evidence in Burchett

that the plaintiff complained to the officers about the handcuffs, however, until he showed his

family his swollen and discolored hands. Id. at 941. Burchett's daughter alerted Sheriff Greg

Kiefer to the issue, who after obtaining the plaintiff's agreement to behave, let him out of the

vehicle and removed the handcuffs. Id. Accordingly, we concluded that "Kiefer's prompt

response when Burchett finally did complain distinguishes this case from those in which we

found constitutional violations.” Id. at 945. Unlike Baynes and this case, there was no evidence

that a complaint about handcuffs being too tight was ignored in Burchett.

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D. Retaliation Claim

Plaintiff testified that he was disciplined and suspended for three days in retaliation for

filing a complaint about the January 22, 2017 incident. The district court dismissed Plaintiff's

retaliation claim after finding that he had not provided any evidence that the asserted reason for

his discipline—that he had violated rules and regulations of the Department—was pretextual.

Strickland, 2019 WL 5737577, at *13. The City says that this is correct and that Plaintiff also

failed to meet his burden of establishing a prima facie case of retaliation. For the reasons that

follow, we find that the district court correctly found that Plaintiff established a prima facie case

of retaliation, but erred in concluding that he presented no evidence that the City's discipline was

pretextual. We reverse the district court's grant of summary judgment on this claim.

1. Statutory Requirements

At oral argument, counsel for Defendants argued for the first time that this cause of

action should be dismissed because Plaintiff had not filed a retaliation claim in his EEOC charge,

but had only presented allegations of racial discrimination to the federal agency. This argument

is squarely foreclosed by the Supreme Court's recent decision in Fort Bend County v. Davis,

139 S. Ct. 1843 (2019). In that case, the defendant asserted for the first time on remand to the

district court that there was no subject matter jurisdiction over the plaintiff's religious

discrimination claim because the claim was not stated in her EEOC charge. Id. at 1848. The

district court granted the motion, finding the charge-filing requirement was jurisdictional. Id.

The Fifth Circuit reversed, holding that the charge-filing requirement was not jurisdictional, but

a claim-processing rule, and that by waiting to raise the argument after years of litigation, the

defendant had forfeited the argument. Id. The Supreme Court affirmed. As this Court has

recognized, "the Supreme Court [in Fort Bend County] ultimately left this Court's prior rulings

in place, maintaining that the administrative exhaustion requirement is a claim processing rule

and therefore is 'subject to forfeiture' by the defendant.” George, 966 F.3d at 469 (quoting Fort

Bend Cnty., 139 S. Ct. at 1851–52). Defendants' contention that this Court should dismiss

Plaintiff's retaliation claim because he failed to file it with the EEOC is forfeited.

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However, the Court dismisses Plaintiff's Title VII retaliation claim against Sergeant

Wilson, the lead internal affairs investigator. Although this issue was not raised by the parties or

addressed by the district court, it is well-established that only employers, and not individuals in

their personal capacity, can be held liable under Title VII. See Griffin v. Finkbeiner, 689 F.3d

584, 600 (6th Cir. 2012).

2. McDonnell Douglas Burden-Shifting Analysis

Since Plaintiff seeks to prove retaliation through circumstantial evidence, his claim is

analyzed under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802–04 (1973). Under McDonnell Douglas, a plaintiff bears the initial burden of

establishing his prima facie case of retaliation. Id. at 802; accord Tex. Dep't of Cmty. Affs. v.

Burdine, 450 U.S. 248, 252–53 (1981). If this threshold is met, then a defendant is required to

"articulate some legitimate, non-discriminatory reason for its actions.” Laster v. City of

Kalamazoo, 746 F.3d 714, 730 (6th Cir. 2014) (quoting Dixon v. Gonzales, 481 F.3d 324, 333

(6th Cir. 2007)). If the defendant meets this burden of production, then a plaintiff may still

succeed on a claim if he can demonstrate the proffered reason was not the actual reason for the

adverse employment decision. Id.

Because the City challenges Plaintiff's retaliation claim at the first step of the McDonnell

Douglas framework—the prima facie case—our analysis begins there.

a. Prima Facie Case

To establish a prima facie case of retaliation under Title VII, Plaintiff must show that

"(1) he engaged in activity protected by Title VII; (2) his exercise of such protected activity was

known by the defendant; (3) thereafter, the defendant took an action that was 'materially

adverse' to the plaintiff; and (4) a causal connection existed between the protected activity and

the materially adverse action.” Id. (quoting Jones v. Johanns, 264 F. App'x 463, 466 (6th Cir.

