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Frisby v. Louisville Metro Government

United States District Court, W.D. Kentucky, Louisville Division

September 27, 2019

ROGER FRISBY, Plaintiff,
v.
LOUISVILLE METROPOLITAN GOVERNMENT and STEVE CONRAD, Defendants.

          MEMORANDUM OPINION AND ORDER

          DAVID J. HALE, JUDGE UNITED STATES DISTRICT COURT

         In September 2016, Roger Frisby learned that he had not been selected to be a Louisville Metro Police Officer. (Docket No. 1, PageID # 3) Frisby sued the Louisville Metro Police Department and LMPD Chief Steve Conrad, alleging that he was not hired because of a survey of officers he conducted while working for the Louisville Metro Department of Corrections (LMDC). (Id., PageID # 3-4) Frisby asserts that this decision constituted an unlawful refusal to hire in violation of his First Amendment right to freedom of speech. (Id., PageID # 4)

         Defendants have moved for summary judgment (D.N. 24), arguing that (1) Frisby’s survey did not constitute protected speech; (2) Frisby cannot demonstrate that the survey was a substantial factor in the decision not to hire him; (3) their interest in maintaining harmony and efficiency in the police department outweighed Frisby’s claim to protected speech; and (4) Frisby failed to develop proof of any LMPD policy or custom causing his rights to be violated. (Id., PageID # 51) Because Frisby has not established a prima facie case of First Amendment retaliation, the Court will grant Defendants’ motion for summary judgment.

         I.

         Frisby began working as a corrections officer at LMDC in 2006. (D.N. 1, PageID # 2) In the fall of 2012, Frisby was also a student at the University of Louisville. (D.N. 27, PageID # 91) During the fall semester, Frisby took a course, Designing Learning, in which each student was required to complete a project that assessed problems associated with an organization of which the student was already a member. (D.N. 24, PageID # 52; D.N. 27, PageID # 91) Frisby claims that he identified high divorce rates as a social issue commonly associated with being employed in law-enforcement positions, and he set out to examine the causes of those high rates to create a training module for his Designing Learning project. (D.N. 27, PageID # 91; D.N. 27-8, PageID # 175) In researching this project, Frisby used his work email to access and contact thirty-four female LMPD officers. (D.N. 24, PageID # 51) Frisby sent these female officers a survey, asking them to anonymously answer questions. (D.N. 27, PageID # 91) According to Frisby, he surveyed both a control group and a focus group to gather data on the differing behaviors between men and women within the police department and outside of the police department. (Id.)

         On December 13, 2012, Frisby sent the initial email to a group of female officers asking whether they would be interested in participating in his survey. (Id., PageID # 92; D.N. 24, PageID # 52) He asserts that he received responses from women who were interested, to whom he sent an email with a link to a third-party online survey system. (D.N. 27, PageID # 92) The link took individuals directly to the ten-question survey. (Id.) Frisby recalled the survey including questions such as “[d]o you ever hear any water cooler talk about so-and-so being promiscuous and, if so, does that offend you?”; “[h]ow many sexual partners have you had since becoming an officer who are also officers?”; and “[a]re you currently married or single?” (D.N. 27-8, PageID # 189)

         Upon completion of the survey, Frisby states, he gathered the anonymous results, “assessed them, ” and sent the results on December 15, 2012, to those individuals he believed had expressed an interest. (Id.) The email, entitled “results, ” stated in pertinent part:

The results of our survey are in and have shown to be a perfect match to my theory of “why they do it.” First, I would like to start by thanking those of you that participated in the survey and behavior study. What we have learned is not only alarming but should really be discussed in greater detail and formatted as an academy class for the female officer.
In the mind of the female officer she is the underdog from day one by attempting to gain trust, respect, and a belonging feeling from her male counterparts. She will become desensitized by certain behavior and language and even adapt certain male traits as she moves through her career. The study was to discover if that goes as far as SEXUAL BEHAVIOR, and that has rather clearly been proven. Throughout my life I’ve learned that the stereotypical male is only as faithful as his options and that behavior, be it right or wrong, has almost been accepted by society.

(D.N. 27-1, PageID # 114) The email further stated that the female officers “participated in the study as our focus group and another group of females that work in an office environment participated in our control group” and that the “results could not be more opposite.” (Id.)

         Frisby’s email created outrage among female officers. One officer filed a complaint, stating that the communication

is not only offensive but shows character unbecoming to an officer. He sent it out to “random” female officers and it has a survey concerning our “sexual behavior” as he put it. He said on his second email that he received results from that survey but [no] one I have talked to even participated. The results however according to him indicated we were all promiscuous. I am more th[a]n offended I am extremely angry . . . .

(D.N. 24-5, PageID # 72) Another responded directly to Frisby, noting that his email “was sent to people who did not participate in [his] study, not to mention, [he] failed to state [his] Divorce Rate activity being a part of such survey” and also remarking that Frisby was “out of [his] league, without permission, and spouting results that are vague and demeaning.” (D.N. 24-6, PageID # 73) Frisby testified at his deposition that he sought out this information because he believed women in law enforcement “get desensitized by the language that they hear, the things that they see, and slowly they start to lose their femininity, and that’s what leads or is a trigger to cheating.” (D.N. 27-8, PageID # 190)

         Following the complaints of female LMPD officers, Frisby was disciplined by LMDC for unauthorized use of his work email. (D.N. 24-7, PageID # 75-76) Frisby explained that he used his work email because he “had access to the females in law enforcement through [his] email account” and that “coming from my .gov account, it would have a little bit more weight and they would actually look at it and not just discard it to spam.” (D.N. 27-8, PageID # 171) He believed that the only way he had access to these officers was through his louisvilleky.gov email. (Id., PageID # 172) In an apology email sent to the LMPD officers, Frisby explained that he was reaching out to his peers for a research project for a course at the University of Louisville. (D.N. 24-7, PageID # 82) He also explained that he was in the process of surveying females from other professions and male officers (id.), though he later admitted he had not surveyed any male officers. (D.N. 27-8, PageID # 192) Frisby asserts that he was forced to write an alternate paper on a different subject due to the backlash. (D.N. 24-3, PageID # 69; D.N. 27-8, PageID # 174) Frisby states that his deputy chief at LMDC told him that he could no longer access any of the people in his focus group and to abandon the project. (D.N. 27-8, PageID # ...


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