Officer Not Similarly Situated To Partner For Race Discrimination Purposes

Martice Berry, an African-American male, began working as a police officer for the City of Pontiac, Michigan Police Department in 2002. In 2004, Juanita Carattini and Antawian Ball each filed citizen complaints against Berry alleging he was using his authority as a police officer to harass them both on and off duty. Ball was the boyfriend of Carattini, a woman who had formerly had a relationship with Berry. Carattini had also dated Ball, with whom she had two children, prior to dating Berry.

At the time the citizen complaints were filed, Berry had accumulated seven disciplinary actions for violations of the Department’s manual within the previous 18 months, discipline that included two written reprimands and two ten-hour suspensions.

The Department assigned Lieutenant Charles Herring, an African-American, to conduct an internal affairs investigation into the complaints. As the investigation progressed, Herring unearthed numerous additional violations of the policy manual by Berry. Berry ran at least four checks of Ball on the Law Enforcement Information Network (LEIN) unrelated to any official business. Herring discovered that Berry had paid Carattini’s bond when she was arrested in another jurisdiction, and that Berry had told her he would take care of a traffic violation she received in yet another jurisdiction.

Most significantly, the investigation revealed that on November 1, 2004, Berry and his partner, Officer James Wilkins, who is white, conducted a traffic stop of Ball and called for backup assistance to do so. As they were executing the stop, police dispatch sent out a call for assistance with a felony robbery. When the backup officers immediately left the traffic stop to respond to the robbery call, Berry and Wilkins remained with the traffic stop for 15 minutes while dispatch confirmed Ball’s driving status. They cited Ball for, among other things, speeding, even though Berry was caught on his vehicle’s audio/video recorder stating he knew he was too far away to determine if Ball had been speeding.

The investigation also perceived that Berry violated the Department manual by accepting a $200 a month discount in his rent to act as a “courtesy officer” for his apartment complex without submitting a written request for off-duty employment.

Based upon all these allegations, the Department terminated Berry. Berry responded by filing a race discrimination lawsuit, contending that he and Wilkins were similarly situated for purposes of race discrimination analysis, and the fact that the Department had not disciplined Wilkins for the traffic stop of Ball showed that Berry was the victim of race discrimination.

The federal Sixth Circuit Court of Appeals rejected Berry’s argument that he was similarly situated with Wilkins. The Court acknowledged that “while Officer Berry is correct that Wilkins violated some of the same manual provisions as Berry (e.g., delayed response to a robbery in progress and obtaining a discount in rent for being a courtesy officer), those instances are far less in number than the numerous infractions that led to Berry’s termination. Moreover, Berry’s infractions are different in character from Wilkins’ alleged infractions. Officer Berry was terminated as a result of an investigation that uncovered numerous, egregious instances of Berry’s abuse of power. He ran numerous LEIN checks on Ball unrelated to any official business while he was dating Carattini, then ran numerous unauthorized LEIN checks on Carattini after their relationship ended. He abused his authority by conducting traffic stops and following Carattini for personal motives, and he jeopardized the safety of officers and citizens while conducting one of those stops. He was deceitful during the course of the internal affairs investigation, and was downright surly towards Herring.
“Because Berry has failed to identify a non-protected officer who engaged in the same conduct but was not terminated, his racial discrimination claim also fails.”

Berry v. City Of Pontiac, 2008 WL 698937 (6th Cir. 2008).

This article appears in the June 2008 issue