2007)). In this case, the City acknowledges that the Department's disciplining of Plaintiff

constituted an adverse action. It also does not challenge the district court's conclusion that the

officials responsible for that adverse employment action knew of Plaintiff's allegedly protected

activity. Strickland, 2019 WL 5737577, at *11.

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Plaintiff's retaliation claim arises from Title VII's so-called "opposition clause,” which

prohibits employers from discriminating against an employee "because he has opposed any

practice made an unlawful employment practice” under Title VII. 42 U.S.C. § 2000e-3(a); see

Crawford v. Metro. Gov't of Nashville & Davidson Cnty., 555 U.S. 271, 274 (2009).

Specifically, Plaintiff claims that he opposed unlawful racial discrimination when he complained

to the Department's Equal Employment Opportunity ("EEO”) office about the January 22, 2017

incident. In that complaint, Plaintiff indicated that he believed his mistreatment constituted

discrimination based on race by checking the corresponding box.

On appeal, the City argues that Plaintiff did not engage in activity protected by Title VII.

It contends that checking a box for racial discrimination is insufficient to render Plaintiff's EEO

complaint protected activity under Title VII when the body of the complaint does not mention

race. The City's reliance on this Court's unpublished decision in Bray v. Palm Beach Co.,

907 F.2d 150 (6th Cir. 1990) (table) (per curiam), in support of this proposition is inapposite. In

Bray, the plaintiff filed a charge with the EEOC that she had been denied a promotion as

retaliation for having filed discrimination charges against the defendant. However, her federal

suit alleged that she had been discriminated against on the basis of sex. This Court agreed with

the plaintiff "that the facts alleged in the body of the EEOC charge, rather than merely the boxes

that are marked on the charge, are the major determinants of the scope of the charge.” 907 F.2d

150, at *2 (citation omitted). Bray is distinguishable because neither the box nor the body of the

EEOC charge indicated that the plaintiff believed her mistreatment had been due to sex, rather

than in retaliation for her previous discrimination complaints. In this case, the district court

properly concluded that by marking the box for discrimination based on race, there was evidence

that Plaintiff had engaged in activity protected under Title VII by opposing racial discrimination

in employment. Strickland, 2019 WL 5737577, at *10.

The City also contends in a conclusory fashion that Plaintiff has failed to establish

causation, the final element of the prima facie retaliation case. No analysis or evidence is offered

on appeal in support of reversing the district court's conclusion that Plaintiff demonstrated the

requisite connection between his protected activity and the adverse employment action. See id.

at *11–*12. Accordingly, this argument is waived. See United States v. Layne, 192 F.3d 556,

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566–67 (6th Cir. 1999) (holding that "issues adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are deemed waived” (quoting

McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997))).

However, even if this argument had not been waived, there is ample evidence in the

record of causation for Plaintiff to establish the final element of his prima facie case. The

requirement to demonstrate "but-for” causation "is not onerous” and may be satisfied through

"evidence that defendant treated the plaintiff differently from similarly situated employees or

that the adverse action was taken shortly after the plaintiff's exercise of protected rights.”

Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000) (citation omitted). Both these

factors are present here. Plaintiff testified that Officer Murdock was required to complete an

activity log, but was not disciplined for neglect of duty as Plaintiff was. Additionally, Plaintiff

was charged with his disciplinary infractions on April 3, 2017, which was less than three months

after Plaintiff complained about the January 22, 2017 incident. The investigation was assigned

to Sergeant Wilson on January 27, 2017, three days after Plaintiff "reported to the Human

Resources Bureau and prepared a Charge of Discrimination/Harassment Report with Ms. Alethea

Johnson, Equal Employment Opportunity Coordinator.” (Internal Affairs Report, R. 36-7, Page

ID #858.) The fact that Plaintiff became the subject of investigation shortly after filing his

internal complaint is further evidence that Plaintiff's protected activity caused his discipline. See

Randolph, 453 F.3d at 737 (reversing grant of summary judgment on retaliation claim in part

because the plaintiff was investigated for misconduct after reporting workplace harassment).

b. Pretext

The City met its burden to articulate a legitimate, non-retaliatory basis for Plaintiff's

discipline. It claims that Plaintiff was suspended for violating various Department regulations.

Violation of work rules constitutes a legitimate, non-retaliatory basis for the City's actions. See

Romans v. Michigan Dep't of Hum. Servs., 668 F.3d 826, 839 (6th Cir. 2012).

Because the City has discharged its burden, Plaintiff must show that the proffered

justification "is not the real reason” he was disciplined. George, 966 F.3d at 462. "This burden

is not heavy, though, as summary judgment is warranted only if no reasonable juror could

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conclude that the employer's offered reason was pretextual.” Id. (citations omitted).

"[A] plaintiff can show pretext in three interrelated ways: (1) that the proffered reasons had no

basis in fact, (2) that the proffered reasons did not actually motivate the employer's action, or

(3) that they were insufficient to motivate the employer's action.” Chen v. Dow Chem. Co.,

580 F.3d 394, 400 (6th Cir. 2009) (footnote omitted) (citation omitted).

Most of the evidence offered by Plaintiff fails to meet these standards. First, he seeks to

justify his failure to follow Sergeant Ballinger's orders on January 22, 2017 by pointing out that

none of the officers identified themselves and their uniforms were obscured by a thick fog.

However, Plaintiff was not charged by internal affairs for his conduct at that time. Moreover,

Plaintiff's explanation does not demonstrate that Sergeant Wilson's conclusion that his conduct

was improper had no basis in fact. So too for Plaintiff's explanation of the abuse of authority

and withholding of information charges. Plaintiff contends he did not abuse his authority in

obtaining video of the incident from the gas station because he initially asked the gas station

attendant for the video while he was in plain clothes. This may very well be true, but Plaintiff

was not disciplined for this request. Rather he was charged for two return trips to the gas station,

including once while in uniform and a marked police vehicle. Plaintiff defends himself against

the charge that he withheld the video evidence from the Department by observing that he was a

union steward. Again, this fact does nothing to show that the Department's charge that Plaintiff

withheld information relating to an ongoing criminal investigation had no basis in fact.

"[A] case alleging unlawful retaliation is not a vehicle for litigating the accuracy of the

employer's grounds” for the adverse employment action. Tingle v. Arbors at Hilliard, 692 F.3d

523, 530 (6th Cir. 2012). But that is precisely what Plaintiff attempts to do here.

The district court erred, however, in rejecting Plaintiff's third argument—that the

legitimate, non-retaliatory reason for his discipline was pretextual because another officer,

Murdock, had committed the same infraction as he did, but was not investigated or disciplined.

Demonstrating pretext often consists of "raising the question of why [the plaintiff] was singled

out” for an adverse employment action. George, 966 F.3d at 462. Strickland testified that he

and Officer Murdock engaged in the same misconduct, failing to complete an activity log, and

while Plaintiff was suspended in part for that conduct, Officer Murdock was not investigated or

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charged. The district court rejected this comparison, observing that "Murdock was in a different

precinct, and position, than Plaintiff, and the underlying events on which Plaintiff bases his

argument, were different.” Strickland, 2019 WL 5737577, at *12. Plaintiff testified that such

differences were immaterial, stating: "Any time you [are] working as a police officer you have

to complete an activity log when you conduct activity.” (Strickland Dep., R. 36-3, Page ID

#782.) The district court appears to have disregarded this testimony as Plaintiff's "own opinion

. . . .” Strickland, 2019 WL 5737577, at *12. Such an adverse credibility determination and

weighing of Plaintiff's testimony is inappropriate on summary judgment when a court must view

"the evidence in the light most favorable to the party opposing the motion.” Kirilenko-Ison,

974 F.3d at 660.

The dissent would affirm the district court and concludes that Plaintiff and Officer

Murdock were not similarly situated due to their different positions, reporting regulations, and

conduct. However, there is no evidence or claim by the City that these distinctions were in fact

relevant to the Department's disciplinary decisions. See Jackson v. FedEx Corp. Servs.,

518 F.3d 388, 394 (6th Cir. 2008) (recognizing "that the appropriate test is to look at those

factors relevant to the factual context, as opposed to a requirement that a plaintiff demonstrate

similarity in all respects”). The dissent's determination relies on weighing of facts, drawing

inferences in favor of the City, and resolving questions of credibility. "Credibility

determinations, the weighing of the evidence, and the drawing of legitimate inferences from the

facts are jury functions, not those of a judge” on summary judgment. Anderson, 477 U.S. at 255.

For example, rather than crediting Plaintiff's testimony that all police officers were

required to complete activity logs, the dissent relies on Officer Murdock's statement that he did

not maintain an activity log because "[n]ormally when we get recalled we did not do activity

logs. That has since changed and we do now.” (Murdock Dep., R. 36-8, Page ID #899.) As an

initial matter, it is unclear to whom Officer Murdock was referring when he said that "we” did

not complete activity logs; it could be the K-9 bomb squad, the bomb squad more generally, or

even the entire Detroit Police Department, all working groups that Officer Murdock testified he

was a member of during his deposition and in the context of discussing his activity log practices.

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Regardless of the resolution of that issue, on the reading of Officer Murdock's testimony

most generous to Plaintiff, as is appropriate on a motion for summary judgment, there is no

apparent conflict between Plaintiff's declaration that all police officers are required to complete

activity logs and Officer Murdock's statements. See Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587–88 (1986) (recognizing that all permissible inferences from the

evidence are to be drawn in favor of party opposing summary judgment). Officer Murdock's

testimony that he normally did not complete an activity log does not necessarily contradict

Plaintiff's testimony that all police officers were formally required to do so. Drawing all

inferences in Plaintiff's favor requires us to conclude that Officer Murdock was required to

complete an activity log, just as Plaintiff was, in January 2017. Moreover, even if Officer

Murdock's testimony did contradict Plaintiff's declaration that all police officers were required

to complete activity logs, summary judgment would still not be appropriate. "The evidence of

the non-movant is to be believed . . . .” Anderson, 477 U.S. at 255. For example, in George, the

defendants offered testimony that the plaintiff was fired for administrative rather than retaliatory

reasons, but we found that "on summary judgment, we cannot weigh which of these stories is

more credible—so long as a reasonable juror could credit George's evidence and not

Defendants', the case must proceed to a trial.” George, 966 F.3d at 462. We are similarly

required to credit Plaintiff's account in this case as well.

Accordingly, there is a genuine dispute of material fact as to whether the differences in

position and applicable regulations justify the differential treatment that Plaintiff and Officer

Murdock received for not completing an activity log. "[I]nasmuch as the explanations do not

rationally explain the difference, . . . a jury could reasonably reject the stated reasons and find

that the difference in treatment was instead motivated by” a desire to retaliate against Plaintiff

for complaining about racial discrimination. Redlin v. Gross Pointe Pub. Sch. Sys., 921 F.3d

599, 613 (6th Cir. 2019). This Court has long held that evidence of such unjustified differential

treatment is sufficient "to withstand summary judgment on the issue of pretext” and is itself

evidence that the "proffered explanation . . . may not have actually motivated [the employer's]

conduct.” Dews v. A.B. Dick Co., 231 F.3d 1016, 1023 (6th Cir. 2000). Specifically, this Court

has recognized that "showing that a similarly situated employee outside the protected class

committed the same misconduct but was not subject to the same consequences—and insinuating

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that the reason for that disparate treatment is” retaliation may support a finding of pretext. Miles

v. S. Cen. Hum. Res. Agency, Inc., 946 F.3d 883, 892 (6th Cir. 2020).

The dissent also argues that not only were Plaintiff and Officer Murdock differently

positioned, but that they did not commit the same misconduct. It emphasizes that while Plaintiff

improperly completed his activity log, Officer Murdock did not complete one at all. But this

analysis requires making an inference in the City's favor since the City did not appear to make

this argument either before the district court or on appeal, and there is no indication in the record

that the Department viewed or treated incomplete and entirely omitted activity logs any

differently. This distinguishes the facts here from the cases cited by the dissent. For example, in

Miles, the plaintiff "was responsible for the mismanagement of two programs, rather than just

one,” like her proposed comparators. Miles, 946 F.3d at 894. Thus, by any metric, her

misconduct was more severe than those with whom she sought to associate, justifying

differential treatment on that basis alone. On the other hand, it is not immediately apparent

whether omitting certain information from an activity log is more severe misconduct than

entirely failing to file one. See Jackson-VHS, 814 F.3d at 781 (finding that "speculating on the

likelihood and relative severity of” the harm that might have resulted from misconduct by a

plaintiff and a proposed comparator "is a task better suited to a jury”).

Contrary to the dissent, our decision in Seay v. Tennessee Valley Authority, 339 F.3d 454

(6th Cir. 2003), also does not support a determination that Plaintiff's conduct was relevantly

different than Officer Murdock's. As relevant here, in Seay, the plaintiff, an African American

man, claimed he was treated differently than similarly situated white employees who also

violated the defendant's vehicle use policy. For the most part, we disagreed. The defendant's

investigation determined that two of the proposed comparators who had misused vehicles had

received permission to do so from their supervisors, which was a relevant fact because it meant

their violations of the policy were not willful like the plaintiff's. Id. at 479. Another white

employee who received a suspension half the length of the plaintiff's was determined not to be

similarly situated because he only violated the vehicle policy once, whereas the plaintiff had

violated it twice. Id. Accordingly, there was evidence in the record in Seay as to why the

distinctions in conduct were relevant to differential discipline. That is not the case here.

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Moreover, even if the distinction between omission and misrepresentation with respect to

an officer's activity log was relevant to Department disciplinary procedures, it is not at all clear it

would apply in this case. Plaintiff was formally charged with "fail[ing] to properly document all

activity thoroughly and completely on his activity log including his reviewing of video footage at

the BP Gas Station . . . .” (Internal Affairs Report, R. 36-7, Page ID #892.) This suggests that

Plaintiff was disciplined for an omission from his activity log, not "lying,” as the dissent

concludes. The failure to document all his activity completely is the same infraction Plaintiff has

offered evidence that Officer Murdock committed.

Plaintiff has provided evidence "that [he] is similar to [his] proposed comparator in 'all

relevant respects.'” Miles, 946 F.3d. at 893 (quoting Bobo v. United Parcel Serv., Inc., 665 F.3d

741, 751 (6th Cir. 2012), abrogated on other grounds by Univ. of Tex. Sw. Med. Ctr. v. Nassar,

570 U.S. 338 (2013)). "Where Plaintiff has presented no other evidence, . . . Plaintiff's

testimony [may be] sufficient to defeat Defendant's motion to dismiss,” contrary to the dissent's

suggestion to the contrary. Moran v. Al Basit LLC, 788 F.3d 201, 205 (6th Cir. 2015). But even if

that were not the law of our Circuit, the dissent's characterization of a "thin presentation” by

Plaintiff is not supported by the cases it cites. Unlike the unpublished decision in Clark v.

Walgreen Co., 424 F. App'x 467 (6th Cir. 2011) (per curiam), it is not the case that Plaintiff's

"only evidence that other[s] . . . engaged in similar misconduct is [Plaintiff's] own testimony.”

Clark, 424 F. App'x at 474. Here, there is no dispute, and Officer Murdock testified that he did

not keep an activity log for the January 22, 2017 incident. We also point out that Officer

Murdock's deposition testimony that he did not normally keep an activity log took up a total of

nineteen words. That is the exact same quantum of evidence that the dissent finds insufficient to

create a genuine dispute of material fact based on Plaintiff's testimony.

Plaintiff was disciplined because he was a police officer and required to document his

activity in an activity log, and there is evidence in the record that Officer Murdock was exactly

the same, except that he was not even investigated. Cf. Robinson v. MGM Grand Detroit, LLC,

821 F. App'x 522, 531 (6th Cir. 2020) (affirming grant of summary judgment on retaliation

claim when the plaintiff failed to specifically identify any other similarly situated employees, the

defendant offered evidence that no other employee engaged in similar conduct during the time

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period in question, and demonstrated that other employees who engaged in similar misconduct as

the plaintiff were terminated). Plaintiff has demonstrated a genuine issue of material fact as to

whether the proffered reason for his discipline actually motivated the City's conduct. Therefore,

the City is not entitled to summary judgment on his Title VII retaliation claim.

For the reasons set forth above, we AFFIRM the district court’s grant of summary

judgment in favor of the City on Plaintiff’s hostile work environment claim under Title VII. We REVERSE the district court’s grant of qualified immunity to Officer Schimeck on Plaintiff’s excessive force claim and REVERSE the district court’s grant of summary judgment in favor of the City on Plaintiff’s retaliation claim under Title VII. We REMAND the case for further proceedings consistent with this opinion